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THE LAW 
 
 OF 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 EXHIBITING THEIR RIGHTS, DUTIES 
 AND LIABILITIES, 
 
 TOGETHER WITH 
 
 FULL DIRECTIONS FOR PROCEEDING BOTH IN PROVING 
 A WILL AND ADMINISTERING AN ESTATE ; AS 
 WELL AS FOR THE DISTRIBUTION OF THE 
 EFFECTS, AND THE FINAL SETTLE- 
 MENT OF ACCOUNTS. 
 
 WITH ALL NECESSARY PRACTICAL FORMS. THE WHOLE 
 FORMING A WORK OF GENERAL UTILITY, BUT MORE 
 PARTICULARLY ADAPTED TO THE 
 
 PRACTICE AND LAWS 
 
 OF THE 
 
 STATE OF NEW-YORK. 
 
 By JOHN N. TAYLOR, 
 
 Counsellor at Law. 
 
 NEW-YORK : 
 
 JOHN S. VOORHIES, 20 NASSAU-STREET. 
 
 1851 
 
Entered according to Act of Congress, in the year 1851, by 
 JOHN S. VOORHIES, 
 
 In the Clerk’s Office of the District Court of the Southern District of 
 New-York. 
 
 BAKER, GODWIN n CO., PRINTERS, 
 TRIBUNE BUILDINGS. 
 
KFf/ 
 
 5~»!0 
 
 T2> 
 
 PREFACE. 
 
 This work has been prepared for, and at the re- 
 quest of Mr. Voorhies, the publisher, in consequence 
 of repeated calls upon him, for a plain practical com- 
 pend of the Law of Executors and Administrators. 
 How far this object has been accomplished, the judg- 
 ment of every reader will determine for himself. 
 It is intended to furnish full directions and instruc- 
 tions, for an intelligent discharge of the duties of 
 either office, by any person about to undertake, the 
 settlement of the estate of a deceased friend or rela- 
 tive ; from the time of his applying for letters of 
 administration or of probate, until the final settle- 
 ment of the estate. It is designed to instruct one 
 who has neither a law library at command, nor time 
 and opportunity to consult counsel, in respect to many 
 of those ever varying questions, which arise in the 
 administration of estates ; and with common pru- 
 dence, will be found sufficient to enable him to avoid 
 mistakes, as well as to shield himself from personal 
 liability. Should such an individual, however, find 
 
VI 
 
 PREFACE. 
 
 himself in a difficult position, or obliged to prosecute 
 or defend an action, in his character of executor or 
 administrator, he ought not to act beyond what is 
 here written, without consulting his professional ad- 
 viser. The following pages will show him, all that 
 is necessary to be done when not so embarrassed, 
 and in the concluding chapter he will find, all the 
 practical forms, which are necessary to be filled up 
 and presented by him at the Surrogate’s office, in 
 the discharge of all the ordinary duties of his ad- 
 ministration. 
 
 New-York, January, 1851. 
 
CONTENTS 
 
 PAGE 
 
 CHAPTER I. — Of Administrators, 9 
 
 CHAPTER II. — Of Executors, 30 
 
 CHAPTER III. — Of making an inventory and col- 
 lecting the assets, 57 
 
 CHAPTER IV. — Of paying debts and legacies, and. 
 
 distributing the surplus, 72 
 
 CHAPTER V. — Of rendering an account, and being 
 
 discharged, 106 
 
 CHAPTER VI. — Of proceedings to sell real estate, 121 
 
 CHAPTER VII. — Of guardians appointed by the 
 
 Surrogate, 128 
 
 CHAPTER VIII. — Practical forms and directions, 139 
 
The following Errata have been observed. 
 
 Page 30, §46, line 4, after the words “ New-York,” insert, “as we 
 shall presently see, specify the several classes of persons who are in- 
 competent for this purpose. They also.’' 
 
 Page 91, § 180, line 5, strike out the word “preserve’’ and insert 
 “ procure.” 
 
THE LAW 
 
 OF 
 
 EXECUTORS AND ADMINISTRATORS, 
 
 CHAPTER I. 
 
 OF ADMINISTRATORS. 
 
 § 1. In the early periods of English history, 
 when a man died without making a will, it was pre- 
 sumed that he acknowledged no one as the rightful 
 heir of his property, and the sovereign therefore, as 
 jparens patrice, or general head, took possession of 
 his effects. The hardship of such a deprivation to 
 the legitimate descendants and relatives could not, 
 of course, but be severely felt ; and when, as men 
 came out of that state of servitude and non-exist- 
 ence as regarded their rights, which had been im- 
 posed by the feudal customs of William the Con- 
 queror, they began to acquire a superfluity beyond 
 the means necessary for their present subsistence, 
 they looked with the more distaste upon this unjust 
 abstraction of their property, and doubtless loudly 
 
10 
 
 THE LAW OF 
 
 exclaimed against it. In the framing of Magna 
 Charta, therefore, this matter was cared for, and the 
 subject obtained, by its signature, the concession that, 
 if a freeman should die intestate, his chattels should 
 be distributed by the hands of his near relations and 
 friends, under the inspection of the church. 
 
 § 2. Upon this provision for the fair apportion- 
 ment of the goods of a deceased person amongst 
 those who had the best right to enjoy them, the 
 priesthood of the Romish Church, with a craft that 
 peculiarly distinguished the churchmen of the pe- 
 riod, claimed the privilege of administering the goods 
 of an intestate with their own hands. In the course 
 of time, consequently, the power of seizing the 
 property of such persons was exercised by the 
 bishops instead of the crown. The whole of the 
 chattels were, in the first instance, placed in the cus- 
 tody of the bishop of the diocese in which the per- 
 son died, or in that of his deputy, and, after the de- 
 duction of the partes rationabiles, as they were 
 termed, or one-third for the widow, and another 
 third for the children of the deceased, the remaining 
 third was retained for the payment of his debts, and 
 for pious uses, masses, charities, and other purposes 
 of the like kind, for the benefit of his soul. 
 
 § 3. The temptation, however; was too great, and 
 instead of thus applying the residue of the goods 
 of the departed, the ordinary or bishop almost in- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 11 
 
 variably used them for his own benefit, or for that 
 of his order ; and even unscrupulously refused to 
 pay the just debts of him who was no longer able 
 to satisfy them himself. To remedy these abuses 
 the legislature was obliged to interfere, and take 
 the power of administration entirely from the 
 church, and confer it upon those who were more 
 disposed to a faithful execution of the trust. This 
 produced those English Statutes from which we 
 have copied the law of granting administration in 
 this country. The power of granting such adminis- 
 tration, however, was left by those statutes and still 
 remains in the hands of the bishop, or ordinary, as 
 he was termed. 
 
 § 4. By our American law, this duty is assigned 
 to the courts and magistrates of civil jurisdiction. 
 In some of the states, the probate of wills and the 
 administration of the estates of testators and intes- 
 tates is vested in the county courts. In others it is 
 confided to courts of special jurisdiction, under the 
 various names of the Court of Probates, the Regis- 
 ters’ Court, the Orphans’ Court, the Court of the Or- 
 dinary, and the Surrogate’s Court. The Revised 
 Statutes of each State, particularly the more recent 
 revisions, contain a particular detail of the jurisdic- 
 tion, powers and practice of Probate Courts ; but 
 we shall particularize only those of the state of 
 New- York. 
 
12 
 
 THE LAW OF 
 
 § 5. Before the Revolution, the power of grant- 
 ing letters testamentary and of admistration resided 
 in the governor of that state, as judge of the Pre- 
 rogative Court. It was afterwards vested in a 
 Court of Probates, consisting of a single judge, and 
 so continued until 1787, when Surrogates were 
 authorized to grant such letters as to the estates of 
 persons dying within their respective counties. If 
 the person died out of the state, or, within the state, 
 not being an inhabitant thereof, the granting of the 
 administration was still reserved to the Court of 
 Probates. 
 
 § 6. This practice continued until 1822, when 
 the Court of Probates was abolished, and all the 
 original powers of that court transferred to the Sur- 
 rogates ; each Surrogate had jurisdiction exclusive 
 of every other Surrogate, within his county, when 
 the testator or intestate, was at his death an inhabi- 
 tant of the county, in whatever place he may have 
 died; or not being an inhabitant of the state, died in 
 the county, leaving assets therein, or, not being an 
 inhabitant of the state, died abroad, having assets in 
 the county of the Surrogate ; or, not being an inhab- 
 itant of the state, and dying out of it, assets of such 
 testator or intestate should thereafter come into the 
 county ; or, where no jurisdiction is gained in either 
 of the above cases, and real estate devised by the 
 testator is situated in the county, By the Revised 
 
EXECUTORS AND ADMINISTRATORS. 
 
 13 
 
 Statutes of New-York, whenever an intestate, not 
 being an inhabitant of this State, shall die out of 
 the State, leaving assets in several counties, or as- 
 sets of such intestate shall, after his death, come 
 into several counties, the Surrogate of any county in 
 which such assets shall be, has power to grant let- 
 ters of administration on the estate of such intestate t 
 but the Surrogate who shall first grant letters of ad- 
 ministration on such estate, shall be deemed thereby 
 to have acquired sole and exclusive jurisdiction over 
 such estate, and shall be vested with all the powers 
 incidental thereto. 
 
 § 7. The office of Surrogate was abolished by the 
 Constitution of this State in 1846, and his duties 
 were directed to be performed by the county 
 judges, except in such cases as the legislature should 
 provide for the election of a local officer to discharge 
 the duties of a Surrogate. The jurisdiction of this 
 officer, however, was not changed in other respects, 
 and now remains as it was in 1823. There is, like- 
 wise, a public administrator in the city of New-York, 
 who is authorized to act in cases where there are 
 effects in the City of persons dying in the State, 
 and leaving no widow or next-of-kin competent and 
 willing to administer, the County Treasurer in each 
 county acts as public administrator in the like cases. 
 
 § 8. Administration is generally directed to issue 
 to the nearest relative of the deceased, who is not 
 2 * 
 
14 
 
 THE LAW OF 
 
 under some legal disability. If none of the kindred 
 are willing to act, a creditor may be appointed to 
 distribute the goods for the benefit of himself and 
 such others as ought to obtain the proceeds, Where 
 there is no one entitled to take out letters of admin- 
 istration, the ordinary may appoint whomsoever he 
 pleases to collect the property, and pay it over to 
 those who have obtained, by the death of the testa- 
 tor, a legal right to them. Administrators may be 
 also nominated where a will has been made and no 
 executors appointed, or where executors have been 
 appointed, and have refused to act, or are legally 
 disqualified. The usual custom, when an executor 
 refuses to act, is to appoint administration through 
 the residuary legatee — the party to whom the re- 
 mainder of the property is bequeathed after payment 
 of all the legacies and other legal liabilities of the 
 property of the deceased. 
 
 § 9. There is generally but little trouble in ascer- 
 taining who is entitled in the first instance to admin- 
 ister upon the effects of a deceased intestate, but when 
 the matter becomes complicated by the death, ab- 
 sence, or subsequent incapacity of the person who 
 has taken out administration, and partly fulfilled the 
 intents of his office, confusion often arises, and much 
 loss is incurred. At the least, bitter animosities oc- 
 casionally prevail, and that which should have proved 
 a blessing becomes a curse, and strifes are engendered, 
 
EXECUTORS AND ADMINISTRATORS. 
 
 15 
 
 which only terminate with the lives of the individuals 
 who suffer from them ; we will, therefore, endeavor 
 to lay down, as far as the authorities will enable us, 
 and as clearly as we can, the rules which guide the 
 precedence of parties entitled to administer the in- 
 testate’s effects under such circumstances. 
 
 § 10. We will premise, however, that when two 
 persons obtain power to administer, an& one of them 
 dies, the survivor becomes sole administrator, as is 
 the case in an executorship. But where there is 
 only one administrator, and he dies before the full 
 execution of his trust, it reverts to the surrogate ; 
 for the administrator is merely the officer and dele- 
 gate of the surrogate ; one in whom the deceased 
 reposed no trust, and who, therefore, cannot hand 
 down any powers, and those which he had conse- 
 quently return to him who gave them. Nor can 
 these powers be derived through any party but the 
 surrogate ; for, if an individual die, leaving a will, in 
 which he has appointed an executor, and that ex- 
 ecutor subsequently die intestate, the administrator 
 of the executor takes no power to interfere in the 
 estate of the party for whom his intestate was ex- 
 ecutor, but that estate must obtain a new executor 
 in the person of an administrator appointed by the 
 surrogate, like every other vacant estate. 
 
 § 11. Administration will be granted to the rela- 
 tives of the deceased, who would be entitled to sue- 
 
16 
 
 THE LAW OF 
 
 ceed to his personal estate, if they, or any of them, 
 will accept the same, in the following order : 
 
 1. to the widow; 2. to the children; 3. to the 
 father; 4. to the brothers; 5. to the sisters; 6. to 
 the grandchildren ; 7. to any other of the next-of- 
 kin who would be entitled to share in the distribution 
 of the estate. If any of the persons so entitled be 
 minors, administration will be granted to their guar- 
 dians ; if none of the said relatives or guardians will 
 accept the same, then to the creditors of the de- 
 ceased ; and the creditor first applying, if otherwise 
 competent, will be entitled to a preference. 
 
 If no creditor apply, then to any other person or 
 persons legally competent : but in the city of New- 
 York, the public administrator will have preference, 
 after the next-of-kin, over creditors and all other 
 persons ; and in the other counties of this State, the 
 County Treasurer will have preference next after 
 creditors, over all other persons. And in the case 
 of a married woman dying intestate, her husband 
 will be entitled to administration, in preference to 
 any other person. 
 
 § 12. When there are several persons of the same 
 degree of kindred to the intestate, entitled to admin- 
 istration, they shall be preferred in the following 
 order : First, Males to females : Second , Relatives 
 of the whole blood to those of the half blood t 
 Third, Unmarried women to such as are married : 
 
EXECUTORS AND ADMINISTRATORS. 
 
 17 
 
 and when there are several persons equally entitled 
 to administration, the Surrogate may, in his discre- 
 tion, grant letters to one or more of such persons. 
 
 § 13. Administration is usually granted to the 
 widow when there is no sufficient reason for acting 
 otherwise ; but, as this is sometimes the case, and as 
 the Surrogate has power to grant it either to the 
 widow or next-of-kin, or both, he will exclude the 
 widow whenever either she is incompetent, as from 
 lunacy, negligence, or abandoned character, or where 
 there is another person more eligible for the duty, as 
 where any near relative is left guardian to the 
 younger children. Should the widow renounce the 
 administration, the rule is to grant it to the children 
 or other next-of-kin in preference to creditors. 
 
 § 14. The court always prefers that person who is 
 most eligible ; and, where the option was between 
 two persons in equal degree of relationship, and one 
 of them had been twice a bankrupt, the court re- 
 jected him and took the other. Where, however, 
 there is no material objection, and no particular 
 reasons for preference, the court will put the admin- 
 istration into the hands of him to whom the majority 
 of persons interested are desirous of intrusting the 
 estate. But degree of relationship is a primary mo- 
 tive of selection on the part of the court, and a pri- 
 mary title, other things being equal, on the part of 
 the applicant for letters of administration. 
 
18 
 
 THE LAW OF 
 
 § 15. A husband, as such, if otherwise competent 
 according to law, will be entitled to administration 
 on the estate of his wife, and must give bonds as 
 other persons ; but shall be liable as administrator 
 for the debts of his wife, only to the extent of the 
 assets received by him. If he do not take out letters 
 of administration on her estate, he shall be presumed 
 to have assets in his hands sufficient to satisfy her 
 debts, and shall be liable therefor. And if he shall 
 die leaving any assets of his wife unadministered, 
 they will pass to his executors or administrators, as 
 part of his personal estate, but shall be liable for her 
 debts to her creditors, in preference to the creditors 
 of the husband. If letters of administration on the 
 estate of a married woman be granted to any other 
 person than her husband, by reason of his neglect, 
 refusal or incompetency to take the same, such ad- 
 ministrator shall account for, and pay over, the assets 
 remaining in his hands, after the payment of debts, 
 to such husband or his personal representatives. 
 
 § 16. In all cases where persons not inhabitants 
 of this State shall die leaving assets in this State, if 
 no application for letters of administration be made 
 by a relative entitled thereto, and legally competent, 
 and it shall appear that letters of administration on 
 the same estate, or letters testamentary, have been 
 granted by competent authority, in any other state 
 of the United States, then the person so appointed. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 19 
 
 on producing such letters, shall be entitled to letters 
 of administration in preference to creditors, or any 
 other persons, except the public administrator in the 
 city of New- York. 
 
 § 17. If any person who would otherwise be en- 
 titled to letters of administration as next of kin, or to 
 letters of administration with the will annexed, as 
 residuary or specific legatee, shall be a minor, such 
 letters shall be granted to his guardian, being in all 
 respects competent, in preference to creditors or 
 other persons. 
 
 § 18. Administration may be granted to one or 
 more competent persons, although not entitled to 
 the same, with the consent of the person entitled, to 
 be joined with such person : which consent shall be 
 in writing, and be filed in the office of the Surrogate. 
 In case no such consent can be procured, application 
 must be made to the Surrogate, in the first instance 
 for a citation to all those having a preference, to 
 show cause, at a day to be therein specified, why 
 administration should not be granted to such appli- 
 cant. 
 
 § 19. Letters of administration will not be granted 
 to a person convicted of an infamous crime, nor to 
 any one incapable by law of making a contract ; nor 
 to a person not a citizen of the United States, unless 
 such person reside within this State ; nor to any one 
 who is under twenty-one years of age ; nor to any 
 
20 
 
 THE LAW OF 
 
 person who shall be judged incompetent by the 
 Surrogate, to execute the duties of such trust, by 
 reason of drunkenness, improvidence, or want of un- 
 derstanding ; nor to any married woman. But where 
 a married woman is entitled to administration, it may 
 be granted to her husband in her right and behalf ; 
 and if it appears that her husband has become inca- 
 pacitated by some mental, physical or legal disability, 
 and that she has thus acquired the right of acting 
 alone, a stranger may join in security with her, and 
 she may proceed in the administration as if she were 
 unmarried. If she be the only next of kin, and a 
 minor, and her husband not thus incapacitated, she 
 may elect him to be her guardian, during her mi- 
 nority, to take the administration for her use and 
 benefit, but, on her attaining majority, the grant 
 ceases to be operative, and a new power may be 
 committed to her. 
 
 § 20. The term “infamous crime,” as used in the 
 statute, includes every offence punishable with death 
 or by imprisonment in a state prison, and no other. 
 
 § 21. Letters of administration may be granted 
 at any time after the death of the intestate. Proof 
 must be made to the Surrogate of the death of the 
 intestate, and that he left no will ; and the Surrogate 
 is required to examine the person applying for letters 
 of administration, on oath, touching the time, place, 
 and manner of the death, and whether or not the 
 
EXECUTORS AND ADMINISTRATORS. 
 
 21 
 
 party dying left a will ; and he may also in like 
 manner examine any other person, and may compel 
 such person to attend as a witness for such purpose. 
 
 § 22. Every person appointed administrator must, 
 before receiving letters, execute a bond to the 
 people of this State, with two or more competent 
 sureties, to be approved by the Surrogate, and to 
 be jointly and severally bound. The penalty in 
 such bond will not be less than twice the value of 
 the personal estate of which the deceased died pos- 
 sessed ; which value is to be ascertained by the 
 Surrogate, by the examination on oath of the party 
 applying, and of every other person he may think 
 proper to examine. The bond will be conditioned, . 
 that such administrator shall faithfully execute the 
 trust reposed in him as such, and also that he shall 
 obey all orders of such Surrogate, touching the ad- 
 ministration of the estate committed to him. 
 
 § 23. Provision is also made by the statute for re- 
 newing this security in case it should at any time be- 
 come insufficient ; for, if any person interested in the 
 estate of the deceased, shall discover that the sureties 
 are becoming insolvent ; or have removed, or are 
 about to remove from this State, or that from any 
 other cause they are insufficient, he may apply to the 
 Surrogate who granted the letters of administration 
 for relief. 
 
 § 24. If the Surrogate is satisfied that the matter 
 3 
 
22 
 
 THE LAW OF 
 
 requires investigation, he shall issue a citation to the 
 administrator, to appear before him to show cause 
 why he should not give further sureties, or be su- 
 perseded in the administration : which citation shall 
 be served personally on the administrator, at least 
 six days before the return day thereof ; or if he 
 shall have absconded, or cannot be found, it may be 
 served by leaving a copy at his last place of resi- 
 dence. 
 
 § 25. On the return of the citation, or at such 
 other time as the Surrogate shall appoint, he will 
 proceed to hear the proofs and allegations of the 
 parties ; and if it shall satisfactorily appear that the 
 sureties are for any cause insufficient, the Surrogate 
 may make any order requiring such administrator 
 to give further sureties in the usual form, within a 
 reasonable time, not exceeding five days. 
 
 § 26. If the administrator neglect to give further 
 sureties to the satisfaction of the Surrogate, within 
 the time prescribed, the Surrogate will by order re- 
 voke the letters of administration issued to such ad- 
 ministrator, whose authority and rights as an ad- 
 ministrator shall thereupon cease. 
 
 § 27. When either or all of the sureties of any 
 administrator shall desire to be released from re- 
 sponsibility, on account of the future acts or de- 
 faults of such administrator, they may make appli- 
 tion to the Surrogate who granted letters of admin- 
 stration, for relief. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 23 
 
 § 28. The Surrogate will thereupon issue a cita- 
 tion to such administrator, requiring him to appear 
 before such Surrogate, at a time and place to be 
 therein specified, and give new sureties, in the usual 
 form, for the faithful discharge of his duties. 
 
 § 29. If the administrator gives new sureties to 
 the satisfaction of the Surrogate, the Surrogate may- 
 make an order that the surety or sureties who ap- 
 plied for relief shall not be liable on their bond for 
 any subsequent act, default or misconduct of the ad- 
 ministrator. 
 
 § 30. But if the administrator neglects to give 
 new sureties to the satisfaction of the Surrogate, on 
 the return of the citation, or within such reasonable 
 time as the Surrogate shall allow, not exceeding five 
 days, the Surrogate will revoke the letters of admin- 
 istration issued to such administrator, whose author- 
 ity and rights as an administrator shall thereupon 
 cease. 
 
 31. In all cases in which letters of administration 
 shall have been granted to more than one person, 
 and the Surrogate granting them shall have revoked 
 the same, as to part only of such administrators, 
 the person or persons whose letters have not been 
 revoked, shall have the further administration of the 
 respective estates subsequent to such revocation : 
 any suit brought previous to such revocation, may 
 be continued the same as if no such revocation had 
 
24 
 
 THE LAW OF 
 
 taken place. In all other cases of revocation the 
 Surrogate shall grant administration of the goods, 
 chattels and credits, not administered, in the manner 
 prescribed by law. 
 
 § 32. The Surrogate is also authorized to make 
 an order requiring an administrator, executor or 
 guardian to give additional security, whenever it 
 shall appear that the penalty of the bond taken from 
 such executor, administrator or guardian, is inade- 
 quate in amount. And in case of non-compliance 
 with such order, the Surrogate may revoke the let- 
 ters granted by him to such executor, administrator 
 or guardian. 
 
 § 33. The Revised Statutes further provide, that 
 whenever an executor or administrator shall refuse 
 or omit to perform any decree made against him by 
 a Surrogate having jurisdiction, for rendering an 
 account, or upon a final settlement, or for the pay- 
 ment of a debt, legacy, or distributive share, such 
 Surrogate may cause the bond of such executor or 
 administrator to be prosecuted, and shall apply the 
 moneys collected thereon in satisfaction of such de- 
 cree, in the same manner as the same ought to have 
 been applied by such executor or administrator. 
 
 § 34. In the event of there being, as is some- 
 times the case, no fit and proper person to administer 
 to the goods of the intestate, the Surrogate has 
 power to grant letters to some one to collect the 
 
EXECUTORS AND ADMINISTRATORS. 
 
 25 
 
 goods of the deceased, and thus assume the office 
 of executor or administrator himself. So in case 
 of a contest relative to the proof of a will, or 
 to granting letters testamentary, or of administra- 
 tion, with the will annexed, or of administration in 
 case of intestacy, or when by reason of absence from 
 this State of any executor named in a will, or for 
 any other cause a delay is necessarily produced in 
 granting letters, the Surrogate authorized to grant 
 the same, may, in his discretion, issue special letters 
 of administration, authorizing the preservation and 
 collection of the goods of the deceased. Every 
 collector so appointed has authority to collect the 
 goods, chattels, personal estate and debts of the de- 
 ceased, and to secure the same at such reasonable 
 expense as the Surrogate shall allow, and for these 
 purposes he may maintain suits as administrator. 
 Under the direction of the Surrogate he may sell 
 such of the goods of the deceased as shall be deem- 
 ed necessary for the preservation and benefit of the 
 estate, after the same shall have been appraised. 
 
 § 35. Upon letters testamentary, or of adminis- 
 tration being granted, the power and authority of 
 such collector will cease ; but any suit brought by 
 him may be continued by the executor or adminis- 
 trator, in the name of such collector, which he shall 
 not have power to discontinue or release. And 
 3* 
 
26 
 
 THE LAW OF 
 
 such collector must, on demand, deliver to the ex- 
 ecutor or administrator all the property and money 
 of the deceased in his hands, and render an account 
 on oath to the Surrogate, of all his proceedings, up- 
 on being cited for that purpose, or without such 
 citation. The delivery and account may be enforced 
 by an order of the Surrogate, and by attachment, 
 to be issued by him, as in other cases of administra- 
 tors. 
 
 § 36. An administration becomes void on the pre- 
 sentation and proof of a will which has been found, 
 and subsequently proved by the executor, upon 
 whatever cause it may happen not to have been 
 produced at an earlier period, whether it were du- 
 bious or undiscovered, or whether the executor 
 were abroad or concealed at the time of granting 
 the administration; or whether there be a will 
 found with executors named, and they die, or one 
 dies, and the other refuses to act, provided admin- 
 istration be granted before that refusal is expressed, 
 although he should afterwards actually refuse. 
 
 § 37. Administration also becomes voidable, that 
 is, liable to be revoked, when granted to another 
 party on account of the incapacity of the next-of- 
 kin, and that incapacity is removed ; or if the 
 party to whom it has been granted become de- 
 ranged, or otherwise incapable ; or if it be granted 
 
EXECUTORS AND ADMINISTRATORS. 
 
 27 
 
 to a creditor before the renunciation of the next-of- 
 kin. In all these cases administration is voidable, 
 and may be repealed at the discretion of the court. 
 
 § 38. If at any time it shall be made to appear 
 to the Surrogate that letters of administration have 
 been granted on, or by reason of, false representa- 
 tions made by the person to whom they were grant- 
 ed, or that the, administrator has become incompe- 
 tent hy law to act as such, in consequence of drunk- 
 enness, improvidence or want of understanding, the 
 Surrogate must revoke such letters. So if a woman 
 marries after being appointed administratrix, he may 
 revoke the appointment on the application of any 
 person interested. 
 
 § 39. It is the established doctrine, however, 
 that all sales of property made in good faith, and 
 all lawful acts done either by administrators be- 
 fore notice of a will, or by executors or administra- 
 tors who may be removed or superseded, or become 
 incapable, shall remain valid, and not be impeached 
 on any will appearing, or by any subsequent revo- 
 cation or superseding of the authority of such exec- 
 utors or administrators. 
 
 § 40. Should an executor appear after administra- 
 tion granted, and the administrator shall have paid 
 legacies or other moneys, he is entitled to deduct the 
 sum from any damages which may be recovered 
 against him by the executors. If a creditor obtain 
 
28 
 
 THE LAW OF 
 
 administration he has a right to maintain it against 
 all the world, without suit against him ; and has 
 liberty to show cause why it should not be revoked ; 
 but, if a creditor obtain administration, pays his debt, 
 and then goes away, a new administration is to be 
 granted. 
 
 § 41. The Surrogate has full power to restrain the 
 administrator from acting in the administration, 
 during the pendency of proceedings to revoke the 
 letters of administration. In case one of several ad- 
 ministrators shall die, become lunatic, convict of an 
 infamous offence, or otherwise become incapable of 
 executing the trust reposed in him ; or in case the 
 letters of administration shall be revoked or annulled 
 in respect to any one administrator, then the remain- 
 ing administrators shall proceed and complete the 
 administration. 
 
 § 42. There is another species of administration 
 which may be mentioned here, namely, that of an 
 administration with the will annexed. If all the 
 persons named in a will as executors, renounce, or 
 neglect to qualify, or shall be legally incompetent, 
 then letters testamentary will be issued, and admin- 
 istration with the will annexed granted, as if no ex- 
 ecutors were named in the will, to the residuary 
 legatees, or some, or one of them, if there be any ; 
 if there be none that will accept, then to any princi- 
 pal or specific legatee, if there be any ; and if there be 
 
EXECUTORS AND ADMINISTRATORS. 
 
 29 
 
 none, then to the widow and next of kin of the tes- 
 tator, or to any creditor of the testator, in the same 
 manner and under the like regulations and restric- 
 tions, as letters of administration in cases of intes- 
 tacy. 
 
 § 43. Administration with the will annexed may 
 also be granted, where the will has been duly 
 proved, and letters testamentary granted thereon, by 
 the courts of a foreign state or country ; as executors 
 appointed by the courts of a foreign state or country 
 have no power to act as such in this State. And unless 
 some of the executors named in the will are compe- 
 tent to be appointed to act as such, by the Surro- 
 gate having jurisdiction within this State, it will be 
 necessary to appoint an administrator with the will 
 annexed. 
 
 § 44. In all cases where letters of administration 
 with the will annexed are granted, the will of the 
 deceased is to be observed and performed ; and the 
 administrators with such will have all the rights and 
 powers, and are subject to the same duties, as if 
 they had been named executors in the will. 
 
30 
 
 THE LAW OF 
 
 CHAPTER II. 
 
 OF EXECUTORS. 
 
 § 45. When a person makes a will, he generally 
 names one or more persons to carry out its pro- 
 visions after his death ; the persons so appointed are 
 called executors. A will is sometimes made for no 
 other purpose than to appoint executors, and the 
 distribution of the property is left to take the course 
 provided by law. Executors represent the person 
 of their testator, and are hence called personal rep- 
 resentatives ; where real estate is devised to them, 
 they are, properly speaking, as to that estate trus- 
 tees. The same person may be both executor and 
 trustee under the same will ; but as trustees they 
 cannot be called to account before the Surrogate. 
 
