J UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A GU IDE EXECUTORS AND ADMINISTRATORS IX THE SKTTI.KMENT OF THE ESTATES OF DECEASED PERSONS WITHIN THE STATE OF OHIO TO WHICH AKK PKF.FIXBD THE PROVISIONS OF LAW RELATING TO WILLS. WITH NOTES OF DECISIONS AND PRACTICAL SUGGESTIONS. BY GEORGE W. RAFF AUTHOR OK " PENSION MANUAL." " OHIO ROAD LAWS'* K- Ci SIXTH EDITION. REVISED, ENLARGED, AND CONFORMED TO THE REVISED STATUTES TAKING EFFECT JANUARY 1, 188O. BY FLORIEN GIAUQJJE Of the Cincinnati Bar R /*2* a 1 Copy-righted by George W. Ruff, 1859. Copy-righted by Robert Clarke & Co., 1860. Copy-righted by Robert Clarke & Co., 1864. Copy-righted by Robert Clarke & Co., 1871. Copy-righted by Robert Clarke & Co., 1879. 3 PREFACE TO THE FIFTH EDITION. SINCE the fourth edition of this work was published, there; have "f been issued eleven volumes of decisions of our Supreme Court and Supreme Court Commission, and seven annual volumes of statutes; and all the laws relating to Procedure before Magis- trates, in the Probate, Common Pleas, and Superior Courts, and in District Courts on appeal, including the laws relating to Wills, to Executors and Administrators, and other kindred subjects treated of in this volume, have been codified and the acts relating thereto repealed. The questions settled by these decisions, and especially the additions, omissions, and changes in the laws relating to the subjects above mentioned, have made the thorough revision of this volume imperative; and other engagements having prevented its able author, Judge Raff, from undertaking this revision, the publishers put it into the hands of the present revisor. His aim has been to make accurately such changes as were necessary and desirable under the circumstances* and no others; and to do this thoroughly and reliably, without regard to the time and labor expended. The most important changes made, in addition to conforming the text to the laws as now in force, are: 1st. Complete references from the text to the law on which it is based ; 2d. Additional references to decisions ; 3d. A greatly enlarged index ; and, 4th. Additional forms. While Judge Kaff modestly made no such extensive claim for his work, yet it has been in the past a most useful, convenient, and reliable manual, not for executors and administrators alone, but also for attorneys and other officers of the courts having jurisdiction of its subject-matter. It is hoped that the changes above referred to will not have detracted from it in this respect. Acknowledgments are due and grateful ly made to Senator Stanley Matthews and to Hon. Warner M. Bateraan for valuable opinions as to the force and effect of certain changes in the law, and for other assistance, and to Daniel Heriderand Emil Hoffman, Esqs., experienced deputies in the offices of the Probate Judge and Clerk of the Courts of Hamilton County, respectively, for practical suggestions. F. G. CINCINNATI, 1879. (iii) PREFACE TO THE SIXTH EDITION. SINCE the publication of the fifth edition, there has been some new legislation concerning Executors and Administrators, three additional volumes of Ohio Supreme Court decisions have ap- peared, the new code of laws has been adopted, with some changes even in those parts of it found in volume 75 Ohio Laws, and made the basis of the fifth edition of this work ; and all the statutes as found in the annual volumes, previous to January 1. 1880, but now embodied in this code, have been repealed. The references to the laws, as found in former editions, had therefore to be changed, and the text again made to conform to the laws as now in force. Occasion was taken to insert additional notes and cross-references, and to verify the references throughout. Such notes as could not be inserted in the body of the work, have been added as an "Appendix,"' to which proper references are made. It is hoped, and it is probable, that the laws are now in such shape that this edition will require no change for many years to come. Ff* . (3. CINCINNATI, January. 1880. (iv) CONTENTS. CHAPTER I. TO WILLS 1 SECTION I. By whom wills may be made, and how ; with a few practical hints to testators .>. 1 SECTION II. The deposit and revocation of wills 17 SECTION III. The admission of wills to probate and record 23 SECTION IV. Proceedings to contest the validity of wills 34 SECTION V. Widows' election to take under will 36 SECTION VI. The powers of executors with respect to real estate 39 SECTION VII Trusts and trustees 40 SECTION VIII. Nuncupative or verbal wills 43 CHAPTER II. RELATING TO THE APPOINTMENT, BUND, SURETIES, AND LETTERS OK EX- ECUTORS AND ADMINISTRATORS, AND THE MANNER IN WHICH THEY MAY BECOME DIVESTED OK THEIR POWERS 44 (V) VI CONTENTS SECTION I. To whom letters testamentary will be granted; with sundry matters relating specially to executors and administrators with the will annexed ................................................. 44 SECTION II. To whom letters of administration will be granted; with sun- dry matters relating specially to administrators ................. 47 SECTION III. When a special administrator may be appointed ; his bond, powers, and duties .............. ... ................................... .... 51 SECTION IV. The granting and revocation of letters; the sureties, bond, resignation, removal, and death of executors and adminis- trators .......................................................................... 52 SECTION V. 1 few plain directions to persons about to apply for letters testamentary or letters of administration. ......................... 58 SECTION VI. Notice of appointment... ................................................ 62 CHAPTER III. RELATING TO THE INVKFTORY ....................................................... 63 SECTION I. Preparations v DEBTS. 129 SECTION I. How aud when an order of sale may be obtained; the pro- ceedings under the same; the deed of the executor or ad- ministrator, eic 129 CHAPTER VIII. THE ACCOUNT OF THE EXECUTOR on ADMINISTRATOR, AND THE DISTRI- BUTION OF THE ESTATE 156 SECTION I. When an account must be rendered; what it must contain; how the filing of the same may be enforced ; and the com- pensation of the executor or administrator for his ser- vices 156 SECTION II. The distribution of estates, and how such distribution may be enforced in certain cases 168 CHAPTER IX. RELATING TO INSOLVENT ESTATES 181 SECTION I. When and how an estate may be declared insolvent; with the proceedings in insolvency 181 CHAPTER X. RELATING TO SUITS UPON THE BONDS OF EXECUTORS AND ADMINISTRA- TORS 193 SECTION I. When and how suit may be brought upon an administration bond... . 193 CONTENTS. IX CHAPTER XI. RELATING TO CONTRIBUTIONS BY HEIRS, DEVISEES, AND LEGATEES 200 SECTION I. When and how contribution may be enforced ; with the liability of heirs, devises, and legatees to each other, in certain cases 200 CHAPTER XII. RELATING TO CONTRACTS OP A DECEDENT IN EXISTENCE AN THE TIME OF HIS DEATH 205 SECTION I. What contracts of a decedent an executor or administrator may enforce, rescind, or specifically perform 205 CHAPTER XIII. RELATING TO FOREIGN EXECUTORS AND ADMINISTRATORS 209 SECTION J. The powers, duties, and liabilities of foreign executors and administrators within this state 209 CHAPTER XIV. MISCELLANEOUS MATTERS 212 SECTION I. Miscellaneous matters 212 SECTION II. Mechanic's Lien 222 FORMS... .. 232 X CONTENTS. ANNUITY TABLE .. 331 DEFINITION or TERMS , 334 INDEX 337 EXPLANATORY. THE numbers in large type employed throughout the body of this volume, and enclosed in parentheses, refer to the forms in the closing part, and are inserted for the convenience of the reader in finding the forms adapted to the various subjects treated of. The numbers in small type refer to notes of decisions, and the letters refer to the law on which the matter preceding the letter is based. For the information of those who are not familiar with legal mat- ters, it may not be improper to remark, that the decisions of the Supreme Court of Ohio are published in two series of Reports, witli different names. The number of volumes of Reports at the time the new Constitution went into effect was twenty; these are called the Ohio Reports. Since then, thirty-one additional volumes have been published, and these are termed the Ohio State Reports. The Reports are referred to by the numbers of the several volumes ; as, 5 Ohio, 71 ; 3 Ohio St. 320 that is to say: 5th volume of Ohio Reports, page 71 ; 3d volume of Ohio State Reports, page 320. References are also made to the Western Law Monthly, as W. L. M. ; to Cincinnati Superior Court Reporter, as C. S. C. R. ; to Wright's Report, as W.; Western Law Gazette, as W. L. G. ; Disney's Reports, as D. ; Handy's Reports, as II. Should the reader desire to examine at large any case cited in the foot-notes of the following pages, he can find the Reports in almost any lawyer's library. All the laws of Ohio in force have been arranged into a code, adopted by the Legislature in 1879, and its sections are numbered consecu lively, without reference to subject-matter, or to chapters, or other subdivisions. It is to these sections that the numbers at the foot of tht; page* rfer. GUIDE TO EXECUTORS AND ADMINISTRATORS. CHAPTER I. RELATING TO WILLS. As the settlement of estates by law, and the disposition of the same by will, are subjects intimately connected, I propose, before proceeding to consider the method prescribed by law for the settlement of estates in general, to notice briefly the sev- eral provisions of law relating to wills, and to add such sugges- tions as may be deemed of advantage to persons interested in the execution, probate, or construction of wills. SECTION I. BY WHOM WILLS MAY BE MADE, AND HOW ; WITH A PEW PRAC- TICAL HINTS TO TESTATORS. The first section of the law relating to procedure in probate courts (Part II., Title II.), provides that, " In this title the term ' will ' shall be construed to include codicils as well as wills ; every word importing the masculine gender may extend and be applied to females as well as males ; every word importing the singular number only may extend to and be applied to several persons or things as well as one ; and every word importing the plural number only may extend to and be applied to one per- son or thing as well as several." a (1 ) For many important recent notes of decisions aa to wills, see pp. 345, t seq. (a) Rev. Stat., \ 6913. (1) I WILLS. Subject to certain limitations given in this chapter, any per- son * of full age 2 and of sound mind and memory, and not under any restraint, having any property, personal or real, or any in- terest 3 therein, may give and bequeath the same to any per- son by last will * and testament lawfully executed. 8 If any testator die leaving issue of his body, or an adopted child, living, or the legal representative of either, and the will of such testator give, devise, or bequeath the estate of such tes- tator, or any part thereof, to any benevolent, religious, educa- tional, or charitable purpose, or to this state or any other state or county, or to any county, city, village, or other corporation or association in this or any other state or country, or to any person in trust for any of such purposes, or municipalities, cor- porations, or associations, whether such trust appears on the (1) It seems that previous to June 1, 1808, a married woman could not make a will. But by the law which took effect on that day (Chase, 571), it was held that a married woman could make a will devising real estate held by her in her own right. Allen et al. v. Little, 5 Ohio, 63. By all the acts passed since then, relating to wills, this right has heen vested in married women. Chase,, 929, 1305, 1785; Swan, 992; S. & C. 1615, \\ 1 and 77; 72 Ohio L. 3 ; 75 Ohio L. 838; Code of 1879, gg 5914, 3108. (2) A male person is " of full age" at twenty-one years of age; a female person at eighteen years of age. Under these ages respectively the law considers them " infants" or minors. 1 ' (3) A future contingent interest in real estate, in the nature of a con. tingent remainder or executory devise, is an interest in lands known to the law. and may be transmitted by devise or deed. Lessee of Thompson 9. Thompson et nl.. 6 Ohio St. 480. See note 51, p. 344. (4) A joint will is unknown to the testamentary law of this state, and is inconsistent with the policy of its legislation. And where a husband and wife, each being the separate owner of property, join in the execution of an instrument in the form of a will, and treating the separate property of each as a joint fund, bequeathed legacies and devised lands to divers persons, the same can not be admitted to probate as the joint will of both parties, nor as the separate will of either. Walker v. Walker, 14 Ohio St. 157. Although some of the provisions contained in the body of such a will may be, in form and effect, several, y< t, inasmuch as the provisions of such a will partake of the nature of a compact, in which such provision is influenced by all the rost, all the provision- of the will must stand or fall together. Ib. (a) 5914. '.1-6. BY WHOM AND HOW MADE. A face of the instrument making such gift, devise, or bequest or not, such will as to such gift, devise, or bequest, shall be in- valid, unless such will shall have been executed according to law, at least one year prior to the decease of such testator. 8 Every last will and testament (except nuncupative wills here- inafter provided for 1 ) shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be at- tested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same. b Every codicil must be executed, attested, and subscribed in the same manner, as the law specially provides that all its pro- visions, relative to wills, apply to codicils also. c It is not sufficient that the will or codicil upon its face pur- ports to have been made by the testator, even though it should be written by him ; but it is in all cases indispensable that his signature should appear at the end of such will or codicil, and that the signing be attested by two or more competent per- sons who saw him subscribe his name, or heard him acknowl- edge that he did so. 2 The witnesses must subscribe their names, as such, in pres- (1) See page 4:J. (2) Such acknowledgment need not be in express words, but may be in- ferred from signs, motions, conduct, or attending circumstances. Raude- baugh et ux. v. Shelley et al., "C Ohio St. 307. In Lessee of Reynolds and wife v. Shirley, 7 Ohio (pt. 2), 39, it was held that where a testator, in tho presence of two witnesses, held up a will, executed in 1824, and requested them to sign a certificate of such acknowledgment, which they did, it was a valid will, without the signature of the testator to such reacknowledgment. Where a decedent in his lifetime drew a will, and signed it, but without having it witnessed, and afterward added thereto a clause making an ad- ditional devise of the property mentioned in the will, and then caused it to be subscribed by two witnesses, but without again signing the same himself " at the end thereof," as required by the second section of the " act relating to wills :" Held, that the whole instrument was invalid as a last will and testament. Glancey et al. v. Glancey et al., 17 Ohio St. 134. (a) ?5915. (c) $6913, 6953. (b) $6916. 4 WILLS. ence of the testator; but they are not required Vo sign in the. presence of each other, nor at the same time. 1 If money or other property be bequeathed or devised to a charity, especial care should be taken to express clearly the ob ject of the donation, and to designate with certainty the person, class of persons, society, institution, or public enterprise in- tended to be benefited thereby. A devise to any person in trust for the poor should point out specifically the class of per- sons to whom the appellation is intended to apply ; and the trust should be defined with sufficient certainty to enable a trustee to execute the same in all respects according to the de- sire and intent of the testator. 2 In such cases the testator may, by investing his trustee with large discretionary powers, guard against the danger of lapse for uncertainty in defining the trust, and also provide for unthuught-of contingencies which may arise during the existence of the trust. 3 A testator can not, by any expedient to which he may resort in his will, release his property, either real or personal, from liability for the payment of his debts after his death.* Nor can (1) Raudebaugh v. Shelley, 6 Ohio St. 307. See notes 99-101, p. 352. (2) A gift to a charitable use is to receive the most liberal construction. Zancsville Canal and Man'fg Co. v. City of Zanesville, 20 Ohio, 483. (3) A testator provided by his will that certain property should be re- tained by his executor, and invested by him during the life of testator's wife for her use, and that at her death it should be devoted to the advancement of the Christian religion, in such manner as, in executor's best judgment, would best promote that object. During the life of said executor and that of said widow, the heir brought suit to annul the will for uncertainty as to that object. Held, that the testator had conferred ample power upon ex- ecutor during life of wife, at least, and that during that time the courts would not interpose to prevent its exercise by the executor. Miller v. Teachout, 24 Ohio St. 425. See note 75, p. 348. (4) The debts of a deceased person are a lien upon the land of which he died seized, in default of personal assets, whether devised or cast by de- scent. This lien, it is said, can only be removed by the payment of the debts, or the lapse of time. llamsdall v. Craighill et al., 9 Ohio, 197. But where land is bequeathed to a wife for life, with power to devise the same to whom she pleases, and she accordingly devises it, after her death her dev- isee takes the estate disincumbered by her debts. Donley's Adrn'rs v. Don- ley's Guardian, 14 Ohio, 359. A purchaser from an administrator, under an order of sale, holds the BY WHOM AND HOW MADE. 5 the heirs or devisees of a testator, by making sale of his real estate after his death, and before his creditors take steps to sub- ject the same to" the payment of their claims, divest such real estate of the liens of such creditors ; but the same will remain charged with the payment of the debts of the testator even in the hands of an innocent purchaser. 1 a But when the personal estate of a testator is insufficient to satisfy his debts, and he leaves real estate which is undevised, this must first be sold and appropriated to the liquidation of such debts before that which is devised can be subjected to sale for that purpose. If the will provides for the payment of the land discharged of the liens for debts. Bank of Muskingum v. Carpen- ter's Adm'rs, 7 Ohio (pt. 1), 21; Stiver's Adm'r v. Stiver's Heirs et al., 8 Ohio, 217. (1) The heirs and devisees of the ancestor hold the land subject to his debts. Ramsdall v. Craighill et al., 9 Ohio, 197 ; Stiver's Adm'r v. Stiver et al., 8 Ohio, 217. A purchaser from the heirs is bound to take notice of the rights of the creditors of the ancestor, and takes the incumbrance of the ancestor's debts with the title. No circuity of conveyance, no collusion or management among the holders of the estate, will free the land from the burden of the debts of the ancestor. Piatt v. St. Glair's Heirs et al., 6 Ohio, 227 ; Stiver's Adm'rs v. Stiver et al., 8 Ohio, 217. The sale of land by an heir is good to convey the title, but the purchaser takes the land charged with the debts of the ancestor. Piatt v. St. Glair's Heirs et al., 6 Ohio. 227. See also McDonald et al. v. Aten et al.. 1 Ohio St. 293, and Farran's Adm'r v. Robinson, 17 Ohio St. 242. An heir can not, by bidding in the land, upon sale for taxes, divest the creditors of the ancestor of their lien upon it. Piatt v. St. Glair's Heirs et al., 6 Ohio, 227. Where several tracts of land have descended to the heirs, and some have been sold and conveyed by them, and some have not, a court of chancery will so far control a creditor of the ancestor in asserting his lien in chancery as to require him to resort first to land remaining unsold, and if that be not sufficient to liquidate the debt, resort must be had to the unsold lands, in regular order, beginning with that last sold. Ib. Creditors must first exhaust their remedy against the personal representa- tive, before they can have recourse to lands in the hands of purchasers fiom the heirs. Stiver's Adm'rs c. Stiver et al., 8 Ohio, 217. See also note 8, p. 131, and note 1, p. 153. (a) '$ 5972-5975 6 WILLS. debts in any other manner, the terms of the will, so far as they do not contravene the rights of creditors, will be observed and followed. 8 For various provisions of law relating to undevised real es- tate, to contribution by legatees when the property devised to one of them is taken to pay debts, and other kindred matters, see Chapter Xlof this volume. The law prohibits any person from disposing by will of any estate in fee simple, fee tail, or any less estate, to any person except such as are in being, or to the immediate descendants of such as are in being, at the time of making the will. There- fore, if a man have children living, he can not legally devise hia real estate to them for life, and after their death to their children for life, and so on indefinitely; but in such case, upon the death of the children of the testator, their children will take an abso- lute estate in fee simple. lb (1) Although not in all respects technically correct, this is believed to be near enough so to answer the purpose of an illustration. Where a testator gives property to two daughters and two grandsons for life, and then pro- vides that the portion in which each of them enjoyed a life estate, shall "de- scend and pass absolutely unconditionally, and in fee simple, respectively to the children of each, lawfully begotten of the body of each, or to ihe chil- dren or child lawfully begotten of the body of such child or children:" Held, 1. That the words " or to the children or child lawfully begotten of the body of such child or children," were intended to designate persons who might be living at the death of the tenants for life, and not as words of lim- itation, requiring a succession first to children, and then to children of the children. 2. That the words did not render the devise over, after the de- termination of the life estate, void for uncertainty, or repugnancy, but that the meaning of the testator was, that upon the death of the tenant for life the children then living were to take, and if any child of the tenant for life had predeceased, leaving a child or children, such child or children should bo substituted to the place of the deceased parent. Stevenson v. Evans et al., 10 Ohio St. 307. Where in a will there is a devise for life, and then to the children of the tenant for life in fee simple, and then a limitation over, if such tenant tor life "should die without having any heirs lawfully begotten of their or either of their bodie.s: Held, that the latter words are to be construed with reference to the former, and that the heirs of the body intended by the tes- () 5972. (b) 4200. BY WHOM AND HOW MADE. 7 A will to be effectual in passing both real and personal estate, must be in writing ; a verbal will is valid so far as relates to per- sonal property only.' 1 A man can not by will bar his wife of her right of dower b in hia real estate, if she prefer to take such dower instead of the pro- tator, are the children of the tenant for life designated in the prior limita- tion. Ib. H., by his will executed in 1809, devised certain real estate in Ohio to F., an unmarried daughter, for life, and the remainder at her death to her child or children then living, and the descendants of those who might be dead, equally, per stirpes. F. subsequently married, had thirteen children born, but at her decease left only ten children then living, one having previously died without issue, and two having issue. Held, that the devise to the chil- dren of predeceased children is not in conflict with the statute ;; to restrict the entailment of real estate," passed February 17, 1811 ; and that the "im- mediate descendants," to which, by said act, all devises are restricted, in- eludes all to whom, under the statute of descents, an estate would have de- scended immediately from the particular person whose descendants they by the will are required to be. Turley v. Turley et al., 11 Ohio St. 173. A testator devised certain real estate to his granddaughter S. and her issue habendum, to S. ' and her issue and their heirs." If S. should die before the age of twenty-one years, leaving no issue then living, there was a devise over to two daughters of the testator for their lives, and, upoa their decease, to their issue respectively. S. had no issue, but died after she became twenty -one years of age. Held, 1. That issue, as used in con- nection with the devise to S., was a word of limitation, and not of pur- chase, and that S. took an estate in fee tail. 2. That although S. died without issue, yet as her death did not occur till after she became twenty- one years of age, the devise over to the daughters never took effect. Hark- ness v. Corning, 24 Ohio St. 416. The statute to restrict the entailment of real estate does not change the nature of an estate in the first donee in tail from an inheritable estate to an estate for life merely. The object of the statute is to restrict the entailment to the immediate issue of such donee, and, on the determination of his in- terest in the estate, and of such rights as the law annexed to it while held by him, to enlarge the estate tail in the hands of such issue into an absolute estate in fee simple. Ib. One of the incidents of an estate in fee tail, at common law. is the right of tl's surviving husband to an estate by curtesy, with which the statute above referred to does not interfere, and to which, in this state, the husband i& entitled, whether there be issue born during the coverture or not. Ib See also notes 1, p. 10, and 4, p. 13. (a) H 5916, 5991. See pp. 2, 3, and 43, this volume, (b) 8 WILLS. vision made for her in the will ; nor can a married woman by will make such disposition of her real estate as will defeat her husband's right of curtesy. 18 When it is the intention of the testator that the provision made for his widow shall be in lieu of dower, the fact should be distinctly stated in the will, to avoid cavil. 2 Any father, or in case the father be dead or have gone tc parts unknown, any mother may, by last will in writing, ap- point a guardian or guardians for any of his or her children, whether such children be born at the time of making the will or afterward, to continue during the minority of the child, or for a less time. b But no person who has been or shall be admin- (1) Where a will assumes to give to one of its beneficiaries property of another person (that property being the husband's life estate in his wife's land, by curtesy, and that person being that husband), for whom provision is also made in the will, the latter (the husband) can not take the provision made for him in the will, and also hold the property, but must elect which he will take. Huston v. Cone, 24 Ohio St. 11. In order to put the party to such election, it must plainly appear that it was not the intention of the testator to give him the provision made in the will in addition to the property, except when the property in question is the widow's right of dower, as to which the rule has been reversed by stat- utory provision. Ib. A court of equity has jurisdiction to compel the party to make such elec- tion, or to abide by an election already made. Tb. Such election, in order to make it binding upon the party, must be mado understandingly that is, with a knowledge of the facts and of the parties' rights under the will. Ib. See notes 8. 4, p. 337. (2 1 A testator, by clear and express language in the farmer clause of his will, having divided all his property, real and person.-' 1. between his widow and his two children, giving to the widow and her heirs forever one-third of his real estate and more than one-third of his personal estate, the sum appearing to be more than sufficient for her life support, and giving the rest of his estate, real and personal, in equal portions, to his said children and heirs: Held, 1. That a subsequent declaration of the testator, in the concluding clauses of the will, that said bequests and devises were not in- tended to be and wore not in lieu of dower in either his real or personal es- tate, does not operate to control or change the express bequests and devise? go before stated in the will. 2. That the widow, having elected to lake un- (a) 4176. (b) ? 6266. BY WHOM AND HOW MADE. 9 iatrator of an estate or executor of a last will, in which estate or by which will any minor has or shall have any interest, shall be appointed guardian of the person and estate, or of the estate only, of such minor. Such person may, however, be appointed guard- ian of the person only of such minor." A married woman can not, except as provided above, appoint a testamentary guardian for her child or children. If a will direct that no bond shall be required of any exec- utor, trustee, or guardian named therein, or that no inventory or sale of the testator's property shall be made, the probate court may observe the wishes of the testator in any of tbese respects, or may. for what may be deemed sufficient cause, require that such executor, trustee, or guardian shall conform to the law, and that the administration of the testator's estate shall take the usual course. b Any real or personal estate, or any interest therein, acquired by a testator subsequent to the execution of his will, will pass thereby, in like manner as if previously owned by him, in case it clearly appear by the terms of the will that such was his in- tention. 10 When lands and tenements are devised to any person, he or der the will, and the personal property not being intestate, she is not enti- tled to a distributive share of the personal property under the statute Par- ker et al. v. Parker's Adm'r et al.. 13 Ohio St. 95. Foreign as well as domestic wills disposing of lands in this state are gov- erned by the laws of Ohio in their construction, and are to be construed Jji accordance with the law prescribing that if a provision be made for a widow in the will of her husband, she shall not be entitled to such provision and also to dower, unless it plainly appears by the will to have been the inten- tion that she should have such provision in addition to her dower. Jennings v. Jennings, 21 Ohio St. 56. See also the second paragraph of the preced- ing note, and notes 35-38, p. 342. (1) A testator can not, by any words of exclusion used in his will, disin- herit one of his lawful heirs, in respect to property not disposed of by his will. Such words can not be used to control the course of descent, so as to carry the property to his other heirs. They can not be used to raise an es- tate by implication in favor of his other heirs ; there being no attempt in the- (a) 6255. (c) ? 5969. (b) $ 5996, 6268, 6981, 6304. 10 WILLS. she takes all tbe interest of the testator therein, or so much thereof as he could lawfully devise, unless it appear that the intention of the testator was to grant a less estate. 1 a No words of perpetuity (as " to him and his heirs," or, " to him, his heirs and assigns, forever ") are necessary in a will to pass an es- will to dispose of the property or to create any interest therein. Crane v. Doty, 1 Ohio St. 279. See also Lessee of Smith et jil. v. Jones, 4 Ohio, 115. (1) A testator, after giving, by his will, to his eldest son, Matthew, twanty- five acres of land from off the farm on which he lived, uses the following language: "Item Third. I give and bequeath to my youngest daughter, Margaret Harper, the remaining part of my real property." " Item Fourth. . . . Should my youngest daughter, Margaret Harper, die without any legitimate heirs, her part of my real estate shall fall to my eldest son, Matthew Harper." Held, 1. That the language of "item third" is suffi- cient, standing alone, to vest in Margaret a fee simple estate, and in its effect upon subsequent provisions of the will, is to be considered the same as if he had devised the residue of his estate to Margaret, her heirs and as- signs forever. 2. That the words "legitimate heirs," mean "legitimate is- sue" and the whole clause, " should rny youngest daughter, Margaret Har- per, die without any legitimate heirs," refers to a definite, and not an in- definite failure of issue, and are to be construed as if the words living at the time of her death, had been added after the words "legitimate heirs." 3. That under items third and fourth, taken together, Margaret took an es- tate in fee simple, subject, however, .to be determined by the contingency of her dying without issue living at the time of her death, on the happening of which, the estate would pass over to Matthew, by way of executory devise. Niles et al. v. Gray et al., 12 Ohio St. 320. See also Parish v. Ferris, 6 Ohio St. 563; Ward v. Barrows, 2 Ohio St. 241 ; Shaw et al.; v Hoard et al., 18 Ohio St. 227; Decker's Ex'rs v. Decker's Ex : rs, 3 Ohio, l-">7. Subject to payment of his debts, etc., a testator left to his wife all his property during her life, . . . and declared it to be his will that she should have the entire management of his estate, and that she might dis- pose of it in whatever way she might " think best for herself and heirs ; " and provided that, at her death, whatever might be left of his estate, after payment of her legacies and debts, should be equally divided among his children. Held, that the will did not give her an absolute right to the per- Bonalty, nor a fee simple to the realty, but only a life estate and life support, with power to manage and dispose of the property in any manner that, in her judgment, would best promote her own welfare and benefit the estate; but she was not authorized to give the property to a part only of the chil- (a) \ 6970. BY WHOM AND HOW MADE. 11 tate of inberitance ; but if the language used bo "general, and comprehend the whole property, or the testator's interest therein dren, for the purpose of defeating testator's intention that all his children should share equally in the distribution of his estate. Huston v. Craighead, 23 Ohio St. 198. A testatrix devised a house and lot to her husband for life, on condition that he provide, in a suitable manner, for their imbecile daughter, L., dur- ing their joint lives, with power to sell the premises in fee simple, if, in his judgment, such sale became necessary for the comfortable support of either himself or L. She also devised same premises to their son A., in fee sim- ple, in case the father died before L., leaving the premises unsold, on the same conditions as to the support of L. as above. The father died before L., not having sold the property, and A. took the property and suitably sup- ported L., till his death in 1857. But, in the meantime (in 1852), A. sold the property, by general warranty deed, to W., who. with his assigns, has held the property ever since. Held, that the estate of W., and of his assigns, is absolute, and can not be charged with maintenance of L. Huey v. Thomas, 25 Ohio St. 645. "Where a testator made^ devise to his son, John, ' through his natural life, and then to his hsirs.'' and. in another part of the will, used the word "heirs" in the sense of children: Held, that the son took a life estate only, with remainder to his children, or issue, and not to his children generally; that at his death without issue, the remainder failed, and the estate revortcd to testator's heirs. TCunnell v. Evans, 26 Ohio St. 409. G. devised to his daughter, H., certain real estate for her life, remainder to her children, and remainder over to her brothers and sisters, in the event she should die without issue surviving her, with like remainder over if she should die leaving issue, and such issue should die under the age of twenty- one years without issue. H. still survives at the age of sixty, and has chil- dren living, each of whom is over twenty-one years of age, but none of them has issue. Held, the effect of the devise over to the brothers and sisters of H. in the evciit of her death without surviving issue, was to make the devise to the children of H. contingent upon her death leaving issue surviving her. The subsequent devise over, in the event that H. should die leaving issue, and such issue should die under the age of twenty -one years without issue, did not discharge the devise to the children of H. from the contingency of her death without surviving issue. Therefore a deed of conveyance by II. and her children would not pass an absolute estate in fee simple to the grantee. Bates . Zinsmeister, 26 Ohio St. 481. A testator bequeathed to his wife (who was his only heir-at-law, and whom he appointed as one of his two executors), '* t.,-nxt only, and during her natural life only," the rents of certain real estate, the dividends on his bank stock, and the interest on debts due him, as long a* she " might ' live," with a proviso that the bank stock and deb*s should nut be diminished, but with- 12 WILLS. (as, ' I give and devise to ray son, A., one-third of all ray land out any such proviso #s to the rents, dividends, or interest. He then di. reeled that after the death of his wife " all his estate, real, personal, and mixed (except certain named tracts of land, which had been specifically de- vised) should be equally divided between the children of his nephew, but that no such division should bi; made till the youngest child became of age. The will did not otherwise appoint or name any beneficiary of the trust fund 6: give any directions as to its management by the wife, or make any provision for its management after her death, in case she should die before the majority of the youngest child. The will provided that, in case of the death, resignation, or refusal of either of the executors, the other should act MS sole executor. Held, that the words "in trust only," in their ordinary technical sense, are repugnant to the general scope and tenor of the will, and are without legal effect in its construction, and that the wife took an ab- solute property in the rents, dividends, and interest so bequeathed to her. Davis v. Coggs, 20 Ohio St. 550. A testator had originally five brothers and sisters, one of whom had died thirty years before the date of the will, leaving children who were still in full life. The other four were living, and three of them had children also living at the date of the will, which was made a day or two before the death of the testator, and with full knowledge of these facts. The testator left a widow surviving him, but no children. By his will he directed that a cer- tain farm should be rented and managed by bis executors till his debts should be fully paid; after which he gave and devised to his wife the use of the farm during her natural life. Then follows this item : ''Fifth. I devise that my executors, or the survivors of them, after the decease of my said wife, shall sell said last mentioned farm, either at public or private sale, and that the proceeds thereof be divided equally between my brothers and sis- ters and their heirs the children of any that may be dead to have the shares of their deceased parents." Held, that the fifth item of the will is to be un- derstood as a direction that after the death of testator's wife the farm should be sold and the prooeeds of sale be divided equally between such of his brothers and sisters as might then be living, and the issue or lineal descend- ants of such brothers and sisters as might then be dead; such issue to take per stirpe.s and not per capita. Richey v. Johnson, 30 Ohio St. 288. The gift implied in the direction to divide the proceeds between the desig- nated parties is a gift of personalty, but as the fund could not be raised till the death of the widow, and was to be divided between tho persons then living, the interest of the legatees therein remained contingent till that time. Ib. 288. The word "heirs" in this item was not used in a technical sense. The testator did not intend that the share of any presumptive legatee dying be- fore the widow should be paid to his or her administrator or other personal representative, but that the children of any dceased parent, who, if living BY WHOM AND HOW MADE. 13 mat I now have in ray possession," 1 or, " all my interest," '' all I am worth," " all my right," " all my title") 2 and no words of limitation be used by which the estate is qualified, a fee simple will pass. 3 But it is expressly provided by law that when real estate ia devised to one for life, and after his death to his heirs in fee simple, or if words to that effect be used by the testatcr, the first devisee takes a life estate only ; and the absolute estate vests in his heirs after his death.*" This annuls the celebrated at the death of the widow, would have been a legatee, should have the share of such deceased parent. Ib. 288. See also nokes under " Wills," appendix, p. 345 et seq. ; notes on pp. 13, 14, 15, 16. (1) Smith et al. v. Berry et al., 8 Ohio, 365. ( 2) Ibid. See also Lessees of Thompson v. Thompson et al., 6 Ohio St. 480; King et al. v. King's Adm'r, 15 Ohio, 559; Howe v. Fuller et al., 19 Ohio. 51 ; Bane et al. . Wick et al., 19 Ohio, 32. (3) Where words in a will would convey a lee, yet they may be restricted and held to convey a less estate, when it is apparent, from other portions of the will, that such was the real intention of the testator (Howe v. Fuller et al., 19 Ohio, 51 ), if the language of the testator, in the residuary clause of his will, will admit of a limited application, as well as of a more general character, a court of equity will give it tnat construction which will be most favorable to the heir at law. Bane v. Wick, 19 Ohio, 328. See notes 61, 68, 82, 84-87, pp. 346-350. (4) A lather, by his last will, devised his real estate as follows: -After my debts, etc., have all been paid, I give and bequeath all the rest and resi- due of my property to my beloved wile, Joanna Jeffers, during her natural life, including my real, personal, and mixed property, of every kind what- soever. After the decease of my wife, I give and bequeath all my property, real, personal, or mixed, of every kind, to my two sons, William and Henry Jeffers, to them and their heirs and assigns forever. It is my will that if either of my said sons, William or Henry, shall happen to die before my beloved wife, Joanna, then it is rny desire that the survivor, at her decease, shall have the whole of her property, to him and his heirs and assigns for- ever.'' Held, that during the life of Joanna, the contingent interest of Will- iam was, in law, releasable to Henry, and passed by such release. Jeffers v. Lampson, 10 Ohio St. 101. Where a testator devises to his "daughter E., during hen natural life, and to her children after her death forever,' 1 one-eighth part of his real estatG, and there is no provision in the will in respect to a disposition of the remain- der, in case E. shall die without having had issue, and there is nothing in the (a) \ 5968. 14 WILLS. "rule in Suelley's case," 1 and renders it inoperative in thi state. A will is not invalidated by the failure of the testator to make some provision therein for all his children who are living at the time of its execution. If a testator be legally competent to make a will, and be free from restraint, he may omit the names of any or all his children, without affecting its validity. There- fore, if the testator, on account of advancements made to any of his children, or for any other cause, should desire to preclude them from claiming any portion of his estate after his death, it is only necessary that their names be entirely omitted from the will, or that they be so mentioned as to show the intention of the testator to be to bar them from any participation in the fur- ther distribution of his estate. Such omission will not prevent them from inheriting equally with the other children of the tes- tator, any estate not devised by the will. 2 will showing a contrary intention on the part of the testator, E. takes a life estate only; although, on the death of E. without having had issue, the tes- tator will have died intestate as to the contingent reversion of her share, and the same will revert to his heirs general. Gilpin et ux. v. Williams et al., 17 Ohio St. 396. See also notes referred to on preceding pages. (1) It is a mistake to suppose that the effect of the " rule in Shelley's case" ever was to convert a fee tail into a fee simple. Pollock v. Speidel, 27 Ohio St. 86, 95. The 47th section of wills act of 1840, and the corresponding 53d section of our present wills act (re-enacted in 1879), were intended to forbid the application of the rule in Shelley's case where such application would defeat the manifest intention of the testator. Carter . Keddish, 32 Ohio St. The "rule in Shelley's case" is expressed as follows in Bouvier's Law Dic- tionary, Vol. 11, p. 521: "In any instrument if a freehold be limited to (a person) for life, and the inheritance to his heirs, either mediately or imme- diately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail ; if to his heirs, a fee simple." (2) See n:>te 1, page 9. A condition in a will whereby the testator ex- cludes any one of his heirs who '' goes to law to break his will " from any part or share of his estate, is valid and binding; and effect will be given to it, as well in respect to bequests of personalty as to devises of real estate. A legacy so forfeited will pass to the general residuary legatees named in the will, without express words to that effect in the will. Bradford r. Bradford's Ex'r et al., 19 Ohio St. 546. BT WHOM AND HOW MADE. 15 When a devise of real or personal estate is made to a child or other relative of the testator, and the devisee be dead at the time of making the will, or die thereafter, leaving children, who sur- vive the testator, such children take the estate devised in like manner as the parent mighlNio were he or she still living ; or if the devisee leave no issue, and the devise be of a residuary esf.te to him or her, and other child or relative of the testator, l'io estate devised will pass to and vest in such residuary deviate surviving the testator, unless the will otherwise provide. 1 * But in case the devisee be not a child or other relative of the testator, and he or she die before the testator, the devise, bequest, or legacy will lapse ; and upon the death of the testator, the prop- erty devised will descend to his heirs, unless the will make some other provision for such contingency. If lands are devised to a child of the testator, or to any other person, with a provision in the will that the devisee shall pay certain legacies to the heirs of the testator, or to other per- sons named, and it is intended that the payment of such legacies shall constitute a charge upon the lands devised, it should be distinctly so stated in the will. A want of attention in this re- spect has not infrequently caused great mischief.* The testator should also be careful to make known his will relative to any advancements made or to be made to his heirs ; (1) Where a testator gave all his estate to his wife for life, and directed that all remaining after her death should be divided, by his executors, equally among his children, or the survivors of them, and. after his de- cease, one of the children died, before the death of the testator's widow, leaving a child: Held, that no interest vested in the deceased child under the will, and that the grandchild of the testator was not entitled to share in the estate, as one of the " children '' or -survivors/' to whom it was to be distributed. Sinton v. Boyd, 19 Ohio St. 30. (2) "Where a testator devised all his real estate to one of his sons, subject to the payment of his debts and the support of his widow, and directed him to pay a specific sum to each of his other children, and the son accepted the devise and took possession of the property, and afterward sold it to one hav- ing notice that the legacies were not paid : Held, that the legacies were a subsisting charge upon the property, and though the devisee had the right to sell the estate, yet the purchaser was bound to see to the application of (a) 5971. 6 WILLS. whether they shall bo required to account for the &aine in the distribution of his estate ; whether the provision made for them in the will is to be in addition to such advancements ; whether their indebtedness to him, if they be indebted, shall be treated as so much money or property advanced to them, respectively, or whether the amount due from each shall be collected by the executor of the will as from other debtors. 1 Should a testator, at any time after executing his will, desi- to alter the same, he may do so by appending thereto a codicil. Such portions of the will as are not expressly or by implication revoked by the terms of the codicil, will remain effectual. "* the purchase-money. Express words are not necessary to charge pecuniary legacies upon the real estate. An intention to do so may be derived by im- plication. Clyde v. Simpson et al., 4 Ohio St. 445. Where a testator bequeathed his real estate to his son, by the son paying the valuation of $2,000 equally to the testator's six children, the payment of that sum in the manner specified became a charge upon the land devised, and could be enforced even as against subsequent purchasers without notice of the incumbrance. Nellons et al v. Traux et al., 6 Ohio St. 97. See also Decker's Ex'rs v. Decker, 3 Ohio, 157. Also the following cases, in which sundry questions connected with the subject-matter of the text have been decided: Coonrod o. Coonrod et al., 6 Ohio, 114; Thompson v. Thompson, 4 Ohio St. 333; Tope v. Tope, 18 Ohio, 520. A testator, in his will, first devised the farm on which he resided to his wife, for life, and bequeathed to her all the personal property thereon at his death, for the same period, of which he directed enough be sold by her to pay his debts. He next devised the farm, after the death of his wife, to his son Philip, and bequeathed to him all the personalty that might then remain unexponded. He then gave to his son Frederick a legacy of $100, to be paid to him when he became of age, but did not direct by whom, or out of what fund, it should be paid. When he became of age, the personal prop- erty was expended, and the legacy was not paid. Held, that the real estate so devised could not be charged with the payment of this legacy. Geiger v. Worth, 17 Ohio St. 564. See note 54, p. 345. (1) See pp. 173 and 174, and notes 65-58, pp. 345, 346. (2) A will and codicil are to be taken and construed together, as parts of one and the same instrument, and the intent of the testator gathered from the whole. Collier v. Collier's Ex'rs, 3 Ohio St. 369; Negley v. Card, 20 Ohio, 310. A codicil will not be hold to revoke the dispositions of a will, further than (t) 6913, 5914, 5953-5958, 5960. DEPOSIT AND REVOCATION. 17 How a codicil must be executed has been specified on page 3. Where the alterations desired to be made are material, or nu- merous, the better practice is to execute a new will. Although a few general hints have thus been furnished for the guidance of those who may desire to write their own wills, yet euch persons will best subserve the interests of those whom they desire to benefit, by employing competent and experienced at- riicys to attend to the business for them. Nearly all the liti- gation growing out of the disposition of estates by will is the direct result of the ignorance and incompetency of those by whom wills are written. It by no means follows that because a man is a good penman, or is a good justice of the peace, and capable of correctly filling up the blank forms of deeds and mortgages that he can write a good will, and one that will stand the test of judicial scrutiny. 1 SECTION II. THE DEPOSIT, REVOCATION, AND CONSTRUCTION OP WILLS. DEPOSIT. After the execution of a will it may remain in the possession ^>f the testator, or may be by him delivered into the hands of some other person, for safe-keeping ; or it may be deposited, by the person making the same, or by some person for him, in the is clearly expressed or necessarily to be Inferred from it. Collier v. Collier's Ex'rs, 3 Ohio St. 369. (1) The following decisions, in addition to many of those quoted on the preceding pages, furnish reasons for the suggestions contained in the text: In construing a will grammatical accuracy is not to be observed, and it should be read with a view to the situation and circumstances of the testator, in reference to the subjects of his disposition and the objects of his bounty ^Yith these collateral aids to a correct interpretation, the will must speak for itself, and the intention of the testator be gathered from what appears on it? face. To allow its language to be varied or contradicted,, or omissions sup- plied, or apparent ambiguities to be removed by parol evidence, would, in effect, repeal the law requiring it to be in writing, and introduce all the an- 18 WILLS. office of the judge of the probate court, in the county in which such testator lives, to be safely kept until delivered or disposed of as directed below ; and the probate judge, on being paid the fee of one dollar therefor, must receive and keep such will, and give a certificate of deposit therefor ; and no will can be admitted to probate without notice to the widow or husband and next of kin of the testator, resident in the state, in such manner and for such time as the probate court shall direct or approve.* Every will intended to be so deposited in court must be in- closed in a sealed wrapper, which shall have indorsed thereon the name of the testator, and the said probate judge must in- dorse thereon, the day when, and the person by whom, it was de- livered ; and the wrapper may also have indorsed the name of any person to whom it is to be delivered after the death of the testator ; and it shall not be opened or read until delivered to a person entitled to receive the same, or otherwise disposed of as provided below. b Such will shall, during the lifetime of the testator, be delivered only to himself, or to some person authorized by him, by an or- der in writing, duly proved by the oath of a subscribing witness; and, after his death, it must be delivered to the person named in the indorsement on the wrapper of the will, if there be any per- son so named who shall demand it. If no such person shall demand the will, it must be publicly opened in the probate court, within two months after notice of certainty, fraud, and perjury the statute was designed to prevent. Worman. v. Teagarden, 2 Ohio St. 380. Parol evidence can not be admitted to alter, contradict, or control the words of a will. Painter v. Painter, 18 Ohio, 247. "Wills are to be con- strued from the written language of the instrument, and not by extrinsic evidence. Collins v. Hope, 20 Ohio, 492. A testator has the perfect right to choose his own language, but not to create an estate which the law does not permit. Per Kead, J., King v. Beck, 15 Ohio, 559. In the construction of a will, the sole purpose of the court should be to (a) 5917. (c) |6919. (b) 5918. DEPOSIT AND REVOCATION. 19 the death of the testator, and must be retained in the office of the probate judge, until offered for probate ; or if the jurisdic- tion belongs to any other court, it must be delivered to the exec- utor or other person entitled to the custody of it, to be presented for probate in such other court ; if the jurisdiction of such will belongs to the probate judge opening the same, he must imme- diately give notice to the executor or executors, if any are named in such will, and if none are named therein, then to other per- sons immediately interested, of the existence of such will. 8 REVOCATION. A will shall be revoked by the testator teainng, canceling, ob- literating, or destroying the same with the intention of revok- ing it by the testator himself, or by some person in his pres- ence, or by his direction ; l or by some other will or codicil, in ascertain and carry out the intention of the testator. Such intention must be ascertained from the words contained in the will. These words, if tech- nical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense. Townsend v. Townsend, 25 Ohio St. 477. All parts of the will must be construed together, and effect, if possible, given to every word in it. Ib. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made aux- iliary to the right interpretation of the testator's words, but for no other purpose. Ib. A man owned one farm on which he lived and which he worked, and another adjoining it, which tenants worked, and which farms he called re- spectively the ' Home Farm I; and the " Jo. Boyd Farm," but for several years preceding his death an agent had worked them both together without reference to division line. He (the owner) devised the "Home Farm" to his wife. Did he mean the original " Home Farm," or both united? Parol evidence was admitted to show that he still designated them as above when be made his will, and the jury were properly instructed that they must determine what he meant. Boggs v. Taylor, 26 Ohio St. 604. See also p. 10, note 1, fifth paragraph especially; note 3, p. 165; B'd Ed. e Ladd, 26 Ohio St. 210 ; notes 64 et seq., p. 346. (1) A testator being blind, told J. to bring him his will, and J. handed it (a) 5 5920. 20 WILLS. writing, executed as heretofore prescribed ; or by some other writing, signed, attested, and subscribed, in the same manner, but nothing herein contained shall prevent the revocation im- plied by law from subsequent changes in the condition or cir- cumstances of the testator. 1 * A bond, agreement, or covenant, made for a valuable consid- eration by a testator, to convey any property devised or be- queathed in any will previously made, shall not be deemed * revocation of such previous devise or bequest, either at law or in equity ; but such property shall pass by such devise or bequest, subject to the same remedies on such bond, agreement, or cove- nant, for a specific performance or otherwise, against the devisees or legatees, as might be had against the heirs of the testator, or his next of kin, if the same had descended to them. b A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the per- formance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previously executed ; but the devises and legacies therein contained shall pass*and take ef- fect, subject to such charge or incumbrance. 02 A conveyance, settlement, deed, or other act of the testator, by which his estate or interest in property previously devised or bequeathed by him, shall be altered, but not wholly divested, to testator inclosed in an envelope with three seals. Testator having felt the seals, handed it back, with the seals unbroken, to J., directing him to throw it into the fire and burn it. J. pretended to do so, but in fact put the will into his pocket, and threw another paper into the fire, calling upon the testator to listen and hear it burn ; and tlie testator smelling the paper burning, believed the will destroyed as he directed, and died in that belief. After testator's death the will was produced and admitted to probate. Held, 1. That such facts do not amount to a revocation under the statute, no sign or symbol of such attempted revocation appearing upon the paper itself. 2. That the devisee can not, under such circumstances, be declared a trustee for the heirs at law of the property bequeathed. Kent et al. v. Mahaffey et al., 10 Ohio St. 204. (1) A written will can not be revoked by a subsequent verbal one, Me Cune's Heirs v. McCune's Adtn'rs, 8 Ohio, 144. See note 2, p. 16. (2) See note 2, p. 16. (a) 5953. (o) | 6966. (b) 6964. DEPOSIT AND REVOCATION. 21 shall not be deemed a revocation of the devise or bequeet of such property, bat such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin ; unless, in the instrument by which such alteration is made, the inten- tion is declared that it shall operate as a revocation of such pre- rious devise or bequest. 1 * But if the provisions of the instrument, by which such altera- tion is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a con- dition or contingency, and 8-uch condition be not performed, or such contingency do not happen. b A will executed by an unmarried woman shall not be deemed revoked by her subsequent marriage. If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such will shall be deemed revoked, unless provisions shall have been made for such child by some settlement, or un- less such child shall have been provided for in the* will, or in such way mentioned therein as to show an intention not to (1) A deed of conveyance made subsequently to a devise does not revoke the will, unless it makes an entire disposition of the estate; but to any por- tion undisposed of by the deed, the will attaches pro ianto, and carries it to the devisee. Brush v. Brush et al., 11 Ohio, 287. A testator can not, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will. Such words can not be used to control the course of descent, so as to carry his property to his other heirs. They can not be used to raise an estate by implication in favor of his other heirs, there being no attempt in the will to dispose of the property or to create any interest therein. Crane v. Doty, 1 Ohio St. 279. When a devise is of all the real and personal estate, and the testator sells the real estate after the making of his will, the proceeds remaining on hand, and not otherwise disposed of at the testator's death, will pass to the devisee us personalty. Kent et al. v. Mahaffey et al., 10 Ohio St. 204. (a) 86956. (c) 5958. (b) 5957. 22 WILLS. make such provision, and no other evidence to rebut the pre- sumption or [of] revocation shall be received. 18 If, after making a will, a testator execute another, and after- ward destroy, cancel, or revoke the second, the first one is not thereb} r revived, unless by the terms of such revocation it appear that it is his intention to revive it ; unless, after having canceled, destroyed, or revoked the second, he duly publish the first will. h When a testator, at the time of executing his will, shall havj a child absent and reported to be dead, or having a child at the time of executing the will, shall afterward have a child who is not provided for in the will, the absent child, or the child born after the execution of the will, will take the same share of the es- tate, both real and personal, that he would have been entitled to if the testator had died intestate, toward raising which portion the devisees and legatees must equally contribute, in proportion to the value of what they shall respectively receive under the will, unless, in consequence of a specific devise or bequest, or of some other provisions in the will, a different apportionment among the devisees and legatees shall be found necessar}-, in order to give effect to the intention of the testator, as to that part of the estate which shall pass by the will : provided, that if such child, supposed to be dead at the time of the execution of the will, shall have a child or children, provision for whom is made by the tes- tator, the other legatees and devisees can not be required to contribute, but such child, supposed to have been dead, will take the provision made for his child or children, by the testa- tor, or such part thereof as the circumstances of the case, in the opinion of the proper court, 1 may think just and equitable. In settling the extent of the claim of any child, as provided for in the preceding paragraph, any portion of the estate of the testator received by a party interested, by way of advancement, (1) "Where a testatrix, having no child, made a will, and afterward had a living child, which she survived: Held, that the birth of the child rev*ked the will, and the fact that the testatrix survived the child did not revive the will. Ash v. Ash, 9 Ohio St. 383. See also (b), p. 173, this volume. (2) The court of common picas has jurisdiction in such a ca-o. McGarry . Smith, 22 Ohio St. 190. (ft) \ 5959. (b) I 5960. (c) 5961. ADMISSION TO PROBATE AND RECORD. 23 must be deemed a portion of the estate, and charged to the party who has received the same.* CONSTRUCTION. In the construction of a will, it is well settled as a permanent rule, in this state, that the intention of the tes- tator, as gathered from the whole will, must control, when such intention is not in conflict with the law, or against public policy It is also an established rule of construction, that words in a will are to be understood according to their ordinary and legal sig- nification, unless it is manifest, from the context, or from other provisions in the will, that the testator has used them in a dif- ferent sense, and unless the sense in which they were used is clearly apparent. 1 SEC. III. THE ADMISSION OF WILLS TO PROBATE AND RECORD. No will can be admitted to probate without notice to the widow or husband and next of kin of the testator, resident in the stavi in such w:iy and for such time as the probate court shall direct or approve b As to wills deposited in the probate court, see pages 17. 18, 19. If the will be in the hands of any person other than the pro- bate judge, for safe-keeping, the executor of such will, or any person otherwise interested therein, may cause the same to be brought into the probate court of any county in which the tes- tator was possessed of real or personal estate at the time of his death, for probate ; 2 and the court may, when necessary, by sum- mary process. 3 compel the person having the custody or control (1 ) See Appendix, notes 37, 59, 60, 71. 83, 89, 95, 96; also notes pp. 4-21. (2) Under the laws of this state, although the will of a testator, wherever domiciled at the time of his death, may be admitted to probate in any county in the state in which he may have left real or personal estate, yet if the tes- tator were a resident of this state at the time of his death, letters testament- ary on such probated will can issue only from the probate court of the county in which testator so resided. Limes v. Irwin, 16 Ohio St. 488. The will of a person whose domicile, at the time of his death, is in this state, is properly admitted to original probate at the place of such domicile, without regard to where the will was made, or where such person died Converse v. Starr, 23 Ohio St. 491. (3) The process referred to is either citation, attachment, or warrant, and such process may be issued into any county in the state, and must be served (a) 5%-2. (b) 5917. 24 WILLS. of such will to produce the same in court; 1 ' and such person, for neglecting or- refusing, without reasonable cause, to produce said will, after being duly cited for that purpose, may be com- mitted to the county jail, and kept there till he produce the will ; and he will be further liable for all damages caused to any ag- grieved party for his neglect or refusal. b No lands, tenements, or hereditaments, will pass to any dev- isee in a will, who knows of its existence, and has the same in his power to control, for the term of thre.e years, unless, within that time, he shall cause the same to be offered for, or admitted to, probate ; and, by such neglect, the estate devised to such dev- isee will descend to the heirs of the testator. To steal, destroy, or secrete a will or codicil, either before or after the death of a testator, or to procui'e the same to be done, is an offense punishable by imprisonment in the penitentiary of the state, not more than ten, nor less than ono, year. d If a devise or bequest is given to a person who is a witness to the will, and the will can not otherwise be proved than by the testimony of such witness, the devise or bequest will be void, and the witness will be competent to give testimony of the ex- ecution of the will, in like manner as if such devise or bequest had not been made; and if such witness would have been en- titled to any share of the testator's estate, in case the will wag not established so much of such share as will not exceed the be- quest or devisv to him, will be saved to him ; and the devisees and legatees must contribute for that purpose in the mode di- rected for absent or after-born child. 26 The said court must cause the witnesses to such will, and such other witnesses as any person interested in having the same and returned by the sheriff or other officer to whom it may be delivered; and such officer shall be liable for neglect in such service and return in like manner as sheriffs are or may be for neglect as to a capias upon an indict- ment. g 5921-5923. (1) This refers to the original probate, and not to the admission to record of an authenticated copy of a probated will. Carpenter v. Deiioon et al., 29 Ohio St. 379. (2) See p. 22. (a) g 5921. (c) 6943. (e) \ 5924. (b) 6924. (d) 6869. ADMISSION 7 TO PROBATE AND RECORD. L'5 admitted 1 to probate, may desire, to come before such court ; and said witnesses must be examined in open court, and thejr testi- mony reduced to writing, and filed. 8 To prevent delay in the probate of a will, an arrangement should be effected with the subscribing witnesses to appear vol- untarily before the probate judge, on the day when it is intended first to present the will to him. This can in most cases be done , the executor will thereby avoid the necessity of appearing more than once before thb probate judge in connection with the pro- bate of the will. But if any of the above mentioned witnesses fail to appear voluntarily and testify, the probate judge may, in case such witnesses reside within the county, and are not infirm or otherwise unable to attend court, compel their attendance by subpena and attachment, as in other cases. They are required to state whether they saw the testator subscribe such will at the end thereof; whether at the time of signing the same he was over twenty-one (or in case of a female over eighteen) years of age. of sound mind and memory, and not under any restraint; and whether they subscribed their names as witnesses in the presence of the testator. 2 It is not absolutely essential that the subscribing witnesses should appear before the probate judge at the same time, and be examined together. (1) On the proceeding authorized for admitting a will to probate, persons interested to resist the probate are not allowed to introduce evidence to con- test its validity? An application to so admit the will is not an adversary proceeding. Those who are adversely interested are not required to be summoned, and no issue is made for a contest between adverse parties In re Hathaway, 4 Ohio St. 383. The primn facie effect which the statute gives to the order of probate can only be overcome by showing that the will is, in fact, invalid. Converse v. Starr. 23 Ohio St. 491. "Where a will, executed in due form, is probated and admitted to record on an application within the jurisdiction of the court, error will not lie to review the testimony upon which the order of probate was made. Mosier ?-. Harmon ; 29 Ohio St. 220. (2) Formerly it was necessary that the witnesses should state that they at- tested the will at the request of the testator. See note 1, p. 4. (a) 6926. 26 WILLS. If it should appear to the court, when the will is offered for probate, that any witness thereto is gone to parts unknown ; or if the witnesses to a will were competent at the time of attesting its execution, and afterward became incompetent, or the testi- mony of any witness can not for any reason be obtained within a reasonable time, the will may be admitted to probate, and al- lowed upon such proof as would be satisfactory, and in like man- ner as if such absent or incompetent witnesses were dead.* The court may issue a commission, with the will annexed, di- rected to any suitable person or persons to take the deposition of any witness to a will who resides out of the jurisdiction of the court, or who resides within it and is infirm and unable to attend court ; and every deposition so taken, certified, and re- turned by any one or more of the persons named in such com- mission, will be as valid as if taken in open court. b If it shall appear that such will was duly attested and exe- cuted, and that the testator, at the time of executing the same, was of full age and of sound mind and memory, and not under any restraint, the court must admit the will to probate. 3 Every will, when admitted to probate, shall be filed in the of- fice of the probate judge, and recorded, 1 together with the tes- timony, lay said judge or his clerk, in a book which must bo kept by him for that purpose. d A copy of the will, under the seal of the court, is usually made for the benefit of the executor, and attached to his letters testamentary ; but the original will remains on file in the office of the probate judge. A copy of such recorded will, with a copy of the order of pro- bate annexed thereto, certified by the said judge of probate under (1) The order of a court of probate which recites that the will was pre- sented to the court for probate, and the subscribing witnesses were sworn and examined in open court, and their testimony was reduced to writing and filed by order of the court ; and that, thereupon, the court ordered the will to be filed and admitted to record, is sufficient evidence that the will wa proved in accordance with law, and ordered to be recorded. Holman v Kiddl- et al., 8 Ohio St. 384. See also note 1, p. 25. (a) ? 5027. (c) 5929. (b) 8 5928 (d) 5930. ADMISSION TO PROBATE AND RECORD. L'7 eal of his court, shall be as effectual in ;ill eases as the erigiral would be, if produced and established by proof." If real estate devised by will is situate in any other county than that in which the will is proved, an authenticated copy o.' the will and order of probate must be admitted to record in the office of the probate judge of each county in which such real estate may be situate, upon the order of such probate judge, and will have the same validity therein as if probate had been made in such county . b If no person interested shall, within two years after probate had, appear and contest the validity of the will, the probate shall be forever binding, save, however, to infants, married women, and persons absent from the state, or of insane mind, or in cap- tivity, the like period, after the respective disabilities are re- moved. 10 In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his in- tention to appeal within ten days. d The person appealing must procure and file in the court of common pleas a certified copy of the order of said probate court, rejecting the will, together with the will, and thereupon said ap- peal will be deemed perfected.' 28 (1) A will set aside at the instance of any person included within the saving clause of the statute is wholly annulled, and the entire estate will be distributed according to law. Meese v. Keefe, 10 Ohio, 372. See p. 34. (>) No bond is required of the party appealing in such case. The law pre- scribes the duties of the respective courts in such cases as follows : " The court of common pleas, on the hearing, .shall take testimony touching the execution of such will, and have the same reduced to writing; and the final order of the court of common pleas shall, together with tho will and testimony so taken, be certified by the clerk to the probate court; and if by such order the will is admitted to probate, the will, order, and testi- mony shall be recorded in the probate court. Whenever the probate court shall receive from the clerk of the court of common pleas a certificate that a petition has been filed in the court of common pleas to contest the valid- (a) 5931. (d) 5934. (b) 5932. (e) 5935. (c) $ 5933. 28 WILLS. t Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to any property in the State of Ohio, may be admitted to rec- ord in the probate court of any county in this state, where any part of such propel-ty may be situated ; and such authenticated copies, so recorded, shall have the same validity in law as wills made in this state, in. conformity with the laws thereof, are declared to have : provided, that where any such will, or au- thenticated copy has been or shall hereafter be admitted to rec- ord, in the probate court of any county in this state, where any part of such property may be situated, a copy of such recorded will, with the copy of the order to record the same, annexed thereto, certified by the probate judge, under the seal of his court, may be filed and recorded in the office of the probate judge of any other county in this state, where any part of such property is situated, and it will be as effectual, in all cases, as the authenticated copy of said will would be if proved and ad- mitted to record by the court. 8 A will executed, proved, and allowed, in any country other than the United States and territories thereof, according to the laws of such foreign state or country, may be allowed and ad- mitted to record in this state, in the manner and for the purpose mentioned in the following paragraphs. 11 " ity of any will admitted to record or recorded in the probate court, the pro- bate court shall forthwith transmit to the court of common pleas the will, testimony, and all papers relating thereto, with a copy of the order of pro- bate, attaching the same together and certifying the same under the seal of the court;' and a copy of the final judgment, on such contest, shall be certi- fied by the clerk of the court of common pleas to the probate court ; and the said clerk shall also transmit to the probate court the will and other pa- pers transmitted as aforesaid to the common pleas; and the same .-hull bo deposited and remain in the probate court." gg 5935, 5936. (1) Meese et ux. v. Keefe et al., 10 Ohio, 362. The Law of 1831 was oth- erwise. Bailey v. Bailey et al., 8 Ohio, !>:!!>. M., domiciled in Ohio, made a will of personalty in the olographic form (valid by the laws of Louisiana), while in New Orleans on a visit. He re- turned to bis home in Ohio, and died there in 1848. The will was sent t (a) I 5937. (b) g 5938. ADMISSION TO PROBATE AND RECORD. 29 'A copy of the will and probate thereof, duly authenticated must be produced by the executor, or by any person interested therein, to the probate judge of the county in which there is any estate upon which the will may operate, whereupon said probate judge must continue the motion to admit such will to probate, for the term of two months, and notice of the filing of such application must be given to all persons interested, in some public newspaper, printed or in general circulation in the county where such motion is made, at least three weeks successively; the first publication to be at least forty days before the time se* for the final hearing of said motion. 8 Unless such will be offered for record within four years from the date of its probate, the title of any bona fide purchaser to any real estate within this s^ate, derived from the heirs of the testator, without knowledge of the existence of the will, can not afterward be defeated by the production of the will. The rights of married women, minors, and insane persons, will not be con- cluded by any delay or failure to record such will, until two years sifter their respective disabilities are removed. 1 * If, on bearing, it shall appear to the court that the instrument ought to be allowed in this state, the court must order the copy to be filed and recorded ; and the will, and the probate and rec- ord thereof, will then have the same force and effect as if the will had been originally proved and allowed in the same court, New Orleans and admitted to probate, and an authenticated copy was ad- mitted to record in Ohio. In proceedings to set aside the will, it was held that the copy of the will Was improperly admitted to record in this state. That by the settled rule of the international law, the jurisdiction to de- termine the validity or invalidity of the will belonged to the courts of this state; and that the 28th section of the wills act of 1840, providing for the admission to record in this state ot "authenticated copies, of wills, executed jnd proved according to the laws of any state or territory of the United States,'' relates only to wills proved in a court to which the jurisdiction to make original probate in the case properly belongs, under the established rules of law. Manuel et al. v. Manuel, 13 Ohio St. 458. The laws of Ohio govern in the construction of both foreign and domestic wills disposing of lands situate in this state. Jennings v. Jennings, 21 Ohio St. 66. See note 3, p. 35. (a) 59j39. (b) 5967. 30 -WILLS. in the usual manner: provided, however, that nothing herein contained shall be construed to give any operation or effect to the will of an alien, different from what it would have had if originally proved and allowed in this state. 8 After allowing and admitting to record a will, pursuant to any of the four preceding paragraphs, the court may grant letters testamentary thereon, or letters of administration with the will annexed, and must proceed in the settlement of the estate that may be found in this state , and the executor taking out letters, or the executor with the will annexed, shall have the same power to sell and convey the real or personal estate, by virtue of the will or the law, as other executors or administrators with the will annexed, shall or may have by law. b No will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate or record, as pro- vided in this chapter. 10 SPOLIATED WILLS. The probate court 2 shall have full power and authority to admit to probate, any last will and testament which such court may be satisfied was duly executed according to the provisions of the law upon the subject in force at the time of the execution of such last will and testament, and not revoked at the death of the testator, when such original will has been lost, spoliated, or destroyed, subsequent to the death 3 of such testator, or after the (1) Wilson's Ex'rs v. Abraham et al., 8 Ohio, 239; Lessee of fciwasey'i heirs v. Blackman et ux., 8 Ohio, 6; Lessee of Hall et al. v. Ashby et al., 9 Ohio, 96. But a will executed in another state takes effect from the death of the testator, and not from the date of its registry in Ohio; Lessee of Hall et al. v. Ashby et al., 9 Ohio, 96. (2) A court of chancery can not entertain jurisdiction to set up and es- tablish a lost or destroyed will. The jurisdiction is with the probate courts. JVIorningstar v. Selby, 15 Ohio, 345. (3) The legislation of this state, as it now exists, does not permit a will lost, spoliated, or destroyed, to be established, unless it existed subsequently to the death of the testator. In the matter of Mary Sinclair's will, 5 Ohio St. 290. (a) 5 6940. (c) J 5942. (b) 5941. ADMISSION TO PROBATE AND RECORD. 3) testator has become incapable of making a will by reason of in- , sanity, and it can not be produced in court in as full, ample, and complete a manner as such court now admits to probate last wills and testaments, the originals of which are actually pro- duced in court for probate. 8 In all cases where application shall be hereafter made t.i the probate court to admit to probate a will duly executed as afore- said, and which has been lost, spoliated, or destroyed, as afore- said, it shall be the duty of the party seeking to prove the same, to give a written notice to all persons whose interest it may be to resist the probate, and who reside in the county where the testator resided at the time of his death, or to their agent or at- torney, five days before the day on which such proof is to be made, or to give notice, by publication in a newspaper printed in the county, thirty days before the day set for hearing such proof. b In all such cases, the said court must cause the witnesses to such will so executed and lost, spoliated, or destroyed, and not revoked, and such other witnesses 1 as any person interested in having such will admitted to probate may desire to come before such court, and said witnesses shall be examined by said probate judge, and their testimony reduced to writing and filed by him in this court: provided, that in all cases where it may be neces- sary so to do, in consequence of witnesses residing out of the jurisdiction of the court, or whc reside within such jurisdiction and who are infirm or unable 'to attend court, the court may or- der the testimony of such witnesses to be taken and reduced to writing by some competent person, which testimony must be filed in such probate court. If the court, upon such proof, shall be satisfied that such last will and testament was dul}' executed in the mode provided by the law in force at the time of the execution, that the contents thereof are substantially proved, and that the same was unrevoked (1) Persons interested adversely to the probate of a will tan not intro Juce testimony before the probate court to contest its validity. In tb*> mut- ter of Henry "Hathaway's will, 4 Ohio St. S83. See notes 102, 103, p 35H (a) g 5944. (c) $ 5946. (b) g 5945. 32 WILLS. at the death of the testator, and has been lost, spoliated, or de stroyed subsequent to the death of such testator, or his becom- ing incapable, as aforesaid, such court must find and establish the contents of such will as near as the same can be ascertained, and cause the same and the testimony taken in the case to be re- corded in said court. a The contents of any such last will and testament so found, es- tablished, and admitted to probate, as aforesaid, will be as ef- fectual to pass real and personal estate, and for all other pur- poses, as if the original will had been adtnitted to probate and record, according to the provisions of this chapter ; and such wills shal!, in all respects, be governed by the laws in force relating to other wills, not only as relates to the contest of the same, but in all other matters. 1 b NEW RECORD OR PROBATE WHEN RECORD OF WILL DESTROYED. When the record of any will has been or shall hereafter be destroyed, a copy of such will and the probate thereof may be recorded by the probate court of the proper county, whenever it shall be made to appear to the satisfaction of the court that said record has been destroyed, and whenever it shall further appear, by a certificate, under the hand and seal of the probate judge, or clerk of the court of common pleas of the proper county, that such copy is a true copy of the original will and the probate thereof. When the record of any will has been, or shall hereafter be, destroyed, as aforesaid, the original will may be again admitted (l ) Where the contents of a spoliated will have been found, admitted to probate, and recorded, in a proceeding duly had in the probate court for that purpose, such record is prima facie evidence, in a future proceeding t> contest the validity of said will, not only of tHe duo attestation and execu- tion of said will, but also of its cpntents; and on the trial of the issuo whether the will admitted to probate is the last will of the testator or not, the same must stand, unless the jury are satisfied, by a preponderance ol proof, that it is not, in substance, the will of the testator. Banning et al. v. Banning et al., 12 Ohio St. 437. See notes 102, 103, p. 353. (a) 5947. See also 80 0. L. 24. (c) 5949. - tator, except to pay funeral expenses ; nor can he previously, in any manner interfere with the estate, except to keep it in good preservation. 11 The executor of an executor has no authority, as such, to ad- minister the estate of the first testator ; but he must render a final account of such decedent's administration within six months after his appointment ; and on the death of the sole or surviving executor of any last will, administration of the estate of the first testator, not already administered, may be granted, with the will annexed, to snch person as the court shall think fit to sp- point. c See also Section VI, p. 39. As to an executor's or administrator's duty in relation to taxes, d Bee p. 104. SECTION II. TO WHOM LETTERS OF ADMINISTRATION WILL BE GRANTED ; WITH SUNDRY MATTERS RELATING SPECIALLY TO ADMINISTRATORS. If the deceased left no valid will, his widow will be entitled to the administration of his estate, in preference to all other persons (7) ; although, if the court see fit, any of the next of kin of the deceased may be joined with her in the administration. Should the widow neglect or decline to take out letters, the next of kin of the deceased will be entitled to the administration, in the following order of precedence: 1. The children, if of full age. 2. The brothers and unmarried sisters. (a) 5996. (c) \\ 6003, 6175. (b) \ 6004. (d) \l 2845, 2847, 2849, 2851. 48 EXECUTORS AND ADMINISTRATORS. 3. The father; and if ho be dead, the mother, if unmarried. If the persons entitled to the administration are incompetent or evidently unsuited to discharge the trust; or if they neglect, without sufficient cause, to take out letters, the court may com- mit the settlement of the estate to one or more of the principal creditors, if there be any competent and willing to administer. But should there be no such creditor, and should the estate ex- ceed one hundred dollars in value, the court may grant letters of administration to any suitable person* (7). Should the widow desire to renounce the administration, she may do so by appearing in person before the probate judge, or by sending in her written declination (3). Should, she decline in writing, her signature should be attested by a competent wit- ness, who must appear before the probate court "and make oath that he saw the widow subscribe her name, and that she knew the contents of the instrument to which her name is attached. It has, become customary for courts, when a widow declines administering, to appoint the person recommended by her; but there seems to be no legal sanction for this practice; and, conse- quently, when a widow renounces the. administration, it goes as of right to the next of kin of the decedent, if they are of full age and otherwise competent to administer. If the persons entitled to the administration neglect to take out letters, the court may, if such persons be resident within the county, cite them to appear and accept or decline the trust (5) ; or they may be notified by any person interested in the estate to appear and make such election a (4). Before letters of administration will issue upon the estate of a deceased person, the person applying for the same must make and file an affidavit (136) that there is not, to his knowledge, any last will and testament of the alleged intestate, a and must give bond (9) to the State of Ohio, with at least two sufficient sureties (see Form, 147, and the note following it), in such sum as the court may direct (which is usually double the estimated value of the assets), conditioned 1. To make and return into court, on oath, within three months, a true inventory of all the moneys, goods, chattels, (a) 6005. ADMINISTRATORS. 49 rights, and credits of the deceased, which have or shall come to his possession or knowledge ; and also, if required by the court, an inventory of the real estate of the deceased ; 2. To administer according to law all the moneys, goods, chat- tels, rights, and credits of the deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which hall, at :ui}~ time, come to the possession of the administrator, or to the possession of any other person for him; 3. To render upon oath a true account of his administration, within eighteen months, and at any other times when required by the court or the law. and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge, he shall receive no allowance for services, unless the court shall enter upon its journal that such delay was nec- essary and reasonable; 4. To pay any balance remaining in his hands, upon the set- tlement of his accounts, to such persons as the court or the law shall direct; and, 5. To deliver the letters of administration into court in case any will of the deceased shall be thereafter duly proved and al- lowed. 1 " Upon the death of a person not a resident of this state, but in- terested as a partner or otherwise in business conducted here, and leaving property within the state wholly or in part belong- ing to him, the probate court of the county in which such busi- ness was carried on, or in which such property is situate, or in which any person indebted to the decedent may reside, is au- thorized and directed to grant administration (7) (10), of the es- tate of the decedent within this state, to any creditor (or other person) whose claim accrued here, upon his giving bond in like (1) Where an estate has been fully settled, and all the moneys in the hands of the administrator have been paid over in pursuance of an order of court, should a will be discovered and proved subsequent to such settlement, the executor can not compel the former administrator to account for the money or property by him received and paid over. Barkaloo's Adm'r . Emerick et al., 18 Ohio, 268. (a) \ 6006. 50 EXECUTORS AND ADMINISTRATORS. manner as other administrators 1 (9) (147). And it is, \sy t) to the State of Ohio, in such sum as the court may direct, with two or more sufficient sureties (see Form 147, and note following it), with condition 1. That he will make and return into court, within three months, a true inventory (16) of all the moneys, goods, chattels, rights, and credits of the deceased, which have or shall come to his possession or knowledge; and, 2. That he will truly account, on oath, for all the moneys, goods, chattels, debts, and effects of the deceased that shall be received by him as such special administrator, whenever re- quired by the court, and will deliver the same to the person who shall be appointed executor or administrator of the deceased, or to such other person as shall be lawfully authorized to receive the same. b A special administrator is required to collect all the goods, chattels, and debts of the deceased, and preserve the same for the executor or administrator who may thereafter be appointed, and for that purpose may commence and maintain suits as an administrator, and may also sell such perishable and other goods is the court may order to be sold, and no other. His powers cease upon the appointment of an executor or administrator; and he is required to deliver to such executor or administrator all the goods, chattels, moneys, and effects of the decedent which have come into his hands ; and upon failure or (a) 6007. (c) 6009. (b) \ 6008. Oli EXECUTORS AND ADMINISTRATORS refusal so to do, he may be compelled by citation (18; (19) and attachment (20) (21), as in other cases; and, in addition, his bond maybe proceeded against to recover the value of the assets received by him." Suits commenced by such special administrator do not abate when his powers cease ; but the executor or administrator super- seding him, may be admitted to prosecute such suits, as in -the case of administrators de bonis non. b Such special administrator will not be liable to an action by any creditor of the deceased; and the time of limitation for all suits against the estate will begin to run from the time of grant- ing letters testamentary or of administration in the usual form, in like manner as if such special administration had not been granted. Such special administrator will be allowed such compensation for his services as the court may think reasonable, if he delivers over forthwith to the executor or administrator who may super- sede him, the property and effects of the estate, as hereinafter provided.* 1 SECTION IV. THE GRANTING AND REVOCATION OP LETTERS, THE SURETIES, BOND RESIGNATION, REMOVAL AND DEATH OP EXECUTORS AND AD- MINISTRATORS. Upon the decease of any inhabitant of this state, letters testa- mentary, or letters of administration on his estate, must be granted by the probate court of the county in which the de- ceased was an inhabitant or resident at the time of his death ; and when any person shall die intestate in any other state or country, leaving any estate to be administered within this state, administration thereof must be granted by the probate court of any county in which there is any estate to be administered ; and the administration which shall be first lawfully granted, in the last mentioned case, will extend to all the estate of the deceased (a) 26010,6011. (c) {6012. (b) 6011. (d) ?6009. REMOVAL AND DEATH, ETC. 53 within the state, and will exclude the jurisdiction of the pro- bate court in every other county. 8 Any executor or administrator is removable (22) for failingor refusing to file an inventory, sale bill, or account of his admin- istration within the time prescribed by law. Also for failing to give additional bond when his previous bond has, for any cause, become insufficient; for failing to indemnify his sureties when required to do so by the probate court ; for absconding or con- cealing himself for the purpose of preventing the service of an order upon him; and also if he waste or unfaithfully administer the estate. 1 b If an executor or administrator residing out of the state fail to file an account and settle the estate according to law, after having been duly notified (132) so to do by a party interested in the estate, or after citation (133) by the probate court; or if an executor or administrator become insane, or otherwise inca- pable of discharging his trust, or evidently unfit therefor, or it shall be made to appear to the court that he has unreasonably neglected to file an inventory of the estate, or has willfully omitted from the inventory any assets of the estate, or that there are unsettled claims or demands existing between him and the estate which in the opinion of the court may be the subject of controversy or litigation between him and the estate, or persons interested therein, the court may remove him; and if there be no co-executor or co-administrator to proceed with the adminis- tration, the court may issue letters of administration de bonis non (I; An appeal will not lie from an order removing an administrator. Still's estate, 15 Ohio St. 484. The question whether the removal of an executor is proper or not must be tried by writ of error, and not by appeal, and the decree of the court of common pleas in such a case will be utterly invalid. Where an executor was removed by the probate court, and, on appeal to the common pleas court, reinstated, and afterward collected money which he failed to pay over, his sureties were not liable, as the order of the probate court was never properly set aside. In such a case the jurisdiction of the common pleas to make the order may be collaterally inquired into. District Court, 1862, Walker v. Walker's Ex r. 4 W. L. M. 32. (ft) 6994. (b) 6049, 6050, 6087, 6178, 6206, 6207. 54 EXECUTORS AND ADMINISTRATORS. to some other person, as if such defaulting or incompetent ex- ecutor or administrator were dead. 8 If, after granting letters of administration, as of an intestate estate, a will of the person deceased shall be duly proved and allowed, the first administration must be revoked (137) by the court, unless a petition contesting the probate of such will shall, before such revocation, be filed in the court of common pleas, in which case, in the discretion of the probate court, the adminis- tration may be continued in the hands of the original adminis- trator, until the final determination of such proceedings to con- test, when, if the will is sustained, the first determination must be revoked (137) :and, in either case, upon the revocation of the first administration and the appointment of an executor or ad- ministrator with the will annexed, the executor or administrator with the will annexed, must be admitted, to prosecute or defend any suit, proceeding, or matter commenced by or against the original administrator, in like manner as an administrator de bonis non is authorized to prosecute or defend a suit commenced by a former executor or administrator. 111 The probate court may, at any time, for good cause shown, receive the resignation of an executor or administrator (23), and appoint an administrator in his place; but before accepting the same, should require such executor or administrator to render an account of his administration. The acceptance of such resignation, and the appointment of another administrator, will not affect the liability of such former executor or administrator, or his sureties, for previous defaults or wrongful acts. d When any sole executor or administrator shall die without having fully administered the estate, the court must grant letters (1) Where an estate has been fully settled, and all the moneys in the hands of the administrator have been paid over in pursuance of an order of court, should a will be discovered and proved subsequently to such settle- ment, the executor can not compel the former administrator to account foi the money or property by him received and paid over. Barkaloo's Adm'r v. Emerick et al., 18 Ohio, 268. See alf Bigul-w v. Hi^./low. 4 Ohio, 138. (a) g 6017. (c) 6015. (b) I GOl'J. (d) g 6016. REMOVAL AND DEATH, ETC. 55 of administration, with the will annexed or otherwise, as the case may require, to some suitable person, to administer the gooda and estate of the deceased, not already administered : pro- vided, there be personal estate of the deceased not administered, to the amount of twenty dollars, or debts to a like amount re : maining due from the estate. 4 When an unmarried woman, who is executrix, or administra- trix, either alone or jointly with another person, shall marry, her husband will not be executor or administrator in her right, but the marriage will operate as an extinguishment of her au- thority l as executrix or administratrix : and the other executor or administrator, if there be any, may proceed in discharging the trust, as if she were dead ; and if there be no other executor or administrator, administration may be granted of the estate not already administered ; and such administrator may proceed to discharge the trust, in like manner as if the executrix or ad- ministratrix were dead. b A married woman can dispose of her property and appoint an executor by a will duly executed ; and if she die intestate, own- ing real estate, against which there are claims, or holding per- sonal estate in. her own right, an administrator may be appointed upon her estate in like manner as though she had died unmar- ried. Where two or more persons are appointed executors, adminis- trators, or testamentary trustees, the court may take a separate bond (8) (9), with sureties, from each of them, or a joint bond, with sureties, from till of them together ; and in all bonds with sureties, given by executors, administrators, or trustees, all the sureties must be inhabitants of this state, and such as the court shall approve (see Form 147. and note following it) ; and the bonds must be filed in the court taking the same. d (1) Proceedings to sell real estate to pay debts of the decedent, com- menced by her, will not abate by her marriage. Craig v. Fox et al., 1C Ohio, 663. Se>- note 1, p. 38, and the text it relates to. (a) 6018. (c) 5913, 5914, 5994, 5995, 3108. (b) 6022. (d) g 5999. 66 EXECUTORS AND ADMINISTRATORS. Such bond can not be claimed even after final settlement and distribution of the estate ; but the same will and must remain perpetually on file in said court ; and the sureties thereon will be held liable, even though no penal amount be stated in the bond at the time of signing. Any surety of any executor or administrator, o? the executor or administrator of any such surety, may, at any time, make application to the probate court to be released from the bond of such executor or administrator, by filing his written request (127) therefor with the judge of said court, and giving at least five days' notice (126), in writing, to such executor or adminis- trator ; and if such court upon the hearing is of opinion there in good reason therefor, the court must release such surety (128), and the death of a surety must always be deemed good cause ; and if such executor or administrator fail to give new bond, as by such court directed, he must be removed (22), and his letters superseded ; but such original surety will not be released until such executor or administrator so gives bond (8) (9) ; and such original surety will be liable only for the acts of such executor or administrator from the time of the execution of the original bond to the filing of the second bond ; and the costs of such proceedings must be paid by the surety apptying to be released, unless it appear to the court that the administrator or executor is insolvent, incompetent, or is wasting the assets of the estate. 1 * Whenever the sureties in any bond of an executor or adminis- trator shall be insufficient, the court, on the petition of any per- son interested, and after notice (124) to the principal in the bond, may require (125) a new bond to be given, with two or more sufficient sureties ; and when a new bond is thus required, (1) This section was adopted in 1801 (see 68 Ohio L. 46, 1), and has always been in force since then. A section, in words as follows, '-Any surety in the bond of an executor or administrator may, at any time after the ex piration of six years from the date of the bond, upon his petition, be dis charged from all further responsibility upon such bond, if the court, after due notice to all persons interested, shall think it reasonable and proper to discharge him ; and the principal shall thereupon give a new bond, with two or moro sufficient sureties," passed in 1840, was in force from that time till 1880 (see S. & C. 567, 192; 75 Ohio L. 904, 215). It has been emit- ted from the codified laws as obsolete. (a) g 6204. REMOVAL AND DEATH, ETC. 57 the sureties in the prior bond will, nevertheless, bo liable for all breaches of the condition committed before the new bond is ap- proved by the court.* If, in the cases specified in the preceding paragraph, the prin- cipal does not give such bond within such time as shall be or- dered by the court, he must be removed (22) from his trust ; l and some other person may be appointed in his stead, as the circum- stances of the case may require. b If any executor or administrator shall waste, or unfaithfully administer the estate, the court granting the letters may, if it thinks fit, on the application (127) of any surety in the admin- istration bond, order (130) such executor or administrator to render an account, and to execute to such surety a bond of in- demnity, with surety or sureties approved (see note, p. 316) by the court ; and upon neglect or refusal to execute such bond of indemnity, within the time ordered by the court, it may remove him (22), and revoke his letters testamentary, or letters of admin- istration, and appoint another administrator in his place. c All bonds of executors and -administrators will bind and ren- der liable thereon both principals and sureties, whether at the time, of the signing and sealing by them, or any of them, the amount of such bonds be filled or left in blank, if such amounts be filled in before, or at the time of, the approval or acceptance of such bonds ; and such filling in may be done in the absence of any or of all the obligors, without any express authority from any of them. d An administrator appointed in the stead of an executor or administrator who has died, resigned, or been removed, is enti- tled to all the assets of the estate remaining unadministered, and may maintain an action upon the bond of such previous execu- tor or administrator for any breach of its conditions. 26 All lawful acts done by an executor or administrator, or of an (1) See note 1. p. 53. (2) O'Conner v. Ohio, 18 Ohio, 225; Tracy v. Card, 2 Ohio St. 431. In McKoy v. Kercheval's Adm'r, 7 Ohio (pt. 1), 268, it was held that an administrator de bonis now could not bring suit upon a note given to his pre- decessor as administrator of the decedent, hut the ruling of the court in that case is undoubtedly superseded by the provisions of the code. (a) $ 6205, 6206. (c) 6208. (e) 6020. (b) 6207. (d) 6. 58 EXECUTORS AND ADMINISTRATORS. administratrix before her powers as such cease by marriage, re- main valid and effectual. 1 * The law provides that when an inquest is held upon the body of an unknown person, the probate court shall make such order for the preservation of the property found on such person, other than money, as may be necessary for the future identification of such person. The money found must be applied, first, to pay the expenses of saving the body of the deceased, and of the in- quest and burial, and the remainder, if any, must be paid into the county treasury. b Any person entitled, as heir, legatee, or otherwise, to such funds, or any part of them, may make proof thereof to the pro- bate court or county commissioners, who, upon being satisfied of the claimant's right, must certify the same to the county auditor, upon whose order the county treasurer must pay the money to the claimant. 1 " The foregoing provisions of law will not preclude an executor or administrator, regularly appointed, from claiming any money or effects found upon the body of a deceased person at an in- quest, whether before or after return made to the probate court. SECTION V. A PEW PLAIN DIRECTIONS TO PERSONS ABOUT TO APPLY FOR LETTERS TESTAMENTARY OR LETTERS OF ADMINISTRATION. If the decedent left a will, and the person having it in cus- tody be known, steps should be taken to have the same admitted to probate in accordance with the directions heretofore given. 1 But should it not be known in whose possession such will is, and the estate of the decedent is in such condition as to require im- mediate attention, application should at once be made to the pro- (1) Bigelow's Ex'rs v. Bigelow's Aum'rs, 4 Ohio, 138; Barkaloo's Adm'r v. Emerick et al., 18 Ohio, 268. See note 1, p. 55, and note 2, p. 5U. (2) Chapter I., pp. 23, 24. (a) 6021. But see 78 O. L., 9. (c) ? 1228. (b) 1227. DIRECTIONS, ETC 59 bate court (7), by the person or persons entitled to the adminis- tration according to law, for letters of administration (6), which letters (and the acts of the administrator in pursuance of the same) will be valid, 8 until the discovery and probate of the will ; after which such letters will be revoked, 1 and the author- ity of the administrator to bind the estate will cease (137). But all legal acts done by him during the existence of his let- ters will remain valid and effectual.' 21 ' Before applying for letters testamentary or letters of admin- istration, the person intending to apply should make or procure to be made an estimate of the value of the property of the de- ceased likel} 7 to come into his hands. The object of such estimate is to assist the probate judge in fixing the amount of administration bond ; and although a strictly accurate valuation of the assets can not be made pre- vious to the granting of letters, yet care should be taken to make it as nearly correct as circumstances will permit, in order to ob- viate the necessity of giving an additional bond, in case it should be found, upon return of the inventory, that the one already given is insufficient to secure the estate against loss from un- faithful administration. Suih estimate should include the goods, chattels, moneys, notes, book accounts, and all other personal property of the deceased, as well as any real estate ordered or authorized by will to be sold for the payment of debts and legacies ; and in case the de- (1) See note. 1, p. 53. (2) The decisions of our courts have been, heretofore, in accordance with this section ( 6019 in the new code) ; the discovery of a will, and the ap- pointment of an executor, were held to operate as a repeal of the grant ot administration, but did not avoid mcsne acts. Bigelow v. Bigelow, 4 Ohio, 138. Where an estate has been fully settled, and all the moneys in the hands of the administrator have been paid over in pursuance of an order of court, should a will be discovered and proved subsequently to such settlement, the executor can not compel the former administrator to account for the moneys or property by him received and paid over. Barkaloo's Adm'r v. Emerick etal.. 18 Ohio, 268. (a)? 