 § 46. There are, at common law, certain disabili- 
 ties arising from social, physical, or mental defects, 
 which prevent some persons from fulfilling the office 
 of an executor ; but the statutes of New- York de- 
 clare that every male person of the age of eighteen 
 years or upwards, and every female, (whether mar- 
 ried or not,) of the age of sixteen years or upwards, 
 of sound mind and memory, and no others, may give 
 or bequeath his or her personal estate, by will in 
 writing. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 31 
 
 § 4V. Formerly any person who interfered with 
 the estate of the deceased was liable to become an 
 j Executor de son tort, or of his own wrong. But now 
 in New-York, “no person shall be liable to an ac- 
 tion as Executor of his own wrong, for haying re- 
 ceived, taken, or interfered with, the property or ef- 
 fects of a deceased person ; but shall be responsible 
 as a wrong-doer in the proper action to the Execu- 
 tors, or general or special Administrators of such 
 deceased person, for the value of any property or 
 effects so taken or received, and for all damages 
 caused by his acts, to the estate of the deceased.” 
 
 § 48. Formerly also, where the sole, or last sur- 
 viving Executor, deceased, his Executor or Admi- 
 nistrator was entitled to complete the settlement of 
 the estate of the first Testator, but this also has been 
 altered by the Revised Statutes, which enact that, 
 “ an Executor of an Executor shall have no autho- 
 rity to commence or maintain any action or proceed- 
 ing relating to the estate, effects or rights of the 
 Testator of the first Executor, or to take any charge 
 or control thereof, as such Executor.” 
 
 § 49. The authority of an Executor of course 
 arises from the will, and it may be either expressed 
 or implied ; absolute, or qualified ; exclusive, or par- 
 ticipated with others. An executor is appointed by 
 construction, when a testator merely recommends or 
 commits to him the discharge of those duties which 
 
32 
 
 THE LAW OF 
 
 it is the business of an executor to fulfil, by investing 
 him with those rights to which an executor is enti- 
 tled ; or, by any of those other acts by which the 
 will of a testator to invest him with the executorship 
 may be plainly evident to any stranger or disinterest- 
 ed person. One of the plainest of these modes 
 would be, beside that of directly naming a party as 
 executor, to direct in the will that any particular 
 person shall, after his death, have his personal pro- 
 perty, and after payment of his debts dispose of it 
 as he may think proper. A declaration that a par- 
 ticular individual shall have the administration of his 
 goods, or that he should pay his debts, and expenses 
 of funeral, and of proving his will, is sufficient to 
 constitute an executor. 
 
 § 50. Thus, when in his will a person directed 
 that, after payment of his debts, funeral expenses, 
 and several legacies which he specified, his wife 
 should have the residue of his property, on giving 
 security for the performance of the direction of his, 
 will, she was counted the right executor. In a case 
 where it was shown that an infant was appointed 
 executor, but that two other individuals were named 
 as overseers for him till he came of age, with power 
 to control and dispose of the testator’s effects, and 
 pay and receive debts till the infant came of age, it 
 was held that they were to all intents and purposes 
 executors, till the majority of the infant should be 
 
EXECUTORS AND ADMINISTRATORS. 
 
 33 
 
 attained. So, a person dying in Scotland directed 
 that the legatees should appoint two persons to exe- 
 cute his bequests ; probate was granted to the indi- 
 viduals named by the parties, and they became ex- 
 ecutors of the will. 
 
 § 51. The appointment of an executor is absolute 
 and unqualified when he is constituted certainly, im- 
 mediately, and without any restriction as to time. 
 It is qualified when any restriction is imposed, as 
 when one person is appointed to be executor after 
 the death of another, who precedes him in the office ; 
 or where two or more individuals are constituted ex- 
 ecutors, and upon their death, or the death of either 
 of them, other individuals, specified by the testator, 
 are to succeed them ; or where one person is to be 
 executor, on attaining his majority, and he is yet an 
 infant at the testator’s death, and another individual 
 is to act in the mean time ; or where two individuals 
 are appointed executors, and one is restricted from 
 acting during the life of the other ; or where two or 
 more individuals are appointed, and others are spe- 
 cified on their refusing to act ; or where an individual 
 is appointed on condition of his giving security to 
 fulfil the directions of the will. Executors may also 
 be qualified or restricted in their powers in having 
 a certain portion of the testator’s estate to appropri- 
 ate. Thus, one executor may be appointed for the 
 plate and household goods, another for farming stock, 
 4 
 
34 
 
 THE LAW OF 
 
 another for leases, and a fourth for debts, or accord- 
 ing to any other specific division of the property. 
 So, also, one executor may be appointed for the pro- 
 perty in one county, and another for that in ano- 
 ther ; or more especially when the property lies in 
 different countries instead of counties. But, whether 
 there be one executor or more, the person or per- 
 sons appointed for carrying out the provisions of a 
 will are always considered, by the law, as one indi- 
 vidual. 
 
 § 52. In declaring who are competent to act as ex- 
 ecutors, and who not, the Revised Statutes of New- 
 York provide that no person shall be deemed com- 
 petent to serve as an executor, who, at the time the 
 will is proved, shall be — 
 
 “ 1. Incapable in law of making a contract, (ex- 
 cept married women ;) 
 
 “ 2. Under the age of twenty-one years ; 
 
 “3. An alien, not being an inhabitant of this 
 State ; 
 
 “ 4. Who shall have been convicted of an infa- 
 mous crime ; 
 
 “ 5. Who, upon proof, shall be adjudged incom- 
 petent by the Surrogate to execute the duties of 
 such trust, by reason of drunkenness, improvidence, 
 or want of understanding. 
 
 “ If any such person be named as the sole execu- 
 tor in any will, or if all the persons named therein 
 
EXECUTORS AND ADMINISTRATORS. 
 
 35 
 
 as executors, be incompetent, letters of administra- 
 tion, with the will annexed, shall be issued, as in the 
 case of all the executors renouncing.” 
 
 § 53. The statute further provides, that “ no mar- 
 ried woman shall be entitled to letters testamentary, 
 unless her husband consent thereto, by a writing to 
 be filed with the Surrogate ; and by giving such 
 consent, he shall be deemed responsible for her acts 
 jointly with her.” 
 
 § 54. The statute speaks of disabilities at the time 
 the will is proved ; if, therefore, an Executrix proves 
 the will, and marry, she will still be entitled to act 
 as Executrix, jointly with her husband, but not with- 
 out her husband ; although the husband can act in 
 the administration, for all purposes, with or without 
 her assent. If the husband die, she will continue 
 entitled to act, but if the wife die, the husband’s 
 authority will cease. 
 
 §55. If an Executrix marries after being appointed, 
 the statute leaves it in the discretion of the Surro- 
 gate, upon the application of any person inte- 
 rested, whether to revoke the appointment or 
 not. Such authority to the Surrogate was highly 
 necessary, as the husband may be a very improper 
 person to have charge of the estate, and it can only 
 be prevented by revoking the letters testamentary 
 granted to the wife. 
 
36 
 
 THE LAW OF 
 
 § 56. If an infant attain the age of twenty-one years, 
 or a married woman become a widow, or be divorced, 
 or an alien become an inhabitant of this State, or a 
 citizen of the United States, before the execution of 
 the will is completed, such person will be entitled to 
 act as Executor in the further execution thereof, 
 upon obtaining supplementary letters testamentary 
 from the Surrogate. Such letters can be obtained 
 by application to the Surrogate, in the same manner 
 as original letters are obtained. 
 
 § 57. At common law an Executor had the same 
 power over the property of the testator before, as after, 
 the probate of the will, but this was altered by the 
 New-York Revised Statutes, which provide that 
 “ no executor named in a will shall, before letters 
 testamentary are granted, have any power to dispose 
 of any part of the estate, except to pay funeral 
 charges, nor to interfere with such estate in any 
 manner, further than is necessary for its preservation. 
 Unless the Executor, therefore, intends to take out 
 letters testamentary, and to act as Executor, he 
 should not interfere in any manner with the estate, 
 but in justice to those interested ought at once make 
 known his determination, and renounce the trust, so 
 that an Administrator with the will annexed may be 
 appointed to take charge of the property. 
 
 § 58. It is a duty to the deceased that his remains 
 should be interred with all decency and respect, and 
 
EXECUTORS AND ADMINISTRATORS. 37 
 
 the expenses of the funeral are, therefore, allowed 
 by law before any other charges. But, then, it must 
 be conducted in strict proportion to the estate left 
 by the deceased ; and, if the executor or administra- 
 tor be guilty of any extravagance, he is liable to a 
 charge for waste , which, upon suit by the creditors 
 or legatees, he would have to satisfy out of his own 
 pocket. If the executor or administrator neglect to 
 give the requisite orders for the funeral he is liable 
 to the person who furnishes it, as if he had given a 
 promise to that effect. 
 
 § 59. No person who has accepted an executorship 
 has power to resign the duty, but any one may decline 
 it. A mere verbal refusal is not sufficient, for the 
 fact of refusal must be recorded in order that the 
 Surrogate may grant administration, with the will 
 annexed, to another party. He may voluntarily re- 
 nounce the office, by a writing to be signed by him, 
 and attested by two witnesses ; or in case he neglect 
 to qualify within thirty days after the will shall be 
 proved, the Surrogate will, upon application of any 
 other executor, or of the widow, or any of the next 
 of kin, or any legatee, or creditor of the testator, 
 summon him to appear and qualify within a certain 
 time, to be limited by the Surrogate, and if he refuse 
 to qualify, after being personally served with such 
 summons, for at least fourteen days before the return 
 4* 
 
38 
 
 THE LAW OF 
 
 day thereof, he shall be deemed to have renounced, 
 and the Surrogate will enter a decree to that effect. 
 After renunciation he cannot resume the executor- 
 ship, but is in the same situation as if he had not 
 been named in the will. 
 
 § 60. If there be two executors, and one renounce, 
 the duty and authority will fall upon the other ; for, if 
 there be more executors than one, administration 
 with the will annexed will not be granted, unless 
 they all renounce. 
 
 § 61. Either of the executors named in the will, or 
 any devisee, legatee or other person interested in the 
 estate, may apply to the proper Surrogate to have 
 the will proved, at any time after the death of the 
 testator. 
 
 § 62. Surrogates of the several counties have exclu • 
 ■sive jurisdiction to take the proof of wills, under the 
 following circumstances, viz. : 
 
 “1. Where the testator at, or immediately pre- 
 vious to his death, was an inhabitant of the county 
 of such Surrogate, in whatever place such death may 
 have happened ; 
 
 “ 2. Where the testator, not being an inhabitant 
 of this State, shall die in the county of such Surro- 
 gate, leaving assets therein ; 
 
 “3. Where the testator, not being an inhabitant 
 of this State, shall die out of the State, leaving assets 
 in the county of such Surrogate ; 
 
EXECUTORS AND ADMINISTRATORS. 
 
 39 
 
 “ 4. Where a testator not being an inhabitant of 
 this State, shall die out of the State, not leaving 
 assets therein, but assets of such testator shall there- 
 after come into the county of such Surrogate ; 
 
 “5. Where no Surrogate has gained jurisdiction 
 under either of the preceding clauses, and any real 
 estate devised by the testator shall be situated in the 
 county of such Surrogate.” 
 
 § 63. Where a will of personal property has been 
 proved before any Surrogate, he has jurisdiction, ex- 
 clusive of every other Surrogate , over the executors, 
 and of granting letters testamentary, and of adminis- 
 tration with the will annexed, with all the powers 
 incident thereto. 
 
 § 64. When the Executor or other person intends to 
 apply to the Surrogate for the purpose of proving 
 the will, he should ascertain, and be able to prove, 
 by his own oath, or the oath of some other person, 
 the names and places of residence of the widow and 
 children of the testator ; and in case of the death of 
 any child of the testator, the names and places of 
 residence of the children of any such deceased child ; 
 and if the deceased child were a daughter, the name 
 and place of residence of her husband, if he survive ; 
 also whether any such persons are minors, and the 
 names and places of residence of the general guar- 
 dians of such minors, if they have any. 
 
 § 65. He should take the will, if in his possession, to 
 
40 
 
 THE LAW OF 
 
 the Surrogate, and leave it with him : if not in his pos- 
 session, he must either procure it from the person 
 having it in custody, or in case such person refuses 
 to deliver it, or to produce it before the Surrogate 
 voluntarily, the person intending to apply to have 
 the will proved, must apply to the Surrogate for a 
 citation to compel the person in whose custody or 
 possession the will is, to produce it before the Sur- 
 rogate. 
 
 § 66. On application to the Surrogate, he shall as- 
 certain by satisfactory evidence, the following facts : 
 
 “ 1. If the will relate exclusively to real estate, 
 the names and places of residence of the heirs of the 
 testator, or that upon diligent inquiry the same can- 
 not be ascertained ; 
 
 “ 2. If the will relate exclusively to personal es- 
 tate, the names and places of residence of the widow 
 and next-of-kin of the testator, or that upon diligent 
 inquiry the same cannot be ascertained ; 
 
 “ 3. If the will relate to both real and personal 
 estate, the names and places of residence of the 
 heirs, widow and next-of-kin of the testator, or that 
 upon diligent inquiry the same cannot be ascer- 
 tained. 5 ’ 
 
 The Surrogate must also ascertain whether any 
 and which of the persons mentioned in the preceding 
 section are minors, and the names and places of resi- 
 dence of their general guardians, if they have any ; 
 
EXECUTORS AND ADMINISTRATORS. 
 
 41 
 
 and if there is no general guardian within this State, 
 the Surrogate shall appoint a special guardian for 
 such minor, to take care of his interest in the premi- 
 ses, with the written consent of the person so ap- 
 pointed to serve as such. The testamentary guar- 
 dian named in the will to be proved, will not for this 
 purpose be deemed a general guardian. 
 
 § 67. The Surrogate then issues a citation requiring 
 the proper person, at a certain time and place, to 
 appear and attend the probate of the will : the cita- 
 tion states who has applied for the proof of the will, 
 and whether it relates exclusively to either real or 
 personal estate ; it is to be directed to the proper 
 persons by name, stating their places of residence, or 
 if any of them are minors, to their guardians. And 
 if the name or place of residence of any person who 
 ought to be cited cannot be ascertained, such fact 
 shall be stated in the citation. 
 
 § 68. The citation must be served on the persons to 
 whom it is directed, as follows : 
 
 “1. On such as reside in the same county with 
 the Surrogate, or an adjoining county, by delivering 
 a copy to such person, at least eight days before the 
 day appointed for taking the proof ; or by leaving a 
 copy at least eight days as aforesaid, at the dwelling 
 house or other place of residence of such person, 
 with some individual of suitable age and discretion, 
 and under such circumstances as shall induce a rea- 
 
42 
 
 THE LAW OF 
 
 sonable presumption in the mind of the Surrogate, 
 that the copy came to the hands or knowledge of 
 the person to be served with it, in time for him to 
 attend the probate of the will ; 
 
 “ 2. On such as reside in any other county in this 
 State, by delivering a copy personally to such person, 
 or leaving it at his dwelling house or other place of 
 residence, in the manner and under the circumstances 
 above mentioned, at least fifteen days before the day 
 appointed for taking the proof ; 
 
 “ 3. On such persons as do not reside in this State, 
 citations may be served by delivering a copy per- 
 sonally to such persons, or leaving it at his or her 
 dwelling house, or other place of residence, not less 
 than fifteen days nor more than ninety days before 
 the day appointed for taking proof of any will ; and 
 on such persons as do not reside in this State, or 
 whose places of residence cannot be ascertained, by 
 publishing a copy of the citation in the State paper 
 for six weeks previous to the day appointed for 
 taking the proof.” 
 
 § 69. Before proceeding to take the proof of any 
 will, the Surrogate will require satisfactory evidence, 
 by affidavit, of the service of the citation, in the mode 
 prescribed by law. If it has not been duly served 
 on all the persons who ought to receive notice, the 
 Surrogate may adjourn the proceedings and issue a 
 further citation for the purpose of bringing in such 
 persons. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 43 
 
 § *70. Upon proof being made of the due service of 
 the citation, the Surrogate will cause the witnesses to 
 be examined before him ; and the proofs and examina- 
 tions to be reduced to writing. Two at least of the 
 witnesses to such will, if so many are living in this 
 State, and of sound mind, and are not disabled from 
 age, sickness or infirmity from attending, must be 
 produced and examined ; and the death, absence, 
 insanity, sickness, or other infirmity of any of them, 
 must be satisfactorily shown to the Surrogate taking 
 such proof ; the Surrogate will inquire particularly 
 into the facts and circumstances before establishing 
 the same or granting letters testamentary or of ad- 
 ministration thereof. 
 
 § 71. If any person interested in the will shall, be- 
 fore probate made, file with the Surrogate a request in 
 writing that all the witnesses to the will, or any other 
 material witness, though he may not be a subscribing 
 witness, shall be examined ; then all such witnesses 
 living in this State, and of sound mind, and who are 
 not disabled from age, sickness or infirmity, from 
 attending, shall be produced and examined : and the 
 death, absence, insanity, sickness, or other infirmity 
 of any of them, shall be satisfactorily shown to the 
 Surrogate before taking such proof. 
 
 § *72. If any such aged, sick or infirm witness, reside 
 in the same county with the Surrogate, it is made the 
 duty of the Surrogate, after examining the other 
 
44 
 
 THE LAW OP 
 
 witnesses, to proceed without unnecessary delay to 
 the residence of the witness, and take the examina- 
 tion of such witness, in the same manner and with 
 the like effect as though such witness had attended 
 and been examined before the Surrogate on the 
 return of the citation. 
 
 § 73. If such aged, sick or infirm witness reside in a 
 different county from the Surrogate, and his attend- 
 ance cannot probably be procured within a reason- 
 able time, the Surrogate may, after having examined 
 the other witnesses, adjourn the proceeding to some 
 future day, and direct that such aged, sick or infirm 
 witness be examined before the Surrogate of the 
 county in which he resides, specifying some Monday, 
 on or before which the said order shall be delivered 
 to the Surrogate directed to take the examination, a 
 copy of which order, under the seal of the Surrogate 
 making the same, together with the original will, is 
 to be delivered to the person applying for the pro- 
 bate, to be transmitted to the Surrogate directed to 
 take the examination. 
 
 § 74. The latter Surrogate, upon receiving such or- 
 der, will appoint a time and place for taking the exami- 
 nation, and give due notice thereof ; and he will then 
 proceed to take the examination of such aged, sick 
 or infirm witness, in the same manner and with the 
 like effect as though such witness had attended and 
 been examined before the Surrogate having original 
 
EXECUTORS AND ADMINISTRATORS. 
 
 45 
 
 jurisdiction on the return of the citation. The Sur- 
 rogate may also issue subpoenas to compel the at- 
 tendance of witnesses. Notice of the time and place 
 of every such examination must be given by the 
 party at whose request the examination is had, to all 
 the parties who appeared before the Surrogate, 
 which notice must be served at least fourteen days 
 before the time of such examination. 
 
 § 75. This examination is to be reduced to writing 
 and subscribed by the witnesses ; and, together with 
 a statement of the proceedings before the Surrogate 
 taking the same, shall be certified by him under his 
 seal of office, and returned without delay to the Sur- 
 rogate who ordered such examination. 
 
 § 76. Upon the return of the depositions, with 
 such other proofs as may have been adduced before 
 him, the Surrogate to whom the original application 
 was made, will, on the day to which the proceeding 
 in his court has been adjourned, or as soon thereafter 
 as practicable, proceed to determine on the sufficiency 
 of the proof of such will. 
 
 § 77. No written will of real or personal estate, 
 or both, will be deemed to be proved, until the wit- 
 nesses to the same residing within this State at the 
 time of such proof, of sound mind and competent to 
 testify, shall have been examined pursuant to law ; 
 and in all cases the oath of the person who received 
 the will from the testator, if he can be produced, to- 
 ' 5 
 
46 
 
 THE LAW OF 
 
 gether with the oath of the person presenting the 
 same for probate, stating the circumstances of the 
 execution, the delivery and the possession thereof 
 may be required ; and before recording any will, or 
 admitting the same to probate, the Surrogate must 
 be satisfied of its genuineness and validity. 
 
 § 78. If all the witnesses to a will shall be dead, 
 insane, out of the State, or incompetent to testify, the 
 Surrogate may take and receive proof of the hand- 
 writing of the testator, and of the subscribing wit- 
 nesses, and of such other facts and circumstances as 
 would be proper to prove such will on a trial at 
 law ; and if such proof shall be satisfactory to the 
 Surrogate, the will may be admitted to probate, and 
 be recorded as a will of personal estate only, and so 
 as to effect only the personal estate of the testator. 
 
 § 79. The Surrogate will enter in his minutes the 
 decision which he may make concerning the suf- 
 ficiency of the proof, or validity of any will which 
 may be offered for probate ; and in case he shall de- 
 cide against the sufficiency of the proof, or the 
 validity of any such will, he shall, without fee or 
 charge, state the ground upon which the decision is 
 made, if required by either party. 
 
 § 80. When any one or more of the subscribing 
 witnesses to such will shall be examined, and the 
 other witnesses are dead, or reside out of the State, 
 or are insane, then such proof shall be taken of the 
 
EXECUTORS AND ADMINISTRATORS. 
 
 47 
 
 handwriting of the testator, and of the witness or 
 witnesses so dead, absent, or insane, and of such 
 other circumstances as would be sufficient to prove 
 such will on a trial at law. 
 
 § 81. If it shall appear to the satisfaction of the 
 Surrogate, that all the subscribing witnesses to any 
 such will are dead, insane, or reside out of the State, 
 the Surrogate shall take and receive such proof of 
 the handwriting of the testator, and of either or all 
 the subscribing witnesses to the will, and of such 
 other facts and circumstances as would be proper to 
 prove such will, on a trial at law. The only proof 
 necessary to establish a will, on a trial at law, where 
 the witnesses are dead, insane, or out of the State, 
 will be evidence of the handwriting of the witnesses, 
 unless something should appear upon the face of the 
 will to create a suspicion of its genuineness ; and in 
 that case, the handwriting of the testator must be 
 proved, in addition to proof of the handwriting of 
 the subscribing witnesses. 
 
 § 82. If the Surrogate is satisfied, from the proofs 
 taken, that the will was duly executed, that the tes- 
 tator, at the time of executing the same, was in all 
 respects competent to devise real estate, and not 
 under restraint, he must record the will, and the 
 proof and examinations taken thereupon; and he 
 then endorses upon the will a certificate, under his 
 hand and seal of office, showing that such will has 
 
48 
 
 THE LAW OF 
 
 been admitted to probate, which will authorize the 
 production of it in evidence. 
 
 § 83. If any of the subscribing witnesses are in- 
 terested, by means of any appointment, devise, or 
 legacy made or given him by the will, and such will 
 cannot be proved without the testimony of such 
 witness, the appointment, devise, or legacy will be 
 void, and the witness may, notwithstanding, be ex- 
 amined. 
 
 § 84. Where a will of personal estate duly exe- 
 cuted in this State, by a person not a resident of this 
 State, shall in the first instance have been duly ad- 
 mitted to probate in a court of a foreign state or 
 country, letters testamentary or of administration, 
 with the will annexed, may be issued thereon by 
 any Surrogate having jurisdiction, upon the produc- 
 tion of a duly exemplified or authenticated copy of 
 such will, under the seal of the court in which the 
 same shall have been proved. 
 
 § 85. Where the witnesses to a will all reside out 
 of the State, it may be proved in the Supreme Court ; 
 and if the original will is in possession of some court 
 of justice, so that it cannot be obtained, an exempli- 
 fied copy thereof may be proved, upon a commission 
 to be issued by the Supreme Court for the purpose. 
 Such commission will be issued, upon the applica- 
 tion of any person interested in establishing the will ; 
 notice to others may be given, or dispensed with, in 
 
EXECUTORS AND ADMINISTRATORS. 
 
 49 
 
 the discretion of the court. And these provisions 
 apply to wills of real, as well as to those of personal 
 estate ; so that wills of personal estate, when execu- 
 ted by persons residing out of this State, according 
 to the laws of the State or country in which they 
 were made, may also be proved under a similar com- 
 mission, to be issued for that purpose. 
 
 § 86. In taking proof of the will it must appear 
 that the will was subscribed by the testator at the 
 end thereof, and that it was so subscribed in the 
 presence of each of the attesting witnesses ; or if the 
 witnesses, or either of them, do not actually see him 
 sign, then he must acknowledge to such witness that 
 he did sign it. The testator must, at the same time, 
 declare the instrument so subscribed to be his last 
 will and testament — and all this must be done in the 
 presence of at least two attesting witnesses, each of 
 whom must sign his name as a witness at the end of 
 the will, at the request of the testator. 
 
 § 87. The statute also requires each witness to 
 write opposite his name the place of his residence, 
 and imposes a penalty of fifty dollars, in case he 
 neglects to do so. But the omission of this by the 
 witness does not invalidate the will. 
 
 § 88. The probate of any will oi personal property 
 taken by the Surrogate, is conclusive evidence of the 
 validity of the will, until it be reversed on appeal, 
 or revoked by the Surrogate. Such appeal lies from 
 5* 
 
50 
 
 THE LAW OF 
 
 the decision of the Surrogate to the general term of 
 the Supreme Court of the district in which the Sur- 
 rogate resides. 
 
 § 89. Notwithstanding a will of personal property 
 may have been admitted to probate, any of the next- 
 of-kin to the testator may, at any time within one 
 year after probate, contest the same by filing, in the 
 office of the Surrogate before whom the will was 
 proved, his allegations in writing, against the validity 
 of such will, or against the competency of the proof. 
 
 § 90. The Surrogate then cites the executor or 
 the administrator with the will annexed, and all the 
 legatees named in the will, residing in this State ; or 
 their guardians, if any of them be minors ; or their 
 personal representatives, if any of them be dead, to 
 appear before him, on some day to be specified, in 
 not less than thirty nor more than sixty days, at his 
 office, to show cause why the probate of such will 
 should not be revoked. 
 
 § 91. After the service of the citation, the execu- 
 tor or administrator must suspend all proceedings in 
 relation to the estate of the testator, except the col- 
 lection and recovery of moneys and the payment of 
 debts, until a decision shall be had thereon. 
 
 § 92. At the time appointed, due proof being 
 made of the personal service of the citation upon 
 every person named therein, at least fourteen days 
 before the time appointed for showing cause, the 
 
EXECUTORS AND ADMINISTRATORS. 
 
 51 
 
 Surrogate will proceed to hear the proofs of the par- 
 ties. If any legatees named in the will contested be 
 minors, and have no guardians, he must appoint 
 guardians to take care of their interests in the con- 
 troversy. 
 
 § 93. If, upon hearing the proofs of the parties, 
 the Surrogate decides that such will is for any reason 
 invalid, or that it is not sufficiently proved to have 
 been the last will and testament of the testator, he 
 will annul and revoke the probate thereof ; if other- 
 wise, he shall confirm such probate. All such de- 
 cisions are subject to appeal, and upon any such 
 hearing before the Surrogate, the depositions of wit- 
 nesses taken on the first proof of the will, who may 
 be dead, insane, or out of the State, may be received 
 in evidence. 
 
 § 94. If the Surrogate revoke the probate, he 
 must enter such revocation upon his records ; and 
 cause notice to be served immediately upon the ex- 
 ecutors or administrators, with the will annexed, and 
 to be published for three weeks in a newspaper 
 printed in the county. 
 
 § 95. The powers and duties of the executors or 
 administrators, with the will annexed, cease, upon 
 being served with such notice ; and they must ac- 
 count to the persons who shall be appointed by the 
 personal representatives of the deceased for all 
 moneys and effects received by them. But they 
 
52 
 
 THE LAW OF 
 
 will not be liable for any act done by them in good 
 faith, previous to the service upon them of the cita- 
 tion, nor of any act so done in the collection of 
 moneys, or the payment of debts, after the service 
 of the citation, and previous to the service of the 
 notice of revocation. 
 
 § 96. If the probate is confirmed, the party con- 
 testing will be required to pay the fees and expenses 
 of the Surrogate. If the probate be revoked, the 
 Surrogate may require the party resisting such re- 
 vocation to pay the costs and expenses of the pro- 
 ceedings, either personally, or out of the property 
 of the deceased. 
 
 § 97. The Surrogate before whom the will is 
 proved, may grant letters testamentary at any time 
 after the will is proved, unless an affidavit is made 
 by a widow, legatee, next-of-kin, or creditor of the 
 testator, setting forth that such person intends to file 
 objections against the granting of such letters testa- 
 mentary, and that he is advised and believes there 
 are just and substantial objections to the granting of 
 such letters to the executors named in the will, or 
 some one or more of them. And upon filing such 
 affidavit with the Surrogate, he shall stay the grant- 
 ing of letters testamentary for at least thirty days, 
 unless the matter shall sooner be disposed of. 
 
 § 98. The Surrogate formerly had no power to 
 require executors, in any case, to give security ; their 
 
EXECUTORS AND ADMINISTRATORS. 
 
 53 
 
 appointment being by virtue of the will of the testa- 
 tor, and the letters testamentary being but the evi- 
 dence of such appointment ; but now, if objections are 
 made by any creditor, legatee, relative, or other person 
 interested in the estate, against granting letters tes- 
 tamentary to one or more of the persons named in 
 the will as executors, the Surrogate shall inquire into 
 such objections ; and if it appear that the circum- 
 stances of any person named as executor are such* 
 that in the opinion of the Surrogate they would 
 not afford adequate security to the creditors, lega- 
 tees and relatives of the deceased for the due ad- 
 ministration of the estate, he may refuse letters tes- 
 tamentary to any such person, until he shall give the 
 like bond, as is required by law, of administrators in 
 cases of intestacy. Nor will letters testamentary, in 
 any case, be granted to a non-resident of the State* 
 until the applicant shall give the like bond. 
 