6019. Cb) 6021. But spe 78 O. L. 9. 60 EXECUTORS AND ADMINISTRATORS. ccdcnt died intestate, and it should appear from the outset that a sale of real estate will be necessary to pay his debts, the probable value of such real estate should also be included in th estimate. The bond of an executor or administrator is usually fixed at double the estimated value of the assets to be administered ; and as the approval of the sureties rests with the probate court, the person intending to apply for letters should select his bail and consult them before making his application, in order to avoid trouble and delay in obtaining letters. The statute requires that there shall be at least two good sure- ties to each administration bond ; a and it is the practice of courts to receive none but freeholders, and- such as -are possessed of suf- ficient property, independent of debts and a homestead, to secure amply the penal sum named in the bond. If the person intending to apply for administration be not a widow or next of kin of the decedent, the written declination of such widow (3) or next of kin (3), or both, as circumstances may require, should be procured before making the application. 1 Unless the applicant for letters be also residuary legatee, or unless it be provided by will that an appraisement of the personal estate of the testator shall not be made, the names of three suit- able, disinterested persons should be selected, to be presented to the court for appointment as appraisers of such personal estate. Such appraisers need not be freeholders b An appraisement of the personal estate of a decedent, should in all cases be made even though his will should otherwise pro- vide ; and it is discretionary with the probate court to observe the direction of the testator in this respect, or to disregard it. c Not infrequently the personal property of a testator is be- queathed to his widow for life ; or it is so bequeathed subject to the payment of the testator's debts. In such cases it is sometimes supposed that an inventory and appraisement are (1) See note, 1, p. 61. (a) 6996, 5997, 6001, 6002, 6006, 6008, 6150, 6151, 6169. See also Form 147, and note following it. (b) 6028. (c) 2 6023, 3028, C074. DIRECTIONS. ETC. 61 not necessary; but this may lead to great mischief. A widow may marry a second time, and have children ; and she and her second husband may acquire property and mingle it with that belonging to the estate; or the widow may, without marrying a second time, acquire property in her own right, and mingle it with that bequeathed to her for life. Now, should no inventory Do make, and should the property of the estate afterward be needed for the payment of debts, or should the widow die, and a separation of property become necessary, how can the executor or the heirs distinguish that which belongs to the estate from that which does not? It may therefore be laid down as a general rule, admitting of but rare exceptions, that an inventory and appraisement of the estate must be made ; and the executor or administrator should, accordingly, procure the appointment of appraisers for that purpose. No harm can in any event result from making such inventory ; but should one be made, the advantage to be derived therefrom by the executor or administrator, and the widow and .heirs, will, in every instance, well repay the trouble and expense of making the same. Having thus provided himself with an estimate of the assets, the written declination of the widow or next of kin, or both (3), and the names of bondsmen and appraisers, the applicant may, at any reasonable hour, on any business day of the week, pre- sent himself in person or by attorney before the probate court of the county in which the deceased resided at the time of his death, and solicit letters (6). Unless there be a rule of the probate court requiring them to do so. 1 his sureties need not ac- company him, as, in case letters should be granted, the probate judge will prepare a bond (8) (9), which the executor or admin- istrator may take with him to procure the signature of his sure- tics, if desired. But neither letters testamentary nor letters of ad- (1) Probate and other courts have the right to make such rules, not in consistent with the laws of the state, concerning the manner in which the la\v ehall be complied with as seems to them will best subserve the ends of jus- tice and protect interests committed to their care, jj 536. In Hamilton and some other counties, no such bond will be accepted unless the sureties per- sonally appear before the probate judge or <_>ne of his deputies, and there .*ign the bond and make oath (147) as to its sufficiency. 62 EXECUTORS AND ADMINISTRATORS. ministration will issue until a sufficient bond, properly signed, is filed in the court ; and until such letters do issue, an administra- tor can do nothing toward the settlement of the estate, and an executor only so much as is mentioned in Section I. of this Chapter. SECTION VI. NOTICE OP APPOINTMENT. The first step taken by an executor or administrator, after obtaining letters, should be to give notice of his appointment 1 in some newspaper of general circulation in the county in which the decedent last resided (11). Such notice must be published for at least three successive weeks ; and after such publication has taken place, a copy of such notice, with the affidavit of the executor or administrator, or of the printer or other person em- ployed by him to give the notice, attached thereto, must be filed in the office of the probate judge of the county within one year from the date of the bond; and the notice, thus verified, becomes? evidence of the time, place, and manner in which the same was given. 2a This affidavit may be the same in form as the one ap- pended to Form No. 71, the number of weeks only being differ- ent. Although such notice may be given at-any time within three months from the dale of the administration bond, yet a faithful executor or administrator will in this, as in all other matters coming within the scope of bis duty, proceed as promptly and diligently as circumstances will permit. (1) Such notice is good, although the fact of appointment is not expressly stated therein, and the notice consists merely of a demand, signed by the administrator as such, that all persons indebted to the estate, should make payment, and a notification to all persons holding claims against the estate to present them, etc. Gilbert's Adm'r v. Little's Adnrr, 2 Ohio St. 150. (2) As to the manner of proceeding when there has been a failure to give this notice, see Chapter VI., Sec. I. (a) \\ 6088, 6089. PREPARATIONS FOR MAKING. 63 CHAPTER III. RELATING TO THE INVENTORY. SECTION I. PREPARATIONS FOR MAKING AN INVENTORY. Every executor or administrator must, within three months after his appointment, make and return into court, upon oath, a true inventory (16) of all the goods, chattels, moneys, right, and credits of the deceased, which are "by law to be administered, and which shall have come to his possession or knowledge, un- less he be residuary legatee, and give proper bond (131) to pay all debts and legacies." But even in that case the court may, at any time subsequent to the granting of letters, upon application of any person interested in the estate (34), make an order re- quiring that such inventory shall be made and returned (33). b If the court, at the time of granting letters testamentary or letters of administration, shall think fit. it may order the execu- tor or administrator to also include in the inventory an appraise- ment of all the real estate of the deceased. In a preceding section (pp. 60 and 61), the necessity of making an inventory in all cases was urged ; and many considerations might here be presented for proceeding in this matter with all diligence. Let it. however, suffice to say that an executor or administrator can not make sale of the personal property of the decedent, nor convert the assets of his estate into money, until an inventory and appraisement have been made. And it may be added, as a further reason for dispatch, that if an executor or administrator unreasonably delay the making of an inventory, he will become personally liable for any loss to the estate in the '.020. (c) \ 6025. (b) 20074, 60?3, C047. 64 INVENTORY. waste, concealment, or embezzlement of the assets, in case the fiurno should result from his negligence. 11 At least five days prior to the time fixed for the appraisement, a written notice 1 (12) of the time and place of making such ap- praisement must be served upon the widow, heirs, and legatees of the decedent residing in the county in which the property is situate ; and a like notice (13) must be posted up in at leant two of the most public places within the township in which the de- cedent last dwelt. b Should one or more of the appraisers neglect or be unable to attend to the discharge of his or their duties, the probate judge of the county in which letters issued, or any justice of the peace of the county in which the property to be appraised is situate, may fill the vacancy or vacancies. The better practice is to have the appointment made by the probate judge. When a justice appoints appraisers, he must make a certificate of the appointment, which must be in substance the same as Form 14. Such order must be filed by the executor or ad- ministrator, with the inventory, in the office of the probate judge of the county in which administration was granted." 1 In case any part of the personal estate is situate in any other county than the one from which letters issued, any disinterested justice of the peace of such other county may appoint the ap- praisers of such property. 6 For issuing an order to appraisers, a justice of the peace is entitled to a fee of forty cents. f Before proceeding to the discharge of their duties, the ap- praisers must take and subscribe an oath (15), before a probate judge, justice of the peace, notary public, or other officer author- ized to administer oaths generally, that they will truly, honestly, and impartially appraise the estate and property which shall be exhibited to them, and perform the other duties required of them by law in the premises according to the best of their knowledge and ability . (1) See note 53, p. 344. (a) I 6209. (d) 6030. (f ) 621. (b) g 6032. (e) 6028. (g) 6033. >uid result in loss to the estate, it was held that the materials prepared for the building should be regarded as personal, and not as real assets, and that the administrator might rescind the contracts for making the improvements. Gray et al. v. Hawkins' Adm'x et al., 8 Ohio St. 449. But see rights of contractors under Mechanics' Lien Law (Chapter XIV., Section II.), passed since this decision. An administrator can not maintain an action of trover to recover goods transferred by his intestate to defraud creditors. Benjamin v. Le Barron'a Adm'r, 15 Ohio, 517. But this is doubted and explained in Kilbourne v. Fay, 29 Ohio St. 264, 280. (2) Notes delivered to an executor to indemnify tli > estate :i^;iinst the lia- bility of the testator as surety, are not assets of the estate; nor is the monej collected on them. Arbuckle's Ex'rs v. Tracy's A'lm'rs. 15 Ohio, 432. (a) \ 6034. (b) 6025. PROPERTY SUBJECT TO APPRAISEMENT. 71 the indorsements thereon, if any, with their dates, and the sum which, in the judgment of the appraisers, can be collected on each claim.* The inventory must also contain a statement of all other debts and accounts belonging to the deceased, which are known to such executor or administrator, specifying the name of the debtor, the date, the balance or thing due, and the value or sum which can be collected thereon, in the judgment of the apprais- ers. 1 * The inventory must also contain an account of all moneys, whether in specie or bank bills, or other circulating medium, belonging to the deceased, which shall have come to the hands of the executor or administrator; and if none shall have come to his bands, the fact shall be so stated in said inventory. The debts and accounts above mentioned include all claims not in writing as well as book accounts, etc., whether due to the de- cedent or to become due. To avoid confusion the good claims should be entered in the inventory together, and the doubtful and bad should follow in separate lists, and under appropriate headings. Advancements made by the deceased during his lifetime to his children or heirs, whether evidenced by notes, receipts, or book accounts, are not assets in the hands of the executor or admin- istrator, and have properly no place in the inventory. 1 When a testator by will releases any claim he may hold against his executor or any other person, such claim must nevertheless be included in the inventory, and be appraised, as such release is not valid as against the creditors of the testator. But should the amount of such claim not be required to satisfy the testa- tor's debts, the release will be good, and such claim will not be deemed assets in the hands of the executor or administrator 11 Naming a person executor of a will does not extinguish his indebtedness to the estate of the testator, but the claim against him must be included in the inventory, and when it becomes (1) See, as to advancements, pp. 173 174. (a) ? 6035. (c) 6037. (b) 0036. (d^ ?r,008. 72 INVENTORY. due the executor will be liable for the same as for so much money received ; and he is required to distribute the amount due in like manner as the proceeds of other claims due the es- tate. 128 When any mortgagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the right of re- demption, the mortgaged premise's, and the debt secured thereb} T , shall be considered as personal assets, in the hands of his exec- utor or administrator, and shall be administered and accounted for as such. b Any claims for money due the widow in her own right, and which the husband, in his lifetime, had not so reduced into his own possession, as by the rules of law to be entitled thereto by his marital rights, remain the property of the widow, and should not be included in the inventory. 3 c (1) The same rule of law prevails in the case of administrators. Bige- low's Ex'r v. Bigelow's Adm'r, 4 Ohio, 138; Collard's Adm'r v. Donaldson et al., 17 Ohio, 264 ; Tracy's Adm'x v. Card's Adm'r, 2 Ohio St. 431 ; Hall . Pratt, 5 Ohio, 72 ; Blizzard v. Filler, 20 Ohio, 479 ; liaab's Estate, 16 Ohio St. 273. (2) Where the testator holds a mortgage against the person he has named executor of his will, to secure the payment of a debt, the mortgage is not extinguished by the operation of law which renders such indebtedness, when the same becomes due, assets in the hands of the executor ; but the mortgage remains an incumbrance on the lands of the executor; and an administra- tor de bonis non may foreclose the mortgage in case the executor should not have accounted for and distributed among the heirs or creditois of the testa- tor the amount of such debt. I'll such case the persons interested in thu estate are not compelled to rely solely upon the administration bond. Col- lard's Adm'r v. Donaldson et al., 17 Ohio, 264. (3) The wife's contingent right by survivorship to her choses in action immediately reducible into possession, may be barred by settlement before or after marriage, by actual reduction into possession by the husband, or certain acts held to be equivalent to actual reduction intu possession, such as recovery of judgment or decree in the sole name of the husband, the taking of a note or obligation for the debt in the sole name of the husband, by assignment by the husband for a valuable consideration, or by release. Meedles' Ex'r v. -Needles et al., 7 Ohio St. 4o2. See also Dixoiri Ada. rs v. Dixon et al., 18 Ohio, 113. Choses in action^ belonging to t. wife at the (a) 6069. (c) \ 3108. (b) G070. (See p. 90, for rest of section.) PROPERTY SUBJECT TO APPRAISEMENT. 7^ Shares of stock in any railroad or other incorporated com- pany, are personal estate, and subject to appraisement and sale. 1 A lease for years, held by the decedent in the real estate of another, is also assets in the hands of the executor or adminis- trator; and should "be appraised and sold like other personal es- tate. But a permanent leasehold, renewable forever, is not sub- ject to administration as personal estate, but descends to the heirs of the decedent in like manner as real estate, 2 unless re- quired for the payment of debts ; in which case a petition must be filed in the probate court, by the executor or administrator, and an order of sale obtained, as in the case of real estate, the absolute title to which is actually in the decedent. Personal estate, such as stocks, bonds, notes, etc., held by the decedent as trustee, should not be included in the inventory, or, if included, should not be appraised. 3 The emblements or annual crops raised by labor, whether cut or still .-standing at the time of the death of the decedent, are assets, and must be appraised. Grass, while growing, is not as- sets; but, when cut, the case is different, and it is then subject to administration. So also with fruit; while upon the trees it is time of the marriage, and not reduced to possession by the husband during coverture, will go to her representatives charged with her debts dum i-ola. Promissory notes payable to the wife or bearer dum sola, and remaining in possession of the husband during coverture, without being assigned, or judgment being taken thereon, will, at the death of the wife, fall to her heirs. Dixon's Adm'r v. Dixon et al., 18 Ohio, 113. (1) Johns v. Johns et al., 1 Ohio St. 350. As to sale, see post, p. 83. (2) Loring v. Melendy et al., 11 Ohio, 355; Northern Bank of Ken- tucky v. Koosa et al., -13 Ohio, 334. (3) Where a testator, at the time of his death, held certain bonds in per- sonal trust for the sole benefit of others, and was in no default as to the du. ties of his trust, and said bonds were afterward collected by his executor, with the knowledge and apparent acquiescence of the beneficiaries, and the proceeds were not paid to the parties entitled thereto under the trust : Held, that the trust lunds were not assets of the estate of the testator, and there- fore an action could not be maintained by one of the beneficiaries against the sureties in the executor's bond for a misappropriation of the trust funds so collected. Quinby v. Walker et al., 14 Ohio St. 193. See also Arbuckle t>. Tracy, 15 Ohio, 432. 74 INVENTORY. considered a part of the real estate, but, when taken off, it be- comes personalty. Wood cut down for sale or use, and trees in a nursery, are as- sets, and must be appraised and sold. The executor or administrator, or the person to whom he ma}' sell such emblements, may, at all reasonable times, enter upon the lands to cultivate, sever, and gather the same.* Money and other effects found on the body of an unknown decedent are assets, and must be drawn out of the county treas- ury, if there deposited. 1 - (See p. 58.) In some cases, machinery, steam engines, and other property of a like character, are fixtures, and pertain to the really; in others they are personal estate and subject to administration. It is impossible to prescribe an infallible rule by which the class to which such property belongs may, in all cases, be determined, and, therefore, an endeavor to do so here would be useless. The best course that can be pursued by an executor or administrator, with reference to such property, is to consult a competent at- torney, and obtain an opinion as to which class of estates, real or personal, the particular property in question belongs. An executor or administrator has, by law, no control over property in which the decedent had an interest as partner only; but should the surviving partner or partners fail to cause an in- ventory of the partnership assets 1 and liabilities to be made, within thirty days from the death of the deceased partner, it be- comes the duty of his executor or administrator to cause such inventory to be made, by the oaths of three appraisers specially appointed by the probate judge, and forthwith to deposit such inventory in the probate court, to be filed, .but not recorded. (1) Real estate purchased for partnership purposes, paid for with ptirnor- ship funds, and actually used in the partnership business, should be regarded as partnership assets, within the meaning and operation of the law. J3ut real estate not needed or used for the partnership purposes, though paid for with partnership means, is not assets of the firm, within the meaning of this act, notwithstanding tht> rents and profits thereof be applied to partnership uses, llammelsberg v. Mitchell et al., 29 Ohio St. 22. The good will of the partnership, though not a distinct item of assets, should be considered as an element of value in the appraisement of the tangible property. Ib. (a) 6027. (b) 1227, 1228. RETURN OF. HOW ENFORCED. 7-) The surviving partner or partners, with the consent of the ex- ecutor or administrator and the approval of the probate judge, may take the partnership assets 1 at their appraised value, upon giving the executor or administrator a bond and note, with good security the note for the payment of the interest of the de- ceased in the assets, in nine months from the time when the same are so taken, and the bond conditioned for the payment of the partnership debts. 28 If any real estate is so appraised and elected to be taken, the probate court must order that, upon full payment of the notes, the administrator ov executor shall execute and deliver to the purchaser his deed for the deceased partner's interest therein, And such conveyance will pass the title thereto. 6 The appraisers are entitled to be'paid one dollar per day. SECTION VI. RETURN OF INVENTORY ; EXCEPTIONS THERETO ; HOW ENFORCED. The inventory being completed, it must be signed by the ap- praisers ; the executor or administrator must retain a ^opy of it, and must file the original inventory in the office of the pro- bate judge of the county. d This should all be done without delay. By the " original " inventory is not meant the rough notes usually made by the person acting as appraisers' clerk, which are necessarily informal and unfit for tiling, but the first inventory which the appraisers sign. Upon returning the inventory, the executor or administrator will be required to make and subscribe an oath (17) that the same is in all respects just and true ; that it contains a correct . (1) When the good will was not considered in the appraisement, the sur- viving partner, who, after his election to take the assets, appropriates it to his own use by continuing the business, may be compelled to account for ita value to the estate of the deceased partner. Kammelsberg v. Mitchell et al , 29 Ohio St. 22. (2) For decisions relating to this matter, see Merrick v. Boury & Sons, 4 Ohio St. 60; Wilson v. Stilhvell. 14 Ohio St. 464; Leach v. Church, 15 Ohio St. 169; Myers v. Standart, 11 Ohio St. 29 ; Wilson v. Forder, 20 Ohio St. 89 ; Feigley v. Whitaker, 22 Ohio St. 606 ; Corwin v. Suydam, 24 Ohio St. 209. (a) ? 3167, 3168, 3169. (b) 3170. (c) \ 1300, (d) 6044. 76 INVENTORY. statement of all the estate and property of the deceased, being assets, that has come to his knowledge ; and particularly, of all money bank bills, or other circulating medium belonging to the deceased; and of all just claims of the deceased against such executor or administrator, or other persons, according to the best of his knowledge. This oath must be indorsed upon or at- tached to the inventory, and may be made before the probate judge or his deputy, or before any other officer authorized to ad- minister oaths required by law. 8 Formerly, it had to be made before the probate judge or his deputy, except only when they were absent from the county, or incapable, from sickness or other cause, of transacting business. 1 ' If an executor or administrator refuse or neglect to return an inventory within three months from the date of his letters, it is the duty of the probate judge of the county, upon the applica- tion (18) of any person interested in the estate, to issue an order (19) requiring the person so in default, within some short period named in the writ, to make return of an inventory according to law or to appear and show cause why an attachment should not issue against him for his default. The order may be served by a sheriff, constable, or any other person; and upon return being made that the executor or ad- ministrator was served \)y delivering him a correct copy of such writ, and upon his failure to file an inventory within the time limited by the writ, or to appear and show good reason for such failure, the probate judge is directed by law to issue an attach- ment (20) (21) against him, and to commit him to the jail of the county until he returns such inventor}*, or is discharged by the order of the probate judge. d If the executor or administrator should abscond or secrete himself, so that personal service of an order can not be made upon him ; or if, after being committed to prison, he should fail to return an inventory within thirty days, the probate court may revoke 1 his letters (22), and grant administration to the person (1) See note 1, page 53. (a) 6046, as am. 79 O. L. 27. (c) f 6047. (b) 6046. (d) I 6048. RETURN OF, HOW ENFORCED. 77 next entitled thereto after such delinquent executor or adminis- trator, as in cases of original administration." By the revocation of his letters such executor or administrator is deprived of all power and control over the estate of the dece- dent ; and suit maybe brought upon his bond to recover for any injury sustained by the estate by reason of his default or wrong- ful acts, and to the full value of all the property received by him belonging to the estate of the decedent and not duly adminis- tered. b If an executor or administrator be committed to jail for de- fault in filing an inventory, the probate court may discharge him from custody upon his delivering, on oath, all the property of the deceased under his control to such person as the court may authorize to receive the same. Should further assets of the estate be discovered after the making of the inventory, it is the duty of the executor or ad- ministrator to call the appraisers together and cause the same to be appraised (16) ; and to make return of such supplemental inventory and appraisement within two months from the time of discovering such additional property.* 1 The making and return of such inventory may be enforced in like manner as in the case of the first inventory.* 1 It is, however, frequently the case that a few articles, not warranting the expense of a further appraisement, are discov- ered either before or^n the day of sale. In such cases it will in -general be deemed sufficient if such articles are entered, under some distinctive title, in the sale bill, and the fact mentioned to the probate judge when the sale bill is returned. Should tho t property newly discovered consist of money, notes, or book accounts, of small value or amount, it may be sufficient to account for the same upon final settlement with the court. In cases of doubt the probate judge may be consulted, who in this, as in all other matters connected with the settlement of estates, possesses large discretionary powers ; and if, in his opinion, the property so discovered is too trifling in value to warrant the trouble and expense of an additional inventory, the executor or administrator may be governed accordingly. (a) 6049. (c) 6052. (b) 6050, 6051. (d) 6061. 78 INVENTORY. At any time within one year after the return of any inven- tory, any person interested in the estate may file .exceptions to it. The court must then set a day for the hearing thereof, and cause written notice of such filing and of the time so fixed for the hear- ing, to be given to the executor or administrator, not less than five days before the time so fixed. For good cause, the hearing may be continued for such time as the court deems reasonable. At the hearing, the executor or administrator, and any witnesses subpenaed by either party, may be examined under oath. The court must enter its finding on the journal, and tax the costs as may be equitable. An appeal may be taken to the common pleas court, by either party, from any finding, order, judgment, or decision, of the probate court on such hearing, as in other cases? SECTION VII. PROCEEDINGS AGAINST PERSONS SUSPECTED OP HAVING CONCEALED OR EMBEZZLED ASSETS. Should an executor or administrator, or any heir, devisee, legatee, creditor, or other person interested in the estate of a deceased person, have good cause to suspect that any person has concealed, embezzled, or carried away any moneys, goods, chat- tels, claims, or other effects of such estate, he or they may make complaint (27) before the probate court of the county, whose duty it thereupon becomes to cite (28) the person or per- sons so suspected to appear forthwith before it, and to be exam- ined on oath or affirmation touching the matter complained of. b Upon failure or refusal of the person so cited to appear, or, having appeared, to submit to an examination under oath, and answer such interrogatories as may lawfully be propounded, it is the duty of the court to order (29) such refractory person into close custody in the jail of the county, there to remain until he or she shall submit to the order and direction of the court. c After the examination of the party complained of, the probate court is directed by law to examine, under oath, such other per- sons as may be offered as witnesses by either party to the pro- ceeding. The examination (30), whether of the person sus- (a) 6024, as am. 80 O. L. 67. (c) 6054. (b) PROCEEDINGS WHEN ASSETS CONCEALED. 79 pccted or of the witnesses, including both questions and an- swers, must be reduced to writing by some competent person, and after having been signed by the persons respectively, must be filed away by the court. 8 Should the probate court, upon such examination, be satisfied that the person complained of has been guilty of concealing, embezzling, or conveying away any moneys, goods, claims, or other property or effects of the deceased, it is imperative upon the court forthwith to render judgment (31) against the person so found guilty, and in favor of the executor or administrator of the estate, or in favor of the State of Ohio, for the flse of the estate of the decedent, if there be no executor or administrator within the state, for the amount of the moneys, or value of the goods or other property so concealed, embezzled, or carried away, with ten per centum penalty thereon, and for the costs of the proceeding. 1 Such judgment becomes a lien upon the real estate of the person against whom the same is rendered, within the county, from the date of its rendition. 15 An appeal m:iy be taken from the judgment of the probate court, to the court of common pleas, in such cases. 2 In case such judgment should not be paid, and it should be- come necessary to resort to compulsory measures to enforce the payment of the same, the executor or administrator must obtain from the probate judge a certified transcript of the judgment, and file the same in the office of the clerk of the court of com- mon pleas of the county ; and it is the duty of the clerk to issue immediately an execution, as in other cases, for the amount of the original judgment and costs, and the costs which have accrued since the rendition of the judgment. After the issuing of such execution, all proceedings thereunder must be conducted (1) The court has no constitutional power to render judgment against the party charged in such cases, except for such property and effects as he, on his examination, admits himself guilty of having embezzled, concealed, or carried away ; and to the extent that the statute professes to authorize a judgment in cases where there is a controversy between the parties, it is un- constitutional. Howell v. Howell's Adm'r, 19 Ohio St. 556. (2) As to manner of taking appeal, see Chapter XIV., Section I. , 80 INVENTORY. as if the judgment had been rendered in the court of common pleas. 8 If judgment be rendered in the n;ime of the state, and there be no executor or administrator within this state, it is the duty of the prosecuting attorney of the county to procure and file the tran- script before mentioned, and if the money be collected by execu- tion, to pay the same into the county treasury, for the use of the estate reserving out of the money such sum as the probate judge may allow him for his services in transacting the busi- ness. 1 ' it is provided by law that all " gifts, grants, or conveyances of lands, tenements, hereditaments, rents, goods, or chattels, and all bonds, judgments, or executions made or obtained with intent to avoid the purposes of these proceedings, or in contemplation of any such examination or complaint as aforesaid, shall be ut- terly void and of no effect." (a) 6058. (c) { 6060. (b) g 6059. HOW SALE MADE. ETC. 81 CHAPTER IV RELATING TO THE SALE OF PERSONAL PROPERTY. SECTION I. WHEN AND IN WHAT MANNER SALE MUST BE MADE, AND A SALE BILL RETURNED ; AND HOW SUCH RETURN MAY BE ENFORCED. Unless specially exempt by will, or unless the person admin- istering the estate be also residuary legatee, every executor or administrator must, within three months after the date of his bond, sell the whole of the personal property belonging to the estate, which is liable to the payment of debts, and is assets in his hands, to be administered, except promissory notes, and all claims, demands, and rights in action which can be collected by him, and except bonds and stocks when the sale of them is not necessary for the payment of debts ; and, also, except the fol- lowing : First. Such as the widow may desire to take at the valuation made by the appraisers, she securing payment to the executor or administrator thei'efor, as other purchasers. 1 Second. Such property as is specifically bequeathed can not be sold until the residue of the personal estate has been sold, and is found by the executor or administrator to be insufficient for the payment of the debts of the estate. Third. The executor or administrator may defer the sale of the emblements or annual crops raised by labor, which were not (1) The right of the widow to take personal property at the appraisement is not limited to the time of making the appraisement, but may be exercised at any time before the property is put up for sale, within the three months allowed to the administrator for selling the property; and her right is rot aflected by the changes that may, in the meantime, have taken place in the market value of the property. Overturf v. Wear, 26 Ohio St. 538. 6 82 SALE OP PERSONAL PROPERTY. severed from the land of the deceased, at the time of hia death, beyond the three months prescribed for the sale of the assets ; and the same may bo sold before or after they are severed from the land, at the discretion of the executor or administrator, and in the mode prescribed for the sale of other goods and chattels.* When by the terms of any last will the testator shall express a wish that there be no appraisement or sale of his personal property, the court admitting the will to probate may, at its dis- cretion, direct the omission of either or both of said require- ments ; and may, also, at any subsequent period, upon the appli- cation 054) of any party interested, require such appraisement and sale (33), or either of them, as the justice of the case may require." The property specifically bequeathed may be delivered over to the legatee entitled thereto, he securing the redelivery (32) thereof, on demand, to the executor or administrator ; otherwise the same shall remain in the hands of the executor or adminis- trator, to be distributed or sold, as may be required by law, and the condition of the estate. b In case the personal estate of the decedent which is not be- queathed should be insufficient to satisfy his debts, the property so bequeathed will become assets in the hands of the executor or administrator, and must be sold, unless the testator should oth- erwise have provided for the payment of his debts; in which case the directions of the will must be followed, and the debts paid in accordance therewith. The sale of personal property shall be made at public vendue, after at least fifteen days' notice having been given in some news- paper in general circulation throughout the county, or by ad- vertisement, set up in at least five public places in the county where such sale is to take place. d The letter and spirit of the law will be fulfilled if the notice be posted in five public places in the vicinity of the place of sale. But for good cause shown (119), the probate court may extend (121) the time for making sale, or may authorize an executor or (a) 6074 (c) 5974, 5976. (b) \ 6075. (d) 6076. MADE, ETC. 83 administrator to sell any part of the personal estate not taken by the widow at the appraisement, at private sale (121), either \ for cash or upon such other terms as the court, in its discretion, " may direct (121). But property can not be sold at private sale for less than its appraised value, unless the probate court be sat- isfied, by the affidavit (120) of at least three disinterested per- sons, that such property can not be sold for its appraised value, and that it will be for the Best interests of the estate to sell at a less, rate, in which case the court may authorize the executor or administrator to sell such property at a reduced price. If not sold at private sale within six months from the time of mak- ing such order, or within such other time as may be fixed in the order, the court may direct that such property be sold at pub- lic sale, as in other cases. 8 Such notice should mention the time, place, and terms of sale, and should contain a brief description of the leading articles to be sold (35)/ An executor or administrator may sell, either at public or private sale, any railroad or other stocks which may have come into his hands by virtue of his office ; but if sold at private sale, a price must be fixed by the probate court, at less than which it' can not be sold. b A list (36) of the articles subject to sale, in the order in which they stand in the inventory, must be prepared by the executor or administrator previous to the day of sale; and at the time of the sale the clerk (who must be a person not interested in the estate) must place opposite to each article or item in such list the name of the purchaser or purchasers, and the amount for which the same or any part thereof may be sold. Should any articles be taken by the widow at the appraisement, or should any remain unsold for want of bidders or any other cause, tin- clerk iiiu-t note in such list, opposite to such articles : "Taken by tin> \viilu\v at the appraisement;" or, "unsold for want of bidders;" or otherwise, as the case mpy be. c When, as is frequently the case, property is discovered on the day of sale which has not been inventoried or appraised, the (&) I 6076. (c) 6084. (b) ? 6080. 84 SALE OP PERSONAL PROPERTY. same should be entered in a separate list, at the end of the sale bill, and designated as : " Property not inventoried ; " or " prop- erty not mentioned in the inventory," or by some other per- tinent title.* In making sale the articles may be offered in such order, and in such quantities, as may seem best to the executor or adminis- trator, without reference to the method observed in making the inventory ; but in the sale bill care rrfust be taken to arrange the property in the order in which it stands in the inventory, for the convenience of those who may desire to compare the sale bill with the inventory. 1 * A credit of not less than three nor more than nine months must be given to persons purchasing to an amount exceeding three dollars ; and notes (38) or bonds, with at least two suffi- cient sureties, must be taken for all those who purchase on time. Great care is necessary in taking security, in order to exonerate the executor or administrator from liability in case of failure to collect the amount due upon any of the sale notes. Only by rigidly observing the requirements of the law, and receiving none but bail of undoubted solvency, will he be entitled to credit in his account for sale notes remaining in his hands un- collected and uncollectable. 1 c It is not necessary to specify in the sale bill whether money or notes were received from the several purchasers. It is a well settled principle of law that an executor or ad- ministrator can not purchase property sold by himself as such ; and that he acted in good faith and paid full value for such prop- erty will make no difference. 2 But such purchase, if ratified by all parties in interest, would then be valid. The sale bill being completed, the same must be signed by the (1) There is no doubt that an administrator, in disposing of the assets of the estate, without proper security for payment, was guilty of a breach of official duty, and for any damage or loss thereby occasioned to the estate under a proper administration of its assets by the administrator de bonis non, the prior administrator and his sureties would be liable. White, Adm'r v Moe et al., 19 Ohio St. 37, 41. (2) For numerous decisions sustaining this statement, see notes, p. 160. (a) \ 6084. (b) 6085. (c) % 6081, 6082, 6088. HOW SALE MADE, ETC. 85 clerk, and within six weeks from the day of sale returned by the executor or administrator into the office of the probate judge of the county in which letters were granted. 8 Should the first draft of the sale bill be rough, and in the opinion of the execu- tor or administrator unfit for filing, the' same may be copied, and such copy, being signed by Che clerk, will be to all intents and purposes an original sale bill, and may be filed as such. Before filing the sale bill the executor or administrator must make oath before the probate judge or some other officer autho- rized to administer oaths generally, that the same is in all re- spects correct, according to the best of his knowledge and belief; and a certificate of such oath must be indorsed upon or attached to such a sale bill (37). a ^ The executor or administrator should not fail to retain a copy of the sale bill, as he will have frequent use for it ; and after the original has been filed, it will be very inconvenient calling at the office of the probate judge each time that it may be necessary to refer to the same. Should the executor or administrator fail to return a sale bill within six weeks from the day of sale, the same compulsory measures may be resorted to, and he and his sureties will be lia- ble for any damage or loss resulting from his negligence, as in the case of his failure to return an inventory (18)(19)(20) (b) g 6087. 86 COLLECTION OF CLAIMS. CHAPTER V. RELATING TO THE COLLECTION OF CLAIMS, AND THE BRINGING OF SUITS IN FAVOR OF AN ESTATE. SECTION I. VARIOUS MATTERS CONNECTED WITH THE COLLECTION OP CLAIMS IN FAVOR OP THE ESTATE, AND THE COMMENCEMENT OP ACTIONS. Before proceeding to collect the debts due the estate, or to pay the claims against the same, the executor or administrator should procure a blank book, of suitable size, in which to make entries of the moneys by him received and disbursed in his trust capacity naming dates, persons, and amounts (39). Such book will be invaluable to him in many respects ; but more particu- larly at the time when he may desire to prepare his account for settlement with the court. It will also serve as a guide to those who represent him, in case of his death before final settlement of his account, in making report to the court of his progress in the administration. Much confusion frequently arises from the careless manner in which executors and administrators keep their accounts and papers. No order is observed ; no entries made from which to obtain a clue to their proceedings. The claims, vouchers, and other papers belonging to the estate are mingled inoMscrimi- nately with those belonging to the executor or administrator in- dividually ; and, in the event of his death before making final settlement, his executor or administrator will find himself wholly at fault in endeavoring to make such settlement for him. These things should not be so ; and no better test of th<- qualification* of an executor or administrator can be adduced, than the man- ner in which he keeps his books, papers, and accounts. Executors and administrators often rely upon obtaining from. MATTERS CONNECTED WITH, ETC. 87 the sale bill and inventory on file in the probate court, and the rtcurd of the proceedings in case of a sale of lands, the amount of a.^ets with which they are chargeable, and consequently neg- iect tj keep a minute of the moneys received by them in the scurse of their administration. But such papers and records are at bos., but imperfect guides, and never show the times when collections are made, nor the amount of interest received by the executor or administrator. Therefore, the only safe and reliable means by vhich an executor or administrator can avoid confu- sion ai d difficulty, is to keep a complete and accurate? record of uis proceedings in the manner suggested. Separata sn tries need not be made in the book proposed, of *he several amounts received for personal property sold at the ale. whether paid at the time of the sale, or at the expiration of the term of credit given, as the executor or administrator will be charged, en settlement of his account, with the amount of the sale bill in gross. But as he will be compelled to account for all interest received by him on moneys of the estate, he should be careful to note the several items of interest paid him upon sale notes : and so, in making collections, principal and interest should be entered in his book separately. If, upop making settlement with any person against whom the estate has a claim, it be ascertained that such person has a counterclaim of less, equal, or greater amount than the one in favor of the estate, the executor should take a receipt from such person for the entire amount of his claim, and charge himself, in his account, with the amount due from such person to the es- tate. By striking a balance, and receiving or paying the same, as the case may be, and charging or crediting himself with such balance only, the executor or administrator is liable to cause confusion in his accounts, and may subject himself to the annoy - anee of being called upon, by the heirs and others interested in the estate, for explanations, as well as to the trouble of appear- ing before the probate judge for the same purpose. But in allowing set-offs an executor or administrator should be careful not to receive any which were assigned to the holder of the same after the death of the decedent, unless the estate be so ample as to leave no doubt of its solvency. All legal claims against a deceased person, held previous to his death, by persons 88 COLLECTION OP CLAIMS. indebted to the estate, are proper matters of set-off against any claims held by the estate against them ; and this, although the estate be insolvent, and unable to pay creditors in full. But should there be a balance due any person holding such counter claim, after settlement with him, and should the estate be insol- vent, the executor or administrator must not pay such balance in full, but must leave the same for payment in the same propor- tion as other claims of the same class proved and allowed against the estate. As executors and administrators are liable upon their bonds for any loss that may result to an estate by reason of negligence or a want of proper diligence in making collections, a person administering an estate should be cautious in extending the time for the payment of claims in its favor. An executor or admin- istrator can not extend time with the sam^ liberality he might if the claims were his own, without incurring personal risk ; and it is always a sufficient reason for his strictness that he is acting as the representative of others, and his duty to them as well as to his sureties requires that he should proceed with promptness and discretion. 1 Particularly should an executor or administrator refuse to ex- tend the time for the payment of a note upon which there is bail, without the consent of the surety or sureties. He need not, it is true, make a demand of the principal debtor as soon as the note becomes due, in order to hold the sureties ; nor will the sureties be released if, after making a demand, the executor or administrator should not take immediate legal measures to collect the amount due on such note ; but to take money from a principal as a consideration for staying the collection of a note for a definite period, without the consent of the bail, will be fatal, and the bail will be released from further liability.* (1) But an executor or administrator is not bound to sue a debtor who is notoriously insolvent, nor bring suit upon a claim which he knows to be unjust, or upon which he is satisfied he can not recover. He is required to uct in such cases only as a man of sound discretion would if the business were his own. See also note 1, p. 84. (2) Bank of Steubenville v. Carrol's Adm'r, 6 Ohio, 207; Same v. Hoge MATTERS CONNECTED WITH, ETC. 89 Another reason for dispatch in making collections and com- mencing suits against persons indebted to the estate is to pre- vent claims from being bai'red bj limitation. An obligation in writing, such as a contract, bond, note, etc, (except an official bond), will remain binding for fifteen years from the time when the same becomes due or a cause of action accrues thereon. 8 A verbal promise to pay, and a book account, or other implied promise to pay, will remain valid for six years. b And the time will not cease to run upon the death of the person to whom a claim is payable, but will continue until the claim becomes barred, unless suit be brought thereon, or a new obligation oe entered into by the debtor. 1 But in case any part of the princi- pal or interest due upon a written instrument for the payment of money, or upon a verbal promise to pay, or upon a book ac- count or any implied promise, should be paid after the statute of limitations has commenced running, and before the claim has become barred, such promise in writing will be good for fifteen years, and such verbal or implied promise for six years, from the time of making such payment. A mere verbal promise to pay a debt barred by the statute of limitations will not be sufficient to revive the same, nor Avill it prevent the running of the statute. To make such promise ef- fectual, it must be in writing, and signed \)y the person making the same. An administrator has no control over the real estate of an in- testate except to sell it for the payment of debts, as will be hereinafter more fully explained; and can not lease or mortgage it; nor can he collect the rents that fall due from it after the death of the intestate, except the rents due upon a lease of the et al., 6 Ohio, 17; Findlay's EXTS v. Bank of U. S., 10 Ohio, 59; Farmers' Bank of Canton v. Eaynolds, IB Ohio, 84; McComb v. Kittridge, 14 Ohio, 348. (1) Granger's Adm'r v. Granger, 6 Ohio, 35; Coventry r. Atherton, 9 Ohio, 34. Niemcewiez v. Dayton's Adm'r, 13 Ohio, 271. See pp 125. 126. (a) 4980, 4984. (c) ? 4992. (b) 4981. 90 COLLECTION OP CLAIMS. , made by the decedent in his lifetime. 1 Executors are sometimes authorized by will, or b} T thoir peculiar relations to the real estate of the testator, to lease the same : as to the col- lection of rents due, their powers and duties are the same as those of administrators. When moneys, secured by a mortgage executed or assigned to the decedent in his lifetime, are paid to his executor or admin- istrator, the executor or administrator is empowered and di- rected by statute to release and cancel the mortgage:* should payment not be made, he is authorized to foreclose the mort- gage, or take possession of the mortgaged property, peaceably or by suit, in like manner as the decedent might do were he living. 11 Should the decedent have taken possession of such mortgaged premises in his lifetime, or should the executor or administrator take possession of the same after his death, either peaceably or by law, the executor or administrator will be seized of such mortgaged premises, until redeemed, in trust for the benefit of the persons interested in the estate. And any real estate held by an executor or administrator upon foreclosure of mortgage, may be sold for like purposes, and in like manner, as is pre- (1) The lands of an intestate descend at once to his heir, and the legal title vests in him, subject to the right of the administrator to sell the same for the payment of the debts of the intestate, in the manner proscribed by law. Therefore the rents of the lands of an insolvent intestate, accruing between the death of the intestate and a sale of the lands for the payment of debts by the administrator, belong to the heir and not to the administra- tor. Overturf v. Dugan, 29 Ohio St. 230. An administrator who, without authority, collects rents of his intestate's real estate, and uses them as assets in paying the debts of the estate, is lia- ble to the party entitled to such rents, and he may recover the amount thereof of the administrator in his representative character. Conger, Adm'r v. Atwood, 28 Ohio St. 134. As to widows right to rents of mansion- bouse, see note 1, p. 38. (a) 0071. (c) 6071. (b) '% 6070, C072. For rest of 6070, see p. 72. MATTERS CONNECTED WITH, ETC. 91 acribed by law for the sale of real estate of which the decedent died possessed. 1 Should an executor or administrator obtain a mortgage upon real estate from any person indebted to the estate, he should at once deposit it in the recorder's office of the county, for record, as it n\ay lose its preference as a lien by delaying such deposit* If the mortgage be upon personal property, it should be forth- with deposited with the clerk of the township, or, if made in the township in which the county seat is situate, with the county recorder. 15 Such chattel mortgage must be refiled within thirty days next preceding the end of one year from the date of the original fil- ing, and an affidavit staling the interest of the mortgagee in the property at the time of refiling, must be indorsed thereon, if for any reason the debt secured by such mortgage be not paid by that time. c Should an executor or administrator take notes from persona indebted to the estate upon book account, or any other species of claim, he should make them payable to himself as executor or administrator of the decedent, and to his successors in office, or in trust, or in the administration (41), to indicate that such notes are the property of the estate, and not of the executor or administrator. 2 Should there be money due a decedent upon a contract for the sale of land, an executor or administrator can not, in some in- stances, bring suit to recover the amount without first tendering the purchaser a valid deed ; and such deed can not be made un- (1) A mortgagee, by making his debtor his executor, does not thereby ex- tinguish the mortgage, but the same may be foreclosed by an administrator de bonis non. Collard's Adm'r v. Collard et al., 17 Ohio, 284. (2) In McCoy u. Kercheval's Adm'r, 7 Ohio (pt. 1), 268, it was held that where a note is made payable to A. B., ' administrator of C. D., deceased," and A. B. dies, his administrator must sue to recover the amount of the note, and not the administrator de bonis non of C. D. But an admio.strator may sue, as such, in all cases where the money, if recovered, would ba as- sets. Howard's AdnVrs v. Powers, 6 Ohio, 92. [a] i4133. ( b) ft 4150,4151. 92 COLLECTION OP CLAIMS. til an order of the probate or common pleas court has been ob- tained in the manner ti-eated of in Chapter XII. of this volume. AM executor or administrator can not maintain an action fora trespass upon the lands of the decedent, nor for overflowing the same by means of a dam, nor for waste, when the injury and nght of action accrues after the death of the decedent, unices the possession of the premises is given him, either expressly or constructively, by will. Nor can an executor or administrator bring suit upon the covenants of warranty in a deed, unless the breach occurred previous to the death of the decedent. The real estate of the decedent descends, at his death, to the heirs or devisees ; and with it, and with causes of action springing from it after that time, the executor or administrator has nothing to do, unless by virtue of some power conferred by will, or it is needed to pay debts of the decedent which can not be satisfied from his per- sonal property. The executor or administrator may, in general, bring suit upon any personal contract of the decedent, to recover for any breach of the same either before or after his death. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had riot ensued) have entitled the party injured to maintain an action and recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, will be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to murder in the first or second degree, or manslaughter. 8 Every such action must be for the benefit of the wife or hus- band and parents and children, or if there be neither of them, then of the next of kin, of the person whose death shall be so caused, and it must be brought by and in the name of the per- sonal representative 1 of the person deceased ; and in every such (1) Under the statute of March 25, 1851, entitled "an act requiring com- pensation for causing death by wrongful act, neglect, or default," an action (a) 6134. MATTERS CONNECTED WITH, ETC. 93 action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the may be maintained by the administrator of the estate of a deceased person for the benefit of the next of kin of the deceased, though he leave no widow or children, and though the petition do not contain a statement of spec : al circumstances rendering the death a pecuniary injury to them. Such special circumstances can affect only the amount of the recovery. Lyons' Adm'rt;. Cleveland and Toledo R. R. Co., 7 Ohio St. 336. In an action by the administrator of a woman killed by the carelessness of a railroad company, the petition alleging and proof showing that the de- ceased left a son as her sole surviving heir, it was held that the fact of such child's legitimacy or illegitimacy can in no respect affect the right of action in his behalf. Muhl's Adm'r o. Michigan Southern R. R. Co., 10 Ohio St. 272. An administrator appointed in this state can not maintain an action in the courts of this state, under a statute of the State of Illinois, authorizing the personal representative of a person who comes to his death by the wrongful act, neglect, or default of another, to maintain an action against such other for damages, for the benefit of the widow or next of kin of such deceased person. Woodard's Adm'x v. Michigan S. & N. I. R. R. Co., 10 Ohio St. 121. An instruction to the jury calculated to mislead, either as to the real issue in the action or as to who are the beneficiaries therein, is error. Steel v. Kurtz, 28 Ohio St. 191. The amount of damages (within the limit of the statute) arc to be ascer- tained by the jury from the proofs in the case, and are to be a fair and just compensation to the widow or next of kin, with reference to the pecuniary injury resulting to the beneficiary from such death. Ib. In such action, the jury, in assessing the damages, are limited to giving pecuniary compensation for injuries resulting to the beneficiaries in the ac- tion on account of the death of the deceased. No damages can be given on account of the bereavement, mental suffering, or as a solace on account of such death. Ib. In determining the pecuniary injury resulting from the death, the reason- able expectation of what the next of kin might have received from the de- ceased, had he lived, is a proper subject for the consideration of the jury. Grotenkeinper . Harris, 25 Ohio St. 510. For the amount recovered in such action is for the exclusive benefit of the widow and next of kin, and is to be distributed among them in the propor- tions provided by law in relation to the distribution of personal estates of persons dying intestate. The risk of ascertaining the persons entitled to the benefit of the recovery, and the duty of making the distribution, are not imposed on the defendant, but on the personal representatives of the de- ceased. ( Besides, if the widow and next of kin could recover in their 91 COLLECTION OF CLAIMS. pecuniary injury resulting from such death, to the persons, re- spectively, for whose benefit such action shall be brought ; and own names a joint judgment against the defendant, the judgment might be satisfied by payment to either of the plaintiffs, and thus defeat the distribu- tion required by the statute.) Weidner v. Kankin, 26 Ohio St. 522. In an action by the personal represe native, under the statute of 1851 (S. & C. 1139, 1140), to recover damages for causing by wrongful act and neg- lect the death of- a woman, who died intestate, leaving a husband, but no children or their legal representatives : Held, the surviving husband is, within the meaning of said act, the next of kin, and as such entitled to the fruits of any judgment obtained in the action. Steel v. Kurtz, 28 Ohio St. 191. While the proceeds of a judgment recovered in an action under this statute are directed to be distributed to the beneficiaries of the judgment in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate, the money realized is not to be treated as part of the general estate of the intestate. The personal repre- sentative in whose name the action is brought is a trustee of the fund, and must distribute the proceeds of the judgment to those to whom the general personal estate would descend, according to the course of the statute of de- scents and distribution. Ib. The act of May 25, 1851 (S. & C. 1139), allowing an action by the repre- sentatives of a party whose death was caused by the wrongful act of an- other, docs not extend to cases where the wrongful act which caused the death was committed outside the State of Ohio. Hover, Adm'r, v. Penn- sylvania Co., 25 Ohio St. 667. "Where an action for damages for wrongfully causing death was brought by the widow and next of kin, instead of by an administrator, and one of the plaintiffs having been appointed administratrix, and the court, after judgment, having ordered that she be made a plaintiff as such administra- trix : Held, a good petition must contain a cause of action in favor of the plaintiff, and where it does not show such cause of action, the objection is not waived by the failure of the defendant to demur, although the facts stated may constitute a cause of action in favor of a person not a party to the suit. Weidner v. Kankin, 26 Ohio St. 522. Under the act requiring " compensation for causing death by wrongful act, neglect, or default," etc., persons who had no legal claim for support upon the deceased may, as next of kin, have an action maintained for their benefit, to recover the compensation allowed by the statute. Grotenkemper v. Harris. 25 Ohio St. 510. The right to bring an action under the act of March 25, 1851, for the death of a person caused by wrongful act, neglect, or default, is vested in the personal representatives of the deceased ; and the widow and next of MATTERS CONNECTED WITH. ETC. 95 the amount recovered, after deducting the costs and expenses chargeable to such representative, must be divided among the before mentioned persons in such proportions as the jury by their verdict may find and direct. 8 When there is money due the decedent for labor dene, or for materials or machinery furnished, for constructing, altering, or repairing any building, bridge, or water-craft, or any street, turnpike, sidewalk, drain, ditch, sewer, etc., by virtue of a con- tract between him and the owner of the property benefited, or any contractor or sub-contractor under such owner, it is the duty of the executor or administrator to take a mechanics' lien upon such property to receive such money. The provisions of' law relating to such liens are given in Chapter XIV., Section II. kin can not maintain such action in their own names. "Weidner v. Rankin, 26 Ohio St. 522. Under the " act requiring compensation " for causing death by wrongful act, neglect, or default (S. & C. 1139, 1140j, which gave a right of action, provided such action should be commenced within two years after the death of such deceased person, the proviso is a condition qualifying the right of action, and not a mere limitation of the remedy. The amendment and re- peal of the section containing the proviso, during the existence of the right of action, and the omission of the proviso in the section as amended, did not have the effect of extending the time within which the action should have been brought. P., C. & St. L. Ky. Co. r. Hine's Adm'x, 25 Ohio St. 629. In an action under the "Adair liquor law" (67 Ohio L. 101). for injury to means of support, in consequence of intoxication, which caused the death of the intoxicated person, damages resulting from the death can not be recov- ered. Davis v. Justice, 31 Ohio St. 359. For other cases bearing on this subject, see notes 5--1G, pp. 337-339; n-.'te 1, p. 172; also Bradley. Adin'r, v. Northern Transportation Co., 15 Ohio Jrt. 553; Meara's Adm'r r. Hoi brook et al.. 20 Ohio St. 137 ; C. C. & C. R R. Co. v. Crawford. Adm'r, 24 Ohio St. 031 ; McClardy's Adm'r r. Chandler, 2 W. L. G. 1 ; Hall's Adm'r v. Crain. 2 W. L. M. 137, and 2 W. L. M. 593; Such's Adm'r r. C. C. & C. II. R.. 2 W. L. M. 486; Groff's Adm'r r. C. & I. R. R., 1 C. S. C, R. -JG4 : Monley v. C. H. & D. R. R., 1 H. 481, 490; Campbell's Adm'r r. Rogers, 2 H. 110 ; Lawton v. Manilla, 2 C. S. C. R. 82; Van Camp r. Aldrit-h & Co.. 2 A. L. R. 454; Mason r. Shay, 1 A. L. R. 553; Dunhene's Adm'r r. (). L. & T. Co., 1 D. 257; Berea Stone Co. r. Kraft, 31 Ohio St. 287; R. R. v. Fitzpatrick, 31 Ohio St. 479; R. R. v. Peo- pies, 31 Ohio St. 537. (a) g 6135. 96 COLLECTION OP CLAIMS. Actions for libel, slander, 1 malicious prosecution, assault, or assault and battery, for nuisance, and against a justice of the peace for misconduct in office, abate upon the death of either party. a In other actions, as for mesne profits, for an injury to real or personal property, 2 for fraud or deceit, for money due, for the recovery of personal property, and many others, 1 ' tlu> action survives the death of either party, and the executor or administrator of a party in whose favor or against whom such actions are pending, should cause himself to be made plaintiff or defendant, as the case may be, in order to prosecute or defend the same. As this will involve the necessity for employing an attorney, it is not necessary here to point out the method by which an executor or administrator may be made a party to euch suits. Should there be a judgment in favor of a decedent which has become dormant, the same may be revived in favor of the ex- ecutor or administrator ; c but as this, also, will require the ser- vices of an attorney, it will be unnecessary to detail here the manner in which such revivor may be affected. An executor or administrator can not bring suit to recover upon a book account, note, or receipt, against any heir of the deceased, for advancements made to him in the lifetime of the deceased. Such advancements must be adjusted in the final dis- (1) In Dial's Adm'r v. Holler, 6 Ohio St. 228, it was held that where the defendant, in an action for libel and slander, died after verdict, but before judgment, the action did not abate, but judgment upon the verdict could be entered after his death. (2) In M. E. Church of Dayton v. Bench's Adm'r, 7 Ohio St. 369, it was held that where the injury to property resulted after the death of the dece- dent, from negligence or default on his part in his lifetime, no action could be maintained against his administrator, as no specific wrong was suffered from the decedent's acts in his lifetime, and there was no cause of action to survive his decease. Personal torts which die with the person are not as- signable. Grant v. Ludlow's Adm'r et al., 8 Ohu. St. 1. (a) 5144. See also p. 92. (b') $ 4975, 5012, 5145, 6147, 6323, 5675, 5679, 5687, 5628, 5629, 4517. (( $ r>:ttjf>-5371, 5685. MATTERS CONNECTED WITEI, ETC. 97 tribution of the estate, and in no event can they be assets in the hands of the executor or administrator. 1 Where the deceased, in his lifetime, was bound as surety tor another, upon a bond, bill, note, or other evidence of debt, and the same has become due and payable, his executor or ad- ministrator may require the creditor, by notice in writing, 2 forth- with to commence an action against the principal debtor or debt- ors ; und, thereupon, should the creditor fail to proceed with proper diligence to make the amount due upon said claim, the liability of the deceased as surety thereon will cease. On the other hand, should there be a written evidence of debt, with per- sonal security thereon, in the hands of an executor or adminis- trator, and should the surety give him s a like notice to proceed by judgment and execution to collect the amount of the claim from the principal debtor or debtors, the executor or administrator must forthwith institute legal proceedings thereon, or such surety will be released, and the executor or administrator will become personally liable to the estate for his neglect.* Nothing contained in the preceding paragraph shall be so con- strued as to affect bonds required by law to be given by execu- tors, administrators, public officers, or any bond or undertaking required by law to be given in an action or legal proceeding, in any court of this state. b (1) See Chapter VIII., Section II. (2) In order to discharge a surety from liability, such written notice must contain an unconditional requirement to commence an action forthwith ; and a notice that the surety " wishes" the creditor " to proceed against the principal debtor" and " collect the claim, or have it arranged in some way," and that the surety " does not wish to remain bail any longer," is not suffi- cient. JJaker et al., Adm'rs, v. Kellogg et al., 29 Ohio St. 663. See also Head- ington v. Neff, 7 Ohio, 229; Jenkins v. Clarkson, 7 Ohio, 72. (3) Where the claim is in favor of an estate, and there are several ad- ministrators or executors, a service of notice upon one of them is sufficient. Baker et al., Adm'rs, v. Kellogg et al., 29 Ohio St. 663. (a) 5 5833, 6834. (b) 2 6835. 7 98 COLLECTION OF CLAIMS. SECTION II. THE DISPOSITION OP DESPERATE CLAIMS ; AND THE ALLOWANCE OF FURTHER TIME TO COLLECT ASSETS. Should any claim, debt, or demand belonging to an estate, which existed at the time of the death of the decedent, become desperate in the hands of the executor or administrator, on ac- count of the actual insolvency or doubtful solvency of the per- son or persons indebted, or on account of such debtor having availed himself or herself of the bankrupt law of the United States, or by reason of a legal or equitable defense claimed by such debtor or debtors, and shown to exist against the same ; or, on account of the small ness of such claim, and the difficulty there may be in collecting the same, owing to the remoteness of the residence of such debtor or debtors, or because his or their place of residence may be unknown to the executor or adminis- trator, the executor or administrator may make proof to the pro- bate court (42) of the existence of one or more of such reasons, and the court may order (44) that such claim, debt, or demand shall be compounded with the debtor or debtors, or be sold, or be filed in such court for the benefit of his heirs, devisees, or such of the creditors of the deceased us will sue for or recover the same the creditors to be preferred, if they apply for such claim before the final settlement of the estate. The order of the court in such case will be a sufficient voucher to the executor or administrator, and will exonerate him from making any further effort to collect such claims. 8 Should any claims or demands exceed the sum of ten dollars, or should they all in the aggregate exceed the sum of five hun- dred dollars, the executor or administrator must give notice (43) of his intention to apply to court for an order in relation to the same, by publication in a newspaper of general circulation in the county, for at least three consecutive weeks prior to the time of making such application. But if the claims are numerous, they need not be described in such notice. b (a) | 6077. (b) \ 6078. DISPOSITION OP DESPERATE CLAIMS, ETC. 99 If the court order a sale, notice of the time and place of sale (45) must in like manner be published, for at least three consecutive weeks before the da}' of sale ; and at the time ap- pointed the claims must be sold to the highest bidder, if any bids are offered (46) ; but the court may, in its discretion, order a private sale (1-1) of such debts and demands, in like manner and for like reasons (119) (120) as provided for the private sale of goods and chattels; 1 and if tbe court authorize the com- pounding of such claims, or any of them, the court must in the order fix the sum for which the same may be compounded (44).* Though the law seems to make no provision for it, yet the pro- bate judge may require proof of such publication to be made in the same manner as such proof is made in case of sale of real estate to pay debts; 2 and whether so required or not, an affida- vit (71) concerning such publication for the required number of weeks should be made and filed in the court, as a matter of pre- caution against future contingencies. When any debtor of a deceased person is unable to pay all his debts', the probate court may authorize the executor or admin- istrator to compound with him, and give him a discharge upon receiving a just and fair dividend of his effects, or such- other part of the amount due as the court may deem best for the in- terests of the estate. b An executor or administrator is required, so far as he is able, to collect the assets of the estate within one year from the date of his bond. If, on account of claims belonging to the estate which are not due, or the pendency of suits in favor of the estate, or for any other cause, more than eighteen months' time from the date of the administration bond should be required to collect the assets of the estate, the executor or administrator must file his motion (47) in the probate court of the county, for an extension of time. This motion must be supported by the affidavit (47) of (1) See Chapter IV., Section I. (2) See Chapter VII., Section I. (a) 6079. (c) I 6062. (b) ? 6073. 100 COLLECTION OF CLAIMS. the applicant, setting forth the reason why an extension of time is necessary ; stating also the amount of moneys applicable to the payment of debts remaining in his hands ; and that he has used due diligence to collect the assets and pay the debts of the 3state. a It the probate judge be satisfied that the reasons contained in the motion and affidavit really exist, he may extend the time for collecting such assets for an} 7 period not exceeding one year (48). Should cause for further extension exist at the expiration of the time allowed, another motion and affidavit must be filed, in or- der to obtain such additional time. b The probate judge is not authorized by law to allow further time for the collection of assets, after the expiration of five years from the date of the administration bond; nor can he, legally, at any time, extend the time of collection, if the estate be solvent, and the executor or administrator have more than one hundred dollars in his hands subject to the payment of the claims of creditors. 5 The time allowed executors and administrators relates to the collection of assets only, and does not exempt them from filing accounts at the times prescribed by law, nor from being cited in case of failure to file the same. In some of the probate courts of the state a rule has been es- tablished, that time will not be allowed an executor or adminis- trator, in any case, until an account has been filed showing that he has used due diligence in collecting and disbursing the assets of the estate. This is an excellent regulation, and should bo adopted by every probate judge in the state. The office of executor or administrator does not cease at the expiration of the five years beyond which the probate court can not extend the time for the collection of assets, but his powers continue until the estate is finally settled, unless ter- minated by his death, resignation, removal, or the revocation of his letters. He, or his successor, is the only person who can collect assets of the estate which were disposed of by will, for life only, to (a) 6063. 6064. (c) \ 6067. (b) $6065, 6066. DISPOSITION OP DESPERATE CLAIMS, ETC. 101 some legatee, or held as a homestead during the minority of a child, or which, for other reasons, were beyond his control 01 knowledge for a long term of years, even though, in the mean- time, he should have made a settlement with the court. The heirs or creditors entitled to such assets, can get them, by law, only through him. 1 (1) Davis et al. v. Corwine et al., Ex'rs, 25 Ohio St. 668, 674 ; Taylor et 1. v. Thorn, Adm'r, 29 Ohio St. 669. 102 PAYMENT OP DEBTS AND LEGACIES. CHAPTER VI. RELATING TO THE PAYMENT OF DEBTS AND LEGACIES. SECTION I. IN WHAT ORDER CLAIMS AGAINST AN ESTATE MUST BE PAID ; HOW SUCH CLAIMS MUST BE AUTHENTICATED; HOW AND WHEN SUIT MAY BE BROUGHT AGAINST AN EXECUTOR OR ADMINISTRATOR, ETC. It is the duty of every executor and administrator to proceed with diligence to pay the claims existing against the estate which he administers. 1 The personal assets in his hands must be applied in the following order : a First. To the payment of the expenses of the last sickness and funeral of the deceased, and the costs of administration. The expenses of the last sickness will include physician's bills, medicine, nursing, and such other expenses as were incurred es- pecially for the benefit of the decedent during his last illness. The expenses of the funeral will include a coffin, digging the grave, use of a hearse, carriages for the family when necessary, grave clothes, and such other expenses as may be incidental to burying the deceased in accordance with his condition and cir- cumstances in life. (1) In case an executor or administrator receive bank bills in the course of his administration, and fail to pay them over to creditors or heirs as rap- idly as the condition of the estate will allow, he will become personally liable for the loss, in case they should become worthless in his hands. An administrator is more than a representative of the. decedent, but is also a trustee for the creditors, and entitled to assert their claims against fraudulent contracts, even it'thes.,- were binding uii lb> deeedout. Kilbourne v. Fay, 29 Ohio St. 264, '27!>. (a) ? 6090. But see 89 O. L. 78, " Fifth." ORDER OP PAYMENT OF CLAIMS. 103 The costs of administration will include probate judge's fees connected with the appointment, recording inventory and sale bill, fees upon petition to sell lands, or petition to complete con- tract, fees upon final account, etc.; the fees of the appraiser!- of real or personal property; fees of the auctioneer and clerk of the sale ; printer's :ees for giving notice of appointment and sale ; attorney's fees ; costs which may be adjudged against the estate in any suit necessarily brought by the executor or admin- istrator, or in any suit brought against him as such (except upon a citation to settle, or other suit brought on account of his de- fault or wrongful acts) ; expenses of cutting, threshing, and hauling grain; commission of the executor or administrator; and all other expenses necessarily incurred >n settling the estate of the decedent in a discreet and lawful manner. But the mourning clothes of the widow and children are not expenses of administration, and can not lawfully be paid by the executor or administrator. The expenses of the last sickness and funeral of the deceased, and the cost and expenses of administration, are of equal rank, and are entitled to payment in preference to all other claims against the estate, even though the entire per- sonal estate of the decedent should be required for that purpose. Second. To the payment of the allowance made to the widow and children for fheir support for twelve months. This claim is next in the order of preference, and is entitled to pay- ment before any portion of the claims comprehended within the classes which follow. 1 Third. To the payment of debts entitled to a preference under the laws of the United Spates. - This will comprehend all clai.ns held by the United States against any person residing within this state, or upon whose - tate administration has been granted within the state. But an executor or administrator will not be bound for the payment of such claims out of 1 the assets in his hands, unless they are' pro- sen ted, and satisfactory proof of their validity is made to him as in other cas Fourth. To the payment of public rates and taxes, and sums due the state for duties upon goods sold at auction. (1) See note 1, p. 67. (2) See IT. S. Rev. Stat. \\ 3466, 3467; also, Giauque's Manual for As- signees, pp. 24'?-'_'44. 104 PAYMENT OF DEBTS AND LEGACIES. An executor is bound by law to list and pay the taxes upon both the real and personal estate of a decedent in his possession or under his control by virtue of a will, and failing so to do he will be liable to an action by the devisee or devisees for any dam- age occasioned by his neglect. 1 * An administrator is bound to pay taxes which accrued upon the real or personal estate of the decedent, and were payable in his lifetime, 2 and upon the per- sonal estate in his hands as administrator. 1 * But he is not author- ized to pay the taxes levied upon the real estate of the decedent after his death, 3 unless such real estate be needed for the pay- ment of debts. Fifth. To the payment of every other class of debts. 4 The personal assets are to be applied in the order just indi- cated, as far as they will reach. The creditors of any of the foregoing classes are not entitled to payment until those of all the preceding classes are paid; and should there not be sufficient assets left to pay all the creditors of any particular class, after payment of the classes which precede, all the creditors of that class are to be paid ratably, in proportion to their respective claims." But should any creditor have a chattel mortgage, levy, or other lien upon the personal estate of the decedent, which he obtained in the lifetime of the decedent, such lien will remain good, and such creditor may require that the same shall be satisfied, or that the proceeds of the sale of such property shall be applied, (1) Where three executors of an estate reside in the same township two of thorn within the corporate limits of a village, the other without such limits, and the three have possession, in law, of the taxable moneys, credits, bonds, and stocks of the estate, the same must, in view of the equities and analogies of the statute (which does not expressly provide for such case) be entered for taxation one-third as of the place of residence of each executor. Ohio ex rel. Harkness et al. v. Matthews, Auditor, etc., 10 Ohio St. 431. (2) In such case the tax is a debt of the estate, and if the administrator have not personal assets to pay for the same, he may apply for an order to sell lands for that purpose. Welsh et al. v. Perkins et al., 8 Ohio, 62. (8) Piatt v, St. Glair's Adm'rs et al., 6 Ohio, 227. (4) For changes in law, see 80 O. L. 78. (a) ?? 2845, 2847, 2849, 2851. (c) 6090. ,1,. jjl'734. ORDER OF PAYMENT OP CLAIMS. 105 BO far as they may reach, in payment of his claim, before per- mitting such property to be administered according to law. 1 a Should all the assets be exhausted in paying preferred claims, and should the administrator thereupon make settlement with the court, such settlement will be a bar to any action brought by a creditor who is not entitled to a preference,' although the estate may not have been declared insolvent. 2 b The moneys arising from the sale of real estate are to be ap plied as follows : First. In payment of the costs and expenses of the sale* These include the fees of the probate judge, sheriff, justice of the peace for swearing appraisers, printer, attorney, surveyor, the percentage and charges of the administrator upon the sale, and other necessary expenses growing out of the petition for the eale and the proceedings had in pursuance of the same. Second. To the payment of mortgages, judgments, and other liens upon the real estate sold, in the order of their priority, which is to be determined by the court granting the order of sale. 3 The residue of such moneys is to be applied in payment of (1) A creditor can not, however, by making a levy subsequent to the death of his debtor, under a judgment obtained against him before his death, obtain a lien upon either hi* personal or real estate in preference to other creditors. Lessee of McCartney v. Reed. 5 Ohio, 221. And a sale made by virtue of such levy is void. Lessee of Massie's Heirs v. Long et al., 2 Ohio, 287. Upon the death of a debtor, his estate, of whatever de- scription, stands for the payment of all his general creditors alike; and one creditor can not, by superior diligence, acquire a superior right to any part of the estate. McDonald et al. r. Aten et al., 1 Ohio St. 293. But if the debtor die after execution is issued- and levied, the execution proceeds as if the death had not taken place. Lessee of Massie's Heirs v. Long et al., 2 Ohio, 287. (Or Vol. 1-2, p. 412.) (2) See also pages 10r>. KU, 181, 119. (3) In Bank of Muskingum v. Carpenter's Adm'r, 7 Ohio (pt. 1), 21, it was held that the purchasers of land at administrator's sale took the same discharged of liens, and that the holders of liens must look to the adminis- trator and his sureties for the faithful application of the purchase-money. See also Stiver's Adm'r v. Stiver's Heirs et al., 8 Ohio, 217; and Miller** Ex'rs j;. <7reenham's Adm'x et al., 11 Ohio St. 48G. (a) ? 6091. (b) 6112. 106 PAYMENT OF DEBTS AND LEGACIES. other claims against the estate, in the order prescribed for the appropriation of the personal assets. 1 a Unless the solvency of an estate is beyond all doubt, the ex- ecutor or administrator should not pay any of the ordinary clairr.3 against the same until the expiration of one year from the time of giving the notice of his appointment; after which, if the property in his hands, subject to the payment of debts, should be sufficient to pay all the claims against the estate of which he has notice, he is authorized by law to proceed to the pay- ment of the ordinary debts, and will not be liable, in case claims should subsequently be presented amounting to more than the balance of the assets in his hands; 2 as will be more fully ex- plained in the sequel of this section. b But should the executor or administrator, at the expiration of the year, have notice of claims amounting to more than the value.of the real and personal estate of the decedent, he should at once represent the estate to the probate court as insolvent, and take measures accordingly. The preferred claims against the estate will not be affected by its solvency or insolvency, and the executor or administratoi may proceed with entire safety (and it is indeed his duty) to pay them, in ihe order of priority before indicated, out of the first moneys that come into his hands. And, as before observed, the estate need not be represented insolvent, in case the assets will not more than suffice for the payment of the preferred claims. 4 (1) In equity the proceeds of lands directed by will to be sold are treated as personal estate. Collier v. Collier's Ex'r, 3 Ohio St. 369 ; Ferguson et ux. v. Muart's Ex'r, 14 Ohio, 140; Brewster et al. v. Benedict et al., 14 Ohio, 368. (2) If the estate be insolvent, the administrator pays at his peril ; and if he pays any one creditor more than his due proportion, he does so in his own wrong, and is liable to the unpaid creditor for his proportion of the assets applicable to the payment of the debts of the estate. Abbott's Ex'rs v. Cole's Adnvrs, 5 Ohio, 86. But an administrator who has paid a creditor more than his share of the assets applicable to the payment of claims of his grade, may recover back the excess, as for money of his own paid by mis take Rogers v. Weaver, 5 Ohio, 536. (a) 6165. (b) 6109. . Warden*, 20 Ohio, 518; Miller's Ex'r v. Miller, 16 Ohio St. f>-27 ; Bettle v. Wilson, 14 Ohio, 257, 269; Thomas v. Brown, 10 Ohio St. 247. (3) When the probate judge has approved the referees, his duty and au- thority in the matter end. The reference must be perfected, and the refereea report to the common pleas court, where the matter is disposed of. Ander- son v Baker, 15 Ohio St. 173. (a) \ 6092. (b) I G093. 108 PAYMENT OF DEBTS AND LEGACIES. Should the amount of the claim so referred not exceed one hundred dollars, the agreement of reference, with the approval of the referees, may be filed with a justice of the peace to be selected by the parties (who, if the parties desire it, may be the one who approved the referees) ; and such justice is required by law to docket the cause, appoint a day for trial, issue a-citation for the referees (53), and also subpenas for the witnesses ; jind upon the trial the manner of proceeding must be in all respects the same as is provided for arbitration before justices of the peace, except that if judgment be rendered against the executor or administrator for debt, damages, or costs, it must be rendered and execution issued thereon as in actions against executors or administrators. 8 The law governing such arbitrations is as follows : When the arbitrators shall convene and be qualified, they shall proceed to hear and determine the cause, and make out their award in writing, which shall be valid when signed by any two of them, and return the same to the justice, who shall there- upon enter such award on his docket, and thereon render judg- ment and issue execution, as in other cases. b "And every judgment entered on such award shall conclude the rights of the parties thereto, unless it shall be made to appear to the justice of the peace who rendered such judgment, and within ten days from the rendition of the same, or to the court of common pleas, on appeal, that such award was obtained by fraud, corruption, or other undue means. c " Whenever satisfactory proof shall be adduced before such jus- tice, within the period aforesaid, that such award was obtained by fraud, corruption, or other undue means, it shall be compe- tent for such justice to set aside such award and his judgment thereon rendered, and thereupon proceed to such final trial and judgment, as if such award had never been made. d " But no appeal shall be allowed to the court of common pleas, from any judgment of a justice of the peace rendered on an award, unless the party praying such appeal shall file with such justice an affidavit, therein stating that he or she does verily (a) I 6094. (c) 6568. (b) 6667. (d) g 6569. ARBITRATION OP CLAIMS. 109 believe that such award was obtained by fraud, corruption, or other undue means. 8 "And if on appeal from the judgment of a justice rendered on any such award, the court of common pleas shall be satisfied that the award was obtained by fraud, corruption, or other undue means, such court shall set aside the award, and proceed to hear and determine the cause on its merits, as in other cases of ap- peal^ ' But if the said court shall be of opinion that the award was not obtained by fraud, corruption, or other undue means, they shall render judgment thereon, and for the costs of suit, and award execution as in other cases." The arbitrators are entitled to fifty cents each per day ; to be taxed and collected with the other costs of suit. d If the claim referred to arbitration exceed one hundred dol- lars in amount, the agreement of reference, with the approval of the referees by the probate judge indorsed thereon, must be filed with the clerk of the court of common pleas of the county in which letters were issued, and it thereupon becomes the duty of the clerk to docket the cause, and enter a rule referring the mat- ters in controversy to the persons agreed upon (54). This rule may be entered during vacation or in term time, and rests solely within the province of the clerk. 6 The referees must thereupon proceed to hear and determine the matter, and make their report (55) thereon to the court of common pleas ;' and the same proceedings may be had before said referees, in all respects ; they shall have the same powers, be entitled to the same compensation, as if the reference were made under the provisions made for arbitrations under a rule of the court of common pleas ; and the court may set aside the re- port of the referees, or appoint others in their places, or confirm such report (56). and adjudge costs, as in actions against exeeu- (1) Anderson v. Baker's Adm'r, 15 Ohio St. 173. (a) 6570. (d) ?? 6564, 6566. (b) 6571. (e) g6095. 77. (1) Welsh et al. v. Perkins et al., 8 Ohio. 52; Thompson's Adm'r v Thompson et al. 4 Ohio St. 333. (2) In Bank of Muskingum v. Carpenter's Adm'rs et al., 7 Ohio (pt. 1), 21, 70, it was held that if an administrator has notice of a claim against the estate by a writ of scire facias, sued out upon it. he is not justified in dis- tributing the assets of the estate among tiie other creditors, \viUiout regard- ing such claims, although n<> special demand of payment was made. (a) \ 010 J. ESTATE REPRESENTED INSOLVENT, WHEN. 119 manner just mentioned, the entire estate and effects of the dece- dent, before receiving notice of the existence of any other claims against the estate, he will not be required to represent the estate as insolvent after receiving notice of such further claims ; but in case suit should be brought against him thereon, may plead that he has fully administered; and, upon proving that the entire es- tate was legally applied to the payment of the debts presented within the year, will be entitled to a discharge.* Should the executor or administrator have paid away, in liqui- dation of claims presented within the year, so much of the estate and effects of the decedent that the remainder will be insufficient to satisfy any demand of which he may afterward receive notice, he is required by law to pay on such last-mentioned claim only the balance of the estate in his hands; and if two or more claims be presented after the expiration of the year, which together exceed the balance of the assets remaining in his hands, he may represent the estate to the court as insolvent, and pay over to the creditors who prove their claims under the commission of insol- vency, their respective proportions of such balance, in accord- ance with the order of the court with reference thereto. 1 b Creditors previously paid in full within the year can not be compelled to refund any portion of the several amounts received by them, on account of the presentation of such dilatory claim. b But if the entire estate has been paid away in settling the pre- ferred claims, the estate need not be represented insolvent, no (1) It will bo observed that there is a contingency which may arise under this branch of the law, that is not provjded for. The law seems to presume that ALL the creditors who presented their claims within the year have been paid before the executor or administrator receives notice of subsequent claims, and therefore directs him to pay on such subsequent claims "only so much as may then remain in his hands." Suppose, however, that when he receives notice of the existence of other claims, he has paid only a portion of the creditors whose claims were proved within the year, and that he still has in his hands the money with which he intends to pay the residue of such diligent creditors, can those who presented their claims after the expiration of the year claim & pro rata share of all the assets remaining in the hands of the executor or aduinistrator, including that portion with which he in- tends paying the diligent creditors? (a) 6110. (b) 6111. 120 PAYMENT OP DEBTS AND LEGACIES. matter how many unpreferred claims are presented ; and in an? action against the executor or administrator on such unpreferred claims, this fact can be pleaded and will be a complete defense. 1 Should the executor, or administrator have given notice of his appointment, according to law, a suit can not be maintained against him, by a creditor of the decedent, after the expiration of four years from the date of the administration bond, 2 except in the following cases: First. When assets subsequently come into his hands, in which case he must account for and apply the assets so received in like manner as if received within four years; and he will be liable to be proceeded against by or for the benefit of creditors, on account of such newly-received assets, as if the same had come into his hands within the four years ; provided, however, that such action or proceeding be commenced within one year from the time when the creditor receives notice of such addi- (1) As to what are preferred claims, see first few pages of this chapter. (2) Although further time be allowed an administrator to colle6t the as- sets of an estate, suit must still be brought upon claims against the estate, within four years from the date of the administration bond. Gilbert's Adm'r v. Little's Adm'r. 2 Ohio St. 156. Where a creditor takes from hia debtor a note, and also a mortgage on real estate to secure the same, and the debtor afterward dies, and an action against his personal representative be- comes barred by the lapse of time, under section iO;i of the administration act: Held, that the creditor may, nevertheless, have his remedy in equity on the mortgage. Fisher's Ex'r v, Mossman et al., 11 Ohio St. 42. Where a devisee or legatee accepts a devise or bequest charged by the will with the payment of the debts of the testator, the law imposes on the devisee or le- gatee a personal obligation to pay such debts; and in an action to enforce such personal obligation, the fact that the devisee or legatee is or id not also executor of the wi'l makes no difference in the cas".. In such case the stat- ute limiting actions against executors and administrators to four years does not apply. Fuller v. McEwen, 17 Ohio St. 288. The four yetr.s' limitation applies to an action instituted on a guardian's bond; and the disability ol infancy will not save the plaintiff from the operation of the statute. Fa vorite v. Booher's Adm'r, 17 Ohio St. 548. (a) 0112. MAT BE PAID BEFORE DUE, WHEN. 121 tionai assets, and not more than four years after they are actually received. 1 Second. When a claim against the estate does not become due, or a cause of action does not accrue thereon until after the expiration of the four years. In such case, if the estate has not been previously fully administered, suit may be brought against the executor or administrator within one year after the accruing of the cause of action, and before the estate is fully administered. 2 * Any creditor whose right of action does not acerue within the four years may, at any time before the expiration of that time, present his claim to the probate court (61) from which letters issued ; and if, on examination, the claim appears to be just and valid, the court may, with the consent of the executor or admin- istrator, order (t>2) that such claim be paid and discharged at once, after discounting the legal interest upon the same for the unexpired time ; or may order the executor or administrator to retain in his hands a sufficiency of assets to satisfy such claim after the same may become due ; or, if the heirs, devisees, or others interested in the estate, offer to give bond (63) to such creditor, with sufficient sureties, for the payment of the claim when the same becomes due, in case it shall be proved to be valid, the court may, at its discretion, order (62) such bond to be taken, instead of ordering a payment of the claim or a retention of the assets in the manner just referred to. b The decision of the court thereon shall not be conclusive against the executor or administrator, or other person interested to oppose the allowance thereof; and they shall not be com- pelled to pay the same, if disputed by them, unless it shall be (1) Gilbert's Adm'r v. Little's Adm'r, 2 Ohio St. 1-56; Mattoon v. Clapp's Heirs et al.. 8 Ohio, 248. Money arising from the sale of land possessed by the decedent at the time of his death, and sold for the payment of debts, and mon^v received by the administrator from the guardian of the heirs of the intestate under an ar- rangement made to save their lands from sale, are not nev assets, und will not extend the four years' limitation within which creditors *r raaired to sue. Favorite v. Booher's Adm'r, 17 Ohio St. 548. (2) Gilbert's Adm'r v. Little's Adm'r. 2 Ohio St. 156. (a) 6113, 6114. (b> ? G115. 122 PAYMENT OP DEBTS AND LEGACIES. proved to be due, in an action to be commenced by the claimant, within six months after the same shall become payable." The action for this purpose must be brought a'gainst the ex- ecutor or administrator, in case he shall have been required to retain assets therefor, or ordered to pay the same ; but if tho heirs or others interested in the estate shall have given bond, as before provided, the action must be brought on the bond. b If the action be brought on the bond, the plaintiff shall sot out his demand as in an action against the executor or adminis- trator, alleging the liability of the defendants by reason of the bond, and the defendants may plead uny defense that would be available to the executor or administrator. Nothing herein contained shall prevent or bar the action or suit of any creditor, against the heirs, next of kin, devisees, or legatees of the deceased, as herein provided . d When any executor or administrator shall die, resign, or be removed, or his lei ters shall have been revoked, or his powers shall have ceased, without having full} 7 administered the goods and estate of the deceased, and a new administrator of the same estate must be appointed, the time allowed to the creditors of the deceased, for bringing their actions, will be enlarged as fol- lows : To so much of the four years, provided for the limitation of such actions, as shall have expired while the former executor or administrator continued in office, will be added so much time after the appointment of the new administrator, as will make five years in the whole ; and the new administrator can not be held to answer to the suit of any creditor, commenced after the expiration of the said five years, except as is provided in the following ten paragraphs : e Every such new administrator will, in ail cases, be liable tr the actions of the creditors, for the space of two years after ho shall have given bond for the discharge of his trust, although the whole time allowed to the creditors should be thereby ex- tended beyond the five years. f In case the former executor or administrator failed to give no- (a) 6116. (d) 6119. (b) ?6117. (e) 6120. (c)6118. (f) ? 6121. REVIVOR OP BARRED CLAIMS, ETC. 12o ticefof his appointment, as required by law, suits may be brought by the creditors against such new administrator (or administra- tor de bonis non), at any time within four years from the date of his bond. a The new administrator (or administrator de bonis non) is re- quired to give notice (11) of his appointment in like manner aa an original administrator ; and if he fail to do so, he will not be entitled to exemption from suit upon the' expiration of any of thf periods limited by law for bringing the same. b Nothing contained in the four preceding paragraphs shall be so construed as to revive a claim barred under this or any other act during the continuance in office of the original executor or ad ministrator, or of any former administrator de bonis non. c Should an administrator de bonis non receive assets after the expiration of any of the periods fixed by law for the commence- ment of suits, he must account for the same, and will be liable to suit on account of such new assets, in like manner as though he were an original administrator. But the appointment of an administrator de bonis non, and the receipt of assets by him, will not revive any claim barred, as mentioned in the preceding para- graph.* 1 If notice of the appointment of any executor or of any original administrator, or administrator de bonis non, shall not he given within the three months, or the evidence thereof shall fail to be perpetuated, as directed on page 62, and can not be made, the court may, on the petition (64) of the executor or admin isti-ator, order (65) and allow such notice to be given at any time afterward, in which case the said four years and other periods of time, which are hereinbefore limited for the commencement of actions against executors and administrators, and for other purposes, and which begin to run as before directed, from the date of the administra- tion bond, shall begin to run respectively, from the time such order of court is made, if notice be published according thereto.' The order of the court authorizing the giving of such notice will not exempt the executor or administrator, or their respoc- () 6122. (d) I 6125. (b) 6123. (e) 6126. . Atherton, 9 Ohio, 34. (3) For suggestions relative to receipts whore there are counter-claims of tho estate, and :i balance is received or paid l>y tho executor or administra- tor, t involved in the partnership busi- ness, does not become liable for debts of the partnership accruing after hia death, unless clearly made so by the provisions of the will. . Ib. See also Gandolfo v. Walker, 15 O. S. '251 ; Ib. 2 4. HOW ORDER OBTAINED. ETC. 129 CHAPTER VII. RELATING TO THE SALE OP REAL ESTATE FOK THE PAY- MENT OF DEBTS. SECTION I. HOW AND WHEN AN ORDER OP SALE MAY BE OBTAINED ; THE PRO- CEEDINGS UNDER THE SAME ; THE DEED OP THE EXECUTOR OR ADMINISTRATOR, ETC. IT is the duty of an executor or administrator, as soon as he discovers that the personal estate in his hands will be insufficient to pay the claims against the estate of the decedent, to apply to the proper court for authority to sell the real estate of the de- cedent. 1 a An executor authorized by will to sqll real estate is not re- quired to obtain an order of the court to make such sale ; but may sell and convey the premises in accordance with the terms and directions of the will. 2b (1) In case of a deficiency of personal assets to pay taxes, an executor or administrator may apply for an order to sell lands for that purpose. Welsh et al. v. Perkins et al., 8 Ohio, 52. An allowance for the support of the widow and children of a decedent is a debt of the estate, for which real estate may be sold. Allen v. Allen's Adm'r, 18 Ohio St. 234. And in case there should not be sufficient personal estate to pay a legacy of the decedent, together with the privileged and ordinary claims against the estate, the executor or administrator may apply for an order to sell real estate to pay such legacy. See p. 131 ; also p. 4, last paragraph, and notes referred to in it. (2) But where no authority exists by will to sell real estate, an executor can not in any case make sale of lands by private contract, nor without first obtaining an order of court to sell. Lessee of Goforth v. Longworth, 4 Ohio, 129. See also Ludlow's Heirs v. Park, 4 Ohio, 6. A power given to executors by will, to sell and convey land, becomes le- (a) \ 6136. (b) ? 5980, 6167. 130 SALE OF REAL ESTATE TO PA'/ DEBTS. It is frequently the case that an executor or administrator \vill defer applying for an order to sell the real estate of a decedent until the personal assets have been exhausted. This is a direct violation of ihe requirements of the statute. The law directs that such application shall be made as soon as the necessity for doing so has been ascertained. In most cases an executor or a&- rninistrator will discover, within a few months after his appoint- ment, whether a sale of real estate will be necessary for the payment of debts ; and immediately upon such discovery being made, he should take measures ' for having the real estate sold, in order to avoid delay in the settlement of the estate, and to give creditors their dues, and save interest upon the claims against the estate. In order to obtain such authority to sell, the executor or ad- ministrator must commence a civil action in the probate court or court of common pleas of cither the county in which the real estate of the deceased, or any part thereof, is situate, or of the county in which his letters testamentary or of administration were issued.* "In most cases the county in which letters issued is preferable, as it is desirable to have the entire record of all the proceedings connected with the settlement of an estate in ono county. As the probate court is always open for the transaction of bus- ness, and the proceedings connected with the sale of real estate can be more speedily conducted and terminated in that court than in the court of common pleas, it is advisable, except in cases where difficulties exist in relation to title, or severe litigation be- gaily inoperative, and ceases to exist when the estate is settled, or all claims against it are presumptively satisfied by lapse of time, and no object of the testator remains to be attained. Ward's Lessee v. Barrows, 2 Ohio St. 241. The levy of an attachment in an action against a devisee will not defeat or prevent the execution of a power of sale given by a testator to his execu- tor, nor will such levy affect the title of the purchaser at the executor's sale. Smyth v. Anderson, 31 Ohio St. 144. See also note 1, p. 39. (1) As" to the effect of bringing action for this purpose under the now ob- solete code, and charging incumbered lands with the payment of debts, see Calkins v. Johnson, 20 Ohio St. 639. (a) ? 6137. WHAT LAND MAY BE SOLD. ETC. Ul twcen rival lien-holders is anticipated, to bring the action ' iu the probate court. A civil action must be commenced by filing in the office of the clerk of the proper court a petition (66), and causing a summons to be issued thereon. 8 If the executor or administrator, who shall commence such action, for the sale of real estate, shall die, resign, or be removed, or his powers shall cease at any time before the conveyance of the same, under an order of the court, the administrator de bonis non must proceed with such sale, and may convey the land sold before or after his appointment, and may be required to give an additional bond (150), in like manner as if such administrator de bonis non had filed the petition. 5 The real estate of a decedent subject to sale for the payment of his debts, includesall landsor town lots by him held in fee simple, as well as any equitable interest in such property of which he may have died possessed. Also, permanent leaseholds, and any real estate he may have conveyed in his lifetime for the purpose of defrauding his creditors; also, any real estate, held by the executor or administrator upon the foreclosure of a mortgage in favor of the estate ; also, any interest of the decedent in real es- tate held by him and others in common ; as well as all other permanent rights and interests which the decedent in his life- time held in an}* lauds, tenements, or hereditaments. 3 Where lands have been fraudulently conveyed by a decedent in his lifetime, and are subsequently purchased of the grantee in good faith and for a valuable consideration, by a person having no knowledge of the fraud, the title of such bona fide pur- (1) As to the method of bringing a civil action, see 130-140. (2) This provision of law is in contravention of the rule of common law, which makes deeds made to defraud creditors good between the parties to such deeds. In Benjamin v. Le Baron's Adm'r, 15 Ohio, 517, it was held that an administrator can not maintain an action of trover to recover GOODS transferred by his intestate to defraud creditors. But in Kilbourne v. Fay, 29 Ohio St. 264, 280, this seems to be doubted. (3) When one of several partners dies, his administrator may sell bis in- terest in partnership lands, but the purchaser takes it subject to the rights of partnership creditors. Green v. Graham et al., 5 Ohio, 264. (a) g 5035. (b) g 6138. 