 § 99. If, after letters testamentary shall have been 
 granted to any person named as executor, in any 
 will, complaint is made to the Surrogate of the 
 county in which such letters were granted, by any 
 person interested in the estate of the deceased, that 
 the person so appointed executor has become incom- 
 petent by law to serve as such, or that his circum- 
 stances are so precarious as not to afford adequate 
 security for his due administration of the estate, or 
 that he has removed, or is about to remove from this 
 
54 
 
 THE LAW OF 
 
 State, the Surrogate shall proceed to inquire into 
 such complaint. After citing the party before him, 
 he will proceed to hear the proofs and allegations ; 
 and if it appear that the circumstances of the execu- 
 tor are precarious, or that he has removed, or is 
 about to remove from this State, he shall require 
 such executor to give bond, with sureties like those 
 required by law of administrators, within a reason- 
 able time, not exceeding five days. 
 
 § 100. In reference to this security, it is held that 
 an executor can be required to give security only 
 when the Surrogate is satisfied that his circumstances 
 are such as to render it doubtful whether the pro- 
 perty of the testator will be safe in his hands, to be 
 disposed of as directed by the will. That the mere 
 fact that the executor is not possessed of property 
 of his own, equal in value to that of the estate of 
 which he is the executor, is not a sufficient ground 
 for requiring him to give security. 
 
 § 101. If an executor neglects to give a bond when 
 required by the Surrogate ; or if he has removed, or 
 is about to remove from the Sfate, or his circum- 
 stances have become so precarious as not to afford 
 adequate security for his due administration of the 
 ostate ; or from any other cause has become legally 
 incompetent to serve as executor, the Surrogate is 
 required to supersede the letters testamentary issued 
 to him : and his rights and authority as an executor 
 
EXECUTORS AND ADMINISTRATORS. 
 
 55 
 
 thereupon cease. And the Surrogate, in either 
 event, will grant letters of administration with the 
 will annexed, of the assets of the deceased left un- 
 administered. So, if an executrix marry after her 
 appointment, the Surrogate, upon the application of 
 any person interested, may revoke such appointment. 
 
 § 102. In case any one of several executors or 
 administrators, to whom letters testamentary or of 
 administration are granted, shall die, become lunatic, 
 convicted of an infamous crime, or otherwise become 
 incapable of executing the trust reposed in him ; or 
 in case the letters testamentary or of administration 
 shall be revoked or annulled according to law, with 
 respect to any one executor or administrator, then 
 the remaining executors and administrators shall 
 proceed and complete the execution of the will or 
 the administration according to law. 
 
 § 103. If all the executors and administrators 
 shall die, or become incapable, or the power and 
 authority of all of them shall be revoked according 
 to law, the Surrogate having authority to grant let- 
 ters originally shall issue letters of administration 
 upon the goods, chattels, credits and effects of the 
 deceased left unadministered, with the will annexed, 
 or otherwise, as the case may be, to the widow or 
 next-of-kin, or creditors of the deceased, or others, in 
 the same manner as original letters of administration 
 are directed to issue ; which letters will supersede 
 
56 
 
 THE LAW OF 
 
 all former and other letters testamentary, and of ad- 
 ministration, upon the same estate. 
 
 § 104. It was held by Chancellor Walworth that 
 because an executor was over eighty years of age, it 
 was no sufficient reason in itself for removing him 
 from his trust, or for taking the property out of his 
 hands. The same learned Judge also declared that 
 it was not the intention of the legislature to prohibit 
 the granting of letters testamentary to any executors 
 except such as are possessed of property, of their 
 own, to the full value of the estate which the testa- 
 tor has authorized and appointed them to adminis- 
 ter : or that an executor should be superseded in his 
 trust, or required to find security, whenever his pro- 
 perty was reduced below that of the deceased ; for 
 that such a construction of the statute would render 
 it almost impossible /or a man of large property to 
 select an executor who would be both able and 
 willing to assume the execution of the trust. Ob- 
 serving that the obvious meaning of the statute was, 
 that an executor may be required to give security, 
 whenever the Surrogate is satisfied that his conduct 
 and circumstances in other respects are such as to 
 render it doubtful whether the property will be safe 
 in his hands, to be disposed of, or administered, as 
 directed by the will. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 57 
 
 CHAPTER III. 
 
 OF MAKING AN INVENTORY AND COLLECTING 
 THE ASSETS. 
 
 § 105. After the executor or administrator has 
 received his authority, and is qualified to act, he 
 must forthwith proceed to execute the duties of his 
 office. The first duty to be performed by either, is 
 to make an inventory of the goods and chattels of 
 the intestate. The Revised Statutes require that 
 executors or administrators, with the aid of apprais- 
 ers appointed for that purpose by the Surrogate, 
 shall, within a reasonable time after qualifying, make 
 a true and perfect inventory of the property of the 
 testator. If the property be in different and distant 
 places, two or more inventories may be made. 
 
 § 106. The following property is to be deemed 
 assets, and will go to the executors or administrators, 
 to be applied and distributed as part of the personal 
 estate of their testator or intestate, and must be in- 
 cluded in the inventory thereof : 
 
 “ 1. Leases for years ; lands held by the deceased 
 from year to year ; and estates held by him for the 
 life of another person : 
 
 “ 2. The interest which may remain in the de- 
 ceased at the time of his death, in a term for years, 
 6 
 
58 
 
 THE LAW OF 
 
 after the expiration of any estate for years therein, 
 granted by him or any other person ; 
 
 “ 3. The interest in lands devised to an executor 
 for a term of years, for the payment of debts : 
 
 “ 4. Things annexed to the freehold, or to any 
 building, for the purpose of trade or manufacture, 
 and not fixed into the wall of a house, so as to be 
 essential to its support : 
 
 “ 5. The crops growing on the land of the de- 
 ceased, at the time of his death : 
 
 “6. Every kind of produce raised annually by 
 labor and cultivation, excepting grass growing and 
 fruit not gathered : _ 
 
 “ 7. Rent reserved to the deceased, which had 
 accrued at the time of his death : 
 
 “ 8. Debts secured by mortgages, bonds, notes 
 or bills ; accounts, money, and bank bills, or other 
 circulating medium, things in action, and stock in 
 any company, whether incorporated or not : 
 
 “9. Goods, wares, merchandise, utensils, furni- 
 ture, cattle, provisions, and every other species of 
 personal property and effects, not hereinafter ex- 
 cepted. 
 
 § 107. Things annexed to the freehold, or to any 
 building, do not go to the executor, but will descend 
 with the freehold to the heirs or devisees, except 
 such fixtures as are mentioned in the fourth sub- 
 division of the last section. The right of an heir to 
 
EXECUTORS AND ADMINISTRATORS. 
 
 59 
 
 any property not enumerated in the preceding sec- 
 tion, which by the common law would descend to 
 him, are not impaired by the general terms of that 
 section. 
 
 § 108. Where a man, having a family, dies, leaving 
 a widow, or a minor child or children, the following 
 articles are not to be deemed assets, but must be in- 
 cluded and stated in the inventory of the estate 
 without being appraised : 
 
 1. All spinning wheels, weaving looms, and stoves, 
 put up or kept for use by his family : 
 
 2. The family bible, family pictures, and school 
 books used by or in the family of such deceased 
 person ; and books not exceeding in value fifty dol- 
 lars, which were kept and used as part of the family 
 library, before the decease of such person : 
 
 3. All sheep, to the number of ten, with their 
 fleeces, and the yarn and cloth manufactured from 
 the same ; one cow ; two swine, and the pork of 
 such swine : 
 
 4. All necessary wearing apparel, beds, bedsteads 
 and bedding ; necessary cooking utensils ; the cloth- 
 ing of the family; the clothes of a widow, and her 
 ornaments, proper for her station ; one table, six 
 chairs, six knives and forks, six plates, six teacups 
 and saucers, one sugar-dish, one milkpot, one teapot, 
 and six spoons. 
 
 § 109. These articles are to remain in the posses- 
 
60 
 
 THE LAW OF 
 
 sion of the widow, if there be one, during the time 
 she shall live with, and provide for such minor child 
 or children. When she shall cease so to do, she will 
 be allowed to retain as her own, her wearing appa- 
 rel and ornaments, and one bed, bedstead, and the 
 bedding for the same ; and the other articles so ex- 
 empted will then belong to such minor child or 
 children. If there be a wfidow, and no such minor 
 child, then these articles will belong to such widow. 
 If the widow dies before the inventory is made, her 
 next-of-kin would be entitled to these articles, and 
 the husband’s executors or administrators would 
 have no right to intermeddle therewith, as she be- 
 came entitled thereto by the death of her husband, 
 and her title became vested and absolute upon his 
 death. 
 
 § 110. When a man having a family dies, leaving 
 a widow or minor child or children, there shall be 
 inventoried by the appraisers, and set apart for the 
 use of such widow, or for the use of such widow and 
 child or children, or for the use of such child or 
 children, in the manner before prescribed, necessary 
 household furniture, provisions, or other personal 
 property, in the discretion of said appraisers, to the 
 value of not exceeding one hundred and fifty dollars, 
 in addition to the articles of personal property we 
 have previously stated to be exempt from appraisal. 
 
 §111. The inventory must contain a particular 
 
EXECUTORS AND ADMINISTRATORS. 
 
 61 
 
 statement of all bonds, mortgages, notes and other 
 securities for the payment of money belonging to the 
 deceased, which are known to such executor or ad- 
 ministrator ; specifying the name of the debtor in 
 each security, the date, the sum originally payable, 
 the endorsements thereon, if any, with their dates ; 
 and the sum which, in the judgment of the apprais- 
 ers, may be collectible on each security, 
 
 § 112. The inventory must also contain an account 
 of all moneys, whether in specie, bank bills, or other 
 circulating medium, belonging to the deceased, which 
 shall have come to the hands of the executor or ad- 
 ministrator ; and if none shall have come to his 
 hands, the fact must be so stated in the inventory. 
 
 § 113. Any disinterested person, of full age, and 
 competent to transact business, may be appointed 
 appraiser ; but they are usually appointed from 
 amongst those who are acquainted with the family 
 of the deceased, and live in the neighborhood. The 
 executor or administrator usually applies to the 
 Surrogate at the time of receiving letters testamen- 
 tary or of administration, for the appointment of ap- 
 praisers ; and no notice of such application need be 
 given. Should the executor or administrator neglect 
 to apply for the appointment of appraisers, the Sur- 
 rogate would compel him to do so, and require him 
 to return an inventory. 
 
 § 114. Notice, in writing, of the time and place 
 
62 
 
 THE LAW OF 
 
 of making the appraisal, must be served five days 
 previous thereto, on the legatees and next-of-kin re- 
 siding in the county where the property shall be, 
 and a copy of such notice must also be posted in 
 three of the most public places of the town, where 
 the property shall be. 
 
 § 115. The appraisers must take and subscribe an 
 oath, to be inserted in the inventory, before any offi- 
 cer authorized to administer an oath, (amongst which 
 justices of the peace are" now included,) that they 
 will truly, honestly and impartially appraise the 
 personal property, which shall be exhibited to them, 
 according to the best of their knowledge and ability. 
 
 § 116. The property to be appraised must be ex- 
 hibited to, and personally examined and valued by 
 the appraisers ; and the executor or administrator 
 has no right to interfere with them in the discharge 
 of this duty. The appraisers must, in the presence 
 of such of the next-of-kin, legatees or creditors of 
 the deceased as may choose to attend, proceed to 
 estimate and appraise the property which shall be 
 exhibited to them ; and in doing this they must set 
 down each article separately, with the value thereof 
 in dollars and cents, distinctly in figures, opposite to 
 the articles respectively. 
 
 § 117. Upon the completion of the inventory, du- 
 plicates must be made and signed by the appraisers ; 
 one of them is to be retained by the executor or ad- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 63 
 
 ministrator, and the other returned to the Surrogate,, 
 within three months from the date of such letters*. 
 Although some of the personal property should be 
 specifically bequeathed by the testator, yet such 
 property must be included in the inventory, and ap- 
 praised, as it may become necessary to sell such 
 articles for the payment of debts. 
 
 § 118.' The inventory is intended for the benefit 
 of the creditors and next-of-kin, and the executor or 
 administrator will be obliged to account for the pro- 
 perty mentioned in it. He will also be obliged to 
 show good cause for not collecting the debts that 
 are mentioned to be due, unless he has taken the 
 precaution to note them in the inventory as despe- 
 rate. He is bound also to include the value of the 
 stock in trade, effects and credits of a firm in which 
 the deceased was a partner, so far as his interest 
 therein can be ascertained, from the books and ac- 
 counts of the partnership. 
 
 § 119. But the law will only require an inventory 
 of all that he died possessed of, and it cannot there- 
 fore call for an account of the subsequent profits in 
 his business. Nor will it require an inventory of 
 personal estate situated in another state, or in a 
 foreign country ; for foreign estates are out of the- 
 jurisdiction and cognizance of the Surrogate. But if 
 personal property belonging to the estate situate* 
 abroad, or the avails thereof, afterwards comes 
 
<64 
 
 THE LAW OF 
 
 within the state, the administrator should then file a 
 further inventory, or account for the same. 
 
 § 120. If the inventory is not made and returned 
 to the Surrogate within three months from the time 
 of granting letters testamentary, or of administra- 
 tion, or within such further time, not exceeding four 
 months, as the Surrogate, shall, for reasonable cause 
 allow, the Surrogate is required to issue a sum- 
 mons, requiring such executor or administrator, at a 
 short day, to be specified in such summons, to ap- 
 pear before him and return an inventory, according 
 to law, or show cause why an attachment should not 
 issue against him. 
 
 § 121. If, after the personal service of such sum- 
 mons, the executor or administrator should not, by 
 the day specified therein, return an inventory, on 
 oath, or obtain further time to return the same, the 
 Surrogate is required to issue an attachment against 
 him, and commit him to the common jail of the 
 county, there to remain until he shall return such in- 
 ventory. 
 
 § 122. If the summons cannot be served person- 
 ally, by reason of the executor or administrator ab- 
 sconding or concealing himself : or if, after being 
 committed to prison, the executor or administrator 
 neglects, for thirty days, to make and return an inven- 
 tory, the Surrogate may revoke the letters testamen- 
 tary or of administration, and grant letters to some 
 
EXECUTORS AND ADMINISTRATORS. 
 
 65 
 
 other person entitled thereto, in the same manner 
 as if no previous letters had been granted ; where- 
 upon the executor or administrator so refusing to 
 return the inventory ceases to have any further author- 
 ity in relation to the estate. The sureties of the execu- 
 tor or administrator, are liable for all damages sus- 
 tained by the estate of the deceased, by the acts or 
 omissions of the executor or administrator, to the 
 full value of all the property of the deceased, re- 
 ceived, and not duly administered, by such execu- 
 tor or administrator. And the moneys received of 
 such sureties will be assets in the hands of the per- 
 son to whom such subsequent letters shall be issued. 
 Such executor or administrator will be released from 
 prison by the Surrogate, or a Justice of the Su- 
 preme Court, on his delivering, upon oath, all the 
 property of the deceased under his control, to such 
 person as shall be authorized by the Surrogate to 
 receive the same. 
 
 § 123. Where there is more than one executor 
 or administrator, either may make and return the in- 
 ventory, in case the other or others refuse ; and in 
 such case, those refusing have no authority to inter- 
 fere in any manner with the property of the de- 
 ceased, until they do join in the inventor}^. In case 
 other property shall come to the hands of the exec- 
 utor or administrator, after the return of the inven- 
 tory ; or in case they find any property which has 
 
<36 
 
 THE LAW OF 
 
 not been included in the inventory returned, it is their 
 duty to have it appraised and inventoried, in a sub- 
 sequent inventory, in the same manner as the pro- 
 perty originally included in the first inventory. 
 
 § 124. The next duty of the executor or adminis- 
 trator is to collect all the goods, chattels, and effects 
 of the deceased. For this purpose the law invests 
 him with large powers and authority. As the re- 
 presentative of the deceased, he has the same right 
 of property in the effects as the deceased had while 
 livino* • he has also the same remedies to recover 
 
 O 7 
 
 them. Within a convenient time after the grant of 
 administration, or the death of the testator, in the 
 oase of a will, he has a right to enter the house in 
 order to remove the goods, provided he does so 
 without violence, as if the door be open, or at least 
 the key be in the door. 
 
 § 125. But although the door of entrance into 
 the hall or parlor be open, he cannot therefore jus- 
 tify forcing the door of any chamber to take the 
 goods contained in it, and he is only empowered to 
 take those which are in such rooms as are unlocked, 
 or in the door of which he shall find the key. He 
 has also the right to take deeds and other writings 
 relative to the personal estate out of a chest in the 
 house, if it be unlocked, or the key is in it ; but he has 
 no right to break open even a chest. If he cannot 
 
EXECUTORS AND ADMINISTRATORS. 
 
 67 
 
 take possession of the effects without force, he must 
 desist, and resort to an action at law. 
 
 § 126. He may maintain all such actions as the 
 deceased might have done while living, except for 
 libel and such other injuries to the person of the de- 
 ceased as are merely personal and die with him. It 
 is incumbent on him to avail himself of his powers 
 with all reasonable diligence, in the discovery and 
 collection of the effects of the deceased ; and if by 
 improperly delaying to bring an action he has enabled 
 a debtor of the estate to avail himself of the statute 
 of limitations, he will be personally liable. 
 
 § 127. If any of the property should be wasted 
 or lost through his carelessness or inattention, or if 
 the debts are not collected within a reasonable time af- 
 ter letters testamentary or of administration are grant- 
 ed, either by personal application or suit, whether 
 the debts may have been lost by such delay or not, 
 and although no improper motives are imputable to 
 the executor or administrator, the law holds him 
 personally responsible to creditors, or to those enti- 
 tled to the proceeds of the estate, in the order of 
 distribution. And there is nothing hard or unjust 
 in this principle, since it is only exacting of those re- 
 presentatives that diligence and attention to the bu- 
 siness of others which every discreet man would 
 bestow upon his own, and which they have volunta- 
 rily taken upon themselves. 
 
68 
 
 THE LAW OF 
 
 § 128. It is decided also in New-York that an ad- 
 ministrator is bound to take measures for the collec- 
 tion of a demand due the estate he represents, from 
 a debtor residing in another state, either by obtain- 
 ing letters of administration himself or employing 
 an agent there for the purpose, and instituting 
 proceedings to recover the debt if collectible. 
 
 § 129. If the deceased died possessed of public 
 or corporate funds or stocks, the executor or admin- 
 istrator is entitled to have them transferred to him- 
 self, or to such other person as he shall appoint, on 
 presenting to the government officers, or to the cor- 
 poration, a certificate of the Surrogate that letters 
 have been granted to him. And the public officer, 
 or the bank or other company, has no right to inquire 
 into the disposition to be made of the property, but 
 is bound to transfer the stock on the mere pro- 
 duction of the proper evidence of the due appoint- 
 ment and qualification of the executor or administra- 
 tor ; and if there be a refusal, the public officer or 
 the institution will become liable for any damages 
 that may be sustained. 
 
 § 130. He must sell so much of the personal pro- 
 perty as may be necessary for the payment of debts 
 and legacies, provided there is not sufficient collected 
 from the books, accounts and debts, and beginning 
 with articles not required for immediate use, nor spe- 
 cifically devised. But in case he shall discover 
 
EXECUTORS AND ADMINISTRATORS. 
 
 69 
 
 that the debts against the deceased, and the legacies 
 bequeathed by him, cannot be paid and satisfied 
 without the sale of his personal property, the same, 
 so far as may be necessary for the payment of such 
 debts and legacies, shall be sold. 
 
 § 131. As a general rule he must convert the as- 
 sets into cash by a public sale ; but unless a sale of 
 such assets is necessary to pay debts and legacies, he 
 must reserve the property specifically bequeathed to 
 be divided between legatees and distributees. In 
 the State of New- York he is allowed, except in the 
 city of New-York, to sell on credit, not exceeding one 
 year, with approved security, and he will be exempt- 
 ed from personal responsibility for losses if he acts 
 in good faith and with ordinary prudence. 
 
 § 132. In making sales, such of the articles as are 
 not necessary for the support and subsistence of the 
 family of the deceased, or as are not specifically be- 
 queathed, shall be first sold ; and articles so be- 
 queathed, shall not be sold, until the residue of the 
 personal estate has been applied to the payment of 
 bebts. 
 
 § 133. He has an absolute power of disposal over 
 the whole personal effects of the deceased, and if 
 therefore he sells a thing belonging to the estate he 
 represents, although it may be specifically bequeath- 
 ed, no creditor or legatee can follow it into the hands 
 of the person to whom it has been sold. The power 
 
10 
 
 THE LAW OF 
 
 of an executor or administrator to dispose of a chat- 
 tel specifically bequeathed seems to have been for- 
 merly questioned, but succeeding cases- appear to 
 have established it beyond a doubt. In many in- 
 stances he must sell, in order to perform his duty in 
 paying debts, and no one would deal with an execu- 
 tor or administrator if liable to be afterwards called to 
 an account. The person proposing to purchase need, 
 not inquire whether the debts cannot be paid with- 
 out a sale, or whether the residue of the property 
 has been sold before, but he may take it for granted 
 that the party with whom he is dealing is acting ac- 
 cording to the directions and provisions of the law. 
 
 § 134. As an executor may absolutely dispose of 
 the testator’s effects for the general purposes of the 
 will, there seems to be no good reason why, in the 
 exercise of a sound discretion, and supposing the 
 terms of the will do not absolutely require a sale, he 
 may not raise the money required by a partial sale, 
 or mortgage of the assets. Such a mortgage m£iy 
 be either by a deposit in pledge, or by an actual as- 
 signment. 
 
 § 135. The validity of all transfers of property, 
 however, by an executor or administrator, depends 
 upon the good faith of the transaction ; for if there 
 be any collusion or bad faith between the purchaser 
 or mortgagee and the personal representative, the 
 seeming purchaser or pawnee will be liable to the 
 
EXECUTORS AND ADMINISTRATORS. 
 
 7l 
 
 creditors or legatees to the full value. And when- 
 ever the person to whom an executor collusively passes 
 the property knows that the executor is acting in 
 violation of his trust, and in fraud of the persons in- 
 terested in the due administration of the assets, the 
 fraud vitiates the transaction, and the attempt to 
 transfer the property will fail. But in all such cases 
 where a creditor or legatee is entitled to follow the 
 assets, he must enforce his right within a reasonable 
 time, or he will be barred by his acquiescence. 
 
 § 136. An executor or administrator ought not to 
 sell any article, at private sale, for a less sum than 
 it was appraised at, unless he is prepared to show 
 that the price he obtained was the full value of it, 
 and that it was over-valued in the inventory. Nor 
 is he entirely free from risk in selling at the appraised 
 value, for he is bound to obtain its full value at the 
 time he sells, whatever may have been the value at 
 which it was appraised. The appraised value is but 
 prima facie value, subject to be varied by proof on 
 either side ; hence it is more safe and prudent for 
 executors and administrators to sell in all cases at 
 public auction, after due public notice of the time and 
 place of sale. 
 
72 
 
 THE LAW OF 
 
 CHAPTER IV. 
 
 OF PAYING DEBTS AND LEGACIES AND DISTRIBUTING 
 THE ASSETS. 
 
 § 137. Care is especially required in administering 
 the goods of the deceased, whether testator or intes- 
 tate, particularly in the payment of debts ; the whole 
 of which must be satisfied before the payment of any 
 legacies. The debts must be paid according to legal 
 priority ; for, if an administrator or executor departs 
 from the routine laid down by the statute, and there 
 proves to be a deficiency of the assets of the deceased, 
 his representative will have to pay those which he 
 has wrongly passed over out of his own property. 
 
 § 138. The funeral charges, and the expenses of 
 the last sickness, including the physician’s bill, with 
 the expenses of proving the will, and all the other 
 costs which are incidental to putting himself into the 
 position of the legal representative of the deceased, 
 must be first paid ; and, of these, the costs of suits 
 incurred in administering the estate will be consid- 
 ered a part. 
 
 § 139. Before proceeding to pay debts and lega- 
 cies, however, if there be any doubt of the sufficiency 
 of the estate to pay in full, a prudent executor or 
 administrator will advertise for claims against the 
 
EXECUTORS AND ADMINISTRATORS. 
 
 73 
 
 estate. The statute provides that any executor or 
 administrator, at any time, at least six months after 
 the granting of the letters testamentary or of admin- 
 istration, may insert a notice, once in each week for 
 six months, in a newspaper printed in the county, 
 and in so many other newspapers as the Surrogate 
 may deem most likely to give notice to the creditors 
 of the deceased, requiring all persons having claims 
 against the deceased to exhibit the same, with the 
 vouchers thereof, to such executor or administrator, 
 at a place to be specified in the notice, at or before 
 the day therein named, which shall be at least six 
 months from the day of the first publication of such 
 notice. Application must of course be made to the 
 Surrogate for authority to make such publication. 
 
 § 140. Opon any claim being presented against 
 the estate of a deceased person, the executor or ad- 
 ministrator may require satisfactory vouchers in sup- 
 port thereof, and also the affidavit of the claimant 
 that such claim is justly due; that no payments 
 have been made thereon, and that there are no off- 
 sets against the same to the knowledge of such 
 claimant; which oath may be taken before any 
 Justice of the Peace, or other officer authorized to 
 administer oaths. In presenting a claim to the ex- 
 ecutor or administrator, it is not necessary that a 
 personal interview should take place between the 
 parties ; but it may be presented by letter, or in any 
 
74 
 
 THE LAW OF 
 
 other way which deals fairly with the executors, and 
 the interests they represent. Nor is the creditor 
 bound to exhibit the evidences of his claim, or make 
 oath of the justice thereof, unless required to do so 
 by the executors ; but it is not sufficient to present 
 the claim to the executors’ attorney. 
 
 § 141. If the executor or administrator doubt the 
 justice of any claim presented to him, he may enter 
 into an agreement in writing, with the claimant, to 
 refer the matter in controversy to three disinterested 
 persons, to be approved by the Surrogate ; and 
 upon filing such agreement and approval of the 
 Surrogate in the office of a clerk of the Supreme 
 Court, or of the clerk of the Court of Common Pleas 
 of the county in which the parties, or either of them 
 reside, a rule shall be entered by such clerk, either 
 in vacation or in term, referring the matter in contro- 
 versy to the persons so selected. 
 
 § 142. The referees will thereupon proceed to 
 hear and determine the matter, and make their re- 
 port thereon to the court in which the rule for their 
 appointment shall have been entered. The same 
 proceedings are to be had in all respects ; the refe- 
 rees have the same powers, are entitled to the same 
 compensation, and subject to the same control as if 
 the reference had been made in an action in which 
 such court might by law direct a reference ; and the 
 court may set aside the report of the referees, or ap- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 75 
 
 point others in their places, and may confirm such 
 report, and adjudge costs, as in actions against ex- 
 ecutors ; and the judgment of the court thereupon 
 shall be valid and effectual in all respects, as if the 
 same had been rendered in a suit commenced by the 
 ordinary process. 
 
 § 143. If a claim against the estate of any de- 
 ceased person be exhibited to the executor or admin- 
 istrator, and be disputed or rejected by him, and the 
 same shall not have been referred, the claimant must, 
 within six months after such dispute or rejection, if 
 the debt, or any part thereof be then due, or within 
 six months after some part thereof shall have become 
 due, commence a suit for the recovery thereof, or be 
 forever barred from maintaining any action thereon ; 
 and no action can be maintained thereon after the 
 said period, by any other person deriving title thereto 
 from such claimant ; and any executor or adminis- 
 trator may, on the trial of any action founded upon 
 such demand, give in evidence, in bar thereof, under 
 a notice annexed to the general issue, the facts of 
 such refusal and neglect to commence a suit. 
 
 § 144. In case any suit shall be brought upon a 
 claim, which shall not have been presented to the ex- 
 ecutor or administrator of a deceased person, within 
 six months from the first publication of such notice, 
 as directed by the statute, such executor or ad- 
 ministrator will not be chargeable for any assets or 
 
16 
 
 THE LAW OF 
 
 moneys that he may have paid in satisfaction of any 
 claims of an inferior degree, or of any legacies, or in 
 making distribution to the next-of-kin, before such 
 suit was commenced, but may prove such notice, 
 published by him as aforesaid, and such payment 
 and distribution, in support of his plea of having ad- 
 ministered the estate of the deceased. 
 
 § 145. In such action the plaintiff will be entitled 
 to recover only to the amount of such assets as shall 
 have been in the hands of such executor or adminis- 
 trator, at the time of the commencement of the suit; 
 or he may take judgment for the amount of his 
 claim, or any part thereof, to be levied and collected 
 of assets which shall thereafter come into the hands 
 of such executor or administrator. 
 
 § 146. In such suit no costs are to be recovered 
 against the defendants ; nor shall any costs be re- 
 covered in any suit at law, against any executors or 
 administrators, to be levied of their property, or of 
 the property of the deceased, unless it appear that 
 the demand on which the action was founded was 
 presented within the time aforesaid, and that its 
 payment was unreasonably resisted or neglected, or 
 that the defendant refused to refer the same pur- 
 suant to the preceding provisions ; in which cases 
 the court may direct such costs to be levied of the 
 property of the defendants, or of the deceased, as 
 :shall be just, having reference to the facts that ap- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 77 
 
 peared on the trial. If the action be brought in the 
 Supreme Court, such facts shall be certified by the 
 judge before whom the trial shall have been had. 
 
 § 147. But any creditor who may have neglected 
 to present his claims, may, notwithstanding, recover 
 the same, in the manner prescribed by law, from the 
 next-of-kin and legatees of the deceased, to whom 
 any assets shall have been paid or distributed. 
 
 § 148. The Statute further provides that every 
 executor and administrator shall proceed with dili- 
 gence to pay the debts of the deceased, and shall 
 pay the same in the following order : 
 
 1. Debts entitled to a preference under the laws 
 of the United States : 
 
 2. Taxes assessed upon the estate of the deceased 
 previous to his death : 
 
 3. Judgments docketted and decrees enrolled 
 against the deceased, according to the priority there- 
 of respectively : 
 
 4. All recognizances, bonds, sealed instruments, 
 notes, bills, and unliquidated demands and ac- 
 counts. 
 
 § 149. As to debts due to the United States, the 
 laws of Congress establish a priority of payment 
 upon all debts due, or to become due to them, either 
 by reason of any bond given for the payment of duties, 
 or for any other cause, if the debtor become insolv- 
 ent, or his estate after his decease shall prove to be 
 
78 
 
 THE LAW OF 
 
 insufficient for the payment of all his debts. This 
 priority extends as well to debts by bonds for duties, 
 which are payable after the insolvency or death of 
 the obligor, as to those actually payable or due at 
 the period thereof ; and it makes an executor or ad- 
 ministrator answerable in his own person and estate, 
 if he shall pay other debts before paying debts due 
 to the United States. 
 