132 SALE OF REAL ESTATE TO PAY DEBTS. chaser will be protected, and the executor or administrator of the person making the fraudulent conveyance, will be precluded from claiming the lands in behalf of the estate. 11 The right to reclaim lands fraudulently conveyed will be lost unless asserted within four years from the death of the grantor." If land is to be included in such action which has been so fraudulently conveyed, the executor or administrator may either before or at the same time, bring an action for the recovery of the possession of such land ; or he may in his action for the sale thereof allege the fraud and have the fraudulent convey- ance avoided therein ; but when such land is included in the ap plication before a recovery of its possession, the action must be in the court of common pleas. lb In order to satisfy the court that a sale of real estate is neces- sary for the payment of debts, the petition (66) of tho executor or administrator must state the amount of the debts of the dece- dent, as near as can be ascertained, the probable amount of the costs and expenses of administration, and the value of the per- sonal estate and effects according to the inventory. The peti- tion must also contain a full description of the real estate sought to be sold ; and if an appraisement of the same was made by the appraisers of the personal estate under an order of the court, the amount of such appraisement must be given. In such action the widow of the deceased, and the heirs, de- visees, or persons having the next estate of inheritance from the deceased, 2 and all mortgagees and other lien holders, whether by judgment or otherwise, of any of the lands sought to be'soid, and all trustees holding the legal title thereto or to any part thereof, must be made parties to the action ; and when a fraudu- lent conveyance is sought to be set aside in such action, all per- sons holding or claiming thereunder must also be made parties. 1 ' When the real estate in any application for an order of sale is (1) See note 1, p. 129. (2) Although it is not generally necessary that the wi^es of male heirs should be made parties to the action, yet the circumstances may be such that they should be, and it would be prudent practice to make them such in every case. But the husbands of female heirs must always be made parties. (a) 6139. (c) 6141. (b) 6140. (d) 6142. THE PETITION. 133 incumbered by mortgage or judgment liens, liens for purchase money, or other liens, the common pleas and probate courts in which the action is pending are fully empowered by law to de- termine the equities between the parties, and the priorities of the several liens, and to order a distribution of the avails of a sale accordingly.* Such order of distribution may be made at the time when the sale is approved, or at any previous time; or the order deter- mining the priority of the liens may be made at any time pre- vious to the sale, and the order of distribution subsequently. The petition should set forth, when so, that it is necessary to sell some part of the real estate, and that by such sale the part sold or the remainder would be injured. 15 If there should be in the last will of the deceased any disposi- tion of his estate for the payment of his debts, or any provision that may require or induce the court to marshal the assets, in an}' manner different from that which the law would otherwise prescribe, such devises, or parts of the will, must be set forth in the petition, and a copy of the will must be exhibited to the court; and the assets will be marshaled accordingly, so far as it can be done consistently with the rights of the creditors. When a petition is filed for the sale of an equitable estate, or any equitable interest, which the deceased held in any lands, the executor 'or administrator must set forth in the petition the na- ture of such equitable estate or interest, making all necessary parties, including the persons holding the legal title thereto and those who are entitled to the purchase money therefor; and the court may. in such ease, notwithstanding any other provisions of this chapter, make such order for the appraisement and sale of such equitable estate, for the indemnity of the estate of the deceased against the claim for such purchase money, and for the adjustment of the dower of the widow of the deceased, in such equitable estate, by estimating and directing to be paid to her the value of a life annuity * in one-third of such equitable estate (1) This value is generally calculated by the annuity tables in common use by life insurance companies, < barred from claiming dower, the facts respectively should be stated. And in case dower should already have been assigned to the widow in the premises described in the petition, under proceedings previously instituted by her, a description of that portion of the premises covered by the dower should be given in the petition. In case the decedent held the entire premises described in the petition by a fee simple title, the prayer of the petition should be for the sale of the same, or so much thereof as may be deemed necessary to pay the claims against the estate; and if there be a widow entitled to dower, that such dower may be assigned her in the premises. Should the interest of the decedent in the real estate described be in common with other persons, the petition should ask for a sale of such undivided interest leaving a di- vision of the premises for the joint action of the purchaser at the sale and those holding in common with the decedent. (1) The mortgage lien remains in full force, if the mortga^'-" 1 is .. it made a party to the suit. Holloway v. .Stuart's Adm'r, 19 Ohio St. 472. (a) 6166. THE ACTION, AND SERVICE THEREIN. 135 In case there should be rivul lienholders, the petition should ask the court to adjust the question of priority between them, and to direct how the purchase money must be applied. The petition being prepared, the executor or administrator must go before some officer authorized to administer oaths, and make oath or affirmation, in substance that the various matters and things in il contained are true, to the best of his knowledge and belief. A certificate of this oath (66) must be appended to the petition by the officer who administers the oath.* The law now provides that in proceedings relating to the sale of real estate to pay debts, whether in the probate court or court of common pleas, service, either actual or constructive, must be made in the same manner as in other civil actions, and that all the proceedings in the action must be the same as in other civil actions, except as otherwise provided below. b A civil action for such sale (as are others also) is brought, and" summons is served, as follows : The plaintiff must file, in the office of the clerk of the proper court, a petition (66). c Ho must then cause a summons to be issued thereon, by filing with said clerk a precipe (68), stating therein the names of the parties to the action, and demanding that a summons issue. d ACTUAL SERVICE. In such actions for such sales, the sum- mons, which, in eveiy case is issued by the clerk, may be served: 1st. By the sheriff, as in other cases. When so served, the plaint- iff has nothing to do with it. except to give the directions men- tioned, on page 140. 2d. By the plaintiff, etc. The law now spe- cially provides that, in actions for such sales, unless otherwise or- dered by the court, the summons may be served by the plaintiff or other person by copy personally, and that the return of such service must be verified by the oath of the person who makes the same (167). h If no such service is made upon any defendant, and he do not waive service as mentioned below, the judgment of the court will not be binding upon him. (a) \l 5102, 5105, 5107. (c) 5035. (b) 6143. (d) I 5036. 136 SALE OF REAL ESTATE TO PAY DEBTS. A summons may be issued to any other county, against one or more of the defendants, at the plaintiff s request. 8 When the time for bringing parties into court is not fixed by statute, the summons shall be returnable on the second Monday after its date ; but when it is issued to -any other county, it may be made returnable, at the option of the party having it issued on the third or fourth Monday after its date. The day of the month on which it is returnable shall be stated therein. b When a writ is returned " not summoned." other writs may be issued, until the defendant is summoned ; and when defend- ants reside in different counties, writs may be issued to such counties at the same time. c When the defendant is under fourteen years of age, service must be made upon him and also upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care of such infant, or with whom he lives; and if neither of these can be found, or if the defendant is a mi nor over fourteen years of age, service upon the defendant alone shall be sufficient. The manner of service may be the same as in the case of adults. d For this reason the ages of minors must be stated in the manner directed in the petition (66) (115). CONSTRUCTIVE SERVICE. Service by publication (71) (110) may be made on any defendant who resides out of the state ; or whose residence is unknown ; or who, though ;i resident, has departed from the county for the purpose of avoiding service; or who keeps himself concealed for the same purpose ; or which is a foreign corporation, having no agent in this state on whom service can be made. In any such case, when the residence of a defendant is known, it must be stated in the publication ; and, immediately after the first publication, the parly making the service shall deliver to the clerk copies of the publication, with the proper postage, and the clerk shall mail a copy to each de- fendant, directed to his residence named therein, and make an entry thereof on the appearance docket. In all other cases, the party making the service, his ngent or attorney, shall, before the hearing, make and file an affidavit (70) that the residence of (a) g 6038. (c) f 5040. (b) g 5039. (d) ? 5047. SERVICE BY PUBLICATION. 137 the defendant te unknown, and can not, with reasonable diligence, be ascertained.' Before service by publication can be made, an affidavit (70) must be filed that service of a summons can not be made within this state, on the defendant to be served by publication, and that the case is one of those mentioned in the 14th Section of Chap- ter 6, Division 2, Title 1, Ohio Laws, and relating to procedure in the court of common pleas and other courts. When such affi- davit is filed, the party may proceed to make service by publica- tion (71). b The publication (71) must be made six consecutive weeks, in a newspaper printed in the county where the petition is filed ; or, if there be no newspaper printed in the county, then in a newspaper printed in this state, and of general circulation in such coun,ty ; and if it is made in a daily newspaper, one inser- tion a week shall be sufficient. It must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer. Service by publication shall be deemed complete at the date of the last publication, when made in the manner and for the time prescribed in the preceding sections ; and such service shall be proved by affidavit.(71)(116) ld The answer or demurrer of the defendant must be filed in court on or before the third Saturday after the publication is complete. 8 In all cases where service may be made by publication, per- (1) "Where a record of a proceeding in the court of common pleas, to sub- ject lands of a decedent to the payment of debts, upon the petition of the administrator, under the statute uf 1831, sets out that it was "shown to the court that due noil-e had been given to the defendants: Held, that this lan- guage imports a finding by the cvurt that the notice which the law required under the circumstances had been regularly given. Evidence will not be received to contradict this finding of the court. Where jurisdiction is shown, or must be presumed, the judgment cr order of the court can not be collaterally impeached. Richards v. Skiff et al., 8 Ohio St. 586. (a) 504. as corrected, 77 O. L. 4'2. ; d) 5051. (I)) j>5049 " (c) g ;A-,O. 138 SALE OB' kErt.b J.JTA'1 k TO PAY DEBTS. sonal service of a copy of the summons and petition may be made out of the state. 8 When an heir or :i devisee of a deceased person is a necessary party, and it appears by affidavit (70) that his name and resi- dence are unknown to the plaintiff, proceedings against him may be had without naming him ; and the court or a judge thereof must make an order respecting the publication of notice, but the order must require not less than six weeks' publication. 11 WHEN SERVICE UNNECESSARY. An acknowledgment on the back of the summons or petition, by the party sued, or the vol- untary appearance l of a defendant (67), is equivalent to service. (1) Filing an answer, demurrer, motion, or notice of appeal in the case, by a defendant who is of age, and who is of sound mind and under no re- straint, are among the ways in which such voluntary appearance can be made, cither in person or by authorized attorney. Abernathy v. Lattimore, J. &Co., 19 Ohio, 286; Bryans v. Taylor, W. 245; Schaefer & 6. c. Waldo, B.&Co., 7 Ohio St. 309; Klorine v. Bradstreet, 2 H. 74 ; Evans v. lies, 7 Ohio St. 233; Fee v. Big Sand-iron Co., 13 Ohio St. 503; Buckingham v. Mc- Cracken, 2 Ohio St. 287; Harrington v. Heath, 15 Ohio, 483, 487 ; Maholm Marshal. 'Jtt Ohio St. (>11; Watson ,-. Payne, 2"> Ohio St. 340; O'Neal v. Blessing, 34 Ohio St. ','> It a person, not a party to the writ, files an answer by leave of eourt, he thereby becomes a party to the action, and will be bound by the judgment in the case, llosenthal v. Sutton, 31 Ohio St. 406; Brundage v. Biggs, '2-3 Ohio St. ('>'>! ; Watson v. Paine, 25 Ohio St. 340. In proceedings to sell decedent's real estate by execution to pay dcbis, persons in interest not named in the petition are properly parties on the rec- ord, although the statute requires the executor to proceed by petition, to which the heirs, etc., shall be made defendants. Ewing v. lloilister, 7 Ohio (2 pt.), 138. Appearing in court and assenting to setting the case for oral argument, and partially arguing it, is a general appearance and submission to the ju- risdiction to the court. C. C. & C. K. K. v. Mara, '26 Ohio St. 185. Some- what similar, Hammond v. Mara, 21 Ohio St. 620. As to one partner waiving service for another partner, see Whitman v. Keith, 18 Ohio St. 134, 147. But a motion denying jurisdiction, on the ground of insufficiency of prn cess, is not an appearance. Whitehead v. Post (Logan Com. Pleas), ', \V L. M. 195. (a) 5052. (c) 5043. (b) ? 5053, as;im. 79, O, L, 26 APPOINTMENT OF GUARDIAN AD LITKM. KV.) If all persons 1 in interest consent (G7) in writing to the i>ale service of process may be dispensed ivith ; and legal guardians- may sign such consent for their wards, except guardians of the persons only of minors. 3 It shall not be necessary, unless the prayer of the petition for a sale is contested, to appoint guardians ad litem 2 for infant heirs or devisees or other persons having the next estate of inher : t- ance from the deceased who are defendants; and no such guara- ian '* shall have authority to waive notice or service of sum- mons. 1 ' The defense of (152) an infant must be by a guardian for the suit, 8 who may be appointed (75) by the court in which the ac- tion is prosecuted, or by a judge thereof, or by a probate judge. The appointment may be made upon the application (151) of the infant, if, being of the age of fourteen years, he apply within twenty days after ,the return of the summons, or service by pub- lication; and in case of his being under said age, or of his neg- lect so to apply, the appointment may be made on the applica- tion (151) of the plaintiff, or a friend of the infant ; but the ap- pointment (75) can not be made until after service of summons or publication.* 1 The guardian of an infant must deny, in the (1) The power of a married woman to waive service of process upon her by signing a paper, with her husband waiving it, is questioned, but not de- cided. Hubbell v. Broadwoll, W. 248. (2) For various matters relating to minor heirs and the powers of guard- ians ad litem in such cases, under tbe act of 1824 and other acts, see E wing's Lessee v. Higby, 7 Ohio (pt. 1), 198; Ewing v. Hollister, 7 Ohio (2 pt.), 138; Kobb v. Irwin's Lessee, 15 Ohio, 689; Snively et ux. v. Lowe, 18 Ohio, 368; Sheldon's Lessee v. Newton, 3 Ohio St. 494; Benson et al. v. Cilley et al., 8 Ohio at. 604 ; Biggs v. Bickel, 12 Ohio St. 49 ; Wood v. Butler, 23 Ohio St. 620; Piatt v. Longworth's Devisees, 27 Ohio St. 159; Lucht, Adm'r, v. Beh- rens, 28 Ohio St. 231. (3) In a proceeding by an administrator for the sale of lands to pay debts, the answer of a guardian ad litem for minor heirs, alleging his igno- rance of the matters contained in the petition, and praying that the rights of his wards may be protected, has the effect of a general denial, and re- quires proof of all the material averments in the administrator's peLitum. Wood . Butler, 23 Ohio St. 520. (a) 6143. (c) I 6003. (b) ? 6144. (d) 9 5004. HO SALK OF HEAL ESTATE TO PAY DEBTS answer (152). all material allegations of the petition prejudicial to such defendant. 8 Itis perhaps the better and safer practice to appoint a guardian for the suit (ad litem) in all cases where there are minor defend ants, and to have regular service of summons on them, either actual or constructive. But when a part or all of the defendants are of age, are willing and competent to consent in writing, as above provided, and it is desired to avoid the expense of service on such defendants (and this expense is sometimes considerable, especially in case of non-residents), then such defendants may give such consent (67) ; and if it be done before filing the petition, no service upon them should be asked for in the precipe ; and if all the defend- ants can and do thus consent, no precipe should be filed. The petition, consent in writing, and precipe may each be on a sepa- rate piece of paper ; but the better practice is to attach the con- sent and the precipe to the petition, and to mention and describe the parties, as suggested in the note appended to Form 68. Plain directions (69) in writing as to where defendants may be found, etc., should be left with the clerk or sheriff, on a sepa- rate piece of paper, or in a book kept for that purpose, as may be the custom in the county where the action is brought. Oth- erwise, the summons would probably be returned indorsed *' de- fendants not found." The executor or administrator who has occasion to sell real estate as directed in this chapter, and who has read the direc- tions thus fur given, will no doubt have concluded, and cor- rectly, that at least in none but the simplest cases should he at- tempt to proceed without the advice and assistance of some com- petent attorney. After the petition has been filed, any of the persons interested in the estate may enter into a bond (72) to the executor or ad- ministrator, with sureties to be approved by the court, condi- tioned for the payment of all the debts mentioned in the petition that may eventually be found to be valid claims against the es- tate, with the charges of administering the estate, and the al- ' lowance in money to the widow, or the widow and children, in ease the personal estate of the decedent should be insufficient (a) I 5078. ORDER OP SALE, ETC. 141 for those purposes ; and in that event the court has no authority to grant an order of sale. 1 a But if no such bond be given, and if the court be satisfied that it is necessary to sell real estate of the deceased to pay his debts it must order 2 the real estate, or so much thereof as may be necessary for the payment of the debts, to be sold by the ex- ecutor or administrator, upon deferred payments, not exceeding, two years, with interest.* 1 The court may include in its order of sale, the title of the heirs or devisees of the deceased, in the premises set off to the widow for her dower, which may be sold subject to the life es- tate of the widow therein. If the deceased did not leave a widow, entitled to dower in the estate to be sold, and an appraisement of such real estate is contained in the inventory, the court may order a sale ac- cording to said appraisement, or order a new appraisement. If the court do not order a new appraisement, the ap- praisement set forth in the inventory shall be deemed the ap- praised value of the real estate ; but if the court order a new appraisement, the value returned by such appraisers shall be deemed the appraised value of the real estate. The order of (1) Where an order of court was obtained by an execution for the sale of lands to pay the debts of the estate, and after the granting of the order, and in consideration that the executor would forbear to carry it into execu- tion, a bond was executed on behalf of the heirs, conditioned that the obli- gors would pay'the debts of the estate: Held, that the bond, although not in strict conformity to the statute, which provides that if such a bond .be executed before the order of sale, no order shall be granted, is nevertheless binding upon the obligors, and may be enforced against them by the execu- tor. Davison v. Burgess, 31 Ohio St. 78. (2) This order may be appealed from. An administrator can only sell his intestate's real estate to pay debts, upon the express order of the court, after the necessity. of such sale has been ascertained. Lessee of Avery v. Pugh, 9 Ohio, 67. See also Lessee of jS'ewcomb v. Smith, 5 Ohio, 447, and Lessee of Ludlow's Heirs v. Park, 4 Ohio, 5. A sale made by an administrator be- fore authorized by court is void. Lessee of Ludlow's Heirs v. Park, 5 Ohio, 5. (a) 614P. (c) 6148. (b) 6147. 142 SALE OF REAL ESTATE TO PAT DEBTS. sale, and the order for the appraisement, may be made at the- same time, if no assignment of dower is required." If there be a widow entitled to dower, an order for the assign- ment of dower and appraisement of the premises subject to such dower, must precede the order of sale. The widow may, in her answer (153), waive the assignment of dower by metes and bounds or in the rents and profits, and, consenting to have the premises sold free of dower, ask the court to allow her, in lieu thereof, such sum of mono}'' J out of the proceeds as the court may deem the reasonable value of her dower interest therein ; and, in such case, upon the sale of the lands free of dower, arid the awarding to her such sum. her an- swer will have the same force and effect as a deed of release of her dower to the purchaser of the lands. b If the widow shall have been adjudged insane or imbecile, her guardian may, with the consent (154) and approval of the judge of the court in which the action is pending, file such an- swer (153) in her behalf, and it will have the same force and ef- fect as if she were not under disability, and filed the same per- sonally. Except in cases where there has been a valuation of the real estate in the inventory, and the court dispense with another ap- praisement, the court will, upon finding that a sale is necessary, appoint three judicious, disinterested men of the vicinity, who are freeholders (73), to appraise the lands at their true value in money; and, if the deceased left a widow entitled to dower in the premises (unless'she, in her answer filed, shall have waived dower, as above mentioned), the court will also order (73) that said freeholders set off and assign to her, in each or in one or more of the tracts of land, by metes and bounds, one equal third part of the whole lands in which she is entitled to dower, as and for such dower, and to appraise (73) (74) the whole premises, either as a whole or in parcels, subject to such dower so assigned; but if, on view, the appraisers find that the dower can not be 80 (1) See note 1, p. 138. See also 79 O. L. 37. (a) 6154. (c) ?6721. (b) ?5719. 5720 APPRAISERS, AND THEIR DUTIES. ETC. 143 assigned, they must then assign such dower specially as of the rents and profits; and if the lands lie in two or more counties, the court may, if it think fit, appoint appraisers in more than one of the counties. In all cases, a copy of the order to be ex- ecuted must be issued to the executor or administrator. 8 The names of the appraisers are usually suggested to the court by the executor or administrator, or by his attorney ; and where no objection is made, it is customary for courts to appoint the persons suggested. When an}* person appointed by the court as an appraiser fails to discharge his duties, the .probate judge or any justice of the peace of the county in which the lands to be appraised are sit- uate, may, at the instance of the executor or administrator, ap- point an appraiser, of which appointment the officer appointing must make s*nd sign a certificate (14) which must be returned with the appraisement; or the executor or administrator may apply to the court making the order of appraisement and have another appraiser appointed thereby. 1 " Should the petition be filed in and the order of appraisement be made by the probate court, the better practice is to have the vacancy filled by the probate judge, that the entire proceedings may appear upon the record to have been authorized and di- rected by him. Before proceeding to discharge their duties under the order of court, the appraisers must appear before a justice of the peace, mayor of a city or incorporated village-, notary public, probate judge, deputy clerk of the probate court, or judge of the court of common pleas, and make oath faithfully and impar- tially to perform the duties incumbent upon them as such ap- praisers ; a certificate of which oath must be inserted in or at- tached to their re-turn (77). They shall afterward actually view or make examination of the entire premises to which the order of the court relates ; and having done so, they shall then per- form the other duties required of them by the order of the court, and make return of their proceedings in writing to i he court (a) 6155. (c) I 6167. (b) 6156. 144 SALE OF REAL ESTATE TO 1'AY DEBTS. When necessary, the appraisers may call to their assistance the services of a competent engineer. This power is incidental to the duties imposed upon them. It is entirely discretionary with the appraisers to say what portion of the premises shall be covered by the dower. In as- signing specially, as of rents and profits, they should first esti- mate the net yearly value, after deducting taxes, probable re- pairs, and other necessary expenses,* of all the real estate in which the dower is to be assigned, and award to the widow a third part of such net value, to be paid her annually, during life; and in case there be more than one tract or lot in which dower is thus specially assigned, the appraisers should specify the amount awarded upon each. It the deceased left a widow, or a minor child or children un- married and composing a part of his family at the, time of his death, and in case the real estate mentioned in the petition of the executor or administrator be the homestead of the family, it is the duty of the appraisers to set apart by metes and bounds, if possible, a homestead 1 (78), not exceeding one thousand dol- lars* in value, in addition to the dower estate of the widow. Such homestead will remain exempt from sale on execution, and exempt from sale under any order of the court, so 'ong as the widow, if she remain unmarried, or any unmarried 'ihild resides thereon, 3 although the widow should die. And should both the parents of such minor child or children be dead at the time of making the appraisement, and should such child or chil- dren be residing on the family homestead, he, she, or they will he entitled to the benefit of the act relating to homesteads ; and (1) A homestead must be set off in the lands of the decedent's estate only when there is a widow, and a minor child (or children) unmarried, who composed a part of the decedent's family at the time of his death, and this right of homestead will terminate as soon as such child for children) shall be either dead, married, or of age. The other provisions of law granting a homestead to a widow without minor child or children composing a part of her family, and exempting from execution other real or personal property in lieu of homestead, when she has no homestead, refer to property owned by her in her own right. Taylor v . Thorn, Adm'r, 29 Ohio St. 569. (2) See note 2, next page. (3) If the debtor has voluntarily abandoned his homestead before claim- ing it, his right is gone. Jackson v. Reid, 32 Ohio St. 443. * See 25 (). S. 557. DUTIES OF APPRAISERS. 143 a sale of such homestead can not be made so long as an unmar- ried minor child of the decedent resides thereon.' But this exemption does not apply when the execution issues upon a judgment or decree rendered on a mortgage executed in the lifetime of the decedent in conjunction with his wife, or for any claim for work or labor less than one hundred dollars; nor shall such exemption impair any lien, by mortgage or otherwise, for the purchase money of such homestead ; nor the lien of a mechanic or other person, under the law authorizing mechanics' Jieus, nor the lien for taxes due upon such homestead. 1 * The widow may remain in the mansion-house of her husband, free of charge, for one year after his death, if her dower be not sooner assigned to her. lc Having assigned dower and a homestead. 2 the next duty of the appraisers is to estimate the value of the real estate subject to such dower interest and homestead. Should there be several tracts of land or town lots, and should dower be assigned in one lor all. those tracts or lots which are unincumbered by dower should be appraised accordingly, and the one in which dower has been assigned should be appraised subject to the same. In arriving at the value of a tract of land subject to dower, the proper method is to estimate the value of the entire tract without reference to dower, then to appraise the probable value of the dower interest, taking the age and health of the widow into consideration, and deduct it from the gross value of the en- tire tract ; the remainder will be the value of the tract subject to dower estate. Or, to make the subject plainer, the appraisers should determine the question : How much is the entire tract worth, subject to the right of the widow to use and occupy during life that portion of the same which we have assigned to hr-r for dower? And the value of a tract subject to a homestead may be arrived at by a similar process. (1) See last two paragraphs of note 1, p. 38. (2) When, as against some of the liens, a homestead can not be claimed, and against others it may be, the law provides that in case of a sale of the premises, the liens which preclude a homestead shall be first paid out of the purchase money, and the residue, not exceeding five hundred dollars, shall be paid fif c'aim"'! i in lieu of a homo-' :"!.' For the law relating to homesteads and >'xi>mptions from execution, which need not all be given here, see $t 04203446 ; as to dower, see 4188-4194. (a) g 5437, 5438 ; 79 O. L. 107. (c) 4188. (b) 5434. (d) 5440. 10 146 SALE OF REAL ESTATE TO PAY DEBTS. It should bo borne in mind by the appraisers that they are not only to appraise the residue of the tract left after setting off the ^vidow's dower, but the entire tract, including the portion as- signed for dower, subject to such dower interest. The appraisers should make return of the value of lands in gross, and not at a certain price per acre. If there be no dower or homestead to set off, the duty of the appraisers will be plain ; and no more will be required of them than to estimate the value in money of the tract or several tracts mentioned in the petition. No definite rule for the making of appraisements of equitable interests in real estate can be laid down, as each case possesses characteristics of its own, and is subject to conditions peculiar to itself; the only guide for the appraisers in such a case is the order of the court. After having discharged the several duties enjoined on them by law, it remains for the appraisers to make report to the court of their action in the premises. Such report must be in writing, and signed by them ; and should consist of a detailed statement of their proceedings, describing fully and definitely the dower assigned to the widow ; the homestead set, off to the widow and children, or either; and specifying the value they have placed upon the several tracts, and whether such valuation is subject to the dower interest of the widow, or a homestead for the fam- ily (78). The appraisers are entitled to one dollar per day for services performed by them in the county in which they reside, and two dollars per day for services in any other county.* When dower has been assigned in connection with the ap- praisement, the report of the appraisers must bo submitted to the court for confirmation, before an order of sale can be made ; but, as before remarked, should MO assignment of dower be re- quired, an order of appraisement and sale may be made at the same time by the court; and in that case the report of the ap- praisers need not be presented for confirmation until after the sale, and until the report of sale is also ready to be submitted. If the assignment of dower and appraisement appears to have (a) J1300. ADDITIONAL BOND, ETC. 1 17 been regularly and correctly made, the court will approve (79) the report of the appraisers, and order a sale (79) of the prem- ises, or so much thereof as may be necessary to pay the debts of the decedent, subject to such dower estate, or to such dower and a homestead, as the case may be. When dower is assigned specially, as of rents and profits, the court is required to secure the payment of the same to the widow, by making the amount allowed a charge upon the real estate in which the dower has been assigned. 8 Should it appear from the petition of tne executor or admin- istrator that a sale of a portion only of the real estate of the de- cedent will be required for the payment of his debts, but that by a partial sale an injury will result to the residue of his real es- tate, or any portion thereof, the court may, if deemed for the in- terest of all concerned in such property, order a sale of the en- tire estate. b Before making sale of all the real estate of a decedent, when only a portion is necessary for the payment of debts, the execu- tor or administrator must give bond (80) to the State of Ohio, in such sum as the court may direct, with sureties to be ap- proved by the court (147), conditioned to account for all the proceeds of the sale that may remain after the payment of the debts and charges for which the land is sold, and to dispose of the same according to law. c The court may also require of any executor or administrator, if it shall deem it necessary, before such sale, to give an addi- tional administration bond (80), to secure the further assets arising from the sale of the real estate, and the bond 1 mentioned in this paragraph, and the bond mentioned in the next pre- ceding paragraph, must, when so ordered to be given, be given (1) Does a bond, the condition of which recites the appointment as ad- ministrator of the personal estate of the decedent, and proceeds, "now if the said G. G. shall well and truly do and perform all and every of the du- ties required of him as administrator as aforesaid, according to law/' etc., cover a surplus of money left in the hands of the administrator, arising from the sale of land to pay debts of the intestate, quaere. Griswpld v. Frink, 22 Ohic St. 79, 90. (a) 6164. (c) 6150. (b) ? 6149. 148 SALE OF REAL ESTATE TO PAY DEBTS. in the court from which the letters were issued, and if the action is pending in another court, the latter court shall proceed no further till there is filed therein a certificate from the former court, under the seal thereof, that such bond has been given as ordered." The power of the court to adjust all liens on the land has been already spoken of on a preceding page. 1 Should any person object, in his answer, to the granting of an order of sale, the court may award the costs of the trial resulting therefrom against such person, in case the objection should be found to be unreasonable ; or against the executor or adminis- trator, if the petition should be unwarranted or unnecessary; or may make such other order with respect to the costs as circum- stances may warrant. 2 b . The sale must be made at public vendue, at the door of the court-house in the county in which the order of sale shall have been made, or at such other place as the court may direct. But if it is made to appear to the court that it will be more for the interest of said estate to sell such real estate at private sale, the court may authorize the petitioner to sell the same, either in whole or in part,* for cash in hand, or upon deferred payments, not exceeding two years, with interest; and in no case can such real estate be sold at private sale for less than the appraised value thereof. A sale upon the premises will in most cases be most advan- tageous to the estate. Before making sale, an executor or administrator must give notice of the time and place of sale, by advertisement for at (1) See pp. 132, 133. (2) In a proceeding by an administrator to sell real estate to pay judg- ments entered on awards of arbitration, it is competent for the heir, in a cross-petition in the same proceeding, to attack said judgments for fraud. Conway v. Duncan, 28 Ohio St. 102. (3) An executor or administrator may sell in parcels a tract of land which has been appraised entire, but is responsible for the abuse of his discretion in this respect. Lessee of Ewing v- Higby, 7 Ohio (pt. 1), 198; Lessee oi Stall v. Macalester et al., 9 Ohio, 19. (a) 6151. (c) 86161. (b) \ 6153. HOW SALE MADE. 149 least four successive weeks in some newspaper printed in the county in which the lands are situate (81) ; or, if no newspaper be printed therein, by advertisements posted up in at least five public places in the county, four weeks previous to the day of sale (81). la The terms of sale, if not definitely prescribed by the court, are optional with the executor or administrator, provided he keep within the two years beyond which he is not authorized by law to extend the time of payment* The terms usually adopted are : one-third of the purchase money to be paid in hand, and the residue in two equal payments of one and two j-ears from the day of sale, with interest. When the necessities of an estate require that the payments be made in other proportions, and upon shorter time, the executor or ad ministrator should, in order to avoid cavil, ask the court to prescribe the terras of sale. Lands, if improved, can not be sold for less than two-thirds, and if not improved, for less than one-half, of their appraised value ; but if, after being twice offered, the property is not sold (82), the court may set aside the appraisement.and order a new one to be made (83), or may fix a price at which the property may be sold if a bidder can be obtained at that sum (84). b It may be well, in order to prevent mistakes, to notify pur- chasers, on the day of sale, that the growing crops, if any, are reserved ; although such crops do not pass with the land, if not rc-servi '1. The property must be offered for sale at the time and place mentioned in the notice; and if the notice mention an hour at which the sale will commence, the executor or administrator, or the auctioneer employed by him, must be present at that hour il) Where the statute requires a notice of the time and place of sale to bo given for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, it seems its words will be answered by one publication in a newspaper thirty days before the day of sale, and will not require an insertion in each paper that may be issued between the date of the first insertion and the sale. Craig's Adm'xr. Fox et al., 16 Ohio, P'53. See also Lessee of Stall v. Macalester et al., 9 Ohio, 19. C.t>>illy v. Rhodes, 12 Ohio, 88; Houts v. Showalter, 10 Ohio St. 1:M. (a) {6159. (b) 0100. 150 SALE OP REAL ESTATE TO PAY DEBTS. and open the sale ; but if the notice state that the sale will tako place between certain hours named, it may be opened at any time before the expiration of the time mentioned. Should no person bid at least two-thirds of the appraised value of the land, if improved, or one-half, if not improved, .he prop- erty must remain unsold, and the executor or administrator will be compelled to re-advertise and offer the same. In case no sale be effected after offering the premises twice, the executor or administrator should make return of the fact to the court (82), and obtain an order of re-:ippraisement (83). And in case no sale should be effected after repeated attempts at so doing the executor or administrator should represent to the court the necessity of fixing a price at which the property may be sold (84). a Should a sale not take place at the first time the prem- ises are offered, the executor or administrator need not make report to the court of his failure to sell ; but. after offering the same the second time, he may make report of the result, as well as of the result of the first trial (82). An 'executor or administrator can not directly or indirectly purchase any real estate by him offered for sale as the legal rep- resentative of a deceased person j 1 nor can an appraiser of such property be a purchaser, in case such sale be made under a val- uation which he assisted in making.' 1 * The executor. or administrator must make report in writing, to the court, of his proceedings under the order of sale (85). The report should show that he in all respects complied with the requirements of the law and the order of the court, in giving no- tice, in offering the premises at the time and place mentioned in the notice, and in the time allowed for the payment of the pur- (1) Mitchell v. Dunlap, 10 Ohio. 117; Glass et al >;. (iivatliou.se >t ai., '20 Ohio, 503; Sheldon's Lessee v. Newton, :J Ohio St. 404; Barrington'.s Adm'r et al. v. Alexander et al., 6 Ohio St. 189; Welsh v. Perkins, 8 Ohio >!, 66; Riddle v. Roll, 24 Ohio St. 572; Piatt v. Longworth's Devisees, :>7 Ohio St. 159; Beard v. Westerman, 32 Ohio St. p. 29. As to trustees' sale, lln'-i- melsberg v. Mitchell et al., 29 Ohio St. 22; notes 39-42, pp. 342-513. But such sale will be good, if executed with the subsequent ratification of the heirs. Mitchell *u. Dunlap, 10 Ohio, 117. See also p. 84, last paragraph. (2) Armstrong v. Huston's Heirs, 8 Ohio, 551; Bohart v. Atkinson, 14 Ohio, 228; Tcrrill v. Auchauer, 14 Ohio St. 80. (a) I 6162. (b) 5404. REPORT AND CONFIRMATION OF SALE. 151 chase money. It is not sufficient that the report state generally that notice was given and the sale made according to law ; but must set forth particular!}* how, and for ichat length of time the notice was given ; and when and where the property was offered , together with the terms of sale, and whether the same were complied with by the purchaser. It is the province of the court, and not of the executor or administrator, to say whether hn proceedings were according to law. Before the court can confirm a sale by an executor or admin- istrator, made under an order allowing such officer to make pri- vate sale, the court must require such officer to make and file an affidavit (155) that such private sale has been made after dili- gent endeavor to obtain the best price for the property, and that the sale reported is for the highest price he could get for the property.* Should the court, on examining this affidavit and the return, find that the sale was in all respects legally made, the same will be confirmed (86), and the court will order the executor or ad- ministrator to make a deed or deeds to the purchaser or pur- chasers * (86) ; and the court may also in the order require that before the delivery of such deed the deferred installments of the purchase money shall be secured by mortgage. b The notes taken for the purchase money must be dated on the day of sale, must bear interest from date, and, as a matter of safety, should, whether so ordered by the court or not, be se- cured by mortgage on the premises sold. The deed of an executor or administrator is a conveyance in fee simple, without covenants of warranty (87) ; and a purchaser has no recourse against the executor or administrator, nor against the estate, if the title to the pi-emises sold should prove to be defective. 2 But in case the title of the purchaser should be (1) An administrator may. with the consent and by the direction of the purchaser at the sale, convey the premises sold to a person other than the purchaser. E wing's Lessee v. Higby, 7 Ohio (pt. 1), 198. . itit the purchaser, where the sale is regular and the title perfect, holds such estate discharged of liens, the holder of the lien being bound to look to the executor or administrator and his bond for the faithful applica- (a) G4TJ. (b) 6162. 152 SALE OP REAL ESTATE TO PAY DEBTS. invalid by reason of a defect in the proceedings, he may be sub- rogated to the rights of the creditors of the estate to the extent of the money paid to the executor or administrator; and to the same extent will have a lien on the property sold ae against al. persons except bona fide purchasers without notice. A deed made by an executor or administrator in pursuance of an order of court, is taken in all courts of this state as prima facie evidence that the executor or administrator in all respects complied with the requirements of the law in making the sale, and vests the title in the purchaser in like manner as if the es- tate had been conveyed by the decedent in his lifetime. 16 When an executor or administrator dies, resigns, or is re- moved, or when his letters are revoked, a sale of real estate by him previously made in accordance with the statute, will remain valid and effectual. 2 tion of the purchase money. Bank of Muskingum v. Carpenter's Adm'rs et al, 7 Ohio (pt. 1), 21; Stiver's Adm'r v. Stiver's Heirs et al., 8 Ohio, 217. An administrator, in selling lands of his decedent, which he conveys without covenants of warranty, can not render the estate of the deceased liable in damages, by false representations as to the condition of the title, or the extent of existing incumbrances. Dunlap v. William's Adm'r, 12 Ohio St. 530. An administrator's sale may be voidable in the hands of the first pur- chaser, and yet valid in the hands of a second purchaser in good faith for a valuable consideration, and without notice. 1'iatt r. St. ('lair's Heirs et al., 7 Ohio (pt. 2), 165. Where an administrator's deed has no words of perpetuity, a court of equity will correct it. Piatt v. St. Glair's Heirs et al., 7 Ohio (pt. 2], 105. (1) The title of a purchaser to real estate sold by an administrator to pay debts is not divested by a subsequent reversal of the order of sale. Nor does the fact that the purchaser on the day of sale had notice that an effort would be made to reverse the order, affect his title. Irwin v. Jeffers et al., 3 Ohio St. 389. See also Lessee of Ewing v. Higby, 7 Ohio (pt. 1), IDS; Ewing et al. v. Hollister's Adm'r, 7 Ohio (pt. 2), 138 ; St. Clair v. Morris. !> Ohio, 18 ; Lessee of Ludlow's Heirs v. Wade, 5 Ohio, 494 ; and Lessee uf Stall v. Macalester et al., 9 Ohio, 19. (2) An unmarried administratrix obtained, on her petition, a decree for the sale of land of the intestate, and it was offered for sale on an order of sale, and also on an alias order, but not sold for want of bidders. She then SUNDRY REMARKS. 153 Where a legacy has been given by a written will, and the per- sonal estate of the decedent, after payment of his debts and the preferred claims against his estate, is insufficient to pay such leg- acy, the executor or the administrator with the ^ill annexed may sell real estate of the decedent for that purpose, after ob- taining an order of court, in the same manner and upon the same terms and conditions as for the payment of other claims.* The heirs of a decedent can not, by making sale of his real estate, prevent a sale of the same by the executor or administra- tor, when neeessaiy for the payment of debts ; b and a person purchasing real estate from heirs does so at his own peril, even though he should have no knowledge of the existence of debts against the estate of the decedent. 1 If at any time after the institution of proceedings for the par- tition of the lands of any deceased person, it is found that the assets in the hands of the executor or administrator of such de- ceased are probably insufficient to pay the indebtedness of the 'estate and expenses of administration, the executor or adminis- trator must make a written statement (156) to the probate court of the said assets and indebtedness and expenses, and the court must forthwith ascertain the amount necessary to pay the said indebtedness and expenses in addition to the assets, and give a certificate (157) thereof to the executor or administrator. 1 " The executor or administrator must thereupon present said certificate to the court in which the proceedings for partition are, or have been, pending, and on his motion (88) said court shall order the amount named in said certificate aa necessary, to be married. Afterward a pln.i -/v.s order is.-ued under the same decree, and the land was sold, and the sale was sustained on the ground that an order of sale once, begun was not abated by the marriage of the administratrix. Craig v. Fox et al., 16 Ohio, 5(53. See notes 75-80, pp. 348-349. (1) The sale of lands by an heir t good to convey the title, but the pur- chaser takes the land charged with the debts of the ancestor. Piatt o. St. (Jlair's Heii-s et al.. (i Ohio. 227. Cp.-ditors must first exhaust their remedy against the personal representative, before they can have recourse to lands in the hands of purchasers from the heirs. Stiver's Adm'r v. Stiver et al., 8 Ohio, 217. See two preceding pages, and note 1, p. 5. and note 8, p. 131. (a) gC172. (o) 6173. (b) 5972-5976. 154 SALE OP REAL ESTATE TO PAY DEBTS. paid over to the executor or administrator out of the proceeds of the sale of the premises, if they shall be thereafter sold, or have already been sold : but nothing in this nor in the pre- ceding paragraph is to be KO construed as to prohibit any execu- tor or administrator from proceeding to sell lands belonging to such estate to pay debts, when the same has been sold on parti- tion or otherwise, or the proceeds of such sale fully distributed." The surplus proceeds of a sale of lands for the payment of debts remaining in the hands of an executor or administrator utter final settlement, will be treated us real estate, and distrib- uted accordingly. 1 But lands directed by will to be sold and converted into money are considered in equity as personal prop- erty. 2 An executor or administrator has no right to mortgage, lease, or rent the real estate of a decedent, unless authorized by will. (1) The surplus proceeds of a sale of real estate by an administrator, re- maining in his bands on the final settlement of his account, under the stat- ute, are to be considered and disposed of as real estate, and the widow of the intestate is not entitled to any part thereof in her capacity as one of the distributees of the personal estate of the deceased. Griswold v. Frink, 22 Ohio St. 79. (2) Ferguson et ux. v. Stuart's Ex'rs, 14 Ohio, 140;. Brewster et al. v. Ben edict et al., 14 Ohio, 368; Collier v. Collier's Ex'r.*, 3 Ohio St. 309. A. died leaving lands, which descended to B., a posthumous child, leaving C., his widow, and mother of the child, and surviving brothers and sisters. On pe- tition of the administrator of A., the lands were sold by order of the pro- bate court, for the payment of debts, and from the proceeds the widow was paid the value of her dower interest; after which, and before distribution of the surplus, B. died intestate, without lineal heir. Held, that as to the estate of A. the proceeds of the sale are to be regarded as rail estate ; but as to the estate of IJ. as personal estate ; and that the surplus money so be- longing to 13., after the payment of the widow's dower and the debts of A., upon the death of B., was subject to the law of distribution as the personal estate of B., and that, as between the brothers and sisters of A. and C., tho same belonged to C., the mother and legal representative of B. Pence et al. v. Pence's Adm'r et al., 11 Ohio St. 290. See also note 1, p. 106. (a) 2 6174. SUNDRY REMARKS. 150 Nor can he assign a certificate of the entry or location of land, unless specially authorized by will. 1 The executor or administrator is the proper party to compel a creditor, who holds lands in trust to satisfy his debt, to execute the trust, or to set aside a sale of lands by such trustee, if fraudulently made. 2 The levy of an attachment in an action against a devisee, will not defeat or prevent the execution of a power of sale given by the testator to his executor, nor will such levy affect the title of the purchaser at the executor's sale. 3 As to the powers and duties of foreign executors and admin- istrators with respect to the sale of lands, see Chapter XIII., Section I. (1) Eeeder et al. v. Barr et al., 4 Ohio, 446; Bonner v. Ware et al., 10 Ohio, 465 ; Bell et ux. v. Duncan et al., 11 Ohio, 192. The general rule in such cases is subject to the qualification that where, by act of Congress, an executor or administrator is authorized to assign a cer- tificate of location in a certain class of entries, such assignment will be good. (2) Where a debtor conveys lands to his creditor in trust to sell, and from the proceeds to satisfy the debt, and to pay the balance to the debtor, and the debtor dies without having paid the debt, and without having elected to take the land instead of its proceeds, his personal representative is the proper party to compel the execution of the trust by a sale of the lands. Craig v. Jennings, 31 Ohio St. 84. After such trust has been executed by a sale under a decree, at the suit of the administrator, it is too late for the heir to elect to take the lands. Ib. If such a sale be tainted by the fraud of the purchaser, it is for the ad- ministrator, and not for the heir, to impeach it on that account. Ib. (3) A testator devised his estate to his five children, in equal shares, and authorized his executor to sell and convey all the real estate of which he died seized. A creditor of one of the devisees caused an attachment to be levied on an individual fifth part of said real estate. Afterward the execu- tor, in execution of the power, sold and conveyed all said real estate : Held, that the purchaser acquired title to the land conveyed, unaffected by the le\y of the attachment. Smyth v. Anderson, 31 Ohio St. 144. 156 ACCOUNT OF EXECUTOR OR ADMINISTRATOR. CHAPTER VIII. THE ACCOUNT OF THE EXECUTOR OR ADMINISTRATOR AND THE DISTRIBUTION OF THE ESTATE. SECTION I. WHEN AN ACCOUNT MUST BE RENDERED ; WHAT IT MUST CONTAIN J HOW THE PILING OP THE SAME MAY BE ENFORCED ; AND THE * COMPENSATION OF THE EXECUTOR OR ADMINISTRATOR FOR HIS SERVICES. It is specially enjoined upon an executor or administrator by law to use all reasonable diligence in collecting and converting into money the assets of the estate, and, if possible, to pay the claims against the same and make settlement of his account (89) within eighteen months from the date of his bond. Should cir- cumstances compel him to ask for an extension of time for the collection of assets, he is nevertheless required to file an account at the expiration of the eighteen months, and to report to the court the progress he has made in the settlement of the estate. In case further time should be allowed, an account must be filed every twelve months after the filing of the first, and at such other times as the executor or administrator may be required so to do by the probate judge, until the estate is fully settled. 8 The allowance of further time to collect assets will not op- erate as an allowance of further time to file the accounts re- quired, and will not exempt an executor or administrator from a citation to file an account at any time when it may appear to the probate judge to be necessary. b When an executor or administrator has died before the estate is fully administered, the law makes it the duty of the executor or administrator of such deceased executor or administrator to (a) 6175. (b) I 6177. MATTKRa RELATING THERETO. 157 render & final account of such decedent's administration within six months after his appointment 1 .* Every executor or administrator will be chargeable with the amount of the sale bill, as hereinbefore provided, and also with all goods, chattels, rights, and credits of the deceased, which shall come to his hands, and which are by law to be administered, although they should not be included in the inventory or sale bill ; also with all the proceeds of real estate, sold for the pay- ment of debts or legacies, and with all the interest, profit, and income that shall in any way come to his hands from the per- sonal estate of the deceased. b In rendering an account (89), the executor or administrator should therefore charge himself with the entire amount of the sale bill in gross, without entering separately the several sums he may have received in cash upon the day of sale, or upon the sale notes subsequently. He must also charge himself with all moneys collected by him upon any claims due the estate, including any indebtedness of his own to the decedent, 1 whether such claims be mentioned in the inventory or not, naming the dates when the several amounts were received, and entering principal and interest separately. Also the avails of any personal property sold at private sale, and the proceeds of real estate sold by order of court or the will of the decedent, together with the interest received by him upon deferred payments. Also any interest received upon the sale notes and upon mon- eys of the estate deposited in bank or loaned by the executor or administrator, or used by him in his own business. (1) "When the obligor in a bond becomes administrator of the obligee, the bond is suspended, and the debt becomes assets in the hands of the obligor as administrator. Bigelow's Ex'rs v. Bigelow's Adm'rs, 4 Ohio, 138. An executor or administrator who is indebted to the estate upon a claim due the decedent in his lifetime, is bound to account fur the amount so due from him as for so much money received, and is liable to an action upon his bond, by the administrator de bonis non of the decedent, or by any other person to the payment of whose claim the amount so due from the executoi or administrator would be applicable. Tracy's Adm'x ;. Card, 2 Ohio St 481. (a) 6175. (b) 6179. 158 ACCOUNT OP EXECUTOR OR ADMINISTRATOR. Also, any moneys received by him from a former administrator,, or from the executor or administrator of any other estate in which the decedent had an interest as heir or legatee ; together with any sums paid to the executor or administrator by a late part- ner of the decedent as the avails of the partnership business. If any executor or administrator shall neglect to sell any portion of the personal property which he is bound loy law to sell, and retains, consumes, or disposes of the same, for his own benefit, he will be charged therewith at double the value affixed thereto by the appraisers. 8 No profits 1 shall be made by executors or administrators, by the increase, nor shall they sustain any loss by the decrease or destruction, without their fault,*of any part of the estate. 1 * No executor or administrator shall be accountable for any debts, inventoried as due to the deceased, if it appear to the court that they remain uncollected without his fault. 6 But he is entitled to a deduction for loss only upon making satisfactory proof to the court that he exercised due care in tak- ing securit}" upon the sale notes ; that subsequently the princi- pal and sureties in the notes on which the loss occurred became insolvent ; and that he made every reasonable effort to collect the amount of such note or notes, but failed therein. He is not chargeable with interest upon money in his hands, unless he apply the same to his own' use, or derive some benefit from the loan of it ; or unless he unreasonably and unnecessarily delay the closing up of the affairs of the estate. 3 An executor or administrator is entitled to credit in his ac- count for all payments by him legally made in behalf of the es- tate. These include expenses of last sickness and funeral of the decedent; costs of administration (including expenses incurred in cutting, threshing, and hauling grain, removing and taking care of personal property, etc.) ; allowance to the widow and children ;' taxes ; ordinary debts ; legacies; notes and other ef- fects distributed in kind, as mentioned on page 127 ; and, in (1) See notes 39-42, pp. ,542-343. (2) See notes 1, p. 162. (3) Couch et al. v. Couch's Adm'r, 7 Ohio St. 2'2. (aj J><11S2. (b) "i G180. (c) 6181. COMPENSATION OF EXECUTOR OR ADMINISTRATOR. 159 short, an}' payment authorized by law or tbe will of the de- cedent. 1 He is also entitled to credit for the amount of the compensa- tion allowed by law for his services. But it is not a good prac- tice to enter the compensation in the account ; as it is seldom that the amount remains unchanged by the probate judge; and. in case an alteration should be made, a discrepancy will appear between the account and the finding of the court. It is the duty of the probate judge to determine, under the law, the amount of the compensation to which the executor or administrator is en- titled ; and therefore a mere memorandum on the credit side of tbe account, that tbe accountant claims the ordinary legal com- pensation or commission will be sufficient. As compensation for their services, executors or administrators are allowed b}* law the following commissions upon moneys re- ceived and accounted for by them : 2 * (1) An executor or administrator with tbe will annexed is not bound to assume the defense of a will in proceedings brought by the heirs to contest its validity; and can not charge the estate, on the settlement of his ac- count, with the costs of such defense in case the will should be set aside. Andrews' Ex'rs v. Andrews' Adm'rs, 7 Ohio St. 143. (2) "Where the testator directed certain legacies to be paid by his execu- tors, and devised certain lands to A., charged with the payment of the lega- cies and costs of administration, so far as fundsjnight be needed by the ex- ecutors for the payment of the same, and A. paid and took receipts from the legatees, and tendered the amount of costs of administration to tbe execu- tors, exclusive of any per cent, on the legacies, it was held that in such case the executors are not entitled to a per cent, on .the legacies. Whether, however, in seeing to the discharge of the legacies, the executors performed extraordinary services, not in the common course of duty, was a matter for the consideration of the probate court, on settlement. Williams v. Will- iams' Ex'r, 8 Ohio St. 300. Where executors, by valuable services, procured the settlement of a large debt, amounting to over $300,000, due by the estate to mortgagees, by in- ducing the latter to accept as satisfaction the release of the equity of re- demption, which was very advantageous to the estate, and the court allowed the executors as compensation the maximum legal commission on the whole amount of the debt, although only about $3,000 in cash was actually handled, thi> court, though regarding commissions so given as a strained construe U ' f C.KS8. 160 ACCOUNT OP EXECUTOR AND ADMINISTRATOR. Upon the first thousand dollars, at the rate of six per centum ; Upon the next four thousand dollars, four per centum ; Upon the balance, two per centum. These commissions are allowed upon the proceeds of lands sold by order ot the court or by will, as well us upon the per- sonal estate converted into money. But when the provision is made in a will for the compensation of an executor or adminis- trator, he can not claim the commissions allowed by law unless he first, in writing, renounce to the court any claim to the com- pensation provided by will. 9 In addition to the commissions mentioned, an executor or ad- ministrator will be entitled to such further allowance as the court may deem just and reasonable lor his actual and necessary ex- penses, and for any extraordinary services not required of him in the common course of his duty. To obtain such additional al- lowance, the person claiming the same must satisfy the court, by his own affidavit or otherwise, as the court may direct, that the amount claimed is reasonable, and that the same is justly due him for his expenses and extraordinary services, in addition to the compensation fixed by law. a Where more than one account is filed by an executor or ad- ministrator, the rule for the allowance of commissions remains unchanged. Upon the filing of the second or any subsequent account, the computation is taken up where left by the preced- ing account, and the money contained in the preceding account or accounts is added to what is subsequently accounted for, and the computation of, the commissions is made as though the moneys were all comprehended in one account. For example : If an estate amount to six thousand dollars ; and in the first account nine hundred dollars be accounted for; in the second four thousand dollars, and in the third and final one eleven hun- tion of the statute then in force (2 Chase, 1309, $ 8), and as excessive, yex refuse to interfere, such allowance having been on record without complaint for upward of twenty-five years, during which time final settlement was had by agreement between the executors and all the heirs, except two minors, without objection to the charge. Piatt v. Longworth's Devisees, 27 Ohio St. 159, 183. (a) 6188. SUNDRY MATTERS RELATING THERETO. 161 dred dollars ; on the settlement of the first account the commis- sions would be six per cent. ; of the second, six per cent, on one hundred dollars, and four per cent, on three thousand nine hundred dollars; and of the third, four per cent, upon one hun- dred dollars, and two per cent, on the residue. But an executor or administrator may claim compensation for extra services, upon the filing of every account. An executor or administrator who fails to file an account within thirty days after he is notified to do so by the probate judge, can get no compensation for his services unless the judge enter upon his journal that the delay was necessary and reason- able." As to claims due to the executor or administrator from the es- tate of the decedent, see Chapter VI., pp. 112-115. As to allowance for tombstones for deceased, b see p. 127. If the estate be insolvent, the executor or administrator should proceed as rapidly as possible to collect the assets and pay the preferred claims against the same; and after having done so, he should file an account of his proceedings, and obtain an order of court declaring the probable insolvency of the estate. But should the assets be sufficient to pay the preferred claims only, the executor or administrator may, upon payment of such claims, file a final account without representing the estate to be insolvent, or obtaining an order declaring such insolvency. An executor or administrator can not claim credit for any un- current, counterfeit, or worthless money taken by him in the course of his administration, but must himself suffer the loss. The loss will also fall upon him in case he receives current bank bills, and fails to pay them over to creditors or heirs with proper diligence, arid such bills subsequently become worthless. Ex- treme care is necessary to avoid liability for loss in such cases. If an executor or administrator deposits money in his own name in a bank, and the money is lost by the bank's failure, or otherwise, he will be personally responsible for such money. But if he, as executor or administrator, deposits it in a bank in (a) 5996, 6006. (c) g 6112. (b) \ 6185. 11 162 ACCOUNT OF EXECUTOR OR ADMINISTRATOR. good credit and repute, till the time arrives for paying it to cred- itors, devisees, etc., and the bank fails, he will not be responsible. He must act in regard to this as a prudent man would in his own affairs, and must keep the account of such funds separate from the account of his own. 1 Payments made to legatees under the provisions of a will are proper items of credit to an executor or administrator in his ac- count ; but payments made to heirs upon their distributive shares of the estate, before the final settlement of the estate, should not be incorporated in the account. It is the duty of the probate judge, in examining the account, to determine how much of the estate is subject to distribution among the heirs ; and whether the; money has already been distributed, or still remains to be distributed, is a matter in which he has no concern. His duties and powers cease with the order directing distribution to be made, according to the will or the law, 2 of the amount remaining in the hands of the executor or administrator on final settle- ment. But should the executor or administrator desire to satisfy the probate judge that he paid over to the widow and heirs, upon their respective shares of the estate, the surplus moneys in his hands as rapidly as the condition of the estate would permit, and that he should not be charged with interest upon any ap- parent balance remaining an unreasonable length of time in his hands, he may file a separate schedule of the payments made to such widow and heirs, and the vouchers in support thereof, with his account, for the inspection of the probate judge. But for no other purpose than for the adjustment of interest is a memoran- dum of payments made to heirs of any benefit in an account. As all accounts are recorded, and are open to examination by heirs and others interested, and as an executor or administrator can not always be present to make such explanations as may be desired relative to the various items composing his debit and (1) See notes 109-114, pp. 354, 355. (2) McLaughlin v. McLaughlin, 4 Ohio St. 608. See also p. 165, and notes 43, 44, p. 343. HIS VOUCHERS, AND AFFIDAVIT, ETC. 163 credit, it is well to give at the foot of the account explanations of all such matters as are not entirely plain to the comprehen- sion of all persons. Such memoranda may serve an excellent purpose in after years, when minors interested in the estate ar- rive at full age, and the facts relative to many receipts or dis- bursements may have entirely escaped the memory of the ac- countant. The executor or administrator should bear in mind that the account is not for the eye of the probate judge alone, but that in most cases others are also to be satisfied of its cor- rectness; Before filing the account, the executor or administrator must make oath before the probate judge or some other person author- ized to administer oaths generally, that the same is, in all re- spects, correct, a certificate of which oath must be written upon or attached to such account, and signed by the affiant (90). a When an account is rendered by two or more executors or ad- ministrators, the court may. in its discretion, allow it, upon the oath of one, or may require that it be sworn to by all. b The executor or administrator is required to produce and file with his account vouchers for all payments by him made in be- half of the estate ; but the probate judge may, upon settlement of the account, allow any items of expenditure not exceeding ten dollars each, nor two hundred dollars in the whole, for which vouchers can not be exhibited, upon the oath of the executor or administrator that such payments were actually made, and spe- cifying when and to whom the same were made provided such oath be uncontradicted. But as such allowance is discretionary with the probate judge, an executor or administrator should be prepared with satisfactory vouchers to prove all his payments, and thus guard against all contingencies. If the executor or administrator has sold any personal prop- erty at private sale, by order of the court, he must make and file with his account an affidavit (90) that such private sale has been made after diligent endeavor to obtain the best price for the property, and that the sale reported is for the highest price that he could get for the property . d (a) \ 6176. (c) $ 6183, 6184. (b) 6176. (d) g 6412. 1U4 ACCOUNT OP EXECUTOR OR ADMINISTRATOR. Upon filing the account and vouchers with the probate judge, his fees upon the same, together with .any fees due him for pre- vious official services, must be paid ; and an executor or adminis- trator should provide himself with, funds for that purpose be- fore handing in his account. No action will be taken upon the account until the fees are paid. Executors or administrators sometimes suppose that upon fil- ing an account a settlement takes place with the probate judge in the same manner that accounts are settled between private in- dividuals, and that* such settlement takes place forthwith ; but such is not the case. It is the duty of the probate judge to cause notice to be pub- lished in some newspaper of the county, of the filing of any ac- counts by executors and administrators, specifying the time when such accounts shall be heard, which must not be less than three weeks after the publication of such notice, at which time it shall be competent for said probate judge, for cause, to allow further time to file exceptions to said accounts ; and the costs of such notice must be paid, if more than one account be specified in the same notice, in equal proportions by the executors and adminis- trators respectively.* Upon the hearing of an account, whether exceptions be filed or not, the probate judge may require the executor or adminis- trator to appear before him, and to submit to an examination, under oath, touching the account ; and in case the probate judge should think proper, he may reduce such examination to writ- ing, and after being signed by the executor or administrator, may file the same away with the papers in the case. b In case the executor or administrator should claim credit in his account for money due him from the decedent in his lifetime, and such claim should be disputed, the general rule is that he must make proof of its validity by evidence other than his own. He can then be a witness in his own favor only under the excep- tional cases specially provided for by statute. These exceptions are fully given in Chapter XIV. The court ma} 7 , if it shall deem it expedient and proper, refer (a) 6402. (b) \ 6403 ORDER OP DISTRIBUTION. APPEAL, ETC. 165 the account and the exceptions thereto, if any, to a special com- missioner, appointed by the court for that purpose." When the account of an executor or administrator is approved and allowed by the probate judge, it is his duty to order a dis- tribution of the amount remaining in the hands of the account- ant, according to law, or to the will of the decedent, as the case may be (92). b From an order of the probate court, settling the account of an executor or administrator, an appeal may be taken to the court of common pleas. 2 (1) The probate court has no power to enforce this order by execution. The object of the order is merely to lay the foundation for a suit upon the bond, or for other proceedings to compel the executor or administrator to make distribution of the balance found in his hands. Nor has the probate court power to determine, by a mere order of distribution, the respective rights of the heirs, legatees, or others entitled to a share in such distribution, or the several proportions thereof to which they are respectively entitled. JMcLaughlin v. McLaughlin, 4 Ohio St. 508. A settlement in the probate court is an ex parte proceeding, prima facie evidence only of correctness, and binding no rights except when made in conformity to law. Muskingum Bank v. Carpenter, 7 Ohio (pt. 1), 21. See also 20 Ohio, 310; 2 Ohio St. 431. Sections 534, d 536, e and 542 f of the (old) code of civil procedure (these sections have been re-enacted, and are still in force) do not confer power on a probate court to modify or vacate its own orders previously made in the settlements of the accounts of executors and administrators. It is evident that section 534 has reference to judgment or orders in adversary actions or proceedings inter paries, and not to such as are ex parte, as in habeas corpus, nor where there are no parties in any proper sense, as in the settlement of an executor's accounts. The law makes ample provisions for the correction of the accounts of executors and administrators, and the remedies it supplies must be followed within the time and in the manner pointed out. Johnson, Ex'r, v. Johnson, 26 Ohio St. 357. (2) Certain heirs sued an administrator, charging him with fraudulent settlement of account, unnecessary sale of real estate, and for at least $6,000, which they claimed he ought to distribute. Held, that the parties (a) \ 6186. (d) 6354, as corrected, 77 O. L. 42. (b) 624. (e) 5358. (c) 6407. (f ) g 5366. 166 ACCOUNT OF EXECUTOR OR ADMINISTRATOR. When an account is settled in the absence of any person ad- versely interested, and without actual notice to him or her, such person may file his or her exceptions to such account at anytime within eight months after such settlement ; and the account will be opened and re-examined so far as relates to the items ex- cepted to. Upon settlement of an account filed by an execu- tor or administrator, any accounts previously filed bj r him may be so far opened as to correct any error or fraud therein ; ex- cept that any matter of dispute previously heard and deter- mined by the court can not be again tried by either of the par- ties to the former proceeding, without leave of the court. 1 " were not entitled to a second trial, but were entitled to an appeal. Reed'a Adm'r v. Eeed, 25 Ohio St. 422. See Chapter XIV., as to the manner of taking appeal, and as to the bond of executors and administrators in such cases. (1) Where the administrators had filed partial accounts, which had been settled by a competent court, and had thereafter made no further or final settlement with the court, but had settled all demands of creditors, and thereupon, at the request of the heirs, made a full and final settlement with the heirs in writing and under seal of all matters of administration, and thereupon surrendered to the heirs the remaining assets: Held, that as to all matters that would have been embraced in a final account by such ad- ministrators with the court, such settlement by the parties is final and con- clusive, unless impeached ; that as to all errors or mistakes in settling said partial accounts in court, which had been a matter of record for over twenty years, and must have been known to the heirs, such settlement is final and conclusive, unless impeached. Piatt v. Longworth's Devisees, 27 Ohio St. 169. That where the names of infants are signed to such final settlement, with- out lawful authority, they may, on coming of age, if not otherwise debarred, disaffirm the same, and compel the administrators to make final settlement in the proper court. Such infants have a plain, adequate, and complete remedy at law, as to all matters of account, and can not invoke the aid of a court of equity to correct errors or mistakes in such partial or final settle- ments until they have exhausted their legal remedy. Ib. In an agreement between executors and heirs in lieu of a final account in court, where specified pieces of property are turned over by the executors to the heirs, and claims mutually relinquished, and it is expressed that this is a "full and complete settlement " of all matters that have been adminis- tered on, this language is not broad enough to cover a claim for a breach of . B187. HOW FILING OF ACCOUNT ENFORCED. 167 The eight months allowed by the statute for the fiiinr(il estate of the deceased. Griswold ?;. Frink, 22 Ohlr. 81. 7&, See :.!.-<> note 'J, p. 154, and note 1, p. 106. (a) \ (1178. (b) <> 0130, 6178, 604i-6U4b (c) gg4!C9, 41G2, 4163, 6194. TO WHOM DISTRIBUTION MADE. 169 and if more than four hundred dollars remain, her proportion of the same will be one-half of the first four hundred dollars and one-third of the residue. Second. If there be no children or their legal representatives, such property shall pass to, and be vested in, the surviving hus- band or wife of the intestate. 1 But the ownership of such prop- erty by said husband or wife is limited to this extent, that if the last mentioned husband or wife shall die intestate, without issue, and possessed of any property so inherited from a former husband or \vife. then such property shall descend, one-half to his or her brothers and sisters or their representatives, and the other half to the brothers or sisters of the husband or wife from whom the property came, or their personal representatives. But nee 78 O. L. 107." Third. If the intestate leaves no surviving husband or wife, (1) In connection with this subject, see Ferguson et ux. v. Stuart's Ex'r, 14 Ohio, 140, and Collier v. Collier's Ex'r, 3 Ohio St. 369. A testator died without issue, and by his will devised to his widow his real estate and about seven thousand dollars worth of his personal estate, being all his personal estate except a few legacies of small amount. The widow, without electing <*> take under the will, died, leaving a will in which she disposed of the property devised to her. In an action by the brothers of the testator against the executor of the widow to recover the personal estate, it was held that if the widow, by reason of failure to make an election, was excluded from taking un'der the will, she would be entitled to said personal property as next of kin. Gardner et al. v. Gardner's Ex'r et al., 13 Ohio St. 426. Under the act of March 23, 1840, 180, providing that ' when the intes- tate shall have left any legitimate child, heir of his body, the widow shall be entitled to all the personal estate, as next of kin, which shall be subject to distribution upon settlement of the estate; and if the intestate shall have left such child, the widow shall be entitled, upon distribution, to one-half of any sum not exceeding four hundred dollars, and to one-third of the residue of the personal estate subject to distribution : " Held, that whether the in- testate shall or shall not have left any child living, the title of the widow to her distributive share of the personal property accrues on the death of the intestate, subject only to the debts and incidental expenses to be first paid by the administrator. Conger et ux. v. Barker's Adm'r et al., 11 Ohio St. 1. The provision in the statute of descents in favor of surviving husband or wife of the intestate applies only to where the intestate died seized of the estate. Hence, where a daughter dies before her father, her surviving hus- band can inherit nothing from her father's estate as her legal representative. Lsme r. MeKinstry, 31 Ohio St. 640. 170 DISTRIBUTION OP ESTATES. such property shall pass to the brothers and sisters of the intes- tate, of the whole blood and their legal representatives. Fourth. If there be no brothers or sisters of' the intestate of the whole blood, or their legal representatives, such property shall pass to the brothers and sisters of the half blood and their legal representatives. 1 Fifth. If there be no brothers or sisters of the intestate of the half blood, or their legal representatives, such property shall ascend to the father ; if the father be dead, then to the mother. Sixth. If the father and mother be dead, the property shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate. Seventh. If there be no such next of kin, then such property shall pass to the State of Ohio, and it is the duty of the prose- cuting attorney of the county where the letters were granted to collect the same and and pay it to the treasurer of the said county, to be applied exclusively to the support of the common schools of that county. (1) E. P. purchased lands and died* intestate, leaving I. P. and J. P., his sons and heirs, and 11., his widow, who married again. Before the birth or conception of issue of the second marriage, I. P. died intestate and without issue, being an infant. J. P. afterward died intestate and without issue. At the time of Ids death there was issue of the second marriage. Held, that within the meaning of the act of 1831, "regulating descents and the distribution of personal estates," I. P. was the ancestor of J. P., from whom a moiety of the land came to the latter, and that on the death of J. P. his half-brothers took that moiety. Lessee of Prickett et al. v. Parker, 3 Ohio St. 394. See also Dunn v. Evans et ux., 7 Ohio (pt. 1 ), 10!). Grand-uncles and grand-aunts, when next of kin, will take in exclusion of children or grandchildren of deceased grand-uncles or grand-aunts. Clayton et al. v. Drake et al, 17 Ohio St. 367. 4 A. died, leaving lands which descended to 13., a posthumous child, leaving C., his widow and mother of the child, and surviving brothers and sisters. On petition of the administrator of A., the lands were sold by order of the probate court, and from the proceeds the value of the widow's dower inter- est was paid, and before distribution of the surplus B. died intestate, without lineal heir. Held, that as to the estate of A., the proceeds of the sale arc to be regarded as real estate, but as to the estate of 13. as personal estate; and after the payment of the debts of A., the surplus was subject to distri- bution as the personal estate of B., and belonged to C., the mother and legal representative of the intestate B. Pence et al. v. Pence's Adm r et al., 11 Ohio St. 290. TO WHOM DISTRIBUTION MADE. 171 The children of an intestate living at the time of his or her death are each entitled to an equal share of the balance of hia personal estate, after deducting therefrom the widow's portion; but should any child of the decedent have died, leaving children, the children of such deceased child will be jointly entitled to the share which their deceased father or mother might claim were he or she still living. 1 * But when the children of an intestate are dead at the time of his death, and his only heirs are grandchildren, such grandchil- dren take in equal parts, and not according to the rights of their deceased parents. And so in other cases, when all the heirs of an intestate living at the time of his death are of equal degree of consanguinity to him. the estate passes to them in equal parts. When the children of an intestate are all living at the time of his death, but afterward, and before the settlement of his estate, all die, leaving children, the children of such deceased -children will take the estate according to the rights of their deceased pa- rents, and not in equal parts, or per capita-. And the same rule of distribution prevails in all cases where the heirs, at the time of the death of the intestate, are of unequal degree of relationship to him, but subsequent thereto, and before the settlement of his es- tate, such changes occur by the death of heirs that the remaining heirs, or those entitled to a share in the distribution of his estate, when the same actually takes place, stand equally related to him. In law, if not in fact, the estate of an intestate at his death passes to his heirs then living, whether such heirs be children, grand- children, or others ; and in case any of the heirs die before the settlement of the estate, those who claim through them will be entitled to no more than their several shares of the estate. To illustrate : Suppose Kichard Roe to have died intestate, and to have had, during his life, three children, John, James, and Mary, and all living at the time of his death ; they would each take one-third cf Richard's property subject to distribution. Suppose that John, leaving no issue, had died before Richard did : none of Richard'** property would ever have vested in John, and James and Mary would each take one-half of it. Suppose that before Richard s death. John, leaving no issue, and James, (1) See Dutoii v. Doyle et al.. 1U Ohio St. 400. (a) 2 4164-41(17. r.l 172 DISTRIBUTION OF ESTATES. leaving three children living, had died, and that Mary, with five children living, had survived Richard ; James' children would jointly take one-half of Richard's property, and Mary would take the other half. Suppose that Mary should die before dis- tribution took place; James' children would each take one-third of one-half, and Mary's children each one-fifth "f one-half of Richard's property. Suppose that all three of Richard's chil- dren had died before he did ; then euch of his grandchildren would take the one-eighth of his property. The words ' ; child " and " children," as used in the preced- ing four pages, are construed to mean the legitimate child or children only of a father ; but a bastard can inherit from hi& mother, in a division or distribution of her personal or real, es- tate j 1 and if there be any legitimate heirs of the mother, they and such bastard will inherit in equal parts. He may also in- herit from any one to whom his mother, if living, would be an heir. 8 Where a bastard dies without leaving a widow or child, his mother may inherit from him, and should she be dead his estate will go to the relatives of his mother in like manner as if he had been legitimate.* When a child is born out of wedlock, and the father and mother subsequently intermarry and acknowledge such child as their offspring, it thereby becomes, for all inheritable purposes, legitimate. 1 " When persons intermarry and the marriage is afterward for any reason annulled, the issue of the marriage are nevertheless legitimate. 1 " Where a child has been adopted by proceedings in the probate court, according to law, it becomes an heir of the person by whom it was adopted, and entitled to a share in the distribution (1) When a bastard is the only child of a woman killed by the careless- ness of a railroad company, an action may be sustained for his benefit by the administrator of his mother, to recover damages for the wrongful act. See Muhl's Adm'r v. Southern Michigan R. R. Co., 10 Ohio St. 272. (a) 4174. (b) ADVANCEMENTS. 173 of his or her estate, to the same extent as if it were his or her own child, born in lawful wedlock. 1 a Descendants of the intestate begotten before his or her death, but born thereafter, shall in all cases inherit in the same manner as if they had been born in the lifetime of the intestate, and had survived him or her ; but in no other case shall any other per son inherit, unless living at the time of the death of the in- testate. 1 * When an intestate in his lifetime made advancements to his children or their descendants, in either real or personal prop- erty, the portions received by them respectively will be held to apply upon their several distributive shares of his estate. If the advancement was in real estate, the value of the same will be considered as part of the real estate to be divided ; and if it was in money or other personal estate, it will be considered as part of the personal estate to be distributed ; and if, in either case, it exceed the share of the real or personal estate that would come to the heir to whom such advancement was made, he or she will not be required to refund any part of the same, but will be required to account for the surplus as so much received upon his or her proportion of the other part of the estate. And should the amount of such advancement be equal to or exceed such heir's proportion of both real and personal estate, he or she will be excluded from any share in the distribution of the intestate's estate after his death, but can not be compelled to refund any portion of the money or property advanced, although the amount received by him or her should exceed the amount received by the other heirs upon final distribution of the estate. Should the value of the real or personal property advanced be expressed in a deed of conveyance or any other instrument of writing, or be entered in an account book of the decedent, or in a receipt of the (1) The act of April 20, 1854, and the act of March 29, 1859; give to the adopted heir the legal status of a child of the adopter, and the statute re- quires him to be regarded as such child in tracing descent to or from him in the cases therein specified ; but in cases which do not come within those acts, the operation of the statute of descents is the same as if such acts had not been passed. Lathrop v. Young, 25 Ohio St. 451. (a) \ 3137. (b) \ 4179 174 DISTRIBUTION OF ESTATES. person so advanced, the value or amount so indicated will bo- taken as the true value or amount, in adjusting the rights of the several heirs in the distribution of the estate : otherwise, an estimate must be made of the value of the property when the advancement was made. 1 a When administration is granted upon the estate of a person residing and dying out of the state, but interested in business in the state, as partner or otherwise, the administrator, upon set- tlement of his account, must pay into the probate court of the (1) Where a father, on making an advancement to one of his sons, took the son's receipt, in which the son acknowledged that the amount received was to be in full of all claims which the son should have in his father's es- tate after his death, as one of his heirs, and agreeing not to set up any claim as heir, etc., it was held that the son was not bound by such agreement after his father's death. Needles' Ex'rs v. Needles et al., 7 Ohio St. 432. A gift to a son-in-law, intended to be charged by the father against his daughter as an advancement, and not subsequently converted by him into a gift absolute, will be charged against her in the distribution of his intes- tate property, if she,'knowing the fact and intention of the gift, shall have acquiesced therein. Such acquiescence may be shown by evidence of ex- press assent, or inferred from facts and circumstances inconsistent with such knowledge and assent. Dittoe's Adnrr v. Cluney's Ex'r, 22 Ohio St. 436. F. conveyed real estate to S. for $17,000, $5,000 of which was released by way of advancement to F.'s daughter, who was S.'s wife, and with her consent the deed was made to S. Subsequently S. reconveyed the same premises to F. for $18,000, for a part of which F. gave his note to S. After death of S. and before said notes were paid, the widow of S. brought her action against her husband's administrator to recover the advancement. Hdd, that the action was properly dismissed. Stump v. Stump, 26 Ohio St. 1G9. For other decisions relating more or less directly to advancements, see Caylor's Ex'r v. Merchant, 5 W. L. M. 194; Williams v. Williams, 3 W. L. M. 258; Needles v. Needles, 7 Ohio St. 432; Thompson v. Thompson, 18 Ohio St. 73; Godell v. Taylor, W. 82; Miller v. Wilson, 15 Ohio, 108; Van Zant v. Davies, 6 'Ohio St. 52; Creed v. Bank, 1 Ohio St. 1; Swihart v. Shaum, 24 Ohio St. 432; Painter v. Painter, 18 Ohio, 247; Myers v. Warner, 18 Ohio, 519; Putnam v. Putnam, 18 Ohio, 347; Stableton v. Ellison, 21 Ohio St. 527; Tremper v. Barton, 18 Ohio, 418; Overholser v. Wright, 17 Ohio St. 157 ; Williams v. Mears, 2 D. 604, 614 ; Ilosmer v. Sturges, 31 Ohio St. f.57, in notes 53-58, pp. 344-346. in) H1 ); 'J, 4170, 4171. WHEN LEGACIES MAY BE PAID J RECEIPTS, ETC. 175 county from which he derived his letters, any surplus of the es- tate remaining in his hands after the payment of the legal claims presented against the estate, for the benefit of the estate of the decedent in the state in which he resided at the time of his death. 8 Should a legatee within four years from the date of the admin- istration bond deaiand payment of his legacy, the probate judge may, if he think fit, require (59) that such legatee first give bond (58) to the executor or administrator, with sureties to be approved by the judge, conditioned to refund the amount of such legacy, or so much thereof as may be necessary to satisfy any demands that may afterward be recovered against the es- tate, and to indemnify the executor or administrator against all loss or damage by reason of the payment of such legacy. b An executor or administrator is not liable for interest upon moneys found by the court to be in his hands for distribution, until a demand is made and he fails to pay. Upon making payment to the widow, heirs, legatees, or other persons interested in the distribution of an estate, of the whole or any part of their several shares, the executor or administra- tor should take a receipt (93) from each, specifying the amount and object of the payment ; and if a married woman be entitled to a share in such distribution, the better and safer practice is to take a receipt signed by her and her husband, upon making pay- ment to either. And where there are minor heirs, a guardian should be appointed immediately, as no one but a guardian can legally receipt to the executor or administrator for moneys due them out of an estate. Should the appointment of a guardian be unnecessarily delayed, and the executor or administrator de- sire to be relieved of the moneys remaining iu his hands, he may represent the facts to the probate court, and the court will, if necessary, use compulsory means to effect such appointment. After having made distribution according to law or the will, as the case may be, and after having obtained the receipts of all persons interested in such distribution, the executor or adminis- trator may, within one year from the time when the order of (a) \ tlOl:',. See ftlso p. 74. (!>) JMJ1-J8. See nisi. p. 124. 17C DISTRIBUTION OF ESTATES. distribution was made by the probate court, present to the court an account of such payments (94), 'with the vouchers; and upon being satisfied by the affidavit of the executor or administrator, and such other proof as may be required, that the payments were actually made as claimed, the court will record such ac- count, and enter the final discharge of such executor or admin- istrator; and such discharge will forever exonerate the executor or administrator and his sureties from further liability under the order of distribution, unless the administration account should subsequently be impeached for fraud or manifest error. 1 a An impression seems to prevail that the mere recording of the receipts of heirs and legatees will operate as a discharge from liability under the order of distribution ; but this is erroneous. There is no law giving such record the effect supposed. The only benefit to be derived from the recording of such receipts is to perpetuate the evidence of payment, and to guard against their loss ; further than this such record has no effect. Should any part of the money ordered to be distributed re- main for six months unclaimed by the person or persons entitled to the same, the executor or administrator may, under the direc- tion of the probate court (95), invest such money in stocks, or loun the same on bond and mortgage, as the court may deem best, to accumulate for the benefit of the person or persons enti- tled to the same. 2 Such investment must be made in the narao of the judge of the court for the time being, and will be subject to the order of the judge and his successors in office, as provided below ; and the person making such investment must file in the court a memorandum (96) thereof, with the original certificates, or other evidence of title thereto, which shall be allowed as a (1) But where an executor or administrator, after final settlement, dis- tributes the balance in his hands to a part only of the distributees, he is not exempt from suit at the instance of other parties interested in such distri- bution, even though the vouchers of such distribution be filed with and ap- proved by the court. Negley v. Gard et ux., 20 Ohio, 310. (2) As to investing moneys detained in the hands of an executor or ad- ministrator, by legal proceedings, see ante, p. 127. See also p. 162. (a) \ 6190. REMEDY ON UNPAID CLAIMS. 177 sufficient voucher for such payment, under the said order or de- cree. 8 When the person entitled to the money invested shall satisfy the court of his right to receive the same, the court shall cause it to be paid over and transferred to him (97). b The judge with whom such certificates or evidences of title are deposited, for the time being, and each succeeding judge to ^vhom they shall come, and his sureties, shall be responsible for their safe-keeping and application, as provided in the two pre- ceding paragraphs. If an executor or administrator, within thirty days after an order of distribution is entered by the court, upon settlement of his accounts, fail to pay to any person l interested in such order of distribution as creditor, widow, heir, legatee, or otherwise, upon demand, his or her share of the money or property ordered 10 be distributed, such person may file a petition (98) in the pro- bate court which made such order, briefly setting forth the na- ture and amount of his or her claim ; and it thereupon becomes the duty of the probate judge forthwith to issue a citation (99) against such executor or administrator, setting forth the filing of the petition and the amount claimed by the petitioner, and commanding such executor or administrator to appear on some day to be named therein, which can not be less than twenty nor more thati forty days from the date of such citation, to answer the petition, and show cause, if any he should have, why judg- ment and execution should not be awarded against him for the amount claimed to be due to the petitioner under the order of dis- tribution. Such citation may issue to any county of the state, and may be served by the sheriff or other proper officer, as in the case of &. 6226, 6239. (c) \ 6242. t^) % 6240, 6241. (d) ? 6243. 184 INSOLVENT ESTATES. to receive and examine claims against the estate, such commis- sioners, before entering upon the discharge of their duties, must be sworn to a faithful performance- of the same (105). It i their duty to appoint convenient times and places of meeting to receive and audit the claims of creditors, and to give notice (107) of such sittings by posting up advertisements in some public places in the township in which the deceased resided at the time of his death ; or in such other manner as the probate court may direct, having regard to the situation of the creditors of the estate." Creditors are allowed six months from the time of the appoint- ment of commissioners to present and prove their claims; and the court is authorized to grant such additional time for that purpose as may be deemed necessary in any particular case, pro- vided the whole time allowed do not exceed eighteen months from the date of the commission. 11 A creditor who has presented his claim to the executor or ad- ministrator of the estate is not thereby excused from presenting the same to the commissioners for allowance. The commissioners are empowered to examine, under oath (108) (109), (which oath may be administered by any one of the commissioners), claimants and such witnesses as may be pro- duced before them by any person interested in establishing or refuting a claim. Should any claimant refuse to take an oath, or to fully answer the questions "that maybe lawfully propounded to him by the commissioners, or by the opposing parly or his attorney, the commissioners may disallow the claim ; and if an appeal be taken from the award, the court may also disallow the claim if the claimant refuse to be sworn, or to answer the question le- gally asked him touching the same." 1 And any person guilty of perjury on such examination, whether claimant or witness, will be liable to a prosecution for perjury, as in other cases of false swearing. At the expiration of the time allowed for proving claims, the commissioner must return to the probate court a list of all the (a, '0, li-'-Jl. tiT>. (c) fb) I <;>fi. (d) INSOLVENT ESTATES. 185 claims that were presented to them, specifying the amount al- lowed upon such as were duly proved, and designating particu- larly such as were in whole or in pai't disallowed (110). Snould any person be liable as surety for the deceased, or have any other contingent claim against the estate which could not be proved as a debt under the commission, or before the executor or administrator as commissioner, he may present the same to the probate court after the return of the list of claims by the commissioners, or by the executor or administrator acting in their stead ; and upon making proof to the court of the exist- ence of such contingent claim, the court is required by law, upon ordering a dividend of the assets then ready for distribution, to direct the executor or administrator to retain in his hands a sum sufficient to pay such contingent creditor an equal proportion of such assets with the other creditors. 8 In case such contingent claim should become absolute within four years from the date of the administration bond, and its jus- tice or validity be not disputed by the executor or administrator, the court may allow the same, and direct that it be paid out of the moneys retained for that purpose by the executor or admin- istrator, in the proportion received by the creditors who have already been paid, so far as the same can be done without dis- turbing the former dividends. But should the claim be disputed by the executor or administrator, it may be proved before the commissioners previously appointed, or before others to be ap- pointed by the court, in like manner as if it hud been presented before a list of the claims was returned to the court; and, if allowed by the commissioners, such claim must be paid out of the moneys retained by the executor or administrator, as if the same had not been disputed ; but if not allowed, the assets re- maining in the hands of the executor or administrator must be distributed among the creditors whose claims were allowed, in proportion to the amount of their respective demands. b Any person whose claim shall be disallowed, in whole or in part, by the commissioners, and any executor or administrator who shall be dissatisfied with the allowance of any claim, may appeal from the decision of the commissioners to the probate (a) \ 62-27. (b) \\ 6228, 6229. 186 INSOLVENT ESTATES. court; if the creditor appeals he must, within ten days after the decision, file with the commissioners a bond (111) to the execu- tor or administrator, with surety, to be approved by the com- missioners, in the sum of one hundred dollars, conditioned to pay all costs that may be adjudged against him on such appeal; the executor or administrator may appeal by giving notice (158) to the commissioners within ten days; 1 and, in case of an ap- peal, the court must, as soon as practicable, hear and determine the question as to the allowance or disallowance of the claim, and must adjudge the costs against the party failing on such hearing. 8 The law does not specify how the appeal is to be made, or how the proceedings before the commissioners are to bo made known to the court. Under the provisions of law in force previous to September 1, 1878, such appeal was to betaken " in like manner as such parties might appeal from the judgment of A justice of the peace," b which implied the filing of a transcript of the pro- ceedings, and of the bond and other papers, in the court. Prob- ably the courts will generally decide, from analogous practice in all otlier cases of appeal, that at least such a transcript, or some written statement of facts made by the commissioners, must still be filed. But possibly the petition of the party appealing must now supply what the transcript formerly furnished The petition should describe the claim, state who owns it, when arid by whom it was presented to the commissioners for allowance, and that it was allowed (or disallowed) by them on a given day ; that on a given day a bond, or notice, as may be, and of which a copy ma} r beattached to the petition, was filed with the commissioners ; and should pray the court to allow (or disallow) said claim as a valid claim against the estate mentioned, and for the costs. Any person whose claim shall be disallowed by the commis- sioners, and who shall, by accident, mistake, or otherwise, and not by his own neglect, omit to claim or prosecute his appeal, us before provided, may, upon his petition and notice thereof to the. executor or administrator, be allowed by the court to claim and prosecute his appeal, as provided on pp.185, 186, upon such term.-i (1) It seems that no bond is required of the administrator or executor on euch appeal, whether he has already given bond or not. See pp ; 220, 221. (aj I 1W3U (bj S. & C. 008, I 207. INSOLVENT ESTATES. 18? as the court, shall impose, if it shall appear by affidavit that jus- tice requires a further examination of his claim. But no such pe- tition will be sustained, unless it be presented within two years after the return of the commissioners, and within four years af- ter the date of the administration bond, and before final distri- bution. 8 The courts will perhaps generall}' require the notice mentioned in the preceding paragraph to be given in the nature of a sum mons served by the sheriff, as in other actions. The manner of serving such notice is, however, discretionary with the judge, as the law provides that when notice of any proceedings in a probate court shall be required by law, or be deemed necessary by the probate judge, and the manner of giving the same shall not be directed by statute, the probate judge must order notice of such proceedings to be given to all persons interested therein, in such manner and for such length of time as he shall deem rea- sonable. 1 ' The affidavit mentioned in the some paragraph must state the facts concerning the claim and the reason why the ap- peal was not prosecute*! sooner. It is the province of the court to determine, from these facts and circumstances, and from the nature of the claim, whether or not justice requires a further ex- amination of such claim. Should the claimant prepare a peti- tion describing therein briefly and clearly the claim, and in like manner stating the facts and reasons above alluded to, and also ask the court therein to allow him to claim and prosecute his ap- peal, and to grant him such relief, and render such judgment in the premises as justice requires, and then make affidavit to the truthfulness of the various matters stated in the petition, the court would probably consider this a substantial compliance with the requirements of the law, and as being good and the most con- venient practice. Should any claim referred to on pages 185, 186, 187 be finally allowed, no execution therefor will be issued against the executor or administrator ; but he must include it among the valid claims against the estate. Any costs awarded against the executor or administrator are to be charged by him as expenses of adminis- tration. Such were the specific provisons of the old law, and no B23I. (c) S. cV C. 000, I I'OT. (b) I 6406. 188 INSOLVENT ESTATES. doubt that, from the general tenor of the law in force, such is still the case, unless otherwise specifically directed by the court. The allowance of such appeal, and the judgment that may follow thereon, will not disturb any distribution that may have been ordered before notice of the petition, or notice of the in- tention to present the same shall have been given to the execu- tor or administrator; but the debts, if any, proved and allowed in the case last mentioned, must be paid out of such assets only as may remain in or come to the hands of the executor or ad- ministrator after payment of the sums due on such prior order of distribution. 