 § 150. The provisions of the act of Congress 
 however do not extend to, nor will they in any man- 
 ner invalidate or prejudice a bona fide conveyance of 
 the debtor made to another person in the ordinary 
 course of business, nor to a mortgage given by a 
 debtor to secure a debt, nor to a case where the pro- 
 perty had been seized under an execution before the 
 right of preference has accrued to the United States ; 
 nor does it affect any other lien, general or specific, 
 existing w T hen the event took place which gave the 
 United States a claim to priority. 
 
 § 151. Judgments are entitled to be paid out of the 
 personal estate of the deceased, according to the pri- 
 ofity in point of time of docketting the same, or of en- 
 rolling decrees, without reference to any supposed lien 
 of the judgment or decree upon his real estate, and 
 without regard to the fact that some of them may 
 have been perfected more than ten years previous 
 to his death, and others within that period ; and 
 the statute differs fiom the common law in this 
 
EXECUTORS AND ADMINISTRATORS. 
 
 79 
 
 respect, that by such law, one judgment had no pre- 
 ference over another in payment out of the personal 
 estate of the deceased, provided both were docketted 
 at the time of his death. 
 
 § 152. No preference is to be given in the pay- 
 ment of any debt, over other debts of the same class, 
 except those specified in the third class ; and in case 
 there shall prove to be a deficiency of assets, the 
 debts are to be paid rateably. Nor will a debt due 
 and payable be entitled to preference over debts not 
 due ; and the commencement of a suit for the re- 
 covery of any debt, or the obtaining a judgment 
 thereon against the executor or administrator, will 
 not entitle such debt to any preference over others 
 of the same class. 
 
 § 153. Debts not due may be paid, by an execu- 
 tor or administrator, according to the class to which 
 they may belong, after deducting a rebate of legal 
 interest upon the sum paid, for the term unexpired. 
 
 § 154. Preference may be given by the Surrogate 
 to rents due or accruing upon leases held by the 
 testator or intestate, at the time of his death, over 
 debts of the fourth class, whenever it shall be made 
 to appear to his satisfaction that such preference 
 will benefit the estate of such testator or intestate. 
 
 § 155. If the deceased owned any leases, and the 
 executor or administrator is of opinion that it will 
 benefit the estate to retain them, and yet doubts the 
 
80 
 
 THE LAW OF 
 
 sufficiency of the estate to pay all the debts, he 
 should apply to the Surrogate for an order giving 
 preference to the payment of the rents on such 
 leases. The circumstances which justify the giving 
 of such preference must be set forth in the applica- 
 tion, and the Surrogate must be entirely satisfied 
 that the preference asked for will benefit the estate, 
 before he will grant such an order. 
 
 § 156. No part of the property of the deceased 
 can be retained by an executor or administrator, in 
 satisfaction of his own debt or claim, until it shall 
 have been proved to, and allowed by, the Surrogate; 
 and such debt or claim shall not be entitled to any 
 preference over others of the same class. And to 
 authorize an executor to retain for a debt due to him- 
 self from the estate of the testator, he must, in ad- 
 dition to the usual proof, swear to the existence of 
 the indebtedness after allowing all payments and off- 
 sets ; and he will not be allowed to prove it on his 
 own oath only, but he must produce to the Surro- 
 gate legal evidence of the existence of the debt, un- 
 less the same is admitted by those who are interested 
 in the estate. 
 
 § 157. If an executor or administrator unreason- 
 ably refuses to pay a debt that is manifestly just and 
 legal, and the claimant makes the usual affidavit, he 
 will render himself personally liable for the costs 
 that accrue upon a prosecution thereof. He is not 
 
EXECUTORS AND ADMINISTRATORS. 
 
 81 
 
 bound to plead the statute of limitations to an action 
 brought against him to recover a debt claimed to be 
 due, nor will a court of equity compel him to do so. 
 
 § 158. Payment of debts may be decreed by the 
 Surrogate, at any time, after six months has elapsed 
 from the granting of letters testamentary or of ad- 
 ministration ; and payment of legacies or distributive 
 shares, may be decreed by him at any time after 
 one year has elapsed, from the granting of letters 
 testamentary, or of administration. 
 
 § 159. In the payment of debts, the Surrogate 
 will marshall the assets in the following order : — 
 1. The personal estate, with the exception of spe- 
 cific bequests, or such as is exempted. 2. The real 
 estate, if any, appropriated by the will as a fund for 
 the payment of debts. 3. The descended estate, 
 whether acquired since the making of the will or 
 not. 4. The lands specifically devised, although 
 they be generally charged with the payment of 
 debts, but not specifically. 
 
 § 160. Where a creditor recovers judgment 
 against the executor or administrator, after a trial at 
 law upon the merits, he may, at any time thereafter, 
 apply to the Surrogate who granted the letters tes- 
 tamentary or of administration, for an order against 
 such executor or administrator, to show cause why 
 an execution should not issue upon the judgment. 
 
 § 161. The Surrogate is then required to examine 
 8 
 
82 
 
 THE LAW OF 
 
 into the matter, and if upon the account being ren- 
 dered and settled he finds that such executor or ad- 
 ministrator has sufficient assets in his hands, properly 
 applicable to the payment of such judgment, in whole 
 or in part, he will order that execution issue for the 
 amount so applicable. He will however always 
 leave a sufficient sum in the hands of the executor 
 or administrator to meet contingencies and future 
 expenses of the administration. 
 
 § 162. Such an order is declared to be conclusive 
 evidence that there are sufficient assets in the hands 
 of the executor or administrator to satisfy the amount 
 for which such execution was directed to be issued. 
 Ho appeal can be made from the order of the Sur- 
 rogate, in this respect, without the execution of a 
 bond by the party appealing, with sufficient sureties, 
 to be approved by the Surrogate, conditioned for 
 the payment of the full amount so directed to be 
 levied, with interest thereon, in case the order be 
 affirmed. * 
 
 § 163. If the whole amount due upon the judg- 
 ment shall not be collected on the execution thus 
 issued, and assets shall afterwards come into the 
 hands of the executor or administrator, the Surrogate 
 will make a further order for issuing another execu- 
 tion; and so on from time to time, until the whole 
 amount due shall be paid. There is also another 
 section of the statute which provides for executions 
 
EXECUTORS AND ADMINISTRATORS. 
 
 83 
 
 upon all judgments against executors or adminis- 
 trators, whether obtained after a trial upon the 
 merits or otherwise. But no execution can issue 
 then before an account of the administration has 
 been rendered and settled, nor without an order of 
 the Surrogate who made the appointment. And 
 when issued, it can only be for the sum that appears 
 on the settlement of the account, to be the just pro- 
 portion of the assets, applicable to such judgment. 
 
 § 164. It may be well to observe here, that the 
 statute declares no executor or administrator shall 
 be chargeable upon any special promise to answer 
 damages, or to pay the debts of the testator or in- 
 testate out of his own estate, unless the agreement 
 for that purpose, or some memorandum or note 
 thereof, be in writing, and signed by such executor 
 or administrator, or by some other person by him 
 thereunto specially authorized. 
 
 § 165. If the executor or administrator is satis- 
 fied that the assets are insufficient to pay all the 
 debts, he ought to pay the debts which are entitled 
 to preference, if there be sufficient for that purpose, 
 and retain the residue of the assets in his hands to 
 be distributed by the Surrogate ; the statute gives 
 him no authority to pay a 'portion of any of the 
 debts. To facilitate such a settlement, any creditor 
 may apply to the Surrogate who appointed such ex- 
 ecutor or administrator, at any time after six months 
 
84 
 
 THE LAW OF 
 
 shall have elapsed from the granting of the letters 
 testamentary or of administration, for a decree di- 
 recting payment of his debt or a proportional part 
 thereof. 
 
 § 166. So, also, after a year has elapsed from the 
 granting of letters testamentary or of administration, 
 any legatee or relative entitled to a distributive share 
 of the estate, may apply to such Surrogate for a de- 
 cree directing payment of the legacy or distributive 
 share belonging or due to such applicant, or-the just 
 proportional part thereof. 
 
 § 167. On filing the petition, the Surrogate will 
 issue a citation to the executor or administrator, re- 
 quiring him to appear and show cause why payment 
 should not be made. The citation must be served 
 at least four days before the day fixed for the hear- 
 ing, and directions for such service are usually con- 
 tained in the order for issuing the citation. 
 
 § 168. On the day appointed, if the executor or 
 administrator fail to appear, a decree for payment 
 of the debt or legacy will go against him by default ; 
 but- if he appears, he may set up, in answer to the 
 petition, that there are unsettled demands, or suits 
 pending against the estate, or any other matter which 
 may show uncertainty as to the assets, or furnish a 
 cause why the decree should not be made. 
 
 § 169. But in order to maintain such a defence it 
 will usually be necessary for him to bring in an ac- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 85* 
 
 count, which he may do on the day appointed for 
 showing cause ; or further time not exceeding thirty 
 days, may be allowed him for that purpose. And 
 if, in answer to the petition, he does not render an 
 account, or apply for further time to enable him to 
 do so, or otherwise distinctly show a deficiency, it 
 will be held an admission of sufficient assets in his 
 hands applicable to the petitioner’s claim. 
 
 § 170. The correctness of the account may be liti- 
 gated, and witnesses may be examined as in other 
 cases, touching any question arising on the petition 
 of the creditor, or the answer or account of the ex- 
 ecutor or administrator. And a decree may be 
 made ordering payment, either in whole or in part, 
 according to the circumstances of the case. The 
 costs and expenses of obtaining the decree, if the 
 proof shews a fair case for reasonable doubt as to 
 the payment, would be chargeable upon the estate ; 
 if any misconduct appears on the part of the execu- 
 tor or administrator, they shall be charged upon 
 him personally ; in other cases they must be borne 
 by the petitioner. If upon an application of this 
 character the Surrogate should decide against the 
 validity of the debt, his decision will not conclude 
 the creditor in an action afterwards brought by him 
 against the executors or administrators to recover the 
 same debt. 
 
 § 171. The statute also authorizes the Surrogate > 
 
66 
 
 THE LAW OF 
 
 4o cause the bond of an executor or administrator to 
 be prosecuted, if he refuses or omits to perform any 
 decree made against him, upon a final settlement, or 
 for the payment of a debt, legacy or distributive 
 share; and directs the Surrogate to apply the 
 money when collected thereon in satisfaction of 
 such decree, in the same manner as it ought to have 
 been applied by the executor or administrator. In 
 order to enforce such collection, the Surrogate first 
 makes his certificate of the amount of the debt and 
 costs ordered to be paid, and delivers it to the party 
 interested, who files the same in the office of the 
 clerk of the county where he proposes to make the 
 collection. It then becomes a lien upon the real 
 estate of the executor or administrator, equivalent 
 io a judgment, and an execution is issued thereupon. 
 And if the execution should be returned, unsatisfied, 
 the Surrogate is next directed to assign the bond 
 given by the executor or administrator to the person 
 in whose favor the decree was made, for the pur- 
 pose of being prosecuted in an ordinary suit at law. 
 
 § 172. A legatee has no authority to take posses- 
 sion of a legacy without the consent of the executor, 
 although the testator, by his will, expressly directs 
 him to do so ; and if he should, the executor may 
 maintain an action of trespass against him. The law 
 devolves all the testator’s personal property on the 
 executor, in the first instance for the payment of his 
 
EXECUTORS AND ADMINISTRATORS. 
 
 87 
 
 debts ; and before the executor can pay legacies he 
 is bound to see if there will be sufficient left with 
 which to pay creditors. In case the assets prove 
 inadequate, the legacies must abate, or fail alto- 
 gether, according to the extent of the deficiency. If 
 on a failure of assets, he pays legacies, he becomes 
 personally responsible to creditors to the amount of 
 such legacies ; hence, as a protection to the executor, 
 the law imposes the necessity of his assent to a 
 legacy before it can be absolutely vested. 
 
 § 173. Legacies are not payable by an executor 
 or administrator, until after the expiration of one 
 year from the time of granting letters testamentary 
 or of administration, unless the same are directed by 
 the will to be sooner paid. But in case a legacy is 
 directed to be sooner paid, the executor or adminis- 
 trator may require a bond, with two sufficient sure- 
 ties, conditioned that if debts against the deceased 
 shall duly appear, and which there shall be no other 
 assets to pay, and there shall be no other assets to 
 pay other legacies, or not sufficient, that then the 
 legatee shall refund the legacy so paid, or such rateable 
 proportion thereof, with the other legatees, as may 
 be necessary for the payment of the said debts, and 
 the proportional parts of such other legacies, if there 
 be any, and the costs and charges incurred by reason 
 of the payment to such legatee ; and that if the pro- 
 bate of the will, under which such legacy is paid, 
 
88 
 
 THE LAW OF 
 
 shall be revoked, or the will declared void, then that 
 such legatee shall refund the whole of such legacy, 
 with interest, to the executor or administrator enti- 
 tled thereto. 
 
 § 174. If there be any deficiency of assets with- 
 out waste, and the executor pay one legatee in full, 
 the other legatees, as well as the creditors, may 
 follow the assets, into the hands of such legatee, and 
 compel him to refund for their benefit. And even 
 in case of waste, the same thing may be done by 
 creditors, but not by legatees ; in that case they 
 must look to the executors. So, if by mistake the 
 executor shall pay a legacy in full, and debts are 
 afterwards discovered, of which he had no notice ; 
 or if losses are sustained, upon outstanding responsi- 
 bilities or contingencies, which no common prudence 
 could foresee or prevent, so that the estate becomes 
 insufficient to pay all debts and legacies, the legatee 
 is bound, not only in justice, but upon the implied 
 condition on which he received his legacy, to refund 
 rateably ; and this even if no refunding bond has- 
 been taken, for such bond does not create the liabil- 
 ity, but is taken only for the further security of the 
 executor. 
 
 § 175. It may be well here to add a caution to- 
 the executor, that he must, at his peril, take notice 
 of all judgments against his testator, in whatever 
 ourts they may have been rendered throughout 
 
EXECUTORS AND ADMINISTRATORS. 
 
 89 
 
 the state ; and if he exhaust the assets by paying 
 debts of inferior dignity, he must satisfy the judg- 
 ments from his own property. And if he distributes 
 the estate by paying legacies or otherwise, it will 
 not exonerate him from the payment of debts not 
 before exhibited, if the creditors have not been 
 limited, by the previous publication of a notice, as to 
 the time of exhibiting their claims. If he pays off 
 the debts of the estate at a discount, he is entitled 
 •only to a credit for the sum paid. 
 
 § 176. After the expiration of one year from the 
 granting of any letters testamentary or of adminis- 
 tration, the executors or administrators must dis- 
 charge the specific legacies bequeathed by the will, 
 and pay the general legacies, if there be assets ; and 
 if there be not sufficient assets, then an abatement of 
 the general legacies must be made in equal propor- 
 tions. Such payment may be enforced by the Sur- 
 rogate in the same manner as the return of an inven- 
 tory, as hereinbefore provided ; and also by a suit 
 on the bond of such executor or administrator, when- 
 ever directed by the Surrogate. 
 
 § 177. It will be observed that there are two dif- 
 ferent species of legacy referred to in the preceding 
 section, general and specific . A legacy is general 
 when it is so given, as not to amount to a particular 
 thing or money of the testator, distinguished from all 
 others of the same kind. It is specific when it is a 
 
90 
 
 THE LAW OF 
 
 bequest of a particular specified thing: thus, cs 
 diamond ring is a general legacy since it does not 
 require the delivery of any one ring in particular 
 but to give the diamond ring presented to me by my 
 grandmother , is a specific legacy, which requires the 
 delivery of that identical ring, and no other. All 
 legacies that are not specific are general, but this 
 latter term is usually applied to pecuniary legacies. 
 
 § 178. This distinction is important to be borne- 
 in mind, for articles not specifically bequeathed are 
 to be first sold for the payment of debts ; but articles 
 not so bequeathed are not to be sold until the resi- 
 due of the personal estate has been applied to such 
 payment. And if there be a deficiency of assets, a 
 specific legacy will not be liable to abate with the 
 general legacies ; but if the specific legacy fail, by 
 the ademption or inadequacy of its subject, the lega- 
 tee will not be entitled to any recompense out of the 
 general personal estate. 
 
 § 179. Courts are averse from construing legacies 
 to be specific, but if the words clearly indicate an 
 intention to separate the particular thing bequeathed 
 from the general property of the testator, they will 
 have that operation. Hence, under some circum- 
 stances, some pecuniary legacies are held to be spe- 
 cific. As a certain sum of money in a certain bag 
 or chest ; or the bequest of a sum of money in the 
 hands of a person who is named ' r or the balance of 
 
EXECUTORS AND ADMINISTRATORS. 
 
 91 
 
 •an account due to the testator from that person. A 
 bequest of thirty shares of stock in the Bank of the 
 United States has been held to be a specific legacy ; 
 so has a bequest to “ my beloved wife of all the pro- 
 perty she brought me at my marriage.” 
 
 § 180. A mere bequest of quantity,, whether of 
 money or of any other chattel, is a general legacy ; 
 as of a quantity of stock ; and if the testator has not 
 such stock at his death, such a bequest amounts to 
 a direction to the executor to preserve so much stock 
 for the legatee. But if a testator gives a sum in 
 stock, standing in his name , and has not the stock 
 described, nor any other stock, the legacy fails. 
 Personal annuities given by will are also general 
 legacies ; but if they are made payable out of a par- 
 ticular fund, and not out of the estate at large, they 
 become specific. It is said also that an executor is 
 not bound to search out a legatee ; it is enough if 
 he is always ready, when called upon, to pay the 
 legacy. A legatee must therefore bear the loss, if 
 any arises, by a depreciation upon property in the 
 hands of an executor which he has always been 
 ready to pay over. 
 
 § 181. It is necessary also that the executor, be- 
 fore he proceeds to pay, should consider the differ- 
 ence between legacies as lapsed or vested, for it is a 
 general rule, that if a legatee die before the testator, 
 the legacy intended for him will become lapsed, 
 
92 
 
 THE LAW OF 
 
 there being no longer a person to pay to ; and in 
 that event it sinks into the residuum of the testator’s 
 personal estate; and this will happen, although 
 the form of the bequest should be to the legatee, his 
 executors, administrators and assigns. But if the 
 legacy is left to him, payable at a certain age, it is a 
 vested interest in him, if he survives the testator, 
 and though payable at a future day, is an assignable 
 or merchantable interest. 
 
 § 182. The statute however preserves a legacy 
 to a grandchild or other descendant of the testator 
 under these circumstances, by declaring that if a 
 legatee or devisee, who is a child or other descen- 
 dant of the testator, shall die during the lifetime of 
 the testator, leaving a child or other descendant, 
 who shall survive the testator, such legacy or devise 
 shall not lapse, but the property so devised or be- 
 queathed, shall rest in the surviving child or other 
 descendant of the legatee or devisee as if such lega- 
 tee or devisee had survived the testator, and had 
 died intestate. 
 
 § 183. In case any legatee is a minor, his legacy, 
 if under the value of fifty dollars, may be paid to his 
 father, to the use and for the benefit of such minor. 
 If the legacy be of the value of fifty dollars or more, 
 the same may, under the direction of the Surrogate, 
 be paid to the general guardian of the minor, who 
 will be required to give security to the minor, to be 
 
EXECUTORS AND ADMINISTRATORS. 
 
 9 & 
 
 approved by the Surrogate, for the faithful applica- 
 tion and accounting for such legacy. 
 
 § 184. If there be no such guardian, or the Sur- 
 rogate does not direct such payment, the legacy will 
 be invested in permanent securities, under the direc- 
 tion of the Surrogate, in the name, and for the bene- 
 fit of such minor, upon annual interest ; and the in- 
 terest may be applied, under the direction of the 
 Surrogate, to the support and education of such 
 minor. 
 
 § 185. After having paid all the debts, the legacies 
 must be satisfied as far as the assets will extend, but 
 the executor cannot give himself the preference. 
 The assets, if insufficient to carry out all the pro- 
 visions of the will, must be paid in proportionate 
 amounts to the legatees. Yet if a specific legacy be 
 left to any one individual, then he must have the 
 whole of that legacy, without reference to the rest of 
 the legatees ; as for instance, where a testator, after 
 leaving several legacies, says that one particular in- 
 dividual is to have the whole of the money vested 
 in certain three per cent, stocks, that individual will 
 take the whole of the tli|ee per cent, stock, even 
 though there should be nothing else to satisfy the 
 other legatees. 
 
 § 186. Assets are termed either real or personal , 
 according to the nature of the property whence they 
 are derived ; and legal or equitable , according to the 
 9 
 
94 
 
 THE LAW OF 
 
 means by which they are obtained, or the mode in 
 which they are applied. Legal assets are derived 
 from any property which, at the death of the de- 
 ceased, is commonly liable for the payment of debts, 
 and comes to the hands of the executor or adminis- 
 trator to be disposed of in the course of administra- 
 tion. The produce of real estate, when not left for 
 any particular purpose by the testator, is used for 
 the payment of debts, according to their legal pri- 
 ority ; but equitable assets are applied to the liqui- 
 dation of every debt, in proportionable amounts, at 
 the same time. The last, however, are only such as 
 can be reached through a court of equity, and com- 
 prise the produce of real estate, which, by the act 
 of the testator, has been made chargeable for the 
 payment of his debts, though it would have other- 
 wise been exonerated. 
 
 § 187. No debts can be paid by debtors to lega- 
 tees, but they must pass through the hands of the 
 executor, who alone can give a legal discharge for 
 them ; and, if the executor pay out the assets in 
 legacies, and afterwards debts are presented of which 
 he had no notice, he may, by bill in equity, com- 
 pel the legatees to refund, in order to pay the debts. 
 One legatee shall refund for another, if it be neces- 
 sary for equality of payment, and for a creditor of 
 the testator ; but, if an executor pays a debt of sim- 
 ple contract, and omits one of a higher nature, no 
 
EXECUTORS AND ADMINISTRATORS. 
 
 9& 
 
 refunding is required for that, and the executor must 
 take the responsibility of the debt upon himself. 
 The personal estate of a testator must be first used 
 for the discharge of his debts, unless he shall have 
 particularly exempted it in his will, and this even 
 though it be secured oh mortgage. 
 
 § 18S. Lands which are left to pay debts must 
 be used to pay off mortgages, even though the 
 mortgaged lands have been left expressly with the 
 incumbrance stated upon them ; so descended lands 
 and unincumbered lands specifically devised, after 
 payment of debts, must be used to discharge mort- 
 gages. The rule, however, is otherwise when the 
 debt is on the real estate chiefly, although there be 
 a collateral personal security. When the personal 
 assets are exhausted, the real estates must next be 
 applied for the payment of debts ; and of these that 
 which is expressly devised for the payment of debts 
 first, next that which is descended, and lastly that 
 which is specifically devised. 
 
 § 189. As it is the object of equity that every 
 debt shall be satisfied as far as the assets will go, it 
 is an established rule that where there are debts of 
 which part have two funds to go to for satisfaction, 
 and the other part only one, that which has two 
 shall first apply to the fund for liquidation, on which 
 the second has no claim. Thus, if a specialty creditor 
 be satisfied out of the personal assets when he had a 
 
96 
 
 THE LAW OF 
 
 lien on the real assets, and the personal assets be 
 exhausted, a simple contract creditor will then have 
 a claim upon the real assets in the place of the spe- 
 cialty creditor, who ought to have gone to them first. 
 
 § 190. Where legacies are charged upon the real 
 estate by the will, but not the legacies given in the 
 codicil, the former must be paid out of the real es- 
 tate where there is not sufficient personalty to pay 
 the whole ; and, where lands are charged with the 
 payment of all debts, a pecuniary legatee stands 
 upon the same footing as a simple contract creditor, 
 who has not been paid out of the personalty. But 
 he cannot stand in the place of a specialty creditor 
 -against lands devised, though he may against lands 
 descended. He will, however, have the same title 
 as a mortgagee, when the personal assets have been 
 exhausted, and have a right to be satisfied out of the 
 mortgaged property, even though it be specifically 
 devised. 
 
 § 191. The application of personal assets, there- 
 fore, to discharge a mortgage will not defeat the 
 claims of a legatee upon the real estate, for the 
 remedy of the mortgagee was first against the estate 
 pledged to him ; and if he be paid from another 
 source, it is not just that the rights of those should 
 be barred who have a claim from that source ; for 
 that would be depriving one, in order that another 
 might be satisfied. The rule is, that the rights of 
 
EXECUTORS AND ADMINISTRATORS. 
 
 97 
 
 one claimant shall not hinder the rights of another 
 when the estate is sufficient to satisfy all ; but in 
 every case, whether there be sufficient in the whole 
 estate or not, each claim must be satisfied in its due 
 course, and the estate must be converted as may 
 happen to be necessary, but yet according to the 
 rules laid down. 
 
 § 192. With regard to interest payable upon lega- 
 cies, the executor should understand that specific 
 legacies are considered as separated from the gene- 
 ral estate, and appropriated at the time of the testa- 
 tor’s death; and consequently, from that period, 
 whatever accrues upon them belongs to the legatees. 
 Therefore, when there is a specific legacy of stock 
 the dividends belong to the legatee, from the death 
 of the testator, although the enjoyment of the prin- 
 cipal may be postponed by the testator to a distant 
 period. But, in general, a specific legacy, where the 
 value is fixed by the testator, does not carry interest. 
 
 § 193. General legacies, however, bear interest 
 from the time they become payable. When no time 
 of payment is fixed, the executor being allowed a 
 year from the testator’s death to ascertain and settle 
 the estate, the law presumes it to have been done at 
 the expiration of that period, from which time interest 
 will become payable, unless some other period is de- 
 signated in the will for that purpose. And where an 
 annuity is given without mentioning any time of pay- 
 
•98 
 
 THE LAW OF 
 
 ment, it commences from the death of the testator, 
 and the first payment is due at the expiration of the 
 year ; from which period also interest may be claimed 
 if the payment is deferred. But where the time of 
 payment is fixed by the will, the general rule is, that 
 the legacy will not carry interest before the period 
 fixed shall arrive, whether the legacy be vested or 
 ■contingent. 
 
 § 194. After all debts and legacies have been 
 paid, it is the duty of the executor to distribute the 
 balance of the personal property amongst those en- 
 titled to it. And this he may do at any time with- 
 out applying to the Surrogate, if he is satisfied that 
 all such claimants have been paid, and that a clear 
 surplus remains, over and above what will be re- 
 quired to pay all debts, legacies and expenses. In- 
 deed he is, in justice to the next-of-kin, bound to 
 pay out and distribute the assets, from time to time, 
 and not suffer them to accumulate in his hands be- 
 yond what is necessary to make such payments. 
 
 § 195. But should the executor or administrator 
 omit or neglect to distribute the property to and 
 amongst those entitled thereto, any person having a 
 demand against the personal estate of the deceased, 
 either as creditor, legatee, or next-of-kin, may, at 
 any time after eighteen months from the time of the 
 appointment of such executor or administrator, apply 
 to the Surrogate, to compel such executor or admin- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 99 
 
 istrator to render an aecount of his receipts and dis- 
 bursements. In case any person having such claim 
 be a minor, the application must be made by some 
 person of full age, as his next friend. 
 
 § 196. Any next-of-kin may compel a distribution 
 of assets, as far as practicable, by application to the 
 Surrogate for that purpose, at any time after one 
 year shall have elapsed from the granting of letters 
 testamentary or of administration. 
 
 § 197. Where the deceased shall have died intes- 
 tate, the surplus of his personal estate remaining 
 after the payment of debts, and where the deceased 
 left a will, the surplus remaining after payment of 
 debts and legacies, if not bequeathed, shall be dis- 
 tributed to the widow, children, or next-of-kin of the 
 deceased, in manner following : 
 
 1. One-third part thereof to the widow, and all 
 the residue by equal portions among the children, 
 and such persons as legally represent such children, 
 if any of them shall have died before the deceased. 
 
 2. If there be no children, nor any legal repre- 
 sentatives of them, then one moiety of the whole 
 surplus shall be allotted to the widow ; and the 
 other moiety shall be distributed to the next-of-kin 
 of the deceased, entitled under the provisions of this 
 section. 
 
 3. If the deceased leave a widow, and no de- 
 scendant, parent, brother or sister, nephew or niece, 
 
100 
 
 THE LAW OF 
 
 the widow shall be entitled to the whole surplus 
 but if there be a brother or sister, nephew or niece,, 
 and no descendant or parent, the widow shall be en- 
 titled to a moiety of the surplus, as above provided, 
 and to the whole of the residue, where it does not 
 exceed two thousand dollars. If the residue exceed 
 that sum, she shall receive, in addition to her moiety, 
 two thousand dollars ; and the remainder shall be 
 distributed to the brothers and sisters, and their 
 representatives. 
 
 4. If there be no widow, then the whole surplus 
 shall be distributed equally to and among the 
 children, and such as legally represent them. 
 
 5. In case there be no widow, and no children, 
 and no representatives of a child, then the whole 
 surplus shall be distributed to the next-of-kin, in 
 equal degree to the deceased and their legal repre- 
 sentatives. 
 
 6. If the deceased shall leave no children, and no 
 representatives of them, and no father, and shall 
 leave a widow and a mother, the moiety not dis- 
 tributed to the widow shall be distributed in equal 
 shares to his mother and brothers and sisters, or the 
 representatives of such brothers and sisters ; and if 
 there be no widow, the whole surplus shall be dis- 
 tributed in like manner to the mother, and to the 
 brothers and sisters, or the representatives of such 
 brothers and sisters. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 101 
 
 7. If the deceased leave a father, and no child or 
 descendant, the father shall take a moiety, if there 
 be a widow ; and the whole if there be no widow. 
 
 8. If the deceased leave a mother, and no child, 
 descendant, father, brother, sister, or representative 
 of a brother or sister, the mother, if there be a 
 widow, shall take a moiety, and the whole if there 
 be no widow. 
 
 9. Where the descendants or next-of-kin of de- 
 ceased, entitled to share in his estate, shall be all in 
 equal degree to the deceased, their shares shall be 
 equal. 
 
 10. When such descendants or next-of-kin shall 
 be of unequal degrees of kindred, the surplus shall 
 be apportioned among those entitled thereto, accord- 
 ing to their respective stocks ; so that those who take 
 in their own right, shall receive equal shares, and 
 those who take by representation shall receive the 
 share to which the parent whom they represent, if 
 living, would have been entitled. 
 
 11. No representation shall be admitted among 
 collaterals, after brothers’ and sisters’ children. 
 
 12. Relatives of the half-blood shall take equally 
 with those of the whole-blood in the same degree ; 
 and the representatives of such relatives shall take in 
 the same manner as the representatives of the whole 
 blood. 
 
 13. Descendants and next-of-kin of the deceased, 
 
102 
 
 THE LAW OF 
 
 begotten before his death but born thereafter, shall 
 take in the same manner as if they had been born in 
 the lifetime of the deceased, and had survived him. 
 
 § 198. If any child of such deceased person shall 
 have been advanced by the deceased, by settlement 
 or portion of real or personal estate, the value thereof 
 shall be reckoned with that part of the surplus of the 
 personal estate which shall remain to be distributed 
 among the children ; and if such advancement be 
 equal or superior to the amount which, according to 
 the preceding rules, would be distributed to such 
 child, as his share of the surplus and advancement,, 
 then such child, and his descendants, shall be ex- 
 cluded from any share in the distribution of such 
 surplus. 
 
 § 199. But if such advancement be not equal to 
 such amount, such child, or his descendants, will 
 be entitled to receive so much only, as shall be suf- 
 ficient to make all the shares of all the children in 
 such surplus and advancement to be equal, as near 
 as can be estimated. 
 
 § 200. The maintaining or educating, or the giving 
 of money to a child, without a view to a portion or 
 a settlement in life, will not be deemed an advance- 
 ment, within the meaning of the two last sections ; 
 nor will those sections apply in any case where 
 there shall be any real estate of the intestate to de- 
 scend to his heirs. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 103 
 
 § 201. By the Revised Statutes it was declared, 
 that the preceding provisions respecting the distri- 
 bution of estates, shall not apply to the personal 
 estates of married women ; but their husbands may 
 demand, recover, and enjoy the same, as they are 
 entitled by the rules of the common law. The re- 
 cent law of the State of New-York, however, having 
 removed the disability of a married woman to con- 
 trol and dispose of her own property, an executor or 
 administrator would doubtless be entirely safe in 
 paying to her any legacy, or distributive portion 
 of the assets that accrued to her after the passage of 
 that law.* 
 
 § 202. Should any one of the next-of-kin who is 
 entitled to share in the distribution die after the death 
 
 * The real and personal property of any female who may 
 hereafter marry, and which she shall own at the time of 
 marriage, and the rents, issues and profits thereof shall not be 
 subject to the disposal of her husband, nor be liable for his 
 debts, and shall continue her sole and separate property, as 
 if she were a single female. 
 
 The real and personal property, and the rents, issues and 
 profits thereof, of any female now married, shall not be sub- 
 ject to the disposal of her husband ; but shall be her sole and 
 separate property as if she were a single female, except so far 
 as the same may be liable for the debts of her husband here- 
 tofore contracted. 
 
 Any married female may take by inheritance or by gift, 
 grant, devise or bequest, from any person other than her 
 
104 
 
 THE LAW OF 
 
 of the testator or intestate, and before the distribu- 
 tion should be actually decreed by the Surrogate, 
 the share which would have been distributed to such 
 next-of-kin, had he survived to receive the same, 
 vests by his death in, and must be distributed and 
 paid to his personal representatives. 
 
 § 203. There has been much discussion as to the 
 rule of distribution of personal property, when the 
 
 husband, and hold to her sole and separate use, and convey 
 and devise real and personal property, and any interest on 
 estate therein, and the rents, issues and profits thereof, in the 
 same manner and with like effect as if she were unmarried, 
 and the same shall not be subject to the disposal of her 
 husband, nor be liable for his debts. 
 
 Any person who may hold, or who may hereafter hold, as 
 trustee for any married women, any real or personal estate or 
 other property under any deed of conveyance or otherwise, on 
 the written request of such married women, accompanied by 
 a certificate of a justice of the Supreme Court that he has 
 examined the condition and situation of the property, and 
 made due enquiry into the capacity of such married women 
 to manage and control the same, may convey to such married 
 women, by deed or otherwise, all or any portion of such pro- 
 perty, or the rents, issues or profits thereof, for her sole and 
 separate use and benefit. 
 
 All contracts made between persons in contemplation of 
 marriage, shall remain in full force after such marriage takes 
 place . — Acts of the Legislature of the State of New-York 9 
 passed April 1th , 1848, and amended April 1 1th, 1849. 
 
 . > 
 
EXECUTORS AND ADMINISTRATORS. 
 
 105 
 
 place of the domicil of the intestate, and the place 
 of the situation of the property were different. But 
 Chancellor Kent states it to have now become a 
 settled principle of international law, and one founded 
 on an enlightened sense of public policy and com 
 venience, that the disposition, succession and distri- 
 bution of personal property, wherever situated, 
 is governed by the law of the country of the owner’s 
 domicil at the time of his death, and not by the 
 conflicting laws'of the various places where the goods 
 happen to be found. Personal property is subject 
 to that law which governs the person of the owner. 
 On the other hand, it is equally well settled in the 
 laws of all civilized countries, that real property, as to 
 its tenure, mode of enjoyment, transfers and descent, 
 is to be regulated by the law of the place where the 
 property is situated. And these principles apply 
 equally to cases of voluntary transfers, of intestacy 
 and of testament. 
 
 10 
 
106 
 
 THE LAW OF 
 
 CHAPTER V. 
 
 OF ACCOUNTING, AND BEING DISCHARGED. 
 
 § 204. After the expiration of eighteen months 
 from the time of the appointment of an executor or 
 administrator, he may voluntarily render an account 
 of his proceedings before the Surrogate, and after 
 giving due notice of his intention, by the service of a 
 citation upon the next-of-kin, to the parties interested 
 in the estate, may require that his accounts be ex- 
 amined and settled by the Surrogate, and may pro- 
 cure a decree confirming or correcting such disposi- 
 tion of the property of the estate as he may have 
 made, and directing him in the legal distribution of 
 such of it as may still remain in his hands. 
 
 § 205. An executor or administrator may also, at 
 any time after the expiration of eighteen months 
 from the time of his appointment, be required to 
 render an account of his proceedings, by an order of 
 the Surrogate who appointed him, to be granted 
 upon application of some person having a demand 
 against the personal estate of the deceased, either as 
 creditor, legatee, or next-of-kin, or of some person 
 in behalf of any minor having such claim, or without 
 such application. 
 
EXECUTORS AND ADMINISTRATORS. 107 
 
 § 206. The order must be served upon him by 
 showing him the original, and at the same time de- 
 livering him a copy thereof, or in case of his absence 
 from home, by leaving a copy thereof with his wife, 
 or some suitable person at the place of his residence, 
 thirty days at least before the time of hearing. But 
 if such executor or administrator shall not reside 
 within this State, the order shall be served by pub- 
 lishing it once in each week for three months before 
 the return day thereof, in the State paper, and also 
 in the county paper where the Surrogate resides who 
 issued the order, if there is any such paper published 
 in said county, and if not, in the county paper of 
 some adjoining county, unless the order be person- 
 ally served on such executor or administrator, and if 
 it shall be personally served on any such executor 
 or administrator residing out of the State at the time 
 of the service, such service shall be made at least 
 sixty days before the return day thereof. 
 
 § 207. If the person applies as a creditor, he 
 must be such at the tune of making his application ; 
 and if he has sold his debt, the person who has pur- 
 chased it must be the applicant, for no one but the 
 real party in interest will be recognized as the credi- 
 tor. 
 
 § 208. The person applying to the Surrogate, 
 must present a petition, showing the nature and 
 extent of his claim against the estate ; and if it is 
 
108 
 
 THE LAW OF 
 
 not sufficiently and fully stated, the executor or 
 administrator may call upon the Surrogate to reject 
 it on that ground alone ; he may also take issue upon 
 the facts set forth in the petition, or may put in a 
 counter allegation, showing that the petitioner is not 
 a creditor, or for some other reason has no right to 
 the relief he seeks. 
 
 § 209. Obedience to the Surrogate’s order may 
 be enforced in the manner hereinbefore pointed out, 
 to compel the return of an inventory ; and in case 
 of disobedience, the same proceeding may be had to 
 attach the party disobeying, and to discharge him. 
 And the letters testamentary or of administration 
 may be revoked, in case the party absconds or con- 
 ceals himself, so that the order cannot be personally 
 served, or if he neglects to render an account within 
 thirty days after being committed, and new letters 
 will be granted with like effect as in those cases. 
 
 § 210. Although an account in full of the pro- 
 ceedings of the executor or administrator cannot be 
 compelled before the Surrogate, before the expira- 
 tion of eighteen months from the time of the grant- 
 ing of the letters testamentary, or of administration ; 
 yet, upon the application of a creditor, the payment 
 of any debt, or the proportional part thereof, may be 
 decreed by the Surrogate, at any time after six 
 months shall have elapsed, from the granting of let- 
 ters testamentary, or of administration ; and upon 
 
EXECUTORS AND ADMINISTRATORS. 
 
 109 
 
 the application of a legatee or relative entitled to a 
 distributive share, or its just proportional part, may 
 be decreed by the Surrogate at any time after one 
 year shall have elapsed from the granting of such 
 letters. 
 
 § 211. When the application for a settlement o 
 accounts is made by the executor or administrator, 
 the citation must be personally served on all those 
 to whom it shall be directed living in the county of 
 the Surrogate, at least fifteen days before the return 
 day thereof ; and upon those living out of the county, 
 or whose residence may be unknown, either perso- 
 nally fifteen days previously, or by publishing the 
 same in a newspaper printed in the county, at least 
 four weeks before the return day, and in such other 
 newspaper published in places where persons inte- 
 rested in the estate may reside, as the Surrogate 
 shall direct. 
 
 § 212. If there are creditors or other persons in- 
 terested in the estate, residing in any other of the 
 United States or in Canada, the citation, unless per- 
 sonally served at least forty days before the return 
 day, must be published once a week for three months 
 in the state paper ; and if any of such interested 
 persons, reside out of the United States and out of the 
 provinces of Canada, the citation must be published 
 as above for six months. 
 
 § 213. In rendering his account, the executof* or 
 10 * 
 
110 
 
 THE LAW OF 
 
 administrator must produce vouchers for all debts 
 and legacies paid, and for all funeral charges and 
 just necessary expenses, which must be deposited 
 and remain with the Surrogate. And he may be 
 examined on oath touching such payments, as 
 well as in relation to any property or effects of the 
 deceased which have come to his hands, and the dis- 
 position thereof. 
 
 § 214. The account is made out in the usual 
 form of debtor and creditor, and must be verified by 
 the affidavit of the executor or administrator an- 
 nexed, in which he must state that the account con- 
 tains, according to the best of his (the executors or 
 administrators) knowledge and belief, a full and true 
 account of all his receipts and disbursements on ac- 
 count of the estate of the deceased, and of all sums 
 of money and property belonging to such estate, 
 which have come to his hands, or which have been 
 received by any other person by his order or au- 
 thority for his use : and that he does not know of 
 any error or omission in the account, to the prejudice 
 of any of the parties interested in the estate. 
 
 § 215. He may be allowed any item of expendi- 
 ture, not exceeding twenty dollars, for which no 
 voucher is produced, if such item be supported by 
 his own oath positively to the fact of payment, speci- 
 fying when, and to whom such payment was made, 
 and if such oath be uncontradicted ; but such allow- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 Ill 
 
 ances cannot, in the whole, exceed five hundred dol- 
 lars, for payments on behalf of any one estate. And 
 in order to authorize such allowance, he must specify 
 in the account rendered to the Surrogate, the 
 times when, the persons to whom, and the purposes 
 for which, such several disbursements or payments 
 were made ; and must also, as to the sums thus 
 charged, swear positively that they have been actu- 
 ally paid or disbursed by him as charged in the ac- 
 count. 
 
 § 216. The Surrogate may make him an allow- 
 ance for any property of the deceased that may 
 have perished or been lost without his fault. He 
 will not be allowed to make any profit by the increase, 
 nor shall he sustain any loss by the decrease, with- 
 out his fault, of any part of estate ; but he must ac- 
 count for such increase, and will be allowed for such 
 decrease on the settlement of the account. 
 
 § 217. Executors and administrators ought also 
 to understand, that it is their duty to keep the funds 
 of their trust separate and distinct from their other 
 funds and business ; and that they can in no other 
 way save themselves from censure, and, perhaps, liti- 
 gation. The protection of the rights of others who 
 are not in a situation to protect themselves, makes it 
 the duty of courts of justice to require fiduciaries to 
 make good all losses which have been occasioned by 
 their neglect. If he compounds debts or mortgages. 
 
112 
 
 THE LAW OF 
 
 and buys them in for less than is due upon them, he 
 cannot take the benefit himself, but must account to 
 the estate ; and if he lays out the assets on private 
 securities, he must answer for all deficiencies which 
 may be caused thereby. And, indeed, it is said to 
 be a general principle, that if an executor will take 
 upon himself to act with regard to the testator’s pro- 
 perty in any other manner than his trust requires, 
 he puts himself in this situation, that if there be any 
 loss he must replace it, but he cannot possibly be a 
 gainer by it ; any gain must be for the benefit of the 
 estate. 
 
 § 218. An executor or administrator may also be 
 charged with interest when he has not been guilty 
 of any positive mismanagement of the funds in 
 his hands. The general rule on this subject is 
 stated to be that they are liable to pay simple inte- 
 rest where they unnecessarily retain the money in 
 their hands, hold it an unreasonable time, mix it with 
 their own private funds, use it in the way of trade, 
 or derive any personal advantage from it. In cases 
 of a wilful omission of duty or of fraud, compound in- 
 terest will be allowed against him. 
 
 § 219. As to investments made by him, the rule 
 appears to be that if he puts out the money of the 
 testator, upon a real security, which there was no 
 reason then to suspect, but afterwards the security 
 proves bad, he is not accountable for the loss ; but if 
 
EXECUTORS AND ADMINISTRATORS. 
 
 113 
 
 he lends such money upon a mere personal security, 
 it is to be considered a breach of trust, and he be- 
 comes personally responsible if the security proves 
 defective. If, however, the will directs the execu- 
 tors to lay out the fund in real or personal securi- 
 ties, they would be justified, as against legatees, 
 in using a sound discretion, and fairly and honestly 
 lending it to a person whom he considered respon- 
 sible. 
 
 § 220. But the rule is different as against creditors, 
 and although the will may give him power to lend 
 on personal security, this will not enable him even 
 as against legatees, to accommodate a trader with a 
 loan on his bond or note. It is his duty indeed to 
 keep unemployed money invested in good securities ; 
 but if he invests in stocks, he must be careful to 
 select such only as the court will consider safe ; and 
 if he is prudent, he will not run this risk, so long 
 as landed security is to be obtained. 
 
 § 221. If any of the debts are contested, they 
 must be proved before the Surrogate, in the same 
 manner as before other courts, and by similar legal 
 evidence. Any party interested in the estate may 
 produce evidence, and contest any claim that may 
 be presented ; and if the executor or administrator 
 claim that the testator or intestate was indebted to 
 him, he mus£ upon proving his debt, like other cre- 
 ditors, not^only justify his claim by his oath, but if 
 
114 
 
 THE LAW OF 
 
 it is objected to, he must establish it, by legal evi- 
 dence, in addition to his own oath. 
 
 § 222. The hearing of the allegations and proofs 
 of the respective parties may be adjourned from 
 time to time, as shall be necessary. And the Sur- 
 rogate may appoint one or more auditors to examine 
 the accounts presented to him, and to make report 
 thereon, subject to his confirmation ; and may 
 make a reasonable allowance to such auditors, not 
 exceeding two dollars a day, to be paid out of the 
 estate of the deceased. If either party conceives 
 himself aggrieved by the auditors’ report, he may ob- 
 ject to the confirmation of the same, and the surro- 
 gate will thereupon confirm or modify the report 
 as he may deem just and proper, and afterwards 
 proceed to decree a settlement, and distribution 
 thereupon, 
 
 § 223. The final settlement of such account, and 
 the allowance thereof by the Surrogate, or upon 
 appeal, will be deemed conclusive evidence against 
 all creditors, legatees, next of kin of the deceased, 
 and all persons in any way interested in the estate,, 
 upon whom the citation shall have been served, 
 either personally, or by publication, as herein di- 
 rected, of the following facts, and no others : 
 
 1. That the charges made in such account for 
 moneys paid to creditors, to legatees, to the next-of- 
 kin, and for necessary expenses, are cofrect : 
 
EXECUTORS AND ADMINISTRATORS. 
 
 115 
 
 2. That such executor or administrator has been 
 charged all the interest for moneys received by him, 
 and embraced in his account, for which he was le- 
 gally accountable : 
 
 3. That the moneys stated in such account, as 
 collected, were all that were collectible, on the 
 debts stated in such account, at the time of the 
 settlement thereof : 
 
 4. That the allowances in such account, for the 
 decrease in the value of any assets, and the charges 
 therein for the increase in such value, were correctly 
 made. 
 
 § 224. The Surrogate will file the vouchers and 
 accounts that are produced and rendered before 
 him ; and he is directed by the statute to record 
 with his decree a summary statement of the same, 
 as finally settled and allowed by him, which is to be 
 referred to and taken as part of the final decree, 
 And this decree is expressly limited by the statute, 
 so as not to extend to any case where an executor 
 is liable to account to a court of equity, by reason of 
 any trust expressly created by any last will or tes- 
 tament. 
 
 § 225. If upon the final settlement of the ac- 
 count, it appears, that any part of the estate re- 
 mains to be paid or distributed, the Surrogate will 
 order the payment and distribution of the same 
 among the creditors, legatees, widow, and next-of- 
 
116 
 
 THE LAW OF 
 
 kin to the deceased, according to their respective 
 rights ; and in his decree will settle and determine 
 all questions concerning any debt, claim, legacy, be- 
 quest or distributive share, to whom the same shall 
 be payable, and the sum to be paid to each person. 
 
 § 226. But if on such settlement, any claim may 
 appear to exist against the estate of the deceased, 
 which is not then due, or upon which a suit is then 
 pending, the Surrogate will allow a sum sufficient to 
 satisfy such claim, or the proportion to which it may 
 be entitled, to be retained, for the purpose of being 
 applied to the payment of such claim when due, or 
 when recovered, or of being distributed according to 
 law. The sum so retained may be left in the hands 
 of the executor or administrator, or may be directed 
 by the Surrogate to be deposited in some safe bank, 
 to be drawn only on the order of the Surrogate. 
 
 § 227. So, if any creditor has a security for his 
 debt, upon another fund, which is primarily liable 
 for its payment, the Surrogate should compel such 
 creditor to exhaust his remedy against that fund, 
 and only to come in as against the personal estate for 
 the deficiency. And when it is necessary to make 
 a distribution of the personal estate of the deceased, 
 before such deficiency can be ascertained, he should 
 direct a portion of the property to be retained, to 
 meet the contingent claim for such deficiency. But 
 before the Surrogate allows any sum to be retained 
 
EXECUTORS AND ADMINISTRATORS. 
 
 117 
 
 for the payment of outstanding claims, he will re- 
 quire proof of the existence of such claims against 
 the estate. 
 
 § 228. In such order the Surrogate may upon 
 the consent in writing of the parties who shall have 
 appeared, direct the delivery of any personal pro- 
 perty which shall not have been sold, and the as- 
 signment of any mortgages, bonds, notes, or other 
 demands, not yet due ; among those entitled to pay- 
 ment or distribution, in lieu of so much money as 
 such property or securities may be worth, to be as- 
 certained by the appraisement and the oath of 
 such persons as the Surrogate shall appoint for 
 that purpose. 
 
 § 229. Every person to whom any such securities 
 may be assigned, is authorized to sue and recover 
 upon them at his own cost and risk, in the same 
 manner and under the same circumstances, that the 
 executor or administrator might have done, while 
 they remained under his control. 
 
 § 230. Upon the settlement of their accounts* 
 executors and administrators are entitled to the fol- 
 lowing compensation : 
 
 1. For receiving and paying out all sums of 
 money, not exceeding one thousand dollars, at the 
 rate of five per cent. 
 
 2. For any sums, exceeding one thousand dol- 
 
 11 
 
118 
 
 THE LAW OF 
 
 lars, and not amounting to five thousand dollars, 
 two and a half per cent. 
 
 3. For all sums above five thousand dollars, one 
 per cent. 
 
 And in all cases such allowance for their actual 
 and necessary expenses, as shall appear just and 
 reasonable. 
 
 § 231. The commission must be charged upon 
 the aggregate of the items received, and not upon 
 each item. He is entitled to retain in his hands, 
 the commissions upon all moneys received and paid 
 out, as the same are, from time to time, received and 
 paid out, or in other words, he is entitled to his 
 commissions as they are earned. And where he 
 assigns bonds and mortgages, or other securities, or 
 transfers other property to the creditors, heirs, de- 
 visees, legatees or next-of-kin, he is entitled to the 
 same commission as if he had in fact converted them 
 into money, and had paid out the avails. This 
 however would not authorize a charge for com- 
 missions upon the whole amount of an account, 
 which should be reduced by set off had against it by 
 the debtor ; the executor or administrator, in such 
 case, could only charge commissions upon the bal- 
 ance actually due, as that would, in fact, be the 
 amount received, or paid, as the case might be. 
 
 § 232. Wherever legal advice is proper to direct 
 
EXECUTORS AND ADMINISTRATORS. 
 
 119 
 
 the course of the executor, to bring suits or to de- 
 fend them, or where counsel is employed to obtain 
 what is honestly supposed to be the rights of the 
 estate, the executor is justified in paying reasonable 
 attorney or counsel fees. But where he neglects to 
 settle, and is sued by creditors, or cited by the heirs, 
 and is obliged to employ counsel to defend himself, 
 the counsel fees ought not to come out of the estate. 
 If, however, the heirs are asking from him what is 
 illegal or unreasonable, he may defend this, and the 
 heirs must bear the expense of their unjust claim. 
 
 § 233. With respect to the allowance of interest, 
 upon sums advanced by him for the purposes of his 
 trust, it is held that if he borrows money, or advances 
 it out of his own pocket, to pay debts of his testator 
 which carry interest ; or to satisfy some of the cre- 
 ditors who threaten to bring actions, he is entitled 
 to an allowance of interest, for the money so ad- 
 vanced or borrowed. But in general a charge of 
 interest made by an executor or administrator, will 
 be received with caution, and the circumstances 
 which are alleged for its justification, will be care- 
 fully examined. 
 
 § 234. He will be allowed for moneys paid for the 
 services of a clerk, where from the peculiar situation 
 of the property, or from its nature, it was beneficial 
 to the estate to subject it to that extra expense ; but 
 in ordinary cases, such charge would not be reason- 
 
120 
 
 THE LAW OF 
 
 able, as it is the duty of the executor or administra- 
 tor to give his personal attention to the business of 
 the estate. For his own services, however arduous, 
 the executor or administrator must be confined to 
 the allowance, by way of commission on the moneys 
 received and disbursed by him in full for all his 
 services in discharging the trust. He can, in no 
 case, charge for the time employed by him in and 
 about the business of the estate, however inade- 
 quate the compensation may be by way of commis- 
 sions. And where charges are made for expenses, 
 they must be confined to expenses actually and 
 necessarily paid or incurred. 
 
 § 235. The statute also provides that, where 
 any provision shall be made by any will, for specific 
 compensation to an executor, the same shall be 
 deemed a full satisfaction for his services, in lieu of 
 the allowance aforesaid, or his share thereof, unless 
 such executor shall, by a written instrument to be 
 filed with the Surrogate, renounce all claim to such 
 specific legacy. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 121 
 
 CHAPTER VI. 
 
 OF PROCEEDINGS TO SELL REAL ESTATE. 
 
 § 236. Executors and administrators, as sudi> 
 have no control over, or interest in, the real estate 
 of their testator or intestate. They can only derive 
 authority to dispose of it in any manner, from the 
 express terms of the will, or by virtue of the statutes 
 which have from time to time been passed upon that 
 subject. The executor, in case the will contains no ex- 
 press authority to sell the real estate of the deceased, 
 or the administrator in the event of his dying intestate, 
 may if necessary for the purpose of paying debts, 
 apply to the Surrogate for an order to sell ; or if 
 they neglect to make such an application, a creditor 
 may apply for an order requiring them to make such 
 a sale. The statute enacts that after the executors 
 or administrators of a deceased person shall have 
 made and filed an inventory, if they discover the 
 personal estate of the testator or intestate to be in- 
 sufficient to pay his debts, they may at any time 
 within three years after the granting of letters tes- 
 tamentary or of administration, apply to the Surro- 
 gate for authority to lease, mortgage or sell so 
 much of the real estate as may be necessary to pay 
 such debts. 
 
 11* 
 
122 
 
 THE LAW OF 
 
 § 237. The statute also enacts, that if after the 
 rendering of an account by an executor or administra- 
 tor to a Surrogate, it shall appear that there are not 
 sufficient assets to pay the debts of the deceased, the 
 Surrogate, upon the application of any creditor, made 
 at any time after the granting of letters testamentary 
 or of administration, shall grant an order for such 
 executor or administrator to show cause why he 
 should not be required to mortgage, lease or sell the 
 real estate of the deceased for the payment of his 
 debts ; but he shall not assign for cause why he 
 should not be ordered to sell real estate, that the 
 time within which he is allowed to sell the same has 
 expired. And where a judgment or decree has been 
 recovered against an executor or administrator for 
 any debt due from the deceased, and there are not 
 sufficient assets in the hands of such executor or ad- 
 ministrator to satisfy the same, the debt for which 
 the judgment or decree was obtained, shall, not- 
 withstanding the form of such judgment or decree, 
 remain a debt against the estate of the deceased, to 
 the same extent as before, and to be established in 
 the same manner as if no such judgment or decree 
 had been recovered. Provided, that where such 
 judgment or decree has been obtained upon a trial 
 or hearing upon the merits, the same shall be 
 prima facie evidence of such debt before the Sur- 
 rogate. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 123 
 
 § 238. When the application is made by the exe- 
 cutor or administrator, it must be verified by his oath, 
 and must set forth the amount of the personal pro- 
 perty which has come to his hands, and the appli- 
 cation thereof ; also the debts outstanding against 
 the testator, or intestate, as far as they can be as- 
 certained ; with a description of all the real estate 
 of which the testator or intestate died seised, with 
 the value of the respective portions or lots, and 
 whether occupied or not, and if occupied, the names 
 of the occupants ; and also, the names and ages of 
 the devisees, and of the heirs of the deceased. 
 
 § 239. If any of the heirs or devisees are minors, 
 the Surrogate before taking any other proceeding, 
 will appoint some disinterested freeholder, guardian 
 of said minors, for the sole purpose of taking care of 
 their interest in the matter. If the minors reside in 
 the county, they must have ten days notice of the 
 intention to apply for the appointment of a guardian, 
 in order that they may be heard in the selection of 
 a guardian. Where a minor, however, has a general 
 guardian residing in the county, there will be no ne- 
 cessity for appointing a special guardian for the pur- 
 poses of this motion. Notice is also to be given to 
 the widow of the deceased. 
 
 § 240. The Surrogate will, at the time appointed, 
 proceed to hear the proofs and allegations of the 
 parties, and if satisfied that the debts are justly due 
 
124 
 
 THE LAW OF 
 
 and owing, and are not secured by judgment or 
 mortgage upon, or expressly charged upon the es- 
 tate of the deceased ; or if such debts be secured by 
 a mortgage or charge upon a portion of the estate, 
 then that the remedies of the creditor, by virtue of 
 such mortgage or charge, have been exhausted, that 
 the personal estate of the deceased is insufficient for 
 the payment of such debts, and that the whole of 
 such estate which could have been applied to the 
 payment of the debts of the deceased, has been duly 
 applied for that purpose, he will order a sale. 
 
 § 241. The Surrogate may, in his discretion, 
 order such mortgage, lease or sale to be made, al- 
 though the whole of the personal property of the 
 deceased, which has come to the hands of the ex- 
 ecutor or administrator, has not been applied to the 
 payment of debts. But the Surrogate, before 
 making any such order, must have satisfactory evi- 
 dence that the executor or administrator has pro- 
 ceeded with reasonable diligence in converting the 
 personal property of the deceased into money, and 
 applying the same to the payment of debts. 
 
 § 242. If all the money required to pay the debts 
 can be advantageously raised by a lease or mort- 
 gage, he will not order an absolute sale ; and no 
 lease will be ordered that shall continue for a longer 
 time than until the youngest person interested in the 
 estate to be leased shall become twenty-one years 
 
EXECUTORS AND ADMINISTRATORS. 
 
 125 
 
 of age, so if a part of the property can be sold with- 
 out manifest prejudice to the heirs or devisees, then 
 the whole will not be sold ; but if it is for the benefit 
 of the estate that the whole should be sold, it will be 
 ordered, although it may be more than is necessary 
 to pay such debts. 
 
 § 243. Before granting any order for mortgaging, 
 leasing or selling land, the Surrogate will require 
 from the executor or administrator applying for the 
 same, a bond to the people of the state, with suf- 
 ficient sureties, in a penalty double the amount to be 
 raised, conditioned for the faithful application of the 
 moneys, arising from the mortgage, lease, or sale, to 
 the payment of the debts established before the Sur- 
 rogate, on granting the order, and for accounting for 
 such moneys whenever required by such Surrogate ; 
 or by any court of competent authority. 
 
 § 244. In case of the refusal or neglect of the ex- 
 ecutor or administrator to execute such a bond, with- 
 in a reasonable time, the Surrogate will appoint a 
 disinterested freeholder to execute such mortgage or 
 lease, or to make such sale, who shall execute a 
 bond similar to that required of the executor or ad- 
 ministrator, in whose place he will be appointed ; 
 and in making such appointment the Surrogate will 
 give preference to any person who shall have been 
 nominated by the creditors. 
 