8 At the expiration of thirty days from the return made by the commissioners, the probate court is required to make an order distributing the assets of the estate among the creditors in such manner as circumstances may require (112); and if, before making such order, the court should have notice that any appeal has been taken from the decision of the commissioners, the order of distribution may bo deferred until the determination of such appeal ; or an order may be made for the*distribution of the as- sets among the creditors whose claims have been allowed, leav- ing in the hands of the executor or administrator a sum suffi- cient to pay the creditor whose claim is disputed a proportion equal to what shall be paid to the other creditors. b Should the list of debts be returned by the executor or ad- ministrator, acting in the capacity of commissioner, a like order of distribution (112) must be made as when the return is made by commissioners appointed by the court ; but the court may previously hear and determine any exceptions that may be filed by any person interested in the distribution, against the allow- ance of any claim which may be deemed to have been improp- erly allowed by the executor or administrator ; and in case any suit be pending against the executor or administrator the court may defer making the order of distribution until the determina- tion of such suit, or may order a distribution among the credit- ors whose claims have been allowed, leaving in the hands of the executor or administrator a sum sufficient to pay the creditor (a) g 6232. (b) 6i>3.j. INSOLVENT ESTATES. 189 whose claim is disputed an equal proportion of the assets with the other creditors. 8 The court, in ordering a distribution, should direct the execu- tor to retain in his hands an amount sufficient to pay any costs or charges that may accrue in connection with his report under the order of distribution. Before an order of distribution is made, the claims in favor of the estate should, as far as possible, be collected ; the other as- sets, if any, be converted into money ; the preferred claims against the estate be paid ; and an account be rendered by the executor or administrator, showing the actual amount for distri- bution among ordinary creditors. By rendering a complete ac- count in the first instance, the necessity for filing subsequent accounts and making sundry distributions will be obviated ; and the executor or administrator will be exempt from annoyance on the part of creditoi's who have failed to perfect appeals, and from others who might, in case more than one order of distribu- tion should be required, obtain the allowance of further time to prove their claims. If the whole assets should not have been distributed upon the first order of distribution, or if further assets should afterward come to the hands of the executor or administrator, the court must make such further order or orders for the distribution thereof, as the case may required Should the executor or administrator, at the end of a year from the time of his appointment, proceed to pay the claims against the estate, as by law he is allowed to do in case the as- sets in his hands are sufficient to satisfy the claims of which he may then have notice, and all the assets of the estate should be exhausted in paying such claims, he is not bound to represent the estate insolvent in the event that other claims are subse- quently, and before the expiration of eighteen months from the date of his bond, presented to him for payment. 1 But should the whole estate not be paid away at the time (1) See also Chapter VI., Section I. (a) I 6244. (c) 6109, 6110. (b) I 6245. 190 INSOLVENT ESTATES. when such subsequent claims are presented, and should the re- maining assets be insufficient to pa}- the remainder of the debts of the deceased, it is the duty of the executor or administrator to represent the estate to the court as insolvent ; and the same proceedings -will be had with reference to the remainder of such assets and the debt remaining unpaid, as in other cases of insol- vent estates. The distribution previously made will remain valid and final, and the creditors who have been paid can not bo compelled to refund any portion of the amounts by them re- spectively received. 1 a If, after having paid the claims presented previous to the ex- piration of the year, a balance remain in the hands of the ex- ecutor or administrator, unappropriated, and a claim be after- ward presented, amounting to more than such balance, the ex- ecutor or administrator can be compelled to pay upon such claim only so much as may then remain in his hands ; but if two or more claims be presented, amounting together t^ more than such balance, distribution must be made under proceedings in insol- vency, as in other cases. 1 a But in most instances an amicable adjustment of the claims of such dilatory creditors, and a dis- tribution of the assets according to their respective rights, can be made, without proceeding in insolvency; and if this be done with the consent of all the creditors interested, it will be valid and binding. No action can be maintained against an executor or adminis- trator after an estate has been declared insolvent, except it be for a demand that is entitled to a preference, and would not be affected by the insolvency of the estate, or unless the assets should prove more than sufficient to pay all the debts allowed by the commissioners, or unless a claim is presented and re- jected, or disputed by the executor or administrator, before the estate is represented as insolvent, or unless the suit is brought against the executor or administrator, while acting in the place of' commissioners, upon an estate represented to be insolvent, and upon a claim disallowed by such executor or administrator ; and (1) See also Chapter VI., Section I. (a) gem. INSOLVENT ESTATES, ]91 if an estate is represented insolvent, whilst an action is pending against an executor or administrator for any demand that is not entitled to such preference, the action may be discontinued with- out the payment of costs; or, if the demand is disputed, the ac- tion may be tried and determined, and judgment may be ren- dered thereon, in the same manner and with the same effect as is ^provided in the case of an appeal from the award of the com- missioners; or the action may be continued at the discretion of the court, \imil it shall appear whether the estate ia insolvent, and if it should not prove to be insolvent, the plaintiff may pros- ecute the action as if no such representation had been made. 8 A creditor who fails to present his claim for allowance to the commissioners of insolvency, or the executor or administrator acting as commissioner, within the time allowed by law or the order of the court, will be forever barred from maintaining a suit to recover any portion of the same, unless further assets be received by the executor or administrator after the order of dis- tribution, in which case his claim may be proved, allowed, and paid, in the manner and with the limitations prescribed by law in the case of contingent debts. 1 b Should it appear upon the return of the list of debts by the commissioners, or by the executor or administrator, as the case may be, t'.-at the assets will be sufficient to pay all the debts that have been presented and allowed, the court will direct that such debts be paid in full ; and if, after such order is made, any debts should be recovered against the executor or administrator, he will be liable only to the extent of the assets remaining after the payment of the debts proved and allowed previous to the order of distribution. If there be two or more such creditors, the assets, if not suffi- cient to pay their demands in full, must be divided among them, in proportion to the amount of their respective debts/ 1 In an action against the executor or administrator upon such claim, he may prove the amount of assets remaining in his (1) See ante in this section. (a) 6246. (c) g 6248. (b) I 6247. (d) 6249. 192 INSOLVENT ESTATES. hands, and although judgment may bo entered in the usual form, execution can not issue for more than the amount of such assets ; and if there be more than ono judgment, the court will apportion the assets among them in proportion to their respec- tive amounts.* If within three years from the grant of administration upon an estate which lias been represented to be insolvent, the actual insolvenc} 1 " of the estate be not fully ascertained, any creditor whose claim shall not, have been presented to the commissioners, or to the executor or administrator acting as such, may com- mence tin action therefor against the executor or administrator; and such action may be continued on the motion of the defend- ant, until the solvency or insolvency of the estate be fully de- termined ; and should the estate prove to be solvent, the action may proceed as if no representation of insolvency had been made. b If any executor or administrator shall neglect to render and settle his accounts (114) in court, within six months after the re- turn made by the commissioners, or by the executor or adminis- trator, in their place, or after the final liquidation of the demands of the creditors (113), or within such further time as the court may allow to collect the debts and assets, so as to delay an order of distribution, he may be compelled to render such account in the manner hereinbefore directed, to compel the return of an inventory ; l and the same proceedings may be had to attach him, and to discharge him, and the like revocation of the letters granted to him may be made, in case of the party's absconding or concealing himself, so that no order can be personally served, or of his neglecting to render an account within thirty days after being committed ; and new letters must be granted with the like effect, and like remedies on the administration bond, as in those cases. 6 The court must allow the commissioners such compensation as they may deem reasonable, for their services, which must be paid by the executor or administrator, as a part of the costs of ad- ministration.' 1 (I) Sec Chapter III., Section VI. (a) 6250. (c) 6252. (b) 6251. (d) ? 6253. SUITS UPON ADMINISTRATION BONDS. 193 CHAPTER X. HE LATINO TO SUITS UPON THE BONDS OF EXECUTORS AND ADMINISTRATORS. 1 SECTION I. WHEN AND HOW SUIT MAT BE BROUGHT UPON AN ADMINISTRATION BOND. Suit may be brought upon the bond of an executor or admin- istrator : 1. If he fail to proceed with due diligence to convert the per- sonal estate of the decedent into money, or to sell real estate when necessary for the payment of his debts, in case an order of court can be obtained for that purpose ; or if be neglect to apply the assets in his hands t9 the satisfaction of the claims against the estate ; and if, by reason of such delay or neglect, the estate of the decedent be taken in execution by any of his creditors, it will be deemed unfaithful administration, and the executor or administrator will be liable upon his bond for all damages occasioned thereby.* 2. When a creditor is entitled by law to the payment of his debt from the executor or administrator, and the amount of the claim has been admitted to be just, or allowed by him, or has been determined by judgment or award against him, or by an order of distribution, such creditor may, after demand made and (1) See Chapter VIII. for other proceedings authorized by law to enforce the distribution of estates, and Chapter II. for other matters relating to such bonds. (2) Such suit can not be brought before a justice of the peace. Hack- worth v. Robinson, 31 Ohio St. 655. See also note 1, p. 337. (a) 6209. 13 194 SUITS UPON ADMINISTRATION BONDS. a refusal to pay, bring suit upon the bond of such executor or administrator. 18 (1) A creditor, legatee, widow, or other distributee can bring suit without first obtaining leave of the court. But such party must allege and prove his or her right to a sum determinate and certain, previously ascertained by allowance, judgment, or award; and, in addition, must prove a demand made after his or her right to payment has accrued. A creditor must aver and prove that an executor or administrator received assets applicable to the payment of his claim, before he can make a case under the 182d section of the law. Ohio, use of Magie et al., v. Cutting, 2 Ohio St. 1. See notes, p. 99. L., being administrator of C., died without having set- tled his account with the estate. The administrator of L. filed in the pro- bate court the account of L. as such administrator, to which the administra- tor de bonis non of C. filed exceptions, and the court, on hearing, found a balance due from the estate of L. to the estate of C. The administrator de bonis non of C. brought suit against the administrator of L. on the finding of the probate court, to recover the balance so due to the estate of C. Held, that the admin istratorefe bonis non can not maintain an action, on such find- ing, against the representatives of the deceased administrator, but that he must seek his remedy, under the statute, on the administration bond o,f the decedent. Christmas' Adm'r . Lynch's Adm'rs, 19 Ohio St. 392. See also note 1, p. 84, White, Adm'r, v. Moe, 19 Ohio St. 37, 41. The petition in an action against an executor, upon a bond given by him as residuary legatee, for the payment of all the debts and legacies of the tes- tator, under the fourth section of the act to provide for the settlement of estates of deceased persons, passed March 23, 1840, need not show a present- ment of the claim to the executor for allowance or rejection, or other matter to allow the bringing of thea ction specified in the ninety-eighth section of the same act. Stevens et al. v. Hartley, 13 Ohio St. 525. In an action on an administrator's bond, assigning as a sole breach of the bond unfaithful administration, in this, that the administrator has neglected and failed, on demand of payment of their claim, to bring lands belonging to the estate of decedent into market to raise money to pay plaintiffs' claim against the estate, it is a valid defense that plaintiffs have in their possession, as surviving partners of decedent, applicable to the payment of their claim, assets of the late firm, the one third part of which is due the decedent, and sufficient in amount to liquidate the claim of plaintiffs. Everett v. Way- mire, 30 Ohio St. 308. As to how breach of bond, qualification to sue, etc., should be averred, or such averment objected to, burden of proof, manner of damages, etc., see Gutridge v. Vanatta, Ex'r, 27 Ohio St. 366 ; Douglas v. Day, 28 Ohio St. 176; Shields, Adm'r, v. Odell, Adm'r, 27 Ohio St. 398. See 36 O. S. 181 ; Ib. 454. (a) 6210. SUITS UPON ADMINISTRATION BONDS. 195 3. Suit may also be brought by a legatee after he is entitled to the payment of his legacy, or by the widow or other distributee, to recover her or his share of the personal estate, after an order of court determining the amount due to him or her, 1 should the executor or administrator, upon demand made, refuse or neglect to pay the same. 28 (1) Treasurer of Pickaway Co., use of, etc., v. Hall's Ex'r, 3 Ohio, 225. An administrator de bonis non may maintain an action on the bond of the deceased administrator, without having the amount due to the estate he represents, from the deceased administrator, ascertained by the finding or judgment of a court before bringing the action. Douglas v. Day, 28 Ohio St. 175. It is only when an action is brought on an administration bond by a cred- itor, legatee, widow, or other distributee, under sections 182 and 183 of the administration act, passed March 23, 1840 (S. & C. 566), that the plaintiff is required by the statute to allege and prove his right to a sum liquidated by allowance, judgment, order, or award. Ib. Without legislative aid, an administrator dehorns non, whose predecessor's powers have ceased by death, can neither maintain an action against the administrator of the estate of the deceased administrator, nor can he en- force a settlement by him in the probate court of the deceased administra- tor's account with the estate he represents. Ib. The only remedy afforded by the statute to such administrator de bonis non is an action on the administration bond of the deceased adminis- trator. Ib. The right to resort to the remedy provided by these sections (sections 182 and 183 of old law, but these sections, and section 184, mentioned below, have been re-enacted, and are the paragraphs of this chapter numbered 2, 3, and 4) is not dependent upon the leave of the court, but the plaintiff must have a right to a sum determinate and certain, and the recovery is for his sole benefit. The suit authorized by the 184th section can only be re- sorted to by leave of the court, and must be for a breach of the bond in Borne other particular than is provided for in the two preceding sections. Dawson v. Dawson, 25 Ohio St. 443, 449. A legatee or distributee can not maintain an action on the bond against the executor or administrator for payment of his legacy or distributive share under said section 183, within the four years allowed by law for cred- itors to present their claims, without an order of the probate court requiring eu:h payment. Ib. See also notes 1 and 2, p. 196. (2) Where an executor or administrator, after final settlement, distributes the balance in his hands to a part only of the distributees, he is not exempt (a) I 6211. 196 SUITS UPON ADMINISTRATION BONDS. 4. When the probate court 1 is satisfied, on the representation of any person interested in the estate of the decedent, that the executor or administrator has failed to perform his duty in any other particular than those specified in the foregoing divisions, the court may authorize any person aggrieved by such malad- ministration to bring suit on the bond.' 2 * In actions upon the bond of an executor or administrator, for not filing an account when required by law or the order of court, the defendant may give in evidence any facts tending to show that he was not guilty of neglect or unreasonable delay in filing his account; and if such defense be made good, he will be enti- tled to recover against the plaintiff his costs. In no suit upon the bond of an executor or administrator for failing to file an account can the plaintiff by law recover more costs than dam- ages. 1 ' In case of the death, resignation, removal, or revocation of the letters of an executor or administrator, his co-executor or co- administrator, or any succeeding administrator, m;iy maintain an action upon the bond of the executor or administrator whose powers have ceased, against any of the obligors thereof, or their from suit at the instance of other parties interested in such distribution, even though the vouchers of such distribution be filed with and approved by the court. Negley v. Gard et ux., 20 Ohio, 310. And where one of two or more executors or administrators has in his hands the balance remaining for distribution, an action may be maintained against him personally, as for money had and received, without joining his co-executor or co-administra- tor. Ib. (1) Ohio, use of Magie et al., v. Cutting, 2 Ohio St. 1. (2) Where the breaches alleged in the bond of an executor or adminis- trator consist of his failure to return an inventory, a'nd of his wasting and converting the assets to his own use, the action for such breaches should be brought for the benefit of the estate, and not for the benefit of a particular legatee or distributee. Dawson v. Dawson, 25 Ohio St. 443. See also note 8, p. 73. In an action on an executor's bond by an administrator de bonis wow, it is not necessary to obtain leave of court to sue. Gutridge,- Adm'r, v. Vanatta, 27 Ohio St. 366, 369. For other decisions relating to such leave of court, see note 1, p. 195. (a) g 6212. (b) 6218. SUITS UPON ADMINISTRATION BONDS. 197 legal representatives, for any breach of the conditions of such bond. 18 When an executor or administrator, within this state, by mis- conduct or neglect of duty, forfeits his bond or renders his sure- ties liable, any person injured thereby, or who is bylaw entitled to the benefit of the security, may bring an action thereon, in his own name, against the executor or administrator, and his sure- ties. 2 to recover the amount to which he may be entitled by rea (1) O'Conner et al. v. Ohio, use of Potter's Adm'r, 18 Ohio, 225; Tracy's Adm'x v. Card, 2 Ohio St. 432. An executor or administrator, who is indebted to the estate upon a claim due the decedent in his lifetime, is bound to account for the amount so due from him, as for so much money received, and is liable to an action upon his bond by the administrator de bonis non of the decedent, or to any other person to the payment of whose claim the amount so due from the executor or administrator would be applicable. Tracy's Adm'x v. Card, 2 Ohio St. 431. See note 1, p. 72. Where an estate has been fully settled, and all the moneys in the hands of the administrator have been paid over, in pursuance of an order of court, should a will be discovered subsequently to such settlement, the executor can not compel the former administrator to account for the money or prop- erty by him received and paid over. Barkaloo's Adm'x v. Emerick et al., 18 Ohio, 268. In an action on the bond of an executor, under the act of 1854 (S. & C. 619), which authorizes the action against any of the obligors, or "their legal representatives : " Quaere, "whether a suit may not be maintained against the devisees as well as against the executors of a deceased surety, and without being objectionable as a misjoinder. Gutridge v. Vanatta, 27 Ohio St. 370. (2) In action against principal and sureties executed to an executor, who, as such executor, at the time, paid its full consideration to the principal, in money, an answer by the sureties that they entered into the bond for no other consideration than the promise and agreement of the executor to re- lease them from a debt due to him in his own right, and that said promise to them had been broken to their injury, whereby the consideration upon which they entered into said bond had wholly failed, is bad on general de- murrer. Matthews v. Meek, 23 Ohio St. 272. The undertaking of a surety can not be extended beyond the terms of the contract into which he entered. In an action against a surety, upon an executor's bond, describing the tes- iiitur as James L. Findley, such bond can not, by parol evidence, be made UO J 6214. 198 SUITS UPON ADMINISTRATION BONDS. son of the delinquency. The action may bo instituted and pro- ceeded in on a certified copy of the bond, which copy shall be furnished by the person holding the original, on tender of the proper fee. 8 A judgment in favor of a party for one delinquency, does not preclude the same or other party from an action on the same se- curity for another delinquency. 8 This action on the bond may be brought in the court of com- mon pleas or superior court 1 of the county in which it was given, for the particular relief only to which the plaintiff is entitled, or it may be framed either in the petition or in any cross-petition filed in the case, with a view to a settlement of all matters for which the principal in the bond is accountable, and any heirs, devisees, leg- atees, widow, or next of kin, or others, who may be liable on ac- count of assets having come into their hands, or who may other- wise be proper or necessary parties. 2 may be made defendants ; and when the action is framed for that purpose, and the necessary parties are before the court, the court may adjust and settle the estate in whole or in part, rendering all judgments required, 1 and may award costs as may be deemed proper. b When it is brought upon an administration bond, by a cred- itor whose claim has-been allowed or admitted by the executor or administrator, such allowance or admission will not by law preclude the executor or administrator, or other defendants in the suit, from contesting such claim ; and the validity and applicable to the estate of Joseph L. Findley. McGurney v. State, '20 Ohio, 93. (1) As to the court in which action had to be brought previous to Septem- ber 1, 1878, see Dawson v. Dawson, 25 Ohio St. 448. (2) Where one of two or more executors or administrators has in his hands the balance remaining for distribution, an action may be maintained against him personally, as for money had and received, without joining hi? co-executor or co-administrator. Negley v. Gard et ux., 20 Ohio, 310; Waldsmitb v. Waldsmith, 2 Ohio, 310. (3) This includes a judgment or decree against any of the defendants, as heirs, next of kin, devisees, or legatees, or against the widow of the de- ceased, under the law requiring them to contribute to ihe payment of claims against the estate of the decedent in certain cases. See Chapter XI (a) 4994. (b) 6216. SUITS UPON ADMINISTRATION BONDS. 199 amount of sucb claim may be determined by the verdict of a jury, if either party require it, and if not, the court may de- termine the same, or may refer the matter to a master commis- sioner, to inquire into the justice and amount of such claim. 8 Suits may also be brought against executors and administra- tors to enforce an order of distribution ; but as this has been al- ready treated of in the latter part of Chapter VIII., it need nob be repeated here. Where there are two or more executors or administrators, and a bond has been given by them jointly, all will be liable for a breach of the conditions of the same by one of their number ; but where separate bonds have been given, each person will be liable for his own acts alone. As a party seeking to enforce the bond of an executor or ad- ministrator will be compelled to employ an attorney, any in- structions would probably be superfluous. (a) $ 6216. 200 CONTRIBUTION BY HEIRS, ETC. CHAPTER XL RELATING TO CONTRIBUTION BY HEIRS, DEVISEES, AND LEGATEES. SECTION I. WHEN AND HOW CONTRIBUTION MAY BE ENFORCED; WITH THE LIABILITY OP HEIRS, DEVISEES, AND LEGATEES TO EACH OTHER, IN CERTAIN CASES. As hereinbefore stated, 1 a creditor whose claim does not be- come due, or whose right of action does not accrue until after the expiration of four years from the date of the administration bond, may present his claim to the court from which letters is- sued, at any time before the final settlement of the estate, and the court may direct the executor or administrator to pay such claim, in case the creditor discount the interest upon the same for the unexpired time, or may order the executor or adminis- trator to retain a sufficient sum in his hands to pay such claim when the same becomes due. a But if such claim be not so presented, or if presented, be not allowed, such creditor may, within one year 1 aiter the claim be- comes due (in case the estate should then bo settled), bring an action, 1 in the common pleas or superior court, against the widow and heirs as distributees, and against the legatees and devisees of the decedent, upon such claim, and they will be liable to such creditor in an amount not exceeding the value of the real or per- sonal estate received by them respectively under the provisions (1) Pages 120, 121. (a) I 0115. CONTRIBUTION BY HEIRS, ETC. 201 of the will of the deceased, or in the distribution of his estate at law. 1 A married woman, minor, or an insane or imprisoned person, may bring the action at any time within one year after their several disabilities are removed. 1 " When by the will of a testator it is provided that a certain por- tion of his estate, or certain of the legatees or devisees shall be made exclusively liable for the payment of his debts, the terms of the will must first be complied with ; 2 and the persons or es- tate exempt from the payment of debts will be liable for only so much of such debts as can not be recovered from the persons or estates specially charged with the payment of the same. b When any portion of the real estate of a testator remains at his death undevised, such real estate must first be subjected to the payment of his debts before any portion of that which is devised can be taken for that purpose, unless, as before remarked, other provision be made in the will for the payment of the debts. 8 When any estate, real or personal, is taken from a devisee for the payment of debts of the testator, all the other devisees and legatees may be compelled to contribute toward making up the loss of the person from whom the estate is taken, so as to make (1) The record of a judgment against an administrator, and the return of "nulla bona" upon an execution issued thereon, is not sufficient evidence in an action against the heir to subject his real estate to the payment of the ancestor's debt, to show the want of assets. Donley's Adm'rs v. Donley's Guardian et al., 14 Ohio, 359. A suit may be maintained under section 43 of the act of 1831 (3 Chase, 1784), upon a guardian's bond executed in November, 1839, for monej's of the ward received during that month and not accounted for, against the heirs of a deceased obligee, to the extent of the assets by them received, after final settlement by the administrator before the proper court, although an action had accrued upon said bond prior to the settlement, and no claim had been presented therefor to such administrator, if such suit could then have been sustained against the ancestor, were he living; even though such ancestor did not die until after the act of 1840 went into operation. Coch- ran et al. v. Taylor, 13 Ohio St. 382. (2) See note 54, p. 345. (a) 6217, and first part of \ 6218. (b) I 6218 ; also ?j> 4978, 4986. 202 CONTRIBUTION BY HEIRS, ETC. such loss fall on all the devisees and legatees in proportion to the value of the property received by them respectively. 8 If, in such case, the testator shall, by making a specific devise or bequest, have virtually exempted any devisee or legatee from his liability to contribute, with the others, for the payment of the debts, or if he shall, by any other provision in the will, have prescribed or required any appropriation of his estate, for the payment of his debts, different from that prescribed in the pre- ceding paragraph, the estate must be appropriated and applied in conformity with the provisions of the will. b Nothing contained in the two preceding paragraphs will im- pair, or in any way affect, the liability of tho whole estate of the testator, for the payment of his debts ; but the provisions of these paragraphs will apply only to the marshaling of the assets as between those who hold or claim under the will. lc When any part of the estate of the testator descends to a child born after the execution of the will, or to a child absent and re- ported to be dead, or to a witness to a will who is a devisee or legatee, such estate (and the advancement made to such child or witness) must, for all the purposes mentioned in the three (1) Where a will gives pecuniary legacies, and provides that they and the debts of the estate shall be paid out of the personal assets and proceeds of real estate directed to be sold for that purpose, the legacies are not demon- strative, or in the nature of specific bequests, but are to be regarded as mere general pecuniary .legacies. If the fund thus provided prove insufficient to pay the debts and legacies, the general pecuniary legatee* can not compel contribution from specific devisees to equalize the loss arising from the de- ficiency. Such fund can not be applied to the payment of a debt secured by mortgage on land specifically devised, unless it be sufficient for the pay- ment of all other debts and the legacies; and if so applied, when the fund is insufficient, must be refunded by the devisee. Specific devisees can com- pel contribution from each other, where the land devised to either is taken for the payment of debts which are not charged, or secured by mortgage or other lien upon the same. Glass et ux. v. Dunn et al., 17 Ohio St. 413. See also note 1, ante, p. 15. The debts of a decedent are a lien upon his real estate, and purchasers from his heirs take the same with this burden upon it, and subject to the maxim of caveat emntor. Faran, Adm'r, v. Robinson et al., 17 Ohio St. 243 (a) 5973. (c) 6976. (b) 5974. CONTRIBUTION BY HEIRS, ETC. 203 preceding paragraphs, be considered as if it had been devised to such child or witness ; and he will accordingly be bound to con- tribute with the devisees and legatees, as before provided, and will be entitled to claim contribution from them accordingly.* When any of the persons who are liable to contribute toward the discharge of such debt, according to the provisions contained in this chapter, shall be insolvent or unable to pay his just pro- portion thereof, .or shall be beyond the reach of process, the oth- ers will be jointly and severally liable to tlie creditor or to each other, as may be, for the loss occasioned by such insolvency, each one in proportion to the value of the property received by him, from the estate of the deceased ; and if any one of the per- sons so liable shall die, without having paid his proportion of such debt, his executors and administrators will be liable there- for, in like manner as if it had been his proper debt, to the ex- tent to which he should have been liable if living: but no one can be compelled to pay more than the amount received by him from the estate of the deceased. 15 If, in the case of the payment of a claim to a creditor, there should be more than one person liable for the debt, the creditor shall recover the same by one action against all the persons so liable, or as many of them as are within the reach of -process ; and the court must thereupon determine, by the verdict of a jury, if either party require it, what sum, if any, is due to the plaintiff; and they must also decide, according to the equities of the case, how much each of the defendants is liable to pay to- ward the satisfaction of the debt, and render judgment accord- ingly. And all cases in which devisees or legatees may be re- quired to contribute to make up the share of any child born after the execution of the will, or of a child absent and reported to be dead, or of a witness to the will, as well as those in which con- tribution is to be. made among devisees, legatees, and heirs, or any of them, such cases may be heard and determined in a single action. d A suit so commenced by a creditor will not be dismissed or barred for a failure to include in the petition the names of all (a) I 5 jnidge shall be interested as heir, legatee, devisee, or in any other manner, in any estate which would otherwise be settled in the county where he resides, all such estates in which said probate judge may lie interested, must be settled by the court of com- mon pleas of such county ; and in all such matters and cases in which said probate judge is interested, the original papers con- nected with said estate must be by him forthwith certified to the court of common pleas as aforesaid. And in all other matters and proceedings, pending in any probate court, which would properly be disposed of or decided therein, but in which the probate judge thereof may be interested in any manner what- ever, as attorney or otherwise, or in which he may be required to be a witness to a will, such probate judge must, upon the motion of any party interested in such proceedings, or upon his own motion, certify said matters and jiroeeedings to the court of common pleas of the same' county in which he resides and (a) | 4199. (b) 6291. MISCELLANEOUS MATTERS. 215 he must forthwith file with the clerk of the court of common pleas of the same county, all original papers connected with said proceedings, and the same shall be proceeded in and heard and determined by the court of common pleas, at chambers, by any judge thereof, or in open court, in the same manner as though said court had original jurisdiction of the subject-matter thereof, and upoi the final decision of the questions involved in such pro- ceedings, _r on the final settlement of the estate in which said judge is interested as executor, administrator, or guardian, by the court of common pleas, or whenever the interest of the pro- bate judge therein shall cease, the clerk must deliver all said or- iginal papers back to the probate court, from which said papers came, and the clerk must, also, make out an authenticated tran- script of the orders, judgments, and proceedings of said court therein, and must file the same in the probate court from which said papers came, and the judge thereof must record the same in the ordinary records of similar business." A party can not testify where the adverse party is executor or administrator, 1 or claims or defends as heir, grantee, assignee devisee, or legatee, of a deceased person, except First. To facts which occurred subsequent to the time the de- cedent, grantor, assignor, or testator died. Second. When the action or proceeding relates to a contract made through an agent, by a person since deceased, and the agent testifies, a party may testify on the same subject. Third. If a part}', or one having a direct interest, testify to transactions or conversations with another party, the latter may testify as to the same transactions or conversations. Fourth. If a party offer evidence of conversations or admis- sions of the opposing party, the latter may testify concerning the same conversations or admissions. Fifth. In an action or proceeding by or against a partner or joint contractor, the adverse party shall not testify to transac- tions with, or admissions by, a partner or joint contractor since deceased, unless made in the presence of the surviving partner 1 See Christmas Adm'r v. Lynch's Adm'rs, 19 Ohio St. 392; In re Raab s estate, 16 Ohio St. 273 ; Brown c. Halt, 1 II. 13 ; Glen v. Hotfrmin, 1 W. L. M. 506; Thompson v. Same, 2 \V. L. M. 84; s. c., 18 Ohio St. 356, 263.525; 14 Ohio St. 144; 16 Ohio St. 220; 17 Ohio St. 640; 18 Ohio St. 73; 21 Ohio St. 653, 658; 22 Ohio St. 208 ; 4 Ohio fct. 513, 600; 1 Ohio St 222; 17 Ohio, 156: 9 <>hio St. 558. (a) 535. 216 MISCELLANEOUS MATTERS. or joint contractor ; and this rule must be applied without re- gard to the character in which the parties sue or are sued. Sixth. If the claim or defense is founded on a book account, a party may testify that the book is his account book, 1 that it is a book of original entries, that the entries thei'ein were made by himself, a person since deceased, or a disinterested person, non-resident of the county ; whereupon the book will be compe- tent evidence ; and such book may be admitted in evidence in the case, without regard to the parties, upon like proof by any competent witness. Seventh. If a party, after testifying orally, die, the evidence may be proved, by either party, on a further trial of the case ; whereupon the opposite party may testify as to the same mat- ters. Eighth. If a party die, and his deposition be offered in evi- dence, the opposite party may testify as to all competent mat- ters therein. But nothing contained in this paragraph applies to actions for causing death, or actions or proceedings involving f.he validity of a deed, will, or codicil ; and where a case ia plainly within the reason and spirit of this paragraph, 2 though not within the strict letter, its principles shall be applied. 8 The provisions of the preceding paragraphs apply to an execu- (1) Aa to competency of stubs in check book in certain cases, see Watts v. Shewell, 31 Ohio St. 331. In order to render a party incompetent as a witness in such cases, the parties must be adverse in interest, and not merely in their nominal status in the case as plaintiffs or defendants, and, therefore, in an action by an ad- ministrator upon a promissory note made by two parties defendant, where only one of them sets up any defense, the other is a competent witness for his co-defendant. Baker et al., Adm'rs, v. Kellogg et al., 29 Ohio St. 663. ' (2) The proviso in section 313 of the (now obsolete) code, as amended March 23, 1875 (72 Ohio L. 77, but now in force as the paragraph whence this reference is made), applied only to a caso for setting aside a will or deed of a deceased person. The heirs, legatees, and grantees, who are declared competent witnesses by the proviso, are such as derive title from the same person ; and where a person does not claim under a will or deed, he must, to come within this proviso, claim as heir of the testator or grantor, whose will or deed is sought to be set aside. Mi^lmr v. Butler, 31 Ohio St. 188. (a) 5242. MISCELLANEOUS MATTERS. 217 tor or administrator who presents to the probate court for allow- ance, as contemplated in pages 112-115, any claim of which hei as an individual is the owner, against an estate of which he is the executor or administrator. In proceedings in probate courts all questions, except those arising in criminal actions and proceedings, unless otherwise provided by law, must be determined by the probate judge, un less, in his discretion, he shall order the same to be tried by a jury, 1 or referred, as provided for references in the court of com- mon pleas.* The provisions of law governing such references are as fol- lows : " A reference as provided (below) can not be ordered by a pro- bate court, unless by consent of the parties to the reference and the referees. b ' All or any of the issues in the action or proceeding, whether of fact or of law, or both, may be referred by the court, or a judge thereof in vacation, upon the written consent of the par ties, or upon their oral consent in court, entered upon the jour- nal. " When the parties do not consent, the court, or a judge thereof n vacation, may, upon the application of a party, or of its or his motion, direct a reference in any case in which the parties are not. entitled by the constitution to a trial by jury. d If a referee die, or be disabled, or refuse to serve, a judge of the court in which the action is pending may, in vacation, ap- point another person to take his place, or again direct a refer- ence as provided in the two preceding sections. 6 "The trial by referees shall be conducted in the same manner as a trial by the court. The referees may summon and enforce the attendance of witnesses, administer all necessary oaths in the trial of the case, and grant adjournments, the same as the court ; they must state the facts found, and the conclusions of law, separately, and their decision must be given, and may be (1) See note 1, p. 79. .'ft) \ 0400. (d) 5211. iM g.0215. (e) 5212. ic) 62 JO. 218 MISCELLANEOUS MATTERS. exceptod co and reviewed, in like manner; and their report upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report shall have the effect of n special ver- dict ; and when the court directs it to be done, the referee shall reduce the testimony of the witnesses to writing, and require them severally to subscribe the same." " In all cases of reference, except when an infant is a party, 1 the parties may agree upon a suitable person or persons, not ex- ceeding three, and the reference shall be ordered accordingly ; and if the parties do not agree, the court shall appoint referees, not exceeding three, who shall be free from exception." " The referees shall sign any true exceptions taken to an order or decision by them made in the case, and return the same with their report to the court which made the reference. " The referees must be sworn well and faithfully to hear and examine the cause, and to make a just and true report therein, according to the best of their understanding. The oath may be administered by any person authorized to take depositions."' 1 The referees shall be allowed such compensation for their ser- vices as the court may deem just and proper, which shall be taxed as a part of the costs in the case. 6 Depositions taken according to the provisions of law for tak- ing depositions to be used on the trial of civil causes, may be taken and used on the trial of any question before the probate court, where such testimony may be proper/ The fees of witnesses, jurors, sheriffs, coroners, and constables, ior all services rendered in the probate court, or by order of the probate judge, shall be the same as is provided by law, for like services in the court of common pleas.- (I) It seems to follow from this and other paragraphs in this quotation, that no reference can be made by a probate court, if any party to the pro- ceeding be a minor. i a) \ 5213. (e) 5218. (b) \ 5214. (f) 6404. (c) 5216. (g) 6405. the satisfaction of his claim. lleld,\. (a) \ 5229. MECHANICS LIEN. 223 abutting on such road, sidewalk, drain, etc., or upon which such building stands, 1 it is the duty of the administrator or executor to take the necessary steps for obtaining a mechanic's lien upon such building and land. The method of effecting such a lien is briefly this : The executor or administrator should make out an account from the books of the decedent, or otherwise, specifying as near as may be the items 2 of work, materials, or machinery, and the value of the same, and all the credits and set-offs on the account, and should make oath before some person authorized to administer oaths generally, that such account is correct; that the amount claimed is justly due the estate of the decedent ; that such work was performed, or such materials or machinery were furnished, in or for constructing, altering, or repairing the building, street, ditch, sewer, etc., upon which, together with the land it stands or abuts upon (which building, ditch, etc., and land must be described), it is desired to effect the lien (159). If this That a lien attached to each of said lots and a portion of the house erected thereon, to secure such portion of the labor and materials as were expended thereon ; 2. That in such action it was proper to take an account of the cost and expense of the whole improvement, and to apportion the same between the lots, according to the value of the labor and materials expended on each ; 3. That, upon failure of payment, it was properly decreed that each of the lots be sold to satisfy the iien so found against it. Edwards v. Edwards, 94 Ohio St. 40l>. (1) The words, in the law, " lot of land upon which the same may stand," do not mean merely the ground covered by the building, nor do they confine the lien to the particular lot, as known on the town plat, on which the building stands. Where two adjacent town lots are used, without any actual division between them, as one mill-lot or the like, a part of the build-' ing and machinery being upon one, and a part upon the other, tne lien ex- tends to both lots, although the precise spot where the work was done may be within the limits of one of them. The same rule applies to two or more adjacent lots thrown, for any common purpose, into one, the ideal lines of division being disregarded. Choteau et al. v. Thompson et al., "2 Ohio St. 114. (2) Where a mechanic undertakes and completes a building as an entire job, by the job, and for an entire price, he need not, in an account tiled with the county recorder, in order to secure a mechanic's lien, make a detailed statement of his labor and materials. In such case the entire job may be set down as an entire item. Davis v. Hines, 6 Ohio St. 473; Thomas c, Huesman, 10 Ohio St. 152. See also note 2 on p. 224. 224 MECHANIC'S LIEN. account be for work or materials on a street, turnpike, sidewalk., road, drain, sewer, etc., the account must include a statement of the amount and value of the labor, etc., an estimate per front foot of the value of such labor or materials along the line of the street, etc.. and when a contract is made with several owners, a description of the lands, with the number of front feet abutting on the line of such owners as fail to pay (160). When the work was done or materials were furnished on a written contract, a copy of the same must be attached to and filed with the ac- count ; and if not in writing, a statement of the amounts and times of payments to be made thereunder, must be inserted in the account or affidavit. The account thus authenticated must be filed in the office of the county recorder within four months 1 from the time the last item of work was done or materials, etc., were furnished by the decedent. A lien thus taken for labor done upon, or materials, etc., furnished for, any house, boat, or other building will take effect upon such house, etc., and upon the interest the owner has upon the lot or land upon which it stands or shall be removed to, from the date 2 of the first item of said la- bor done or materials, etc., furnished, and will be in force (1) Where the work is actually completed and settled for, a lien must be taken within four months. Minor details or insignificant finishing touches can not be made use of to extend the time for taking out a lien, nor can two distinct accounts be taken together. Hazard Powder Co. v. Loomis et al., 2 D. 544, 554, 557. (2) The lien dates from the commencement of the labor or of furnishing the materials, and there is, in this respect, no difference between laborers and material men. Where materials are furnished from time to time, for a particular purpose, and the dates are so near each other as to constitute one running account, the lien dates from the time the first article was supplied, although, strictly speaking, the articles were not furnished under one entire contract. But where they are furnished for different purposes, or where there are intervals of time in the account, so long that it can not with pro- priety be called one account, there is not. in the absence of an entire con- tract, a lien for the whole, from the date of the first article furnished. The items in such case will be regarded as forming one, two, or more distinct accounts. Choteau et al. v. Thompson et al., 2 Ohio St. 114; Williams v. Miller, 1 W. L. M. 409. It :s not necessary, to constitute a continuous account, that there should have been a distinct contract at the beginning as to the amount of work to be done or the duration of it. It is sufficient that he begins under reasoua- MECHANIC'S LIEN. 225 for two years after the filing of said account, or until finally ad- judicated, if an action thereon be commenced within the required two years. 1 A lien taken for labor done or materials furnished upon any street, turnpike, road, sidewalk, ditch, drain, or sewer will be good upon the interest the owner has on the lot or land abut- ting upon such turnpike, road, ditch, etc., from the date of the first item of labor done or materials furnished ; but such lien will remain good for only one year from the time of filing the account, or until finally adjudicated, if an action thereon be com- menced within the required one year. 8 If several liens be obtained us above provided, by several per- sons on the same job, such liens shall have no priority among themselves, but shall be paid pro rata. b If, in an action to enforce any lien, the property will not sell because of defective title, the court will cause the property to be rented or leased (subject to prior bona fide liens), and the lien to be paid out of the rents and profits. Such rents will be made payable to the court, through the officer holding the execution, ble expectation that more will be required to finish the building, and con- tinues to furnish on orders from time to time. The mere recording of a mortgage will not cut out subsequent items. Whether actual notice by incumbrancers would do so is questioned. Hazard Powder Co. v. Loomis et al., 2 D. 544, 552, 554. (1) "Where the holder of a mechanic's lien, within the two years within which lien remains operative, commences an action on his account to obtain a personal judgment for the amount thereof, such lien is, by the provisions' of the law creating it, continued until the action is determined, and until the judgment obtained by the plaintiff is satisfied. The premises charged with such lien may be subjected to the satisfaction of the same as against a purchaser in good faith, who bought without actual notice of plaintiff's claim, pending the action thereon, and after the expiration of said period of two years. Ambrose . Woodmansee & Wolf, 27 Ohio St. 147. Mechanics' liens relate back to the commencement of the labor for which they exist, and from that time subsist against all persons with or without notice. Williams v. Miller, 1 W. L. M. 409. (2) See note 2, p. 224. (a) 3184-3187. (b) 3188. 15 I 226 MECHANIC'S LIEN. and the court will pay money so obtained to the lienholders en titled thereto.* If any lienholder, after the amount of his lien or judgment thereon, with legal costs, has been paid or tendered to him, shall nevertheless proceed to sell, lease, or rent said property, he shall forfeit said lien and pay the owner all damages arising to him therefrom, not exceeding the amount of said lien and his costs ; and if said lienholder, after the amount of his lien has been sat- isfied or adjudged against him in any action thereon, shall neg- lect or refuse, on the written request of the owner, to file within ten days thereafter a certificate of said satisfaction or adjudica- tion with the county recorder, and to be entered by him (the re- corder) on the margin of the said lien, said lienholder shall pay said owner, in action by him, all damages arising therefrom, not exceeding the amount of said lien and costs. (166) b If the holder of a mechanic's lien proceeds, under the provis- ions of this section, against property whose owner resides with- out this slate, or is beyond the reach of process, notice may be given by publication, as in other civil actions. If any deceased sub-contractor or material man, laborer, or mechanic performed any labor or furnished any materials or machinery for the construction, alteration, removal, or repair of any property, appurtenance, or structure, as heretofore described, or for the construction or repair of any turnpike, road improve- ment, or other public improvement, provided for in a contract between the owner and any board or officers, and the head or principal contractor, and under a contract between such deceased sub-contractor, material man, laborer or mechanic, and the principal contractor or some sub-contractor, and whose demands therefor shall not be paid when due, then the executor or administrator of such decedent may file with the said owner, 1 (1) When a sub-contractor seeks a lien under the statute against a corpo- ration as the owner, the delivery of his attested account against the con- tractor to the agent or officer of the corporation, who is duly authorized to enter into the contract under which the job is done in his own name, and to account to the contractor and sub-contractor, in accordance with their re- spective rights, is sufficient notice to fix the lien against the corporation. The leaving of his attested account by a sub-contractor of a city school- (a) 3189. (b) 3190. (c) 3191. MECHANIC'S LIEN. 227 board, or officer, or the authorized clerk or agent thereof, a sworn and itemized account (161) (1(32) of the amount and value of said labor or materials under the contract, express or implied, under which the labor was performed or material was furnished, with all credits and set-offs thereon. a Upon receiving the notice, the owner, board, or officer, or au- thorized clerk, agent, or attorney thereof, must detain in his hands all subsequent payments from the principal or sub-con- tractor upon the contract, as security for that and similar ac- counts so filed before the next payment under the contract, or within ten days thereafter. b A copy of this account (161) (162) must also be filed at the same time with the recorder of the county where the property is situate, otherwise the executor or administrator will have no preference over other claimants. If a lien has been taken to secure a claim about which there is a dispute, the party taking such lien shall, within thirty days thereafter, notify (163) the owner of the property, or his agent or attonuy, that such a lien is in existence, and if he fails to do so within the time prescribed, then the lien so taken shall be null and void. d The owner of property- upon which a lien has been so taken, may notify in writing (164) the owner of the lien, or bis agent or attorney, to commence suit thereon, and if he fails to com- mence the suit within sixty days after receiving such written no- tice, the lien shall be null and void ; but nothing herein con- tained will prevent the claim from being collected as other claims are now collected by law. e When such cop}- is filed with the county recorder, any other sub-contractors, material men. laborers, or mechanics wishing to be paid out of said next payment or payments pro rata with the one who has filed such copy, must file with such owner, board, officer, or authorized clerk, agent, or attorney thereof, before the house at the office of the clerk or the board of education, whether sufficient or not to create a claim against the city under the statute, was sufficient in this case, where the clerk had been previously authorized to make the con- tract and to settle with the sub-contractors. Dunn v. Rankin, 27 O. S. 132, (a) 3193. (b) 3194. (c) 3195. (d) \ 3196. (e) \ 3197 228 MECHANIC'S LIKN. first of said subsequent payments falls due, or within ten days thereafter, a sworn account (l!l) (1G2) 1 or estimate of the labor, machinery, etc., furnished or to be furnished under their ^aid contracts with the head contractor or sub-contractor ; and if they fail to file such account or estimate, they will have no recourse against said owners, etc., for any prior payments made under his contracts with his head contractor or sub-contractor. 