 § 245. The executor or administrator must make 
 
126 
 
 THE LAW OF 
 
 a report of his proceedings to the Surrogate imme- 
 diately after the sale, who is directed to examine 
 into the matter, and may hear witnesses in relation 
 thereto ; and if he shall be of opinion that the pro- 
 ceedings were unfair, or that the sum bid is dispro- 
 portionate to the value, and that a sum exceeding 
 such bid by at least ten per cent, exclusive of the ex- 
 penses of a new sale, may be obtained, he will vacate 
 the sale, and direct another to be had ; but if other- 
 wise, and it appears that the sale was legally made 
 and fairly conducted, he must make an order con- 
 firming the sale, and directing the conveyance to be 
 executed. 
 
 § 246. The money arising from a lease or mort- 
 gage is received by the executor or administrator, 
 and he applies the same to pay debts ; but when 
 the whole or any part of the real estate is sold, the 
 proceeds of sale must be brought into the Surrogate’s 
 office, for the purpose of distribution, and must be 
 retained by him for that purpose. He first pays the 
 expenses of the sale ; next satisfies the widow’s 
 claim for dower, either by paying her a gross sum 
 equal to the value of her annuity therein, or by in- 
 vesting one-third of the said moneys in permanent 
 securities on annual interest, in his name of office, for 
 her benefit during life ; and then proceeds to dis- 
 charge the debts according to their established legal 
 order. If any surplus remains, he will, of course. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 127 
 
 distribute it among the several persons interested in 
 the estate, in proportion to their respective rights in 
 the premises sold. 
 
 § 247. A Surrogate’s order for the payment of 
 debts, cannot ordinarily be impeached, even for 
 fraud. If the Surrogate obtains jurisdiction, by the 
 presentment of an account of the estate and debts of 
 the deceased, his adjudication that the personal es- 
 tate is insufficient for the payment of the debts, fol- 
 lowed by an order of sale, is conclusive in any col- 
 lateral proceeding. Such an adjudication can only 
 be examined on an appeal, nor will evidence of an 
 abuse of power by administrators be admitted to 
 defeat the title of a purchaser, under a Surrogate’s 
 order of sale. But a contract by an administrator 
 to convey lands of the intestate, when a Surrogate’s 
 order of sale can be obtained, does not vest an in- 
 terest, though an order be afterwards obtained ; for 
 the administrator had no interest in the lands to sell, 
 and any contract made by him is therefore void, and 
 cannot be enforced either at law or in equity. 
 
128 
 
 THE LAW OF 
 
 CHAPTER VII. 
 
 OF GUARDIANS APPOINTED BY THE SURROGATE. 
 
 § 248. As all persons, whether male or female, 
 under the age of twenty-one years, are in contem- 
 plation of law, incapable of making a contract of any 
 description, or of taking charge of or controling pro- 
 perty, it frequently becomes necessary in the settle- 
 ment of estates, to provide some person of mature 
 age and understanding to take charge of the person 
 and property of infants. 
 
 § 249. The father, and on his death the mother, 
 is the guardian, by nature, of their infant children ; 
 this guardianship extends to the age of twenty-one 
 years, and includes the custody of the person of the 
 child, but does not extend to its property. Every 
 father, whether of full age, or a minor, of a child like- 
 ly to be born, or of any living child under the age of 
 twenty-one years, and unmarried, may, by his deed 
 or last will, duly executed, dispose of the custody 
 and tuition of such child during its minority, or for 
 any less time, to any person or persons, in possession, 
 or remainder. A guardian thus appointed will con- 
 tinue in his guardianship until the infant attains the 
 age of twenty-one years, even although the ward be 
 a female and marry under that age. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 129 
 
 § 250. Every such disposition, from the time it 
 takes effect, will vest in the person or persons to 
 whom it shall be made, all the rights and powers, 
 and subject him or them to all the duties and obli- 
 gations of a guardian of the minor, and will be valid 
 and effectual against every other person claiming the 
 custody or tuition of such minor, as guardian in 
 soccage or otherwise. Any person to whom the 
 custody of a minor is so disposed of, may take the 
 custody and tuition of such minor, and may main- 
 tain all proper actions, for the wrongful taking or de- 
 tention of the minor, and recover damages in such 
 actions, for the benefit of his ward. And a tes- 
 tamentary guardianship of this description is not 
 under the control of the Surrogate. 
 
 § 251. Such a guardian may also take the custody 
 and management of the personal estate of the 
 minor, and the profits of his real estate, during the time 
 for which such disposition shall have been made, 
 and may bring such actions in relation thereto, as 
 a guardian in soccage might by law. He may also 
 bring ejectment in his own name, to recover pos- 
 session of the premises belonging to his ward. He 
 may lease the real estate, during the minority of his 
 ward, but no longer. He cannot sell any part of the 
 real estate, without the authority of the Supreme 
 Court, but he may sell the personal property with- 
 out application to any court. 
 
 12 
 
130 
 
 THE LAW OF 
 
 § 252. But if no guardian has been appointed, the 
 statute provides that in every case where no guardian 
 shall have been appointed by the father, by a 
 deed, or will, the Surrogate of the county where 
 the residence of any minor may be, shall have au- 
 thority to appoint a general guardian for such 
 minor. 
 
 § 253. If the infant be of the age of fourteen 
 years, or upwards, he alone can make application 
 for the appointment of a guardian. But if such minor 
 be under the age of fourteen years, any relative or 
 other person , in his behalf, may apply to the Surro- 
 rogate of the county where such minor shall reside, 
 for the appointment of a guardian of the minor. 
 The petition should state the name of the minor, 
 his age and residence, the name of the person with 
 whom he resides, and should give the names and 
 residence of his next-of-kin, so far, at least, as to 
 show who would be entitled to his property in case 
 of his death, and should also state the amount of 
 the personal estate of the minor, and the yearly value 
 of the rents, profits and income of his real estate. 
 
 § 254. Where an estate in lands becomes vested in 
 an infant, the guardianship of such infant, with the 
 rights, powers and duties of a guardian in soccage, 
 will belong: 1. To the father of the infant. 2. If 
 there be no father, to the mother. 3. If there be 
 no father, or mother, to the nearest and eldest rela- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 131 
 
 tive of full age, not being under any legal incapacity ;; 
 and as between relatives of the same degree, of con- 
 sanguinity, males will be preferred. 
 
 § 255. Before appointing any person a guardian 
 of a minor, the Surrogate will require of such 
 person a bond to the minor, with sufficient security, 
 to be approved by him, in a penalty double the 
 amount of the personal estate, and of the value of 
 the rents and profits of the real estate, conditioned 
 that such person will faithfully, in all things, dis- 
 charge the duties of a guardian to such minor, ac- 
 cording to law, and that he will render a true and 
 just account of all moneys and property received by 
 him, and of the application thereof, and of his 
 guardianship in all respects, to any court having cog- 
 nizance thereof, when thereunto required. 
 
 § 256. The bond, or other security, must be re- 
 tained by, and filed with, the Surrogate, among the 
 papers of his office, and in case of a breach of the 
 condition, it may be prosecuted in the name of the 
 ward, although he may not have arrived at full age* 
 by some proper person, as his next friend, whenever 
 the Surrogate shall direct. 
 
 § 257. Whenever it shall be made to appear to 
 the Surrogate, that the sureties of the guardian are 
 becoming insolvent ; or that they have removed or are 
 about to remove from this state, or that for any 
 other cause they are insufficient, and he shall be 
 
132 
 
 THE LAW OF 
 
 satisfied tliat the matter requires investigation, he 
 will issue a citation to the guardian, requiring him 
 to appear before the Surrogate at a time and place 
 to be therein specified, to show cause why he should 
 not give further sureties, or be removed from his 
 guardianship. 
 
 § 258. The citation must be served personally 
 on the guardian to whom it may be directed, at least 
 fourteen days before the return thereof ; or if such 
 guardian shall have absconded, or concealed him- 
 self, so that such citation cannot be personally served, 
 it may be served by leaving a copy thereof at the 
 last place of residence of the guardian. And in 
 case he has removed from the state, the citation 
 may be served by publishing the same in the state 
 paper for four weeks. 
 
 § 259. On the return of the citation, or at such 
 other time as the Surrogate shall appoint, he will 
 proceed to hear the proof and allegations ; and if 
 it satisfactorily appears that the sureties are for 
 any cause insufficient, the Surrogate may make an 
 order requiring such guardian to give further sure- 
 ties in the usual form, within a reasonable time, to 
 be prescribed by the Surrogate. 
 
 § 260. If the guardian neglect to give further 
 sureties to the satisfaction of the Surrogate, within 
 the time prescribed, the Surrogate may, by an order 
 
EXECUTORS AND ADMINISTRATORS. 
 
 133 
 
 to be duly entered in his minutes, remove him from 
 his trust. 
 
 § 261. The guardian is required, annually, after 
 his appointment, so long as any part of the estate, 
 or the income or proceeds thereof, remains in his 
 hands or under his control, to file in the office of the 
 Surrogate who appointed him, an inventory and ac- 
 count, under oath, of his guardianship, and of the 
 amount of property received by him and remaining 
 in his hands, or invested by him, and the manner 
 and nature of such investment, and his receipts and 
 disbursements, in form of debtor and creditor. 
 
 § 262. The inventory and account may be verified 
 before any Commissioner of Deeds, Supreme Court 
 Commissioner, Judge of County Courts or Justice of 
 the Peace. If the guardian neglect to file such account 
 or inventory, for three months after the same should 
 have been filed, the Surrogate is required to proceed 
 to compel him to do so, and the cost of such pro- 
 ceedings will be charged to such guardian personally. 
 Should the Surrogate be satisfied, upon examining 
 such account and inventory, that the interest of the 
 ward requires that a more full and satisfactory ac- 
 count should be given, he may require the guardian 
 to do so. 
 
 § 263. Every guardian appointed by the Surrogate, 
 has the same powers as a testamentary guardian ; 
 
 12 * 
 
134 
 
 THE LAW OF 
 
 and every person so appointed guardian of a minor, 
 under the age of fourteen years, continues the 
 guardian, and is responsible as such, notwithstand- 
 ing the minor shall arrive at that age, and until 
 another guardian shall be appointed, or such first 
 guardian be discharged. 
 
 § 264. Every guardian, whether testamentary or 
 appointed by the Surrogate, must safely keep 
 the things that he may have in his custody be- 
 longing to his ward, and the inheritance of his 
 ward, and not make or suffer any waste, sale, 
 or destruction of such things or of such inherit- 
 ance, but must keep up and sustain the houses, gar- 
 dens and other appurtenances to the lands of his 
 ward, by and with the issues and profits thereof, or 
 with such other moneys belonging to his ward, as 
 shall be in his hands. And he is bound to deliver the 
 same to his ward, when he comes to his full age, in 
 as good order and condition, at least, as the guar- 
 dian received the same, inevitable decay and injury 
 only excepted ; and he must answer to his ward for 
 the issues and profits of real estate received by him, 
 by a lawful account. 
 
 § 265. If the guardian has been guilty of any 
 negligence in the keeping or disposition of the in- 
 fant’s money, whereby the estate has incurred loss, 
 he will be obliged to sustain that loss. He must not 
 convert the personal estate into real, or buy land 
 
EXECUTORS AND ADMINISTRATORS. 
 
 135 
 
 with the infant’s money, without the direction of the 
 court. If he puts the ward’s money into trade, the 
 ward will be entitled to elect to take the profits of 
 the trade, or the principal, with compound interest, 
 to meet the profits, when the guardian will not dis- 
 close them. So if he neglects to put the ward’s 
 money at interest, but negligently, and for an unrea- 
 sonable time, suffers it to be idle, or mingles it with 
 his own, the court will charge him with simple in- 
 terest, and in case of gross delinquency, with com- 
 pound interest. 
 
 § 2 66. The general guardian has no authority to 
 receive a legacy given to his ward, where it exceeds 
 fifty dollars, without the direction of the Surrogate ; 
 in which case, the Surrogate is directed, to require 
 him to give security to the minor, to be approved by 
 the Surrogate, for the faithful application and ac- 
 counting for such legacy. And the same rule ap- 
 plies in regard to the distributive share due the 
 minor, as next-of-kin, from the estate of any intes- 
 tate. The guardian will be entitled to letters of ad- 
 ministration in right of his w r ard, in all cases where 
 the ward would be entitled, were he of full age. 
 
 § 267. The general guardian may be cited to ac- 
 count before the Surrogate who appointed him, in 
 the same manner as administrators, upon the appli- 
 cation of the ward, or any relative of the ward, 
 and on good cause being shown, may be compelled 
 
136 
 
 THE LAW OF 
 
 to account in the same manner as an administrator* 
 Upon the ward’s arrival at full age, he is entitled to* 
 compel such account without showing any cause. 
 The guardian may also be required to account im- 
 mediately in case of his removal from his guardian- 
 ship. 
 
 § 268. After the ward arrives at full age, or after 
 the guardian has been superseded by the appoint- 
 ment of another, the guardian may apply to the 
 Surrogate who appointed him, for a citation to his 
 ward, or to the new guardian, to attend the settle- 
 ment of his accounts before the Surrogate. The 
 Surrogate will then proceed to examine, audit and 
 settle the account ; and such settlement, unless an 
 appeal shall be brought therefrom, will be final and 
 conclusive. 
 
 § 269. The guardian may be removed by the 
 Surrogate who appointed him, upon his refusing or 
 neglecting to give additional security, when required 
 to do so. He may also be removed by the Surro- 
 gate for incompetency, or for wasting the real or 
 personal estate of his ward, or for misconduct in re- 
 lation to his duties as guardian ; upon the application 
 of the ward, or of any relative in his behalf, or of 
 the surety of such guardian. In all the cases above 
 mentioned, the Surrogate who appointed the 
 guardian, has ample authority to examine into the 
 circumstances of the case, to issue subpoenas foiv 
 
EXECUTORS AND ADMINISTRATORS. 
 
 137 
 
 and compel the attendance of witnesses, in behalf of 
 either party, and to decide upon the matter upon 
 the merits. 
 
 § 270. The guardian may also apply to the Sur- 
 rogate who appointed him, for liberty to resign his 
 trust ; he must in such case, set forth the reasons 
 why the application is made, and verify the state- 
 ment by his own oath. Notice must then be given 
 to the next-of-kin of the ward, if there be any re- 
 siding in the same county, and the Surrogate will 
 appoint some discreet person to take care of the 
 interests of the ward ; and any person, although not 
 appointed by the Surrogate may appear on behalf 
 of the ward. 
 
 § 271. Upon appearing before the Surrogate, and 
 rendering a full, just, and true account, in writing, 
 of all his receipts and payments on account of the 
 ward, and of all the books, papers, money, choses in 
 action, and other property of the ward, which may 
 be in his hands, or under his control, verified by his 
 oath, and by such other evidence as the Surrogate 
 may require, and the Surrogate is satisfied that the 
 guardian has, in all respects, conducted himself 
 honestly in the execution of his trust; that he has 
 rendered a full, just, and true account ; and that the 
 interest of the ward would not be prejudiced by 
 allowing the guardian to resign his trust, he may pro- 
 ceed to appoint a new guardian for such ward, and 
 
138 
 
 THE LAW OF 
 
 order that the former guardian deliver over all the 
 books, papers, moneys, choses in action, or other 
 property of the ward, to such new guardian, and 
 that he take duplicate receipts therefor. Upon 
 filing one of such receipts with the Surrogate, he 
 will make an order discharging him from any fur- 
 ther care of the ward or his estate. 
 
 § 272. The account thus voluntarily rendered to 
 the Surrogate, by the guardian, is not conclusive 
 upon the ward, or upon the new guardian, but 
 either may have a further account of all matters con- 
 nected with the trust of such former guardian, be- 
 fore he was permitted to resign the same ; and in 
 relation to all such matters, the sureties of the 
 former guardian remain liable, in the same manner 
 and to the same extent as though such order had 
 not been made discharging the former guardian. 
 
 § 273. The guardian may also settle with his ward 
 after he arrives of age ; without appearing be- 
 fore the Surrogate ; but such settlement will 
 not be conclusive upon the ward, in ordinary cases,, 
 until a year from the time he arrives at age. Guar- 
 dians are allowed in a settlement of their accounts 
 for their reasonable expenses, and the same rate of 
 compensation for services as is provided by law for 
 executors. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 139 
 
 CHAPTER VIII. 
 
 PRACTICAL FORMS AND DIRECTIONS. 
 
 § 274. Applied tion for Letters of Ad ministration. 
 Surrogate’s Court.— County of Kings. 
 
 In the matter of the Administration ) 
 of the goods and chattels of > 
 
 John Thompson, deceased. \ 
 
 To Jesse C. Smith, Esq., Surrogate of Kings. 
 
 The petition of Mary Thompson, of the city of Brook- 
 lyn, respectfully showeth, that she is the widow of John 
 Thompson, late of said city, merchant, deceased, who 
 died in said city on the 15th day of October last past, 
 without leaving any last will and testament, according 
 to the best of your petitioner’s information and belief. 
 That the value of the personal property of which he died 
 possessed does not, according to the best of her informa- 
 tion and belief, exceed in value the sum of ten thousand 
 dollars. That the said intestate left kindred entitled to 
 his estate, whose names and places of residence are as 
 follows: A., B., C., all minors, residing in said city of 
 Brooklyn, and that they are his only next-of-kin surviving. 
 That the said deceased was at or immediately previous 
 to his death, an inhabitant of the said city of Brooklyn, 
 and that your petitioner is of full age. Your petitioner, 
 therefore, prays that administration on the estate of the 
 said deceased may be granted to her. 
 
 Dated Nov. 10th, 1850. 
 
 Mary Thompson. 
 
 \ 275. County of Kings , ss . : — On this 10th day of 
 November, 1850, personally appeared before me Mary 
 Thompson, named in the foregoing petition, and made 
 
140 
 
 THE LAW OF 
 
 oath that she had read the said petition, and knew the 
 contents thereof, and that the same is true of her own 
 knowledge, except as to the matters therein stated to 
 he on information and belief, and as to those matters 
 she believes it to be true. Jesse C. Smith, 
 
 Surrogate of Kings . 
 
 §276. Application to prove a Will . 
 
 County of New-York, > 
 
 Surrogate’s Court. \ 
 
 To A. W. Bradford, Esq., Surrogate of the County of 
 
 New- York. 
 
 The petition of Mary Jackson and William Jackson, 
 both of the city of New-York, respectfully showeth, 
 that James Jackson, late of said city, merchant, departed 
 this life in said city on the 1st day of October instant, 
 having first duly made and executed, as your petitioners 
 are informed and believe, his last will and testament, 
 appointing your petitioner, Mary Jackson, the so’e ex- 
 ecutrix thereof. That said deceased was, at or immedi- 
 ately previous to his death, an inhabitant of the city of 
 New-York, and that his said will relates exclusively to 
 personal property. That your petitioner, the said Mary, 
 is his widow, and resides in said city of New-York; and 
 that Jane Jackson, and your petitioner, William Jackson, 
 both residing in said city, are his only children and next- 
 of-kin, the said William being of full age, and the said 
 Jane a minor, having no general guardian. A our peti- 
 tioners therefore pray, that a special guardian may be 
 appointed to take care of the interest of the said Jane in 
 the premises ; and that thereupon proof may be taken 
 of the execution of the said last will and testament, and 
 letters testamentary granted thereupon; and that such 
 other and further proceedings may be had in the premi- 
 ses as shall be necessary and proper. 
 
 Dated, &c. Mary Jackson, 
 
 William Jackson. 
 
 Annex affidavit of verification, similar to § 275. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 141 
 
 § 277. Consent to serve as Guardian . 
 
 I, George Baker, of the city of New-York, counsellor 
 at law, do hereby consent to serve as special guardian of 
 Jane Jackson, a minor, and one of the children of James 
 Jackson, late of said city, deceased, for the purpose of 
 taking care of the interests of said minor, in the matter 
 of proving the last will and testament of the said de- 
 ceased. 
 
 Dated, &c. G. Baker. 
 
 § 278. Consent that another person be joined in the 
 administration . 
 
 I, Mary Thompson, widow of John Thompson, late of 
 the city of Brooklyn, deceased, do hereby consent and 
 request that Jacob Waring, of said city, merchant, be 
 joined with me in the administration of the estate of the 
 said deceased. 
 
 Dated the 10th day of Nov., 1850. 
 
 Mart Thompson. 
 
 §279. Form of Renunciation . 
 
 I, Mary Thompson, widow of John Thompson, late of 
 the city of Brooklyn, deceased, do hereby renounce all 
 my right and claim to administer upon the estate of tha 
 said deceased. 
 
 Dated, &c. Mart Thompson. 
 
 This renunciation must be duly proved or acknow- 
 ledged before the Surrogate, or a Justice or Commis- 
 sioner of Deeds, in the usual form. 
 
 13 
 
142 
 
 THE LAW OF 
 
 § 280. Another form of Renunciation. 
 
 I, David Jones, of the city of New-York, merchant, 
 one of the executors named in the will of James John- 
 son, late of said city, deceased, do hereby renounce the 
 said appointment, and all right and claim to letters tes- 
 tamentary of the said will, or to act as executor thereof, 
 and request the Surrogate of the county of New-York 
 to accept and record this my renunciation. 
 
 Dated, &c. 
 
 Proved or acknowledged as above. 
 
 §281. Administrator’s Bond. 
 
 Know all men by these presents, that we, A. B., C. D. 
 and E. F., all of the city of Brooklyn, in the county of 
 Kings, and state of New-York. are held and firmly 
 bound, unto the people of the state of New-York, in the 
 sum of ten thousand dollars; to be paid to the said the 
 people of the state of New-York, or their assigns. For 
 which payment well and truly to be made, we bind our- 
 selves, and our and each of our heirs, executors and ad- 
 ministrators, jointly and severally, firmly by these pre- 
 sents. 
 
 Sealed with our seals, and dated this tenth day of 
 November, in the year of our Lord one thousand eight 
 hundred and fifty. 
 
 Whereas, the above named A. B. is about to be ap- 
 pointed by the Surrogate of the county of Kings admin- 
 istrator of all and singular, the goods, chattels and 
 credits, which were of G. H., late of the city of Brooklyn, 
 in said county of Kings, deceased. 
 
 Now, therefore, the condition of this obligation is such, 
 that if the said A. B. shall faithfully execute the trust 
 reposed in him as such administrator, and shall obey all 
 
EXECUTORS AND ADMINISTRATORS. 
 
 143 
 
 the orders of such Surrogate touching the administration 
 of the estate committed to him, then this obligation to 
 be void, otherwise to remain in full force and virtue. 
 
 There must be two or more sureties, to be approved by 
 the Surrogate , and the penalty must be not less than 
 twice the value of the personal estate of the deceased. 
 
 § 282. Affidavit of justification to annex . 
 
 County of Kings , ss. : — C. D., in the within bond 
 named, being duly sworn, doth depose and say that he 
 is a householder, (or freeholder,) residing in the county 
 of Kings, and is worth the sum of ten thousand dollars,. 
 over and above all his just debts, liabilities and responsi- 
 bilities. C. D. 
 
 Sworn this tenth day of ) 
 
 Nov., 1850, before me, \ 
 
 § 283. Application for Administration with the 
 Will annexed. 
 
 County of New-York. — Surrogate’s Court. 
 
 In the mater of the Administration, } 
 with the will annexed, of the f 
 goods, chattels and credits of £ 
 
 James Thompson, deceased. ) 
 
 To Alexander W. Bradford, Surrogate of the County 
 of New-York: 
 
 Sealed and delive 
 in the presence 
 
 A. B. (seal.) 
 C. D. (seal.) 
 E. F. (seal.) 
 
 Jesse C. Smith, 
 
 Surrogate. 
 
144 
 
 THE LAW OF 
 
 The petition of Cornelia Thompson, of the city of 
 New-York, widow, respectfully showeth, that James 
 Thompson, late of the ciry of New-York, merchant, de- 
 ceased, departed this 1 fe in said city, on the tenth day 
 of April, in the year 1848, leaving his last will and tes- 
 tament, in and by which he appointed Philip Thompson 
 the sole executor thereof. That the said last will and 
 testament was duly proved before the surrogate of the 
 county of New-York on the fifth day of August, in the 
 «aid year 1848, and recorded by him in his office; and 
 probate thereof was on the same day granted, and let- 
 ters testamentary issued to the said Philip Thompson, as 
 such executor aforesaid. And your petitioner prays leave 
 to refer to the said will and probate and letters testament- 
 ary, or to the record thereof, if it shall be necessary for 
 her so to do in this matter. That the said Philip 
 Thompson departed this life on the first day of Febru- 
 ary instant, leaving certain property and assets of the 
 said deceased still unadministered. That your petitioner 
 has, to the best of her ability, estimated and ascertained 
 the amount of such property, and that the same does 
 not exceed in value the sum of five thousand dol- 
 lars. 
 
 Your petitioner further shows, that the said deceased, 
 at or immediately previous to his death, was an inhabit- 
 ant of the county of New-York. That your petitioner 
 is the sole residuary legatee under the said last will and 
 testament. That she is the widow of the said deceased, 
 and is of full age. That she is informed and believes 
 that the surrogate of the county of New-York has sole 
 and exclusive power to grant letters of administration, 
 with the will annexed, of the goods, chattels and credits 
 of the said deceased left unadministered by the said 
 Philip Thompson. She prays that such letters may be 
 granted to her in pursuance of the statute in such case 
 made and provided. And your petitioner will ever 
 pray, &c. 
 
 Dated this twentieth day of February, A. D. 1850. 
 
 Sworn, &c. — 5 275. Cornelia Thompson. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 145 
 
 § 284 . Letters of Administration with the Will 
 annexed . 
 
 The people of the state of New- York, to Cornelia 
 Thompson, of the city of New-York, sole residuary 
 legatee under the last will and testament of James^ 
 Thompson, late of the said city, merchant, deceased. 
 
 Whereas the said James Thompson, lately departed 
 this life, having previously duly made and executed his 
 last will and testament : And whereas said will (a copy 
 whereof is hereunto annexed) was, on the twenty-fifth 
 day of August, in the year one thousand eight hundred 
 and forty-eight, duly admitted to probate by A. W. 
 Bradford, Esquire, surrogate of the county of New- 
 York, and probate and letters testamentary thereof were 
 duly granted and issued by the said surrogate to Philip 
 Thompson, the sole executor named in the said will : 
 And whereas the said Philip Thompson lately departed* 
 this life, leaving property and assets of the said testator 
 still unadministered : And whereas the said James 
 
 Thompson, at or immediately previous to his death, was 
 an inhabitant of the county of New-York, by the means 
 whereof the proving and registering of said will, and 
 the ordering and granting administration of all and sin- 
 gular the goods, chattels and credits, whereof the said 
 testator died possessed in the state of New-York ; and 
 also the auditing, allowing, and final discharging the 
 account thereof, doth appertain unto us; and we being 
 desirous that said will should be observed and per- 
 formed, and that the goods* chattels and credits of said 
 testator should be well and faithfully administered, ap- 
 plied and disposed of, do grant unto you, the said Cor- 
 nelia Thompson, full power and authority, by these 
 presents, to administer and faithfully to dispose of, all 
 and singular the said goods, chattels and credits, and 
 to ask, demand, recover and receive, the debts which 
 unto the said testator whilst living, and at the time of 
 his death, did belong ; and to pay the debts which the 
 13 * 
 
146 
 
 THE LAW OF 
 
 said testator did owe, as far as such goods, chattels and 
 credits will thereto extend, and the law require ; hereby 
 requiring you to observe and perform the said last will 
 and testament, and to observe and perform all the duties 
 to which you would have been subject if you had been 
 named the executrix thereof. And we do, by these pre- 
 sents, depute, constitute and appoint you, the said Cor- 
 nelia Thompson, administratrix, with the will annexed, 
 of all and singular the goods, chattels and credits, which 
 were of said James Thompson, deceased. 
 
 In testimony whereof, we have caused the 
 seal of office of our said surrogate to be here- 
 unto affixed. Witness, Alexander W. Brad- 
 ford, surrogate of said county, at the city of 
 New-York, this twentieth day of February, in 
 the year of our Lord one thousand eight hun- 
 dred and fifty, and of our independence the 
 seventy-fifth. 
 
 Alexander W. Bradford, 
 
 Surrogate . 
 
 ; [L. 8.] 
 
 § 285. Application for Letters of Collection. 
 
 County of New-York. — Surrogate’s Court. 
 
 In the matter of the goods, chattels 1 
 and credits of Henry Gray, de- > 
 ceased. ) 
 
 To Alexander W. Bradford, Surrogate of the County 
 of New-York : 
 
 The petition of George Day, of the city of New- 
 York, respectfully showeth, that your petitioner is sole 
 executor named in the instrument in writing, purporting 
 to be the last will and testament of Henry Gray, late of 
 the city of New-York, grocer, deceased, propounded for 
 probate and now pending the court of the surrogate of 
 
EXECUTORS AND ADMINISTRATORS. 
 
 147 
 
 the county of New-York. That the proof of the said 
 will is contested, whereby a delay is necessarily pro- 
 duced in granting letters testamentary or of administra- 
 tion in this matter, and that it is uncertain when such 
 contest will be terminated. That the property of the 
 said deceased consists in part of groceries and perish- 
 able articles, and that it is necessary that immediate 
 steps should be taken for the preservation or disposal 
 thereof. That there are notes and debts belonging to 
 the said deceased, falling due, the collection whereof re- 
 quires early attention. That your petitioner has, to the 
 best of his ability, estimated and ascertained the value 
 of the personal property of which the said deceased 
 died possessed, and that the same does not exceed in 
 value the sum of about five thousand dollars. 
 
 Your petitioner further shows, that the said deceased, 
 at or immediately previous to his death, was an inhabit- 
 ant of the county of New-York, and that he is informed 
 and believes that the surrogate of the county of New- 
 York has power in his discretion to issue special letters 
 of administration, authorizing the preservation and col- 
 lection of the goods of the deceased. He prays that 
 such letters may be issued to him pursuant to the sta- 
 tute in such case made and provided. And your peti- 
 tioner will ever pray, &c. 
 
 George Day. 
 
 Dated this sixth day of February, A. D. 1850. 
 
 Sworn, &c. — § 275. 
 
 § 286. Collector’s Bond . 
 
 Know all men by these presents, that we, George Day, 
 of the city of New-York, physician, and William Martin 
 and Robert Martin, of the same city, merchants, are held 
 and firmly bound unto the people of the state of New- 
 York, in the sum of ten thousand dollars, lawful money 
 of the United States of America, to be paid to the said 
 
148 
 
 THE LAW OF 
 
 people, to which payment well and truly to be made, we 
 bind ourselves, our and each of our heirs, executors and 
 administrators, jointly and severally, firmly, by these 
 presents. Sealed with our seals. Dated the seventh 
 day of February, in the year one thousand eight hun- 
 dred and fifty. 
 