11 Upon the filing of an account as provided in the preceding paragraph, the owner, board, officer, or clerk, agent, or attorney thereof, must, within five days from the time of receiving it, fur- nish a copy thereof to the contractor or sub-contractor owning the account, who must, within five days from the time of the re- ceipt of such copy, notify in writing (165) the owner, board, of- cer, or clerk, agent, or attorney thereof, of his intention to dis- pute such account, or must, within five days after giving such notice, begin the arbitration mentioned below, or commence an action to adjust said account, or he shall be considered as assent- ing to the account, and the owner must pay, pro rata, the same and other similar accounts properly presented to him, and as- sented to or adjusted, as above directed. But the claims of la- borers, mechanics, or persons furnishing materials, shall be paid before the claims of sub-contractors, and of sub-contractors be- fore those of head contractors. 1 * If any head or sub-contractor dispute any account or estimate filed against him as above provided, and hcand the claimantcan not adjust it between themselves, each of them must choose a disinterested arbitrator, and these two shall select a third, and the decision of these, or of any two of these, arbitrators, will, in the absence of fraud or collusion, be final and conclusive. If any head contractor or sub-contractor neglect or refuse to pay, within five days after his assent to an adjustment of said account, the amount thereof and costs incurred to the person en- titled thereto, then the owner, board, officer, or clerk, or agent thereof, must pay, when due, the whole or pro rat amount thereof, as the case may be, as above provided, out of subsequent (1) The forms already given for labor done, etc., can readily be changed into accounts and estimates of labor done and to be done, etc., or to estimates alone of labor to be done, by virtue of a verbal or written contract. (a) J3198. (b) 3199. (c) 3200. MECHANIC'S LIEN. 229 payments, or within ten days thereafter ; and on his failure so to do, the person entitled thereto may recover against said owner, in an action for money had and received when due, the whole or pro rata amount, as may be, of his said account or estimate, not exceeding in any case the balance due to said head contractor. 8 If out of said subsequent payments, as they severally fall due nnder his contract, or within ten days thereafter, the owner shall fail to pay, when due, the whole or pro rata amounts, as maybe, of such sworn accounts or estimates, the person entitled to the account may file with the recorder of the county where the prop- erty is situate, within forty days from the d*te of said subse- quent payment, an account prepared in accordance with the directions in the first paragraph of this section, as though such account were the account of a head contractor ; and such lien shall date back from the first item of labor, etc., and have the s-ime operation, duration, and effect, and be subject to the same obligations with respect to the owner, as the lien of a head con- tractor in similar cases. b Such lien shall take precedence over any lien already taken or to be taken by the head contractor, and the lien of any laborer, mechanic, or material man, shall take precedence over any pres- ent or future lien of any sub-contrator or contractor indebted to them ; and such precedence can not be changed by any transfer or assignment of any contract of the head contractor with the owner, nor by any proceedings in attachment" or otherwise against such head conti-actor. c It' b}* collusion or fraud said owner, etc., pay in advance of the payments due on his contract, he shall be liable to said la- iioivrs and others for the same amount as if no such payment had been made ; but if such payment be made in good faith to complete the work agreed upon in the contract, and in accord- ance therewith, it shall not be held as fraudulent or collusive/ 1 If the progress or completion of the work on any of the above mentioned property be suspended by the default or dea*th of the owner, without consent of the head or sub-contractors or HI ''+ aiiOl. (c) I 3203. Cb) j}3-:02. (d) \ 3204. 230 MECHANIC'S LIEN. material men, any or all of them may complete the work in ac- cordance with the original contract, and then have all the reme- dies above mentioned. 4 There is no homestead or other exemptions against any of the liens above mentioned. b The executors and administrators of deceased owners not only have the same rights that the owners had, but are subject to the Btime liabilities as were the owners under the provisions of the law relating to mechanics' liens, as above set forth. 1 In order to entitle a material man to obtain a lien on any building or land, the materials must be furnished under a con- tract (written, verbal, or implied) that they are to be put to the particular use of erecting, altering, or repairing a particular building, or other definitely understood job. The contract in- tended by the statute is one that has reference to the purpose for which the work is done or the materials furnished. If such ma- terials are furnished to a contractor to be used wherever he may choose, as for instance, iron to a stair-builder, the builder not designating to what job he will apply that lot of iron, no lien can then be taken. But if materials are furnished under such a contract with the owner, to be applied for such a definite job, the material man may take a lien for them on that specified or agreed house, etc., even if the.contractor should otherwise ap- propriate a portion of them without the consent of the party furnishing them. 2 A mechanics' lien can not be created upon the real estate of a married woman for work done or materials furnished in erecting a house thereon under a contract with her husband. 3 But if she (1) Horton's Adm'r v. Carlisle, 2 D. 184. (2) Choteau et al. v. Thompson et al., 2 Ohio St. 114; Horton's Adm'r v. Carlisle, 2 D. 184; Beckel v. Petticrew, 6 Ohio St. 247; Hazard Powder Co. v. Loomis et al., 2 D. 544, 559; Stephens v. United R. R. Stock Yd. Co., 29 Ohio St. 227 . Dunn & Witt v. Rankin & Co., 27 Ohio St. 132. See also note 2, p. 224. (3) Spinning v. Blackburn, 13 Ohio St. 131. (a) 3203. (c) 3192. (b) ? 3185. MECHANIC'S LIEN. 231 should stand by and see work done or materials furnished under such circumstances, without protesting against it, it has been held that a mechanic's lien could then be enforced against her. 1 And she can, by her own contract, charge her separate estate, at least to the extent of the rents and profits thereof, with the cost of reasonable repairs and improvements for the benefit of the estate, and to that extent a mechanic's lien may attach under the statute. 2 Any person holding a mechanic's lien may, in addition to the remedies already mentioned, proceed by petition, as in other cases of liens, against the owner and all other persons interested, either as lienholders or otherwise, in any such boat, vessel, or other watercraft, or house, mill, manufactory, or other building or appurtenance, and the lot of land on which the same may stand or to which it may be removed, and obtain such judg- ment therein for the rent or sale thereof as justice and equity may require.* (1) Decamp v. Gaskill, 1 C. S. C. R. 337. (2) Machir v. Burroughs, 14 Ohio St. 519. See also note 2, p. 222. (u) I a20(j. See also 78 O. L. 78, and 80 O. L. 183. 232 FORMS. V FORMS. 1. Declination of executor. (Page 45.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned hereby declines the appointment of executor of the last will and testament of A. B., deceased. jg 2. Citation requiring person named executor to appear and accept or decline letters. (Page 45.) The State of Ohio, county, ss. To C. D., greeting: Whereas, A. B., by his last will and testament, duly admitted to probate by the probate court of said county, has named you executor thereof, these are therefore to require you to appear in said court, on or before the day of , 18 , at o'clock M., and make known your intention to accept or decline said trust. Witness my signature and the seal of said court at , this [L. s.] day of , 18. M N , Pi obate judge. FORMS. 233 3. (Two forms.) Declination of widow and heirs. (Pages 48, 60, 61.) To the Hon. the Judge of the Probate Court within and for the county of - , and State of Ohio : * I hereby decline administering upon the estate of my late husband, A. B., deceased. -- f 18. Y - B - , Widow. Preceding form to the *. The undersigned, heirs at law [or, widow and heirs at law] of A. B., late of said county, deceased, hereby decline the administration of his estate, and recommend the appointment of C. D. as administrator thereof. --- , 18-. Y - B - , Widow. U - B- 4. Notice to appear and accept or decline administration. (Page 48.) To Y. B., widow [or, W. B. and U. B., heirs at law ; or, Y. B., widow, and W. B. and U. B., heirs at law] of A. B., deceased : You are hereby notified to appear before the probate court within and for the county of , and State of Ohio, on or before the day of , 18 , at o'clock, M., and make known your intention to accept or decline the administration of the estate of said deceased, or a motion will then and there be made to commit the administration to some other suitable person. 234 FORMS. 5. Citation to appear and accept or decline administration. (Page 48.) Tho State of Ohio, county, ss. To Y. B., widow [or, W. B. aiict U. B., heirs at law; or, Y. B., widow, and W. B. and U. B., heirs at law] of A. B., deceased: You are hereby required to appear in the probate court within and for said county of , on or before the day of , 18 , at o'clock, M., and make known your intention to accept or decline the administration of the estate of said deceased, or the administra- tion will then and there be committed to some other suitable person. Witness my signature and the seal of said probate court, at [L. s.] , this day of , A. D. 18 . M N , Prolate judge. 6. (Two forms.) Application for letters of administration or letters testamentary. (Pages 44, 59, 61.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : * 1 ask to be appointed administrator [or, administrator de Lonis nori] of the estate of A. B., late of said county, deceased. Estimated value of personal estate..... $1,000 00 I offer a bond in 2,000 00 with E. F. and G. H., sureties. And I ask for the appointment of I. J., K. L., and M. N., as apprais- ers of personal estate. , 18. C C . In application!) for letters testamentary or letters of administration with the will annexed, follow the preceding form to the *, and add : I ask for letters testamentary [or, letters of administration with the will annexed] upon the estate of A. B., latQ of said county, deceased. Estimated value of personal estate subject to ad- ministration... $1,00000 FORMS. 235 Estimated value of real estate directed by the will of the decedent to be sold 3,000 00 t offer a bond in 8,000 00 with E. F. and G. H. sureties. And conclude as in the preceding form. 7. (Several forms.) Journal entry of letters testamentary, letters of administration, etc. (Pages 47, 48, 49, 59.) Letters testamentary upon the estate of A. B,, deceased, are granted to C. I)., the executor named in the will of said decedent; and he is ordered to give bond in $8,000.00. conditioned according to law. E. F. and G. H. are accepted as sureties. I J , K L , and } are appointed appraisers of goods. M N , Another. C. D., the executor named in the last will and testament of A. B., deceased, having declined accepting said trust, on motion, letters o( administration, with the will annexed, upon the estate of said de ceased, are granted unto O. P. ; and he is ordered conclude as in pre- ceding form. Another. On motion, C. D. is appointed administrator [or, administrator dt bonis non] of the estate of A. B., deceased; and he is ordered conclude as in preceding form Another. On motion, letters of administration upon the estate of A. B., de> ceased, are granted unto C. D. ; and he is ordered conclude as in pre ceding form. Another. The widow [or, the heirs at law; or, widow and heirs at law] of A. B. deceased, declining to administer upon the estate of her late husband [or, declining to administer upon the estate of said decedent], on mo 236 FORMS. tion, P. is appointed administrator of said estate; and he is or dered conclude as in preceding form. O 8. Bond of an executor, or an administrator with the will annexed. (Pages 45, 55, 56. 61.) Know all men by these presents, that we, C. D., E. F., and G. IJ., are held and firmly bound unto the State of Ohio in the penal sum of eight thousand dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following: Whereas, letters testamentary [of, letters of administration with the will annexed] upon the estate of A. B., deceased, were granted to the said C. D., by the probate court of county, in the State of Ohio, on the day of , A. D. 18 ; now if the said C. D., as executor of the last will and testament [or, as administrator with the will an- nexed of the estate] of the said A. B., deceased, shall, First. Make and return to said court, on oath, within three months, a true inventory of all the moneys, goods, chattels, rights, and credits of said testator that are by law to be administered, and which shall come to his possession or knowledge; and also, if required by said court, an inventory of the real estate of said deceased ; Second. Shall administer according to law, and the will of said testator, all his goods, chattels, rights, and credits, and proceeds of all his real estate that may be sold for the payment of his debts and leg- acies, which shall at any time come to the possession of said executor [or, administrator with the will annexed], or to the possession of any other person for him ; and, Third. Shall render, upon oath, a just and true account of his ad- ministration, within eighteen months, and at any other times when re- quired by said court or by the law, and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge, he shall receive no allowance for services, unless the court shall enter upon its journal that such delay was necessary and reasonable ; then this obligation to be void : otherwise to be and re- main in full force and virtue in law. Signed and sealed by us this day of , A. D., 18 . Executed in presence of C D , [L s ] E - F , [L. s.] G H . [L. s.] FORMS. 237 9. Bond of an administrator, or an administrator de bonis non. (Pages 48, 50, 55, 56, 61.) Know all men by these presents, that we, C. D., E. F., and G. H., are field and ftrmly bound unto the State of Ohio, in the penal sum of two thousand dollars, to the payment of which we do hereby 'jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following : Whereas, letters of administration [or, letters of administration de bonis von'] upon the estate of A. B., deceased, were granted to the said C. D., by the probate court of county, in the State of Ohio, on the day of , A. D. 18 ; now if the said C. D., as administrator [or, administrator de boms non] of the estate of said A. B., deceased, shall, First. Make and return into said court, on oath, within three months, a true inventory of all the moneys, goods, chattels, rights and credits of the deceased which have or shall come to his possession or knowl- edge; and also, if required by said court, an inventory of the real es- tate of said deceased ; Second. Shall administer according to law, all the said moneys, goods, chattels, rights, and credits of said deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which shall at any time come to the possession of said administrator, or to the possession of any third person for him; Third. Shall render, upon oath, a true account of his administra- tion, within eighteen months, and at any other times when required by said court or the law ; and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge, he shall receive no allowance for his services, unless the court shall enter upon its journal that such delay was necessary and reason- able; Fourth. Shall pay any balance remaining in his hands upon the settlement of his accounts, to such persons as said court or the law shall direct; and, Fifth. Shall deliver the letters of administration into court, in case any will of said deceased shall be hereafter duly proved and al- lowed ; then this obligation to be void: otherwise to be and remain in full force and effect. Signed and sealed by us this day of , A. D. 18 . Executed in presence of C D , [L. s.] E F , [L. s.] G H . [L. a.] 238 FORMS. 10. Letters testamentary or letters of administration. (Pages 45, 49.) The State of Ohio, county, ss. To all to whom these presents shall come, greeting: Know ye that the probate court of said county doth hereby grant letters testamentary [or, of administration ; or, of administration with the will annexed ; or, of administration de bonis nori] upon the estate of A. B., deceased, unto C. D., to whom is committed the administra- tion of all and singular the goods, chattels, moneys, rights, and cred- its of said deceased ; and also the proceeds of all the real estate of said deceased which he may be authorized to sell; and whose duty it shall be to adjust and settle up the estate of said deceased, in all re- spects agreeably to law. Arid be it further known, that we have appointed 1. J., K. L., and M. N., appraisers of the personal estate of said deceased. In testimony whereof I hereto affix my signature and the seal of said [u s.] probate court, at , this day of , A. D. 18 . , Probate judge. 11. Notice of appointment by executor or administrator. (Pages 62, 123.) NOTICK. The undersigned has been duly appointed executor of the last will and testament [or, administrator ; or, administrator de bonis non of the estate] of A. B., late of county, Ohio, deceased.* day of , 18. C D . This form of notice will be sufficient, but if desired, the following may be added, com- mencing at the *. All persons indebted to the estate are requested to make immediate payment ; and those having claims against the same will present them, duly authenticated, to the undersigned, for allowance. FORMS. 12. Notice to widow, heirs, and legatees of the time of making the ap- praisement. (Page 64.) To Y. B., widow [or, W. B., heir at law; or, legatee] of A. B. deceased: You are hereby notified that an inventory and appraisement of the personal estate of said decedent will take place at his late residence, on the day of , 18 , commencing at o'clock, M. Administrator. o 13. Notice of the time of making the appraisement to be posted up: (Page 64.) NOTICE. An inventory and appraisement of the personal estate of A. B., de ceased, will take place at his late residence in , on the day of , 18 , commencing at o'clock, M. 18. C D , Administrator of said estate. 14. Appointment of appraiser by justice of the peace, and order to ap- pointee. (Pages 64, 143.) To , of county : You are hereby appointed to appraise, on oath, the estate and effects of , late of county, deceased. Deliver this order to the ad- ministrator or executor of said deceased. Given under my hand this day of , A. D. 18 . (Form prescribed by statute.) , Justice of the peace. 240 FORMS. 15. Oath of appraisers. (Pa?e64.) The State of Ohio, county, ss, I. J., K. L., and M. N., appraisers of the personal estate of A. B., deceased, being sworn, say that they will truly, honestly, and impar- tially appraise the estate and property of said decedent which may be exhibited to them, and perform the other duties required of them by law in the premises, as appraisers, according to the best of their knowl- edge and ability. Sworn to and subscribed before me, this U , Justice of the Peace. (Or other authorized officer.) 16. Inventory ; including schedules of property exempt from appraise- ment, widow's allowance, and property belonging to the widow in her own right. (Pages 51, 63, 65, 66, 67, 68, 70, 77.) First insert the oath of the appraisers. Form No. 15. Inventory and appraisement of the personal estate of A. B., de- ceased, made on the day of , A. D. 18 , by I. J., K. L., and M. N., appraisers of said estate. In compliance with the statute, the undersigned appraisers set off to the widow [or, to the widow and minor children; or, to the minor children] of said A. B., deceased, the following articles without ap- praisement; the same being exempt from administration. For a list of the articles so exempt, see Chapter III., Section III. , 18. I J , M N- Appraisers. And we do also set off and allow to Y. B., the widow of said dece- FORMS. 241 dent, and to 0. B. and C. B., his children, under the age of fifteen years [or either, as the case may be], the following property for their sup- port for twelve months from the time of his death : Provisions and other property already consumed by them $10 00 300 Ibs. pork : 15 00 All the flour on hand 12 00 10.} bu. potatoes 6 62 20 Ibs. lard 2 00 2 hogs 12 00 20 chickens 2 00 3 turkeys 1 50 And there not being sufficient property of a suitable kind to set off, we certify that they will need in money the additional sum of... ...300 00 $357 12 -, 18. Appraisers. The following articles of furniture and household goods we find that Y. B., the widow of said decedent, brought with her at the time of her marriage, or came to her by bequest or gift, or were purchased with her separate money, afterward : 1 bureau, 1 center table, 1 sofa, A lot of mantel ornaments, 1 set chairs, 1 looking-glass. , 18. I J , M N -, Appraisers. And we do appraise the residue of the personal estate of said A. B., deceased, as follows: 1 black horse $110 00 1 bay colt. 40 00 2 hogs, at $5 10 Od 1 spotted cow 22 00 1 white cow 23 00 1 set harness 15 00 1 buggy 60 00 1 farm wagon 45 00 16 242 FORMS. 110 bu. wheat, at $100 , 110 00 40 bu. corn, at 50c 20 00 Etc., etc. Money on hand at death of decedent: Bank bills $40 00 Specie 10 00 Should there be no money, Bay, No money of any kind. The following claims in favor of the estate are considered collect- able: Promissory note for $100.00 against P. X., dated , 18 , due , 1 8 , with interest from date. Secured by mortgage. Due bill for $70.00 against Q. Z., dated , 18 : paid thereon $40.00, , 18. Balance due, $30.00 and interest. Judgment for $15.20 against Y. V., upon the docket of 0. P., justice of the peace of township, -. county, Ohio, dated , 18 . Book account against L. C., $7.15. Last item dated , 18 . Book account against G. S. Balance due , 18 , $2.55. This method of entering claims in the inventory is adopted in preference to any other, be- cause it is more simple, and will make the labor of recording the inventory less difficult. The following claims are considered doubtful : Enter here doubtful claims in manner preceding. The following claims are considered uncollectable : Enter here claims supposed, for any reason, to be nncollectable. Given under our hands, this day of , A. D. 18 . I J , M N- Appraisers. 17 Affidavit of executor or administrator to inventory. (Page 76.) The State of Ohio, county, ss. C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, being sworn, says that the foregoing in- ventory is in all respects just and true ; that it contains a correct statement of all the estate and property of said deceased, being as- sets, that have come to his knowledge ;* and particularly of all moneys, FORMS. 243 bank bills, or other circulating medium belonging to said deceased - t and of all just claims of the deceased against the affiant or other per- sons, according to the best of his knowledge. Q J) Sworn [or, affirmed] to and subscribed by said C. D., before me, this day of , A. D. 18 . W B , Probate judge. The words, except certain articles designated in the sale bill as "property not inven- toried," may be inserted at the * when necessary. 18. Application for writ of citation or surfimons against executor or ad- ministrator for failing to file inventory, sale bill, or account. (Pages 52, 76, 85.) The State of Ohio, county, ss. PROBATE COURT. The State of Ohio, on application of H. S., j vs. > Motion for writ of citation. C. D., Adm'r of the estate of A. B., dec'd. ) H. B., one of the heirs at law [or, widow; or, creditor, etc.] of A. B., deceased, respectfully represents that more than three months have elapsed since letters of administration [or, testamentary] upon the es- tate of A. B., deceased, issued toC. D., and that the said C. D. has neg- lected to file an inventory [or, sale bill] of said estate, as by law he is required to do. The relator therefore moves the court for a writ of citation against the said C. D., and that such proceedings may be had to enforce the filing of such inventory [or, sale bill] as may be author- ized by law. H B . Should the application be to compel the filing of a partial or final account, eighteen should be substituted for " tliree," before " months," and partial or final account should t take the place of "inventory," where that word occurs. 244 FORMS. 19. Writ of citation or summons, requiring executor or administrator to file an inventory, sale bill, or account. (Pages 52, 76, 85.) The State of Ohio, county, ss. To C. D., administrator of the estate [or, execu- tor of the last will and testament] of A. B., deceased: You are hereby required, on or before the day of , A. D. 18 , to file an inventory [or, sale bill; or, account of your administra- tion] of said estate, in the probate court of said county, according to law, or then and there to appear and show cause why an attachment should not issue against you for your default. Witness my signature and the seal of said probate court, at f_L. s.] , this day of A. D. 18 . W B , Probate judge. Journal entry of order of attachment. (Pages 52, 76, 85.) The State of Ohio, on application of, etc., j vs. > Citation. C. D. administrator of the estate of A. B., deceased. ) The writ of citation having been returned served, and said defend- ant having failed to file an inventory [or, sale bill ; or, account of his administration] of the estate of said A. B., deceased, within the time limited in that behalf, or to show cause why an attachment should not issue against him for his default: It is ordered that a writ of attach- ment issue to the sheriff of county, to bring the body of said C. D. into this court forthwith, to abide such order as the court may make concerning him in this behalf. o FORMS. 245 21. Writ of attachment against executor or administrator. (Pages 52, 76, 85.) The State of Ohio, county, ss. To the sheriff of said county, greeting: Whereas, C. D., administrator of the estate [or, executor of the last will and testament] of A. B., deceased, was, by the order of the pro- bate court of said county, required to file an inventory [or, sale bill ; or, account of his administration] of said estate, on or before the day of , A. D. 18 , or to show cause why an attachment should not issue against him for his default; and the said C. D., having failed to com- ply with the order aforesaid, you are therefore commanded to take the said C. D., and have his body forthwith before said court, to abide such order as may be made concerning him in this behalf. Hereof fail not ; and bring this writ with you. Witness my signature, and the seal of said probate court, at [L. s.] , this day of , A. D. 18 . W , Probate judge. 22. Revocation of the letters of an executor or administrator. (Pages 53; 56, 57, 76, 85.) C. D., administrator of the estate [or, executor of the last will and testament] of A. B., deceased, having failed to file an inventory [or, sale bill ; or, account of his administration] of said estate, according to law [or, to give an additional administration bond ; or, to execute a bond of indemnity to his sureties], although specially required to do BO by this court, his letters of administration [or, testamentary] are hereby revoked and annulled, and he is divested of all power, author- ity, and control over the estate of said deceased. (See also Foim No. 40.) Q 246 FORMS. 23. Resignation of executor or administrator, and the journal entry oj same. (Page 54.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, executor of the last will and testament [or, admin- istrator of the estate] of A. B., deceased, hereby tenders his resigna tion of said trust, and prays that the same may be accepted. JOURNAL ENTRY. C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, having tendered his resignation of said trust, the same is, for good cau&e shown, accepted. 24. Application for the appointment of a special administrator. (Page 51.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned respectfully represents that proceedings have been instituted to contest the validity of the last will and testament of A. B., deceased ; and that the condition of the personal estate of said de- oedent is such as to require the appointment of a temporary adminis- trator to collect and take charge of the same until the termination of the proceedings aforesaid. The undersigned asks to be appointed such special administrator. The estimated value of the personal estate afore- said .is $1,500 00 He offers a bond in 3,000 00 with E. F. and Gr. H. as sureties; and asks the appointment of I. I., K. L., and M. N. as appraisers of goods. , 18. C D . FORMS. 247 25. Appointment of special administrator. (Page 51.) It appearing that proceedings have been instituted to contest the validity of the last will and testament of A. B., deceased, and that the condition of the personal estate of said decedent is such as to require immediate attention, on motion, C. D. is appointed special administra- tor to collect and preserve the effects of said decedent ; and he is or- dered to give bond in $3,000.00, conditioned according to law. E. F. and G. H. are accepted as sureties. I 1 , ) K L , and > are appointed appraisers of personal estate. M N , ) 26. Bond of special administrator. (Page 51.) Know all men by these presents, that we, C. D., E. F., and G. H. are held and firmly bound unto the State of Ohio, in the sum of three thousand dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following: Whereas, the probate court of county, in the State of Ohio, on the day of , A. D. 18 , appointed the said C. D. special ad- ministrator to collect and preserve the effects of A. B., deceased; now if the said C. D., as special administrator as aforesaid, shall make and return into said court, within three months, a true inventory of all the moneys, goods, chattels, rights, and credits of the deceased, which have or shall come to his possession or knowledge, and shall truly account, on oath, for all the moneys, goods, chattels, debts, and effects of the deceased that shall be received by him as such special administrator, whenever required by said court, and shall deliver the same to the person who may be appointed executor or administrator of said de- cedent, or to such other person as may be lawf'ully authorized to re- ceive the same, then this obligation to be void ; otherwise, to be and remain in full force and effect. Signed and sealed by us, this Executed in presence of 248 FORMS. 27. Complaint against person suspected of concealing, embezzling, or carrying away assets. (Page 78.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, administrator [or, executor ; or, widow ; or, one ol the heirs at law; or, one of the legatees; or, one of the creditors] of A. B., deceased, respectfully represents that he has good reason to sus- pect, and does verily believe, that 0. 0., of said county, has concealed, embezzled, or carried away moneys, goods, chattels, things in action, and effects of said deceased, in fraud of the rights of the undersigned and others interested in the estate of said deceased : Wherefore he asks that a writ of citation may issue against the said 0. O., and that he may be compelled to answer, under oath, touching the matter of this complaint, and that such other proceedings may be had in the premises as are authorized by law. Administrator of the estate of A. B., deceased. 28. Citation of person suspected of concealing, etc., assets. (Page 78.) The State of Ohio, county, ss. To the sheriff of said county, greeting : Whereas, complaint has been made to the probate court of said county against 0. O., charging him with having concealed, embezzled, or conveyed away certain assets of the estate of A. B., deceased; these are therefore to require you to summon the said O. 0. to appear before said court forthwith, to be examined on oath or affirmation touching the matter of said complaint. Hereof fail not, but of this writ make legal service and due return. Witness my signature and the seal of said probate court, at [L. s.] , this day of , A. D. 18 . W B , Probate judge. FORMS. 249 29. Order as to refractory party. (Paga 78.) The State of Ohio, on complaint of, etc. j Citation f* conceal- vs. ing, etc., assets. - O -- . j The said defendant, and such witnesses as were offered by the sev- eral parties in interest in this case, having been examined under oath touching the matter of said complaint, and the court being fully ad- vised in the premises, finds said defendant is guilty of having concealed [or, embezzled; or, conveyed away] moneys [or, goods and chattels; or, things in action ; or, effects] belonging to the estate of said A. 2>., do- ceased, of the value of - dollars. It is therefore considered by the court that C. D., administrator of the estate of said A. B , deceased [or in case there should be no administrator or executor then that the State ot Ohio, for the use of the estate of A. B., deceased], recover against the said 0. 0. the said sum of - dollars, with ten per centum penalty thereon, amounting to - dollars, and the costs of this proceeding, taxed at - dollars. 32. Bond to re-deliver personal property specifically bequeathed. (Page 82.) Know all men by these presents, that we, T. U., V. W., and Y. Z., are held and firmly bound unto C. D., executor of the last will and testament [or, administrator with the will annexed] of A. B., deceased, in the penal sum of [double the estimated value of the property~\ dollars, to the payment of which we do hereby jointly and severally bind our- selves, our heirs, executors, and administrators; if default be made in the condition following : Whereas, the said A. B., by his last will and testament, duly admitted to probate, specifically bequeathed unto the said T. U. the following articles of personal property, that is to say : [here mention the property'] which the said C. D., as executor as aforesaid, has delivered to the said T. U. ; now, if the said T. U. shall re-deliver said property, or so much thereof as may be necessary, to the said C. D., in as good order and condition as the same was in when received, in case such property FORMS. 251 should be required for the payment of the debts of said decedent, then this obligation to be void : otherwise to be and remain in full force and effect. Signed and sealed by us this day of , A. D. 18 . Executed in presence of T U , [L. s.] V W , [L. s.] Y Z , [L. s.] o 33. Order of probate judge, requiring executor or administrator to make inventory or sale, when exempt by will from doing so. (Pages 63, 82.) Upon application of R. B., one of the heirs at law [or, widow; or, creditor] of A. B., deceased, and for good cause shown, it is ordered that C. D., executor of the last will and testament of said decedent, make and return into this court an inventory [or, sale bill; or, in- ventory and sale bill] of said estate, according to law. 34. Application for preceding order by party interested. (Pages 63, 82.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, one of the heirs at law [or, creditors ; or, the widow] of A. B., deceased, respectfully represents, that by the last will and testament of said decedent, all his personal estate is devised unto L. G. for life, and it is provided that no inventory or sale of said personal estate shall be made by the executor of said will. Further represents that debts of said decedent have been presented to and allowed by said executor, amounting to a large sum, and that no provision is made by said will for the payment of the same. [The foregoing may be altered to correspond to the facls.~\ The undersigned therefore prays the court for an order requiring C. D., the executor of said will, to make and return into court an in- ventory and sale bill of said estate, according to the terms of the statute in such case made and provided. R B . 252 FORMS 35. Notice of sale of personal property. (Page 83.) PUBLIC SALE. The undersigned will offer for sale, at public auction, at the late residence of A. B., deceased, on , the day of , 18 , the goods and chattels of said deceased, consisting in part of: [Here insert a list of the leading articles. ~\ Sale to commence at 10 o'clock, forenoon. Terms: Purchases amounting to three dollars or less to be paid in cash ; above that sum notes at nine [or, six] months, with two good sureties, will be taken. Administrator [or, Executor]. 36. Sale bill. (Page 83.) Sale bill of the goods and chattels belonging to the estate of A. B., deceased, sold at public auction by C. D., executor of the last will and testament of said decedent [or, administrator of said estate], on the day of , A. D. 18 : PROPERTY SOLD. PURCHASERS NAMES. PRICE. 20 bushels potatoes 70 bushels oats 5 hogs Property not inventoried 1 cow L. K., 5 bu. at 40, Widow at appraisement, 5 at 30, Decayed before time of sale, 1 bu. C. H., 50 bu. at 20, Fed to stock before sale, 20 bu. G. T., one hog, first choice, C. S., one " second " L. K.,one " third " One died before sale. One not sold for want of bidders. E. R. $2 00 1 50 10 00 6 00 5 00 3 50 22 00 $50 00 FORMS. 253 The foregoing sale bill is correct. Clerk of sale. 37. Affidavit of executor or administrator to sale bill. (Page 85.) The State of Ohio, county, ss. C. D., executor of the last will and testament [or, administrator] of the estate of A. B., deceased, being sworn [or, affirmed], says that the foregoing sale bill of the goods and chattels of said decedent is, in all respects, correct, according to the best of his knowledge and belief. Sworn [or, affirmed] to and subscribed by said C. D., before me, this day of , A. D. 18. W B , Probate judge. 38. Sale note. (Page 81.) $22.00. Nine [or, six] months after date, we, or either of us, promise to pay C. D., as executor [or, administrator] of A. B., deceased, or bearer, twenty-two dollars, for property purchased at the' sale of the personal estate of said deceased. , 18. P- T- G H- O 254 FORMS. 39. Entries in blank book. (Page 86.) THE ESTATE OF A. B., DECEASED, IN ACCOUNT WITH C. D., EXECUTOR [or, ADMINISTRATOR]. [This heading should extend across two pai;e8 one to be used for payments, the other for receipts.] DR. (Left hand page.) June 1, 18 . Paid probate judge's fees. Voucher No. i. $3 00 " 20, " " I. J., appraiser. " 2. 1 00 " 30, " " C. L., auctioneer. " 3. 2 00 " " " " Z. T., clerk of sale. " 4. 2 00 Aug. 8, " " Y. B., widow's allowance. " 5. 300 00 June 5, " " L. S., book acc't. " 6. 2 75 " 8, " " G. P., note. " 7. 10 70 Etc., Etc. CR. (Right hand page.) Money on hand at death of decedent $40 00 Amount of sale bill 50 00 Received of Q. R., on book account 6 00 Etc., Etc. 40 Revocation 'of letters of administration on the finding and allowing of a will. (Page 54.) Letters of administration upon the estate of A. B., deceased, hav- ing been heretofore gsanted to C. D., under the belief that no last will and testament of said A. B. was in existence, and such a will having since been found, duly proved and allowed, the said letters of admin- istration heretofore granted to said C. D., are hereby revoked and an- nulled, and he is divested of all power, authority, and control over the estate of such deceased. FORMS. 255 41. Note in favor of an estate, taken by executor or administrator. (Page 91.) $50.00. after date I promise to pay C. D., administrator of the estate of A. B., or to his successor in the administration, or bearer, fifty dollars, for value received. , 18. X Y . 42. Petition for order to sell desperate claims. (Page 98.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, administrator of the estate [or, executor of the last will and testament] of A. B., deceased, respectfully represents that the following claims in favor of said estate, which accrued in the lifetime of the decedent, are desperate for the reasons hereinafter mentioned : [Here give a description of the claims, with the reasons why they are desperate.] He therefore asks for an order authorizing him to make sale of said claims, or otherwise to dispose of them, according to law. Administrator [or, executor] of A. B , deceased. The court may, if it deem best, require an affidavit, similar to the one appended to Form 66, to be added to this petition. 43. Notice of filing the preceding petition. (Page 98.) Is hereby given that the undersigned has this day filed in the probate court of county, Ohio, his petition, praying for an order author- izing him to sell, or otherwise dispose of, the following claims belong- ing to the estate of A. B., deceased, which accrued in the lifetime of said decedent, and which have become desperate, to wit: [Here, if the 256 FORMS. claims are not numerous, insert the name of each debtor, the nature of the claim, and the amount due thereon. If numerous, one or more of the principal ones may be described in detail, and the rest briefly, as by stating the number of them, elc.~] Said petition will be for hearing on the - day of - , A. D. 18 . [At least three weeks from the time of filing the petition.'] __ jg _ _ j) _ Administrator [or, executor] of said A. B., deceased. ________ <-v 44. Journal entry of order to sell desperate claims. (Pages 98, 99.) C. D., the administrator of the estate [or, executor of the last will and testament] of A. B., deceased, having filed his petition, praying for an order authorizing him to sell, or otherwise dispose of, according to law, certain claims belonging to the estate of said decedent, which accrued in his lifetime, and which have become desperate in the hands of said administrator [or, executor] ; and it appearing that notice of the time of hearing of said petition has been given according to law, and that the statements of said petition are true, it is ordered that said administrator [or, executor] proceed to advertise and sell [or, to compound for a sum not less than per cent, of their nominal value; or, to file in court for the benefit of the heirs, devisees, or creditors of said A. B. ; or, otherwise, as may be] the claims mentioned in said pe- tition, according to the statute in such case made and provided. 45. Notice of sale of 'desperate claims. (Page 99.) NOTICE. The undersigned will sell at public auction, at , on day of , A. D. 18 , the following claims belonging to the estate of A. B., deceased, viz : [Here insert a list of the claims.'} Sale to commence at o'clock, M. Terms cash. Administrator of A. B., deceased. FORMS. 257 46. Return of sale of desperate claims. (Page 99.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : In compliance with the order of the court, I gave notice of sale by advertisement in the , a weekly newspaper of general circulation in said county, for at least three consecutive weeks prior to the day of , 18 ; and on that day, at o'clock, M., at , I of- fered the desperate claims belonging to the estate of A. B., deceased, for sale, at public auction, with the following result : Name of Debtor. Nature of claim. Amount due. To whom sold. Amount sold for. I. L. E.G. Note. Book Acc'ti $17 00 6 00 G. R. $1 00 No bidders. -, 18. Administrator of the estate of A. B. t deceased. 47. Motion and affidavit to obtain extension of time to collect assets. (Page 99.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, administrator of the estate [or, executor of the last will and testament] of A. B., deceased, asks that one year further time be allowed him to collect the assets of said estate. The State of Ohio, county, ss. C. D., being sworn, says, that the reason why the foregoing applica- tion is made is because the following claims in favor of the estate of said A. B., deceased, are not yet due [or, because suits have been com- menced upon the following claims in favor of said estate, which are till pending], viz. : [Here mention the claims.~\ He further says that the amount of money in his hands as such ad- 17 258 FORMS. ministrator [or, executor], applicable to the payment of the debts of said decedent, is dollars; and that he has used due diligence to collect the assets of said estate within the time limited by law. Sworn to and subscribed by said C. D., before me, this day of , A. D. 18. W B , Probate judge. 48. Allowance of time by probate judge, (Page 100.) On motion and affidavit filed, and for good cause shown, C. D., ad- ministrator of the estate [or, executor of the last will and testament] of A. B., deceased, is allowed one year [or, six months, or other period] "urther time to collect the assets of said estate. 49. (Two forms.) Authentication [or proof ] of claim. (Page 107.) The State of Ohio, county, ss. L. X., being sworn, says that the amount of the above claim is justly due him ; that no payments have been made thereon, and that no set- offs exist against the same, except as above noted, according to the best of his knowledge. L X . Sworn to and subscribed by L. X., before me, this day of , A. D. 18. Q G , Justice of the peace. Should the claim be a note or due bill, the foregoing form may bo altered so as to read : The amount of the note [or, due bill] hereto attached is justly due him ; that no payments have been made thereon, and that no set-offs exist against the same, according to the best of his knowledge. FORMS. 259 50. Agreement to refer claim to arbitration. (Page 107.) Whereas, K. C. claims of the estate of A. B., deceased, the sum of dollars, upon \here. mention particularly the nature and origin of the claim], and has presented said claim to C. D., administrator of said es- tate [or, executor of the last will and testament] of said A. B., deceased, for allowance ; and whereas, the said C. D. disputes the validity of said claim [or, disputes that the amount claimed is justly due to said K. C.]; it is therefore agreed between the said K. C. and C. D. to refer the matter in controversy to the arbitrament and award of P. T., R. M., and U. S ; and that said referees shall be submitted for approval to R. L., a justice of the peace [or, if the claim exceeds one hundred dollars, then say, to the approval of the probate judge] of county, Ohio* [naming the county in which the claimant or the administrator resides}. That this agreement, with the approval of the referees, shall be filed with said R. L. [or, with any other justice of the peace of the county, if desired}, and such other and further proceedings as are authorized by law shall be had by and before him. Should the claim exceed one hundred dollars, and the referees be approved by the probate Judge, all that follows the * may be omitted. Signed and sealed by us this day of , A. D. 18 . K C , [L. s.] C D , [L. s.] Administrator of A. B., deceased, 51. Approval of referees by justice. (Page 107.) I approve the referees within [or, above] named. Justice of the peace, township, county, Ohio. 260 FORMS. 52. Approval of referees by probate judge. (Page 107.) I approve the referees within [or, above] named. , 18. W- Probate judge, county, Ohio. 53. Docket entries of the justice of the peace, and citation of referees. (Page 108.) TT r; V Arbitration. w C. D., Administrator of the estate of A. B., de- f 1Q ,.- , ,,, ceased. J , 18 ~' March 5th " Agreement to arbitrate, with approval of referees indorsed thereon, filed. It is by me ordered that P. T., R. M., and U. S., the referees named, meet at my office [or, other place, to be named], on , the day of , A. D. 18 , at o'clock, forenoon, to hear and determine the matters in controversy between the parties, etc. The citation of the referees may be as follows : The State of Ohio, county, township, ss. To P. T. [or, R. M.; or, U. S.], greeting: Whereas, certain matters in dispute between K. C. and C. D. , ad- ministrator of the estate [or, executor of the last will and testament] of A. B., deceased, have by agreement of the parties been referred for adjustment to P. T., R. M., and U. S. ; and whereas, said parties have filed their said agreement with me for further proceedings, you are therefore hereby required to be and appear in your own proper per- son, at , on , the day of , A. D. 18 , at o'clock, forenoon, then and there, in conjunction with the other referees, to hear and determine the matter aforesaid. Witness my hand and seal, this day of , A. D. 18 . R L , [L. a.] Justice of the peace, township, county, Ohio. FORMS. 261 54. Docket entries and rule made by clerk in arbitration case. (Page 109.) K C Arbitration. C D , Adm'r of the estate of A. B., deceased. 18. June 1. Agreement to arbitrate, with approval of referees by pro- bate judge filed " " It is by me ordered that the matters in controversy be- tween the parties be refer- red for adjustment to the ref- erees aforesaid ; and that they meet at , on the day of , 18, at o'clock, fore- noon, and having been duly sworn, proceed to the discharge of their duties under this ref- erence. J L , Clerk court common pleas, county, Ohio. -o- 55. Award of referees. (Page 109.) The undersigned, to whom were referred certain matters in contro- versy Jt>etween K. C. and C. D., administrator of the estate [or, executor of the last will and testament] of A. B., deceased, more particularly mentioned in the agreement to arbitrate, signed by said parties on the day of , A. D. 18 , having been first duly sworn, and having heard the allegations and proofs of the parties, do determine and award : 1. That the said C. D., out of the assets of the estate of said A. B., deceased, applicable to that purpose, pay to said K. C. the sum of dollars. [Or, that the claim of said K. C. is not a valid debt of the estate of said A. B., deceased, and that said administrator (or, execu- tor) ought not to pay the same.] 2. That the costs of this reference be paid by said administrator for, executor] out of the assets of said estate. [Or, by said K. C.] 262 FORMS. Given under our hands and seals, this day of , A. D. 18 . * * > !_* "J R M , [L. s.] U S , [L. s.] Costs of the reference : Fees of justice, " " constable, " " witnesses, " " referees, 56. Confirmation of award of referees. (Page 109.) K C ) vs. V Arbitration. C. D., administrator of the estate of A. B., deceased, j Now comes the said plaintiff [or, defendant] by , his attorney, and produces to the court here the report of the referees appointed in this case, and it appearing upon examination that the proceedings of said referees have in all respects been in conformity to law, and no exceptions to their award having been filed by either of the parties, said award is approved and confirmed, and it is considered by the court that said * plaintiff recover against the said C. D., to be levied of the goods and chattels of said A. B., deceased, yet to be adminis- tered, the sum of dollars \_the amount awarded to him], and that said C. D., out of the assets of said estate in his hands, pay the costs f this reference, together with the costs which have accrued or may accrue in this court. Should the award be in favor of the administrator, commence at the * : Defendant pay the costs of this reference, together with the costs which have accrued or may accrue in this court, and that execution issue against him for the same according to law. FORMS. 263 57. Allowance or rejection of claim by executor or administrator. (Page 110.) Allowed as a valid claim against the estate of A. B., deceased [or, al- lowed ; or, the within account; or, note, is allowed as a valid claim against the estate of A. B., deceased]. Administrator [or, executor]. Not allowed as a valid claim against the estate of A. B., deceased [or, rejected; or, not allowed; or, so much of the within claim as is justly due, is allowed, etc.] C - D - , Administrator [or, executor], 58. Bond of legatee who demands his legacy before expiration of four years. (Pages 124, 175.) Know all men by these presents, that we, W. E., H. J., and P. R., are held and firmly bound unto C. D., the executor of the last will and testament of A. B., deceased, and unto his successors in the adminis- tration, in the sum of - dollars [double the amount of the legacy], to the payment of which we hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the con- dition following: Whereas, by the last will and testament of the said A. B., deceased, duly admitted to probate, a legacy of - dollars, is bequeathed unto the said W. E., which the said W. E. requires the said C. D., as execu- tor as aforesaid, to pay at the present time (four years from the date of the administration bond of the said C. D., not having yet expired); now if the said W. E. shall refund the amount of said legacy, or so much thereof as may be necessary to satisfy any demands that may hereafter be recovered against the estate of said deceased, and shall indemnify said C. D. against all loss and damage on account of the payment of such legacy, then this obligation to be void: otherwise to be and remain in full force and effect. Signed and sealed by us this - day of - , A. D. 18 . Executed in presence of W - E -- , [L. s.] H - J - , [L. s.] P - R - . [L. s.] 264 FORMS. 59. Order of probate judge requiring legatee to give preceding bond. (Pages 124, 175.) It appearing that W. E., one of the legatees of A. B., deceased, has demanded of C. D., executor of the last will and testament of said de- cedent, the payment of his legacy, before the expiration of four years from the date of the administration bond of said C. D., it is therefore ordered that said W. E., before receiving the amount of said legacy, give bond to the said C. D., in dollars, with sureties to be approved by this court, conditioned according to law. 60. (Several forms.) Receipts or vouchers. (Page 127.) Received , 18 , of C. D., administrator of the estate [or, executor of the last will and testament] of A. B., deceased, one dollar, my fees as appraiser of personal [or, real] estate one day. Or, dollars, in full of principal and interest upon the within note. Or, dollars, in full of the above account. Or, dollars, in full of the allowance made by the appraisers for the support of myself and children twelve months. Widow. Or, dollars for a coffin for the deceased. In all cases the purpose for which the payment is made, and the amount paid, should b specified. FORMS. 265 61. Presentation of claim due after four years, to the probate court, for allowance. (Page 121.) To the Hon. the Judge of the Probate Court vnthin and tor the county of , and State of Ohio : The undersigned respectfully represents that he holds a note [or, other claim] against the estate of A. B., deceased, dated , 18 , calling for dollars in years from