 Whereas the Surrogate of the county of New-York is 
 about to issue special letters of administration to the 
 above bounden George Day, authorising the preserva- 
 tion and collection of the goods of Henry Gray, late of 
 the city of New-York, deceased, and appointing him col- 
 lector of the said goods : Now the condition of this obli- 
 gation is such, that if the said George Day shall make a 
 true and perfect inventory of such of the assets of the 
 said deceased, as shall come to his possession or know- 
 ledge, and return the same within three months to the 
 office of the said Surrogate ; and shall faithfully and 
 truly account for all property, money and things in ac- 
 tion, received by him as such collector, whenever requir- 
 ed by the said Surrogate, or any other court of competent 
 authority, and faithfully deliver up the same to the per- 
 son or persons who shall be appointed executors or ad- 
 ministrators of the said deceased, or to such other per- 
 son as shall be authorised to receive the same by the 
 said Surrogate, then this obligation to be void, otherwise 
 to remain in full force and virtue. 
 
 Sealed and delivered in 
 the presence of 
 George Green. 
 
 Affidavit of Justification, as in 5 282. 
 
 ) George Day, 
 
 'seal.' 
 
 \ William Martin, 
 
 SEAL.' 
 
 Robert Martin. 
 
 SEAL. 
 
 § 287. Letters of Collection. 
 
 The people of the state of New York, to George Day, 
 sole executor named in the instrument in writing, pur- 
 porting to be the last will and testament of Henry Gray, 
 late of the city of New-York, deceased, propounded for 
 
EXECUTORS AND ADMINISTRATORS. 
 
 149 
 
 proof, and now pending before the Surrogate of the 
 county of New-York. 
 
 Whereas the proof of the said will is contested, and a 
 delay is necessarily produced in granting letters testa- 
 mentary of a will, or letters of administration of the 
 goods, chattels and credits of the said Henry Gray, de- 
 ceased, and it appearing that the situation of the proper- 
 ty of the said deceased requires that special letters of 
 administration, authorizing the preservation and collec- 
 tion of the goods of the deceased should be issued: And 
 we being desirous that the goods, chattels, personal es- 
 tate and debts of said deceased may be collected and pre- 
 served, do grant unto you, the said George Day, full 
 power, by these presents, to collect, recover and receive 
 the said goods, chattels, personal estate and debts of the 
 said deceased ; and to secure the same at such reason- 
 able expense as the Surrogate of the county of New- 
 York shall allow ; and to sell such of the said goods as 
 are perishable, under the direction of the said Surrogate, 
 after the same shall have been appraised; hereby requir- 
 ing you to make or cause to be made, a true and perfect 
 inventory of such of the assets of said deceased as shall 
 come to your possession or knowledge, and return the 
 same to our said Surrogate, within t'jree months from 
 the date of these presents ; and also faithfully and truly 
 account for all property, money and things in action, re- 
 ceived by you as such collector, whenever required by 
 our said Surrogate, or any other court of competent 
 authority ; and faithfully to deliver up the same to the 
 person or persons who shall be appointed executors or 
 administrators of the said Henry Gray, deceased, or to 
 such other person as shall be authorised to receive the 
 same by said Surrogate. And we do by these presents 
 depute, constitute and appoint you, the said George Day, 
 collector of all and singular the goods, chattels and cre- 
 dits which were of the said Henry Gray, deceased. 
 
 In testimony whereof, we have caused the 
 seal of office of our said Surrogate to be here- 
 
150 
 
 THE LAW OF 
 
 unto affixed. Witness, A. W. Bradford, Sur- 
 [seal.] rogate of said county, at the city of New- York* 
 this tenth day of February, in the year of our 
 Lord one thousand eight hundred and fifty, and 
 of our independence the seventy-fifth. 
 
 A. W. Bradford, 
 
 Surrogate . 
 
 2S8. Order for Appointment of Appraisers. 
 
 In the matter of the Estate of ) 
 
 James Thompson, deceased, j 
 
 On the application of Philip Thompson, the executor 
 of the last will and testament of James Thompson, late 
 of the city of New-York, deceased, to have two disinte- 
 rested appraisers appointed to estimate and appraise the 
 personal property of the said deceased, it is ordered that 
 William Green and Henry Richards, both of the city of 
 New-York, be, and they are hereby appointed such ap- 
 praisers. 
 
 § 289. No tice of Appraisemen t 
 
 Notice is hereby given, that the executor of the last 
 will and testament of James Thompson, late of the city 
 of New-York, deceased, with the aid of appraisers, for 
 that purpose duly appointed by the Surrogate of the 
 county of New-York, will, on the eighteenth day of Au- 
 gust instant, at nine o’clock in the forenoon of that day, 
 at number Broadway, in the city of New-York, in 
 said county, proceed to make an appraisement and inven- 
 tory of all the goods, chattels and credits of the said de- 
 ceased. 
 
 Dated this twelfth day of August, A. D. 1850. 
 
 Philip Thompson, 
 
 Executor. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 151 
 
 § 290. Form of Inventory, 
 
 Oaths of Appraisers. 
 
 County of New - York , ss . — I, William Green, of the 
 city of New York, appraiser, duly appointed by the Sur- 
 rogate of the county of New- York, do swear and declare, 
 that I will truly, honestly and impartially appraise the 
 personal property of James Thompson, late of the coun- 
 ty aforesaid, deceased, which shall be for that purpose 
 exhibited to me, to the best of my knowledge and abi- 
 lity. 
 
 William Green. 
 
 Sworn this fifteenth day of £ 
 
 August, 1850, before me, $ 
 
 Joseph Strong, 
 Commissioner of Deeds . 
 
 Here follows the same oath of the other appraiser. 
 
 5 291. A true and 'perfect Inventory of all the goods, 
 chattels and credits which were of James Thompson, late 
 of this city of New-York, deceased, made by the execu- 
 tor of the last will and testament of the said deceased, 
 with the aid and in the presence of William Green and 
 Henry Richards, both of the city of New-York, they 
 having been duly appointed and sworn as appraisers : 
 containing a full, just and true statement of all the per- 
 sonal property of the said deceased, which has come to 
 the knowledge of the said executor, and particularly of 
 all monies, bank bills, and other circulating medium, be- 
 longing to the said deceased, and of all justclaims of the 
 said deceased against said executor, and of all bonds, 
 mortgages, notes and other securities, for the payment 
 of money belonging to the said deceased ; specifying the 
 names of the debtor in each security, the date, the 
 sum originally payable, the endorsements thereon, with 
 their dates, and the sum which, in the judgment of the 
 appraisers, may be collectible on such security. 
 
152 
 
 THE LAW OF 
 
 Upon the completion of this inventory, duplicates 
 thereof have been made, and signed at the end thereof by 
 the appraisers. 
 
 Articles Inventoried. 
 
 Bond made by Jonathan Little to the testa- 
 tor, dated the first day of October, in the 
 year 1839, conditioned for the payment of 
 the sum of nine thousand dollars, on the 
 first day of October, in the year 1840, with 
 interest at the rate of seven per cent, per 
 annum, payable half-yearly : Secured by 
 a mortgage of real estate in the city of 
 New York, made by the said Jonathan* 
 
 Little and his wife, bearing even date with 
 the bond .... $9,000 00 
 
 The payment of interest is endorsed on this 
 bond up to the first day of April, 1844. 
 
 Interest now due on this bond $ 
 
 Promissory note, made by Thomas Shaw to 
 the testator, or order, dated the first day 
 of February, 1849, for three thousand 
 dollars, payable on demand with interest 3,000 00 
 Interest now due on this note $ 
 
 The following accounts are due to the tes- 
 tator : 
 
 Account against John Green, 20th March, 
 
 1846 .... 125 00 
 
 Account against Henry Jones, 15th April, 
 
 1845 .... 280 00 
 
 Twenty-five shares of the capital stock of 
 the Greenwich Insurance Company, in the 
 city of New-York; certificate number, 
 
 198; par value, twenty-five dollars each 
 share ; present actual value, one hundred 
 and five per cent. . . 656 25 
 
 Carried forward, 
 
EXECUTORS AND ADMINISTRATORS. 
 
 153 
 
 Brought forward, 
 
 Due to the testator, from Philip Thompson, 
 the said executor, for money borrowed 
 without interest, two thousand dollars 2,000 
 
 The interest of the testator in the stock in 
 trade, effects and credits of the late firm 
 of “ Thompson & Jones,” hardware mer- 
 chants, in the city of New-York, compos- 
 ed of the said testator and Jacob Jones, 
 and in which the said testator owned the 
 one half share, and interest. 
 
 The accounts and affairs of the said part- 
 nership not having been adjusted and 
 closed, the appraisers are not able to state 
 the exact value of this interest. From 
 the information they have obtained, the 
 value of the said interest is, in their judg- 
 ment, not less than ten thousand dollars 10,000 
 
 Money — In specie, at the residence of the 
 
 testator, at the time of his death 220 
 Deposited in the Bank of America 1,575 
 
 The following stocks, securities and ac- 
 counts, the appraisers consider of no va- 
 lue : 
 
 Thirty-two shares of the capital stock of the 
 “President, Managers and Company for 
 erecting a Bridge over the River Dela- 
 ware, near the Town of Milford,” of which 
 the par value was $50 per share. 
 
 Bond made by James Hazen to the testator, 
 dated the 21st June, 1835, conditioned for 
 the payment of $600, one year after the 
 date, with interest. 
 
 Promissory note, made by Simon Ward, to 
 the order of John King, and by him en- 
 dorsed to the testator, dated 2d October, 
 
 1846, for $400, payable six months after 
 date, duly protested. 
 
 00 
 
 00 
 
 00 
 
 00 
 
 14 
 
154 
 
 THE LAW OF 
 
 Account against George Brown, $78 
 “ “ Thomas Jackson, 95 
 
 Household Furniture — At No. Breadway, New - York. 
 First Floor — Front Parlor. 
 
 About sixty yards of Brussels carpet 50 00 
 
 Set of window curtains and ornaments 150 00 
 
 Pair of window shades, $6 ; mahogany sofa, 
 
 $25 .... 31 00 
 
 Two mahogany couches, $40 ; rocking 
 
 chair, $7 ... 47 00 
 
 Six mahogany chairs, $18; two mahogany 
 
 tabouretts, $8 . . 26 00 
 
 Large mirror, $80 ; one pair of candela- 
 
 bras, $40 ... 120 00 
 
 Mahogany stand, $3 ; astral lamp, $9 12 00 
 
 Back Parlor , similar list , and so with the other rcoms of 
 the house. 
 
 The following articles are exempted from appraise- 
 ment to remain in the possession of Cornelia Thompson, 
 the widow of the testator, pursuant to the statute. 
 
 One mahogany table, six mahogany chairs, one maho- 
 gany French bedstead, and two other mahogany bed- 
 steads, with their beds and necessary bedding. Six ivory 
 handled knives, six silver forks, six China plates, six China 
 tea cups and six China saucers, one silver sugar dish, one 
 silver milk pot, one silver teapot and six silver table 
 spoons. The family Bible, five family pictures, all school 
 books, and sixty-eight books, the same not exceeding in 
 value fifty dollars, and which were kept and used as part 
 of the family library before the decease of the testator. 
 Three stoves kept for use by the family. The following 
 necessary cooking utensils (describe them). The neces- 
 sary wearing apparel and clothing of the family. The 
 clothing of the widow and her ornaments. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 155 
 
 In addition to the above enumerated articles exempt 
 from appraisal, the appraisers, in the exercise of their 
 discretion, pursuant to the statute, set apart the follow- 
 ing articles of necessary household furniture and other 
 personal property for the use of the widow and minor 
 children of the testator, the same not exceeding in value 
 one hundred and fifty dollars. 
 
 (Describe the articles.) 
 
 Dated this day of A. D. 1850. 
 
 William Green, ) A 
 Henry Richards, \ ppraisers. 
 
 § 292. Oath to Inventory. 
 
 Slate of New - York , ) 
 
 County of New-York. $ ss * 
 
 Philip Thompson, of the city of New-York, being duly 
 sworn, doth depose and say, that he is the executor of 
 the last will and testament of James Thompson, late of 
 the city of New-York, deceased, and that the foregoing 
 is an inventory of the personal property of the said de- 
 ceased. That the said inventory is in all respects just 
 and true ; that it contains a true statement of all the per- 
 sonal property of the said deceased which has come to 
 the knowledge of this deponent ; and particularly of all 
 money, bank bills, and other circulating medium, belong- 
 ing to the said deceased, and of all just claims of the said 
 deceased against this deponent, according to the best of 
 this deponent’s knowledge. 
 
 Philip Thompson. 
 
 Sworn this 2d day of ) 
 
 Sept., 1850, before $ 
 
 Joseph Strong, 
 
 Commissioner of Deeds . 
 
156 
 
 THE LAW OF 
 
 § 293. Application to compel the return of an 
 inventory. 
 
 To Mark H. Sibley, Esq., County Judge of Ontario 
 County, performing the duties of the office of Surro- 
 gate therein. 
 
 The petition of David Jones, of the city of Albany, 
 respectfully showeth, that he is a creditor of Henry 
 Tucker, late of Geneva, in the county of Ontario, de- 
 ceased, intestate; and that there is justly due to him, 
 from the estate of the said deceased, on a promissory 
 note made by said Tucker in his lifetime to the peti- 
 tioner, the sum of five hundred dollars, with interest 
 from the 8th day of October, 1848. That letters of ad- 
 ministration upon the estate of said Tucker, were, on the 
 20th day of March last past, granted, by the County 
 Judge of Ontario County, performing the duties of the 
 office of Surrogate therein, to George Tucker, of Geneva 
 aforesaid, grocer, the brother of said intestate ; but that 
 said administrator has as yet neglected to return an in- 
 ventory of the estate of the said intestate, and has not 
 obtained further time so to do. Your petitioner, there- 
 fore, prays for a summons, requiring the said adminis- 
 trator at a short day, to be therein inserted, to appear 
 before said County Judge, and return an inventory of 
 the personal property of the said intestate, according to 
 law, or show cause why an attachment should not issue 
 against him, and for such further or other relief as may 
 be proper. 
 
 Dated, &c. David Jones. 
 
 Annex an affidavit of verification, as in \ 275. 
 
 § 294. Application of a judgment creditor that 
 execution issue. 
 
 County of Albany, ) 
 
 Surrogate’s Court. \ 
 
 To the Surrogate of the County of Albany. 
 
 The petition of A. B., of the city of Albany, respect- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 157 
 
 fully showeth, that on the 1st day of May, 1850, your 
 petitioner obtained a judgment in the Supreme Court of 
 the State of New-York, after a trial at law upon the 
 merits, against C. D., the executor of the last will and 
 testament of E. F., deceased, for 500 dollars damages 
 and costs, as will fully appear on reference to the record 
 of the said judgment now on file in the office of the 
 clerk of said court, in the city of Albany; and that the 
 said judgment still remains in full force unpaid and un- 
 satisfied. Your petitioner now, therefore, applies for an 
 order that the said C. D. may show cause, if any he have, 
 why an execution should not issue upon the said judg- 
 ment; and that the said C. D., as such executor as 
 aforesaid, may be eited to appear and account before 
 the said Surrogate, and for such other and further relief 
 in the premises as may be proper. 
 
 Dated, &c. A. B, 
 
 Affidavit of verification, as in § 275. 
 
 § 295. Application for further time to file an 
 inventory . 
 
 County of New-York, ) 
 
 Surrogate’s Court. $ 
 
 To A. Bradford, Esq , Surrogate of the County of 
 
 New-York. 
 
 The petition of A. B., of the city of New-York, execu- 
 tor of the last will and testament of C. D., late of said 
 city, deceased, respectfully showeth, that letters testa- 
 mentary were duly granted to your petitioner on the 
 estate of the said testator, on or about the 1st day of 
 May last past. That the personal property of the said 
 C. D. consists, for the most part, of the undivided dis- 
 tributive share to which he was entitled, in and to the 
 personal estate of his brother, E. D., lately deceased, 
 
158 
 
 THE LAW OF 
 
 intestate. That an administrator of the estate of the 
 said E. D., has been appointed by the Surrogate of the 
 County of Kings, but that the period for the settlement 
 of the estate ot the said E. D. has not yet arrived, and 
 that the amount of the share thereof to which the estate 
 of the said C. D. may be entitled cannot yet be ascer- 
 tained, and that your petitioner cannot, therefore, ex- 
 hibit a perfect inventory of the personal property of the 
 said C. D. within the three months limited by law ; he 
 therefore prays that he may be allowed four months 
 further time to return such inventory. 
 
 Dated, &c. A. B. 
 
 Affidavit of verification to be added — § 275. 
 
 § 296. Notice to creditors to present claims . 
 
 Notice is hereby given to all persons having claims 
 against the estate of James Jackson, late of the city of 
 New-York, merchant, deceased, that they are required to 
 exhibit the same, with the vouchers thereof, to the sub- 
 scriber, the executor of the last will and testament of 
 said deceased, at his place of business, No. 142 Broad- 
 way, in the city of New-York, on or before the first day 
 of May next. 
 
 Dated November 1st, 1850. 
 
 William Jackson, Executor . 
 
 §297. Affidavit of creditor annexed to his clain\, 
 
 City and County of New- York , ss . : — David Bruce, of 
 said city being duly sworn, says, that the foregoing 
 claim against the estate of James Jackson, deceased, is 
 justly due and owing to this deponent ; that no payments 
 
EXECUTORS AND ADMINISTRATORS. 
 
 159 
 
 have been made thereon, and that there are no offsets 
 against the same, to the knowledge or belief of this de- 
 ponent. David Bruce. 
 
 Sworn this 1st day of ) 
 
 Nov., 1850, before \ 
 
 Joseph Strong, 
 
 Corner of Deeds . 
 
 § 298. Agreement to refer claim. 
 
 Whereas, David Bruce has presented a claim to Wil- 
 liam Jackson, executor of the last will and testament of 
 James Jackson, late of the city of New-Yoik, deceased, 
 upon a promissory note made by said testator, on the 
 14th day of October, 1847, for the payment of five hun- 
 dred dollars, in six months from date, claiming to be 
 paid the full amount thereof, with interest, the justice of 
 which claim is doubted by the said executor. It is now 
 agreed, by and betw een said Bruce and the said execu- 
 tor, to refer the said controversy to George W. Strong, 
 Esq., counsellor at law, to hear and determine the same 
 pursuant to the statute in such case made and provided. 
 
 Dated, &c. Davtd Bruce, 
 
 William Jackson. 
 
 Approval of the Surrogate to be endorsed . 
 
 The Surrogate of the county of New-York hereby 
 approves of the person named as referee in the within, 
 agreement. 
 
 A. W. Bradford, 
 
 Dated, &c. Surrogate . 
 
160 
 
 THE LAW OF 
 
 § 299. Application for proof of a debt due from the 
 deceased to the Administrator. 
 
 County of Albany, ) 
 
 Surrogate’s Court. £ 
 
 To the Surrogate of the County of Albany: 
 
 The petition of A. B., of the city of Albany, re- 
 spectfully showeth, that he is administrator of the 
 goods and chattels of C. D., late of said city, deceased, 
 who died indebted to your petitioner in the sum of five 
 hundred dollars, with interest, due upon a promissory 
 note made by him in his lifetime to your petitioner, on 
 the 1st day of May, 1848, payable six months after the 
 date thereof. That the said sum remains justly due and 
 owing to your petitioner thereupon — that no payments 
 have been made thereon, and there are no offsets against 
 the same, to the knowledge of your petitioner. That 
 your petitioner has advertised for claims against said 
 estate pursuant to statute, and that none have been ex- 
 hibited, nor does your petitioner believe that any others 
 exist; and that E. F. and G. H., both of the city of 
 Hudson, in the county of Columbia, brothers of the said 
 C. D , are the only persons entitled to share in the dis- 
 tribution of the personal property of said intestate. In 
 order therefore that your petitioner may retain a part of 
 the property of the said intestate in satisfaction of the 
 said claim, he prays that the proper persons may be 
 •cited, to appear before the Surrogate and attend the 
 proving of the said claim against the estate of the said 
 intestate. 
 
 Dated, &c. A. B. 
 
 Add an affidavit of verification, \ 275. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 161 
 
 § 300. Application of a Creditor for payment of 
 his Debt. 
 
 County of New-York, > 
 
 Surrogate’s Court. $ 
 
 To A. W. Bradford, Surrogate of New-York: 
 
 The petition of A. B., of the city of New-York, 
 merchant, respectfully shows, that he is a creditor of 
 C. D., late of said city, deceased, and has a valid claim 
 against the estate of the said deceased, on a promissory 
 note made by the said C. D. in his lifeiime, to the order 
 of your petitioner, dated the 1st day of May, 1849, for 
 six hundred dollars, payable six months after date. That 
 said claim is justly due and owing to your petitioner — - 
 that no payments have been made thereon, and that 
 there are no offsets against the same, to the knowledge 
 of your petitioner. That letters testamentary of the 
 last will and testament of the said C. D. were granted 
 by the Surrogate of New-York to E. F., sole executor 
 of the said will, on the first day of October, 1849.. 
 That your petitioner duly exhibited the said claim to 
 the said executor under the notice published by him for 
 the exhibition of claims, and that he assented to the 
 correctness of the same. That your petitioner has de- 
 manded payment of the said claim from the said execu- 
 tor, since the expiration of one year from the time of 
 the granting of said letters testamentary, and that he 
 has neglected to pay ihe same, although, as your peti- 
 tioner is informed and believes, sufficient assets for the 
 payment of all claims against the said estate have come 
 to the hands of the said executor. 
 
 Your petitioner therefore prays that the said executor 
 may be directed to pay the said claim of your petitioner, 
 and for such other relief as may be proper. 
 
 Dated, &c. A. B. 
 
 Add affidavit of verification, § 275. 
 
162 
 
 THE LAW OF 
 
 301. 
 
 Bond to refund a Legacy. 
 
 Know all men by these presents that we, A. B., and 
 C. D. and E. F., all of the city of New-York, are held 
 and firmly bound to G. H , executor of the last will 
 and testament of L. H., late of said city, deceased, in 
 the sum of one thousand dollars, to be paid to the said 
 G. H. as such executor as aforesaid, his successor or 
 assigns ; for which payment well and truly to be made, 
 we bind ourselves, one and each of our heirs, executors, 
 administrators and assigns, jointly and severally, firmly 
 by these presents. Sealed with our seals. Dated the 
 1st day of November, 1850. Whereas the said L. H. 
 by his said will gave to the said A. B. the sum of five 
 hundred dollars, to be paid to him within three months 
 after his decease, and the said executor has consented 
 to pay the same upon the execution of this bond. Now 
 the condition of this obligation is such that if any debts 
 against the said deceased shall appear, and which there 
 shall be no other assets to pay, and there shall be no 
 other assets to pay other legacies, or not sufficient ; and 
 the said A. B. shall refund the legacy so paid, or such 
 rateable proportion thereof, with the other legatees, as 
 may be necessary for the payment of the said debts, 
 and the proportional parts of such other legacies, and 
 costs and charges incurred by reason of the said pay- 
 ment to him ; or if the probate of the said will shall be 
 revoked, or the will declared void, and the said A. B. 
 shall refund the whole of the said legacy, with interest, 
 to the executor or administrator entitled thereto, then 
 this obligation to be void ; otherwise to remain in full 
 force and virtue. 
 
 ‘Sealed and delivered, > 
 in the presence of $ 
 
 A. B. 
 C. D. 
 E. F. 
 
 'seal.] 
 
 SEAL.] 
 
 SEAL.] 
 
EXECUTORS AND ADMINISTRATORS. 
 
 163 
 
 § 302. Application by legatee , that the executor 
 render an account . 
 
 County of New-York, > 
 
 Surrogate’s Court. $ 
 
 To A. W. Bradford, Surrogate of New-York. 
 
 The petition of A. B., of the city of New-York, mer- 
 chant, respectfully shows that he is me of ihe residuary 
 legatees of the last will and testament of C. D., late of 
 said city, deceased, which will was duly proved before 
 the Surrogate of the county of New T -York, and recorded 
 in his office on the 10th day of June, 1847, and letters 
 testamentary were on the same day granted to E. D., 
 the executor named in the said will, and that more than 
 eighteen months have since elapsed. That in and by 
 the said will, the said C. D., after giving certain 
 specific as well as general legacies to person, s therein 
 named, gave and bequeathed all the rest, residue and re- 
 mainder of his personal property to your petitioner and 
 to his two brothers — E. B., the said executor, and F. B., 
 to be equally divided between them, share and share 
 alike, as on reference to said will or the record thereof 
 will more fully appear. That the the said C. D. left a 
 large personal property, amount to ten thousand five 
 hundred dollars, as appears by tl e inventory thereof, 
 filed in said Surrogate’s office, and that there is or should 
 be a large amount thereof remaining in the hands of said 
 executor after the payment of all the testator’s debts, 
 and of all the legacies bequeathed by the said will. That 
 since the expiration of eighteen months from the time of 
 granting said letters testamentary, your petitioner has 
 frequently applied to the said executor for an account of 
 his proceedings in the discharge of his said trust, and for 
 the payment of the share or portion of the personal pro- 
 perty of the said testator due to your petitioner, under 
 such bequest to him, but that the said executor has here- 
 tofore refused to render such account or to make such 
 payment. Your petitioner therefore prays that the said 
 
164 
 
 THE LAW OF 
 
 executor may be directed to appear in this court, and 
 render an account of his proceeding as such executor as 
 aforesa’d, and that such other proceedings may be had 
 as may be requisite to enforce payment of your petition- 
 er’s said claim. 
 
 Dated, &c. A. B. 
 
 Add an affidavit of verification, $ 275. 
 
 § 303. Application by an executor for a final 
 settlement of his account . 
 
 To Jesse C. Smith, Surrogate of the County of Kings. 
 
 The petition of A. B., of the city of Brooklyn, respect- 
 fully showeth that he was duly qualified as executor of 
 the last will and testament of E. B., deceased, before the 
 Surrogate of the county of Kings, on the 10th day Sep- 
 tember, 1847, and that more than eighteen months have 
 elapsed since the granting of letters testamentary to him. 
 That the said E. B., in and by his said last will and tes- 
 tament, disposed of his personal property as follows : 
 (here set forth so much of the will as relates to the dis- 
 position of the personal property), as on reference to said 
 will, or the record thereof, will more fully appear. That 
 immediately after his appointment he entered upon the 
 discharge of the duties of his office and has diligently 
 proceeded with the same, and is now desirous of render- 
 ing an account of his proceedings as such executor, in 
 order that the same may be finally settled. He there- 
 fore prays that a citation may be issued pursuant to sta- 
 tute, requiring the creditors, legatees and next of kin to 
 the deceased to appear and attend the settlement of his 
 said accounts. 
 
 Dated, &c. A. B. 
 
 Add affidavit of verification, { 275. 
 
§ 304. Form of an administrator's account. 
 
 The Estate of A. B., deceased, in account with C. D., Administrator. 
 
 executors and administrators, 
 
 165 
 
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166 
 
 THE LAW OF 
 
 § 305. Oath to be annexed to the administrator' s 
 account . 
 
 County of Kings, ss.: — A. B ., of the city of Brooklyn, 
 being sworn, says that he is administrator of all and sin- 
 gular the goods and chattels of C. D., late of said city, 
 deceased, and that the annexed account is in all respects 
 just and true. That, according to the best of his know- 
 ledge, information and belief, it contains a full and true 
 account of all his receipts and disbursements on account 
 of the estate of the said deceased, and of a'l sums of 
 money and property belonging to said estate, which have 
 come to his hands as such administrator, or which have 
 been received by any other person by his order or autho- 
 rity, for his use, and that he doth not know of any error 
 or omission therein, to the prejudice of any person inte- 
 rested in the estate of the said deceased. And he fur- 
 ther says that the sums under twenty dollars charg- 
 ed in the said account, for which no vouchers or other 
 evidences of payment are hereto annexed, or for which he 
 may not be able to produce vouchers or other evidences 
 of payment, have actually been paid and disbursed by 
 him as charged in said account. 
 
 A. B. 
 
 Sworn this 1st day of > 
 
 Nov., 1850, before me, C 
 
 J. C. S. 
 
 § 306. An account of his 'proceedings rendered by 
 an executor on a final account. 
 
 In the matter or the final ac- 
 
 counting of A. B., execu- > account of proceedings, 
 tor of C. D., deceased. ) 
 
 To the Surrogate of the County of New-York. 
 
 I, the said A. B., do hereby render the following ac- 
 count of my proceedings in this matter, for final settle- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 167 
 
 ment and allowance. On the 1st day of May, 1847, 1 
 caused an inventory of the personal estate of the deceased 
 to be filed in this office, and on the 1st day of June, 1847, 
 in pursuance of an order of this court, I caused a notice 
 for claimants to present their claims against said estate, 
 to be published for six months The proof of publication 
 is hereto annexed. Within said six months the claims 
 of creditors, as stated in schedule D., hereto annexed, 
 was presented to and allowed by me. On the same sche- 
 dule there is also a statement of the claims disputed by 
 me, and for which claimants have recovered judgment 
 against me. The amount of said inventory as appraised, 
 is five thousand five hundred dollars, all of which was sold 
 at public auction, for the prices and in the manner stated 
 in schedule A., hereto also annexed, except the articles 
 contained in said schedule, which are therein stated to 
 have been sold at private sale. That both said public 
 and private sales were fairly made, at the best prices that 
 could then be obtained, as I then verily believed. That 
 said schedule A. contains also a true statement of the 
 debts due the estate mentioned in said inventory, which 
 have been collected, together with the interest on all 
 sums of money received by me, for which I am legally 
 accountable. Schedule B., hereto annexed, contains a 
 statement of the debts mentioned in the inventory, which 
 have not been collected, and were not deemed collectable ; 
 and also a statement of the personal property which re- 
 mains unsold, and the reasons therefor, with a true state- 
 ment of all property lost, the appraised value thereof, and 
 the cause of the loss. No other assets than those stated 
 in the inventory have come to my possession or know- 
 ledge. I have stated all the increase and decrease in the 
 value of the assets of the deceased in schedules A and B, 
 as they are therein charged and allowed. Schedule C 
 exhibits a true statement of all moneys paid by me for 
 funeral expenses, and the necessary expenses incurred 
 by me in the administration of said estate. Schedule D 
 contains a true statement of all moneys paid to creditors 
 
168 
 
 THE LAW OF 
 
 of the deceased, and the names of the creditors. Sche- 
 dule E exhibits a true statement of all moneys paid to the 
 legatees, widow and next of kin of the deceased. Sche- 
 dule F contains a true and full list of all the names of 
 the legatees, widow and next of kin, of the deceased, and 
 their respective places of residence, and their relationship 
 to the deceased, and the names of those who are minors, 
 and the mmes and places of residence of the several 
 general guardians of those of them who have guardians. 
 
 I charge myself with — 
 
 Amount of inventory . 
 
 #5500 00 
 
 Increase, as shown by exhibit A 
 
 1000 00 
 
 
 #6500 00 
 
 I credit myself by — 
 
 
 Loss on sales, as per schedule B 
 
 #100 00 
 
 Debts not collected, as per do. 
 
 250 00 
 
 Schedule C 
 
 325 00 
 
 Schedule D 
 
 1500 00 
 
 Schedule E 
 
 3500 00 5675 00 
 
 Leaving a balance of . . $825 00 
 
 To be distributed among those entitled thereto, subject 
 to my commissions and the expenses of this accounting. 
 
 A. B. 
 Executor . 
 
 § 307. Application for authority to mortgage lease 
 or sell real estate . 
 
 County of Kings, ) 
 
 Surrogate’s Court. £ 
 
 To J. C. Smith, Surrogate of Kings. 
 
 The petition of A. B., administrator of the personal 
 estate and effects of C. D., late of the town of Flatbush, 
 in the county of Kings, deceased, respectfully shows 
 
EXECUTORS AND ADMINISTRATORS. 
 
 169 
 
 that your petitioner was appointed such administrator by 
 the Surrogate of Kings county, on the 1st day of April, 
 A. D. 1850. That he has made and filed an inventory, 
 according to law, of the personal estate of said deceased, 
 and that he has discovered said personal estate to be in- 
 sufficient to pay the debts of the said deceased. Your 
 petitioner further shows that the amount of such perso- 
 nal property which has come to his hands is nineteen 
 hundred and twenty-seven dollars, and that the sources 
 from whence and the manner in which the said sum has 
 been derived appears in the schedule hereto annexed, 
 marked A. That your petitioner has out of the same, 
 in due course of administration, seventeen hundred and 
 ten dollars and fifty cents, the particulars of which pay- 
 ments also appear in said schedule A, leaving in the 
 hands of your petitioner on this 1st day of December, 
 1850, the sum of two hundred and sixteen dollars and 
 fifty cents, and that your petitioner has, as he verily be- 
 lieves, proceeded with all reasonable diligence to con- 
 vert the personal property of the deceased into money, 
 and apply the same in the payment of debts. Your pe- 
 titioner further shows that the debts still outstanding 
 against the said estate, as near as he can ascertain, ap- 
 pear in a schedule hereto annexed, marked B. That the 
 debts not secured by mortgage, or otherwise charged 
 upon the real estate of the deceased, hereinafter described, 
 and which remain to be paid, as far as the same can be 
 ascertained by your petitioner, and as admitted by him, 
 upon due evidence, amount to three thousand five hun- 
 dred dollars, exclusive of interest, as also appears by said 
 last mentioned schedule. And your petitioner further 
 shows that the claims against the said estate, mentioned 
 in the schedule hereto annexed, marked C, have been 
 presented to your petitioner, but have not been admitted 
 by him, because, by the accounts of the deceased, the 
 said claims do not appear due to the parties presenting 
 the same. Your petitioner further shows that the de- 
 ceased died seised of the following real estate, valued 
 
 15 * 
 
170 
 
 THE LAW OF 
 
 at the sums respectively affixed to each lot or parcel, and 
 occupied or not, as stated, that is to say: All that cer- 
 tain house and lot of land, situate, lying and being in the 
 tenth ward of the city of Brooklyn, &c., valued in the 
 judgment of your petitioner at six thousand dollars, and 
 occupied by L. M. Also all those cer ain lots &c., of 
 land, situate, &c., valued in the judgment of your peti- 
 tioner at two thousand dollars, but not occupied or im- 
 proved in any way. And your petitioner further shows 
 that the heirs of the said C. D., deceased, are E. D.,B. D. 
 and E. N., wife of A. N., all over twenty-one years of 
 age, and G. D. and A. D., minors, over fourteen years of 
 age, having no general guardian, and L. D., a minor under 
 fourteen years of age, also having no general guardian, 
 all residing in the town of Flatbush aforesaid, his only 
 children. 
 
 Your petitioner now applies for authority to mortgage 
 lease, or sell so much of the real estate of the said de- 
 ceased as shall be necessary to pay his debts. 
 
 Dated, &c. A. B. 
 
 Add an affidavit of verification, 5 275. 
 
 § 308. Notice of intention to apply for the appoint- 
 ment of a special Guardian . 
 
 County of New-York — Surrogate’s Court. 
 
 In the matter of the application of N 
 A. B., administrator of C. D.,j 
 deceased, for authority to mort- 
 gage, lease or sell the real estate 
 of the said deceased to pay I 
 debts. 
 
 Please to take notice, that I have presented an appli- 
 cation to the Surrogate of Kings county, for authority 
 
EXECUTORS AND ADMINISTRATORS. 
 
 171 
 
 to mortgage, lease or sell the real estate of C. D., late 
 of ihe city of Brooklyn, deceased, for the payment of 
 his debts; and that I intend to apply to the Surrogate 
 at his office, in the said city of Brooklyn, on the tenth 
 day of December, instant, at ten o’clock in the fore- 
 noon, for the appointment of a guardian for each of 
 you, the minor heirs of the said deceased, for the sole 
 purpose of appearing for you, and taking care of your 
 interests in these proceedings on the said application. 
 
 Dated, &c. Yours, &c., 
 
 A. B., Admin'r. of C. D. 
 
 To A. D., 1 
 
 C. D., > the minor heirs of C. D., deceased. 
 
 E. D., ) 
 
 § 309 . Bond on an Order to Mortgage. 
 
 Know all men by these presents, lhat we, A. B., ad- 
 ministrator of C. D., deceased, and J. R. and N. P., all 
 of the city of Brooklyn, are held and firmly bound to 
 
 the people of the state of New-York in the sum of 
 
 dollars, to be paid to the said people, to which payment 
 well and truly to be made we bind ourselves, our and 
 each of our heirs, executors and administrators, jointly 
 and severally, firmly by these presents. Sealed with our 
 seals. Dated this 15th day of December, A. D. 1850. 
 
 Whereas the above bounded A. B., administrator of 
 C. D., deceased, has lately made application to the Sur- 
 rogate of the county of Kings for authority to mort- 
 gage, lease or sell so much of the real estate of the said 
 deceased, as shall be necessary to pay his debts ; and 
 whereas such proceedings have been thereupon had, 
 that the said Surrogate is about to direct a mortgage of 
 the real estate to be made, for the purpose of raising 
 money for the payment of the said debts. 
 
 Now, the condition of this obligation is such, that if 
 the said A. B. shall faithfully apply the money arising 
 
172 
 
 THE LAW OF 
 
 from the said mortgage to the payment of the debts of 
 the said deceased, to be established before said Surro- 
 gate, on granting the order for such mortgage, and shall 
 account for such money whenever required by the said 
 Surrogate, or by any court of competent authority, then 
 this obligation to be void, otherwise to remain in full 
 force and virtue. 
 
 Sealed and delivered ) A. B. [l. s.‘ 
 
 in the presence of $ J. R. [l. s. 
 
 n. p. [l. s.; 
 
 § 310. Application for the removal of an Executor , 
 or to compel him to give security . 
 
 County of Kings, > 
 
 Surrogate’s Court. \ 
 
 To Jesse C. Smith, Surrogate of Kings County : 
 
 The petition of A. B., of the city of Brooklyn, re- 
 spectfully shows, that he is one of the legatees under 
 the last will and testament of N. B., late of the said 
 city, deceased, and interested in his estate ; that the said 
 last will and testament was proved before the Surrogate 
 of the county of Kings, and recorded by him on the 1st 
 day of May, 1848 ; and letters testamentary were there- 
 upon issued by said Surrogate to A. B., sole executor in 
 said will named. 
 
 Your petitioner further shows, that according to the 
 best of his information and belief, the circumstances of 
 the said C. B. are so precarious as not to afford ade- 
 quate security for his due administration of the estate 
 of the said testator ; that the assets of his estate which 
 came to the hands of the said executor, as appears by 
 the inventory filed by him, exceed ten thousand dollars ; 
 that the said C. B. has failed in business, and is re- 
 puted to be largely insolvent, and your petitioner has 
 reason to believe, and does believe that the said assets 
 
EXECUTORS AND ADMINISTRATORS. 
 
 m 
 
 or a portion thereof will be lost or misapplied by the 
 said C. B. Your petitioner therefore prays that the said 
 executor may be required to appear and show cause why 
 he should not be superseded in his said office, and that 
 he may be required from further acting in the premises 
 until the matter in controversy shall be disposed of, and 
 that such further or other proceedings may be thereupon 
 had as shall tend to the security and due administration 
 of the estate of the said N. B., deceased. 
 
 Dated, &c. A. B. 
 
 Add affidavit of verification, § 275. 
 
 §311. Application to compel an Administrator , 
 whose Sureties have removed from the State , to 
 give farther Security . 
 
 County of New-York, > 
 
 Surrogate’s Court. \ 
 
 To A. W. Bradford, Esq., Surrogate of the County of 
 New-York. 
 
 The petition of G. M. respectfully showeth, that he 
 is one of the children of B. M., late of the city of New- 
 York, deceased, intestate and interested in the estate of 
 the said decea-ed ; that letters of administration upon the 
 estate of the deceased were granted by the Surrogate 
 of the county of New-York to A. L , of said city, on 
 the first day of May, 1849. Your petitioner further 
 shows, that C. R., lately a resident of the city of New- 
 York, is one of the sureties of the said A. L. upon his 
 administration bond, and has, as your petitioner is in- 
 formed and believes, recently removed from the state of 
 New-York, and gone to and become a resident of Chi- 
 cago, in the state of Illinois; and that E. N., of the city 
 of New-York, is the only other security upon the said 
 administrator’s bond. 
 
 Your petitioner therefore applies for such relief as 
 
174 
 
 THE LAW OF 
 
 may be proper under the statute in such case made and 
 provided. 
 
 Dated, &c. G. M. 
 
 Add affidavit of verification, § 275. 
 
 §312. Application of a surety to be released from 
 further responsibility. 
 
 County of New-York, ) 
 
 Surrogate’s Court, j 
 
 To C. V. M., Surrogate of the County of New-York : 
 
 The application of E. N., of the county of New-York, 
 respectfully showeth, that he is one of the sureties of 
 A. L., as the administrator of all and singular the goods, 
 chattels and credits, of B. M., late of the city of New- 
 York, deceased, and that he desires to be released from 
 responsibility, on account of the future acts or defaults 
 of the said administrator. He therefore applies to the 
 Surrogate for relief, pursuant to the statute in such 
 case made and provided. 
 
 Dated, &c. E. N. 
 
 § 313. Proceedings on appointment of a guardian 
 of a minor of the age of fourteen years. 
 
 Petition. 
 
 To C. Y. M., Surrogate of the County of New-York : 
 The petition of A. M. C., of the city of New-York, 
 respectfully showeth, that your petitioner is a resident 
 of the county of New-York, and is a minor over four- 
 teen years of age, and was seventeen years of age on 
 the sixth day of May last past. That your petitioner is 
 -entitled to certain property and estate, and that to pro- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 175 
 
 tect and preserve the legal rights of your petitioner, it 
 is necessary that some proper person should be duly 
 appointed the guardian of his person and estates during 
 his minority. Your petitioner therefore nominates, sub- 
 ject to the approbation of the Surrogate, B. D., of the 
 city of New-York, merchant, to be such guardian, and 
 prays his appointment accordingly, pursuant to the 
 statute in such case made and provided. And your pe- 
 titioner will ever pray. 
 
 Dated New-York. the first day of October, A.D. 1846. 
 
 A. M. D. 
 
 Consent to be Annexed . 
 
 I, B. D., of the city of New-York, merchant, do hereby 
 consent to be appointed the guardian of the person and 
 estate of the above named minor during his minority. 
 Dated this first day of October, A. D. 1846. 
 
 B. D. 
 
 Affidavit as to property annexed . 
 
 County of New - York , ss. : — J. P., of the city of New- 
 York, being duly sworn, doth depose and say, that he is 
 acquainted with the property and estate of the above 
 named minor, and that the same consists of real and per- 
 sonal estate ; and that the personal estate of said minor 
 does not exceed the sum of two thousand dollars, or 
 thereabouts ; and that the annual rents and profits of the 
 real estate of said minor, does not exceed the sum of 
 three hundred dollars, or thereabouts. 
 
 J. P. 
 
 Sworn, this first day of October, > 
 
 1846, before me, $ 
 
 C. V. M., Surrogate . 
 
176 
 
 THE LAW OF 
 
 §314. Guardian’s Bond . 
 
 Know all men by these presents, that we, B. D., of 
 the city of New-York, merchant, and L. R., of the same 
 city, physician, are held and firmly bound unto A. M. C., 
 of the city of New-York, a minor over fourteen years of 
 age. in the sum of six thousand four hundred dollars, 
 lawful money of the United States, to be paid to the 
 said minor, his executors, administrators or assigns; to 
 which payment, well and truly to be made, we bind our- 
 selves, our and each of our heirs, executors and admin- 
 istrators, jointly and severally, firmly by these presents. 
 Sealed with our seals. Dated the first day of Oct., one 
 thousand eight hundred and forty-six. 
 
 The condition of this obligation is such, that if the 
 above bounden B. D. shall and will faithfully, in all 
 things, discharge the duty of a guardian to the said 
 minor, according to law, and render a true and just ac- 
 count t f all moneys and property received by him, and 
 of the application thereof, and of his guardianship in all 
 respects, to any court having cognizance thereof, when 
 thereunto required, then this obligation to be void, else 
 to remain in full force and virtue. 
 
 Sealed and delivered in the presence of 
 
 B. D. [seal.] 
 
 L. R. [seal.] 
 
 Affidavit of justification of surety on bond. 
 
 City and County of New - York , ss. : — L. R., the within 
 named surety, being duly sworn, doth depose and say, 
 that he resides at No. street, in said city, and 
 
 is worth the sum of six thousand four hundred dollars, 
 over and above all his just debts, liabilities and respon- 
 sibilities. 
 
 Sworn, this first day of > 
 
 Oct., 1846, before me, \ 
 
 C. V. M., Surrogate. 
 
EXECUTORS AND ADMINISTRATORS. 
 
 m 
 
 § 235. Letters of Guardianship. 
 
 The people of the State of New-York, to B. D., of the 
 city of New-York, send greeting: 
 
 Whereas an application, in due form of law, has been 
 made to our Surrogate of the county of New-York, to 
 have you, the said B. D., appointed the guardian of the 
 person and estates of A. M. C., a minor, residing in the 
 city of New-York, of the age of fourteen years: And 
 
 whereas the said B. D. has agreed and consented to be- 
 come such guardian, and has duly executed and delivered 
 a bond, pursuant to law, for the faithful discharge of his 
 duty as such guardian, and we being satisfied of the 
 sufficiency of said bond, and that said B. D. is a good and 
 reputable person, and is in every respect competent to 
 have the custody of the person and estate of said minor, 
 do by these presents allow, constitute and appoint you, 
 the said B. X)., the general guardian of the person and 
 estate of said minor during his minority, hereby requiring 
 you, the said guardian, to safely keep the real and per- 
 sonal estate of said minor, which shall hereafter come to 
 your custody, and not suffer any waste, sale or destruc- 
 tion of the same, but keep up and sustain his lands, ten- 
 ements and hereditaments, by and with the rents, issues 
 and profits thereof, or with such other moneys belonging 
 to him as shall come to your possession, and to deliver 
 the same to him when he becomes of full age, or to such 
 other guardian as may be hereafter appointed, in as good 
 order and condition as you receive the same ; and also 
 to render a just and true account of all moneys and pro- 
 perty secured by you, and the application thereof, and 
 of your guardianship in all respects, to any court having 
 cognizance thereof, when thereunto required. 
 
 In testimony whereof, we have caused the seal of 
 our office of our said Surrogate to be hereunto 
 affixed. Witness, C. M. V., Surrogate of said 
 [l. s.] county, at the city of New-York, the first day 
 of May, in the year of our Lord one thousand 
 16 
 
178 
 
 THE LAW OF 
 
 eight hundred and forty-nine, and of our inde- 
 pendence the seventy-fourth. 
 
 C. M. V. Surrogate. 
 
 Annexed to the Letters is the following : 
 
 Extract from an act of the legislature of New-York, 
 concerning executors, administrators, guardians, wards, 
 &c., passed May, 16th, 1837. 
 
 § “Every general guardian appointed by the Surro- 
 gate, shall, annually after such appointment, so long as 
 any part of the estate, or the income or proceeds thereof, 
 remain in his hands or under his control, file in the office 
 of the Surrogate appointing him, an inventory and ac- 
 count under oath, of his guardianship, and of the amount 
 of property received by him, and remaining in his hands, 
 or invested by him, and the manner and nature of such 
 investment, and his receipts and expenditures in form of 
 debtor and creditor.” 
 
 §316. Proceedings for the appointment of a guardian 
 of a, minor under the age of fourteen. 
 
 Petition. 
 
 To the Surrogate of the county of New-York. 
 
 The petition of I. F., of the city of New-York, mer- 
 chant, respectfully showeth, that your petitioner is a 
 paternal uncle of C. F., a minor; that said minor is a 
 resident of the county of New-York, and is under four- 
 teen years of age : That said C. F. was six years of age 
 on the tenth day of July last past: That the only rela- 
 tives of said minor residing in the county of New-York, 
 are W. G., his maternal grandfather, A. G. and H. G., 
 his maternal uncles, and D. F., R. F., and your petitioner, 
 his paternal uncles : That said minor is entitled to per- 
 sonal property to the value of about one thousand dol- 
 lars, as your petitioner is informed and verily believes, 
 
EXECUTORS AND ADMINISTRATORS. 
 
 179 
 
 and that he is also seised of certain real estate, the an- 
 nual rents and profits whereof do not exceed the sum 
 of two hundred dollars ; And that to protect and pre- 
 serve the legal rights of said minor, it is necessary that 
 some proper person should be duly appointed the guar- 
 dian of his person and estate. 
 
 Your petitioner, therefore prays, that you will appoint 
 him, your petitioner, the guardian of the person and es- 
 tate of said minor, until he shall arrive at the age of 
 fourteen years, and until another guardian shall be ap- 
 pointed. And your petitioner will ever pray. 
 
 Dated this first day of May, 1849. I. F. 
 
 City and County of New- York, ss. : — I. F., of the city 
 of New-York, the above petitioner, being duly sworn, 
 deposes and says, that the matters set forth in the fore- 
 going petition are true, as he is informed and verily 
 believes. I. F. 
 
 Sworn before me, this first ) 
 day of May, 1849. $ 
 
 Consent to be annexed . 
 
 I, I. F., of the city of New-York, merchant, do hereby 
 consent to become the guardian of the above mentioned 
 minor, pursuant to the prayer of the foregoing petition. 
 
 I. F. 
 
INDEX. 
 
 *** The figures refer to the numbers of the Section a. 
 
 Abatement, oflegacies, 178. 
 
 general legacy abates before specific, 185. 
 
 Accounting of executor or administrator, 169, 204. 
 when ordered, 205. 
 proceedings upon, 213. 
 form of, 214. 
 
 Actions, by or against executors, 126. 
 by legatee, 166. 
 by creditor, 165. 
 
 Administrator, by whom appointed, 6. 
 
 who entitled to be, 11. 
 order of preference, 12. 
 when widow entitled, 13. 
 
 “ husband, 15. 
 
 6( foreign administrator, 16. 
 
 “ guardian of minor, 17. 
 
 ic persons not otherwise entitled, 18. 
 who are disqualified,. 19. 
 at what time to be appointed, 20. 
 to give security, 22. 
 when to give further security, 23. 
 may be deposed by surrogate, 33. 
 if appointed under false representation, 38. 
 or will subsequently found, 36. 
 or disability removed, 37. 
 or if being a woman, she marries, 38. 
 with a will annexed, 42. 
 
 16 * 
 
182 
 
 INDEX. 
 
 Administrators, when legatee appointed, 103. 
 
 duty of, in collecting assets, 124. 
 not to use force in taking possession, 125. 
 For other matters see Executor. 
 Advancement of children by the father, 198. 
 
 Alien not entitled to be executor, 52. 
 
 Appeal from order revoking probate, 93. 
 
 Appraisers, how appointed, 113. 
 
 notice of appraisement, 114. 
 proceedings of, 116. 
 
 Assets, what shall be deemed to be, 105. 
 
 how marshalled, and distributed, 159, 188. 
 difference between legal and equitable, 186. 
 when to be apportioned among creditors, 165. 
 Attachment to enforce Surrogate’s orders, 209. 
 
 Auditors to examine accounts, 222. 
 
 Bond of administrator, 22. 
 
 when given by executor, 98. 
 when to be prosecuted, 171. 
 
 Children, when entitled to administer, 11. 
 
 Claims, how to be presented, 140. 
 
 when to be prosecuted, 143. 
 
 “ barred, 144. 
 
 16 recovered of next-of-kin, 147. 
 
 Collectors of effects of deceased, 34. 
 
 Commission to take proof of foreign will, 85. 
 
 Costs, how awarded in contested cases, 96. 
 when in suits at law, 146. 
 on accounting, 170. 
 
 County treasurer, when to administer, 11. 
 
 Court of probates, when abolished, 6. 
 
 Creditors may require executor to qualify or renounce, 59. 
 when entitled to administer, 11. 
 may apply for payment, 165. 
 how collection enforced by, 171. 
 may compel settlement of accounts, 207. 
 may apply for an execution, 160. 
 when to apply for sale of real estate, 236. 
 
INDEX. 
 
 183 
 
 Debts due deceased to be inventoried, 118. 
 order of payment of, 148. 
 not yet due, how to be paid, 153. 
 when payment may be ordered, 358. 
 proceedings for payment, 168. 
 
 • when to be paid proportionately, 165. 
 executor cannot retain his own, 156. 
 
 Devisee may apply to have will proved, 61. 
 
 devise to void, if a witness to the will, 83. 
 
 Distribution of assets, when to be made, 194. 
 how enforced, 195. 
 right of widow and children on, 197. 
 in case of advancement, 198, 200. 
 rights of husband and wife on, 201. 
 
 u personal representatives, 202. 
 law of domicil of deceased to prevail, 203. 
 
 Execution, only upon Surrogates order, 160. 
 
 how order for to be obtained, 161. 
 
 Executor, how constituted, 45. 
 
 when in his own wrong, 47. 
 no executor of an executor, 48. 
 when by implication, 49, 51. 
 who incompetent to serve as, 52. 
 can only act after proving the will, 57. 
 liable for funeral expenses before probate, 58. 
 must renounce or qualify, 59. 
 when to apply for probate, 61. 
 to whom application to be made, 62. 
 in what manner to apply, 64. 
 what facts to be proved by, 66. 
 powers cease on revocation of probate, 95. 
 when letters to be granted to, 97. 
 may be required to give security, 98, 104. 
 if one of two displaced other may act, 102. 
 when to return an inventory, 120. 
 his power to dispose of assets, 130. 
 general authority over personal estate, 133. 
 may mortgage as well as sell, 134. 
 if collusion with a purchaser creditors may follow 
 the assets, 135. 
 
184 
 
 INDEX. 
 
 Executor, how sale to be made, 136. 
 
 to advertise for claims, 139. 
 
 may require proof of claims, 140. 
 
 may refer claims, 141. 
 
 order in which heirs to pay debts, 148. 
 
 when to pay rent accruing on leases, 154. 
 
 not to retain for his own debt, 156. 
 
 not bound to plead statute of limitations, 157. 
 
 when to pay debts, 158. 
 
 no execution against, unless by order of the Sur- 
 rogate, 160. 
 
 such order conclusive as to assets, 162. 
 only liable to pay on written promise, 164. 
 when to apportion assets among creditors, 165. 
 not to pay legacies within a year, unless a bond 
 is given, 173. 
 
 may voluntarily render an account, 204. 
 
 when compelled to account, 205. 
 
 when probate revoked for not accounting, 209. 
 
 to furnish vouchers for his account, 214. 
 
 when allowed for items under 20 dollars, 215. 
 
 as to assets lost without his fault, 216. 
 
 when chargeable with interest, 218. 
 
 when responsible for investments, 219. 
 
 legal effect of a settlement of his accounts, 223. 
 
 to retain certain amounts on settlement, 226. 
 
 allowed commissions and expenses, 230. 
 
 when allowed interest, 233. 
 
 when for clerk hire, 234. 
 
 when authorized to sell real estate, 236. 
 
 Father, when entitled to administer, 11. 
 
 when to receive legacies, 183. 
 
 First Judge of county when to act as Surrogate, 7. 
 
 Funeral expenses to be paid before probate, 58. 
 
 Guardians, testamentary appointed by father, 249. 
 
 rights and duties of such a guardian, 250. 
 when special guardians appointed, 252. 
 who to apply for, 253. 
 who may be appointed, 254. 
 powers and duties of, 263. 
 
INDEX. 
 
 185 
 
 Guardians, when personally liable lo ward, 265. 
 
 when required to increase his security, 257. 
 
 to file inventory and annual account, 261. 
 
 when entitled to administration, 266. 
 
 when to receive legacy, 266. 
 
 how cited to render an account, 267. 
 
 when he may be removed, 269. 
 
 how to resign his trust, 270. 
 
 compensation of, 273. 
 
 when may settle with his ward, 273. 
 
 Heir at law, to be cited on proving will, 66. 
 
 Husband may administer wife’s estate, 15. 
 
 liable for her debts to the extent of assets, 15. 
 
 Infant incompetent to serve as executor, 52. 
 
 but may act when he comes of age, 66. 
 
 Interest on specific legacies, 192. 
 
 on general legacies, 193. 
 
 when executor to be charged with, 218. 
 
 when he is to be allowed, 233. 
 
 Inventory, when to be made, 105. 
 
 what property to be embraced in, 106, 112. 
 what inventoried but not appraised, 108. 
 notice before making, 114. 
 how returned to Surrogate, 117. 
 effect and object of, 118. 
 how return of compelled, 120. 
 revocation of letters for not returning, 122. 
 of property subsequently discovered, 123. 
 
 Judgments, how and when to be paid, 151. 
 
 Leases, when accruing rents to be paid, 154. 
 
 Legacy, to a subscribing witness to will, void, 83. 
 when to be paid, 172. 
 when paid rateabiy, 185. 
 when to be refunded, 174, 187. 
 specific or general, 177, 180. 
 lapsed or vested, 181. 
 refunding bond on payment of, 173. 
 to whom paid, if legatee a minor, 183. 
 assent to by an executor necessary, 187. 
 interest payable on, 193. 
 
186 
 
 INDEX. 
 
 Legatee, when entitled to administer, 42. 
 
 Letters of administration, who to grant, G. 
 who entitled to, 12. 
 proceedings on granting, 22. 
 with the will annexed, 42. 
 special, when granted, 43. 
 when to be revoked, 36 — 38. 
 testamentary, when to issue, 97. 
 
 Married women incompetent to act as executors, 53. 
 
 husband may administer in her right, 15. 
 letters testamentary to, may be revoked, 54. 
 legacy may be paid to her, 201. 
 
 Marshalling assets, how performed, 159. 
 
 Mortgage debt, how to be paid, 188 — 191. 
 
 Minor, when legacy paid to father, 183. 
 
 guardian to be appointed for, 248. 
 how represented on sale of real estale, 249. 
 special guardian for on proving will, 252. 
 entitled to administer by guardian, 266. 
 
 Notice to creditors, to exhibit claims, 139. 
 
 Orders of Surrogate, how enforced, 209. 
 
 Partnership interest to be inventoried, 118. 
 
 Preferences in payment of debts, 152. 
 
 Probate, what evidence on making, 82. 
 when to be revoked, 90. 
 
 Public Administrator, 7. 
 
 Real Estate, when to be sold, 236. 
 
 proceedings to obtain order for, 238. 
 when creditor may apply for, 237. 
 when mortgage will be ordered, 242. 
 how proceeds of sale disposed of, 246. 
 effect of a sale of, 247. 
 
 Referees, how appointed, 141. 
 
 proceedings by, 142. 
 
 RenuncIation of right to administer, 8 — 13. 
 by an executor, 59. 
 
 Residuary legatee, when entitled to administer, 42. 
 
INDEX. 
 
 187 
 
 Revocation of probate, 90. 
 
 of letters testamentary, 101. 
 of administration, 122. 
 
 Sale of personal effects, when authorized, 130. 
 
 how to be made, 136. 
 
 Stocks, when to be transferred to executor, 129. 
 
 Sureties, of administrator, 22. 
 
 when to be renewed, 23. 
 
 when relieved from further liability, 27. 
 
 Surrogate, origin and history of the office, 4, 5. 
 jurisdiction of, 6. 
 when county judge to act, 7. 
 who to take proof of wills, 62. 
 orders of, how enforced, 209. 
 
 Taxes, when to be paid, 148. 
 
 United States entitled to priority of payment, 149. 
 
 Widow, entitled to administer, 13. 
 
 what personal property entitled to, 108. 
 
 Witnesses, what, on proving will, 70. 
 
 how compelled to testify, 74. 
 when infirm, how examined, 72. 
 in case they are interested in legacy, 83. 
 to state their place of residence, 87. 
 
 Will, proceedings on proving, 66. 
 citation, how reserved, 68. 
 proof required from witnesses, 71. 
 proof in case witnesses are dead, 78. 
 when Surrogate to record, 82. 
 when already proved in another state, 84. 
 what facts necessary to be proved, 86. 
 legal effect of proof of, 88. 
 how probate may be contested, 89 — 93. 
 
 THE END. 
 

 
 
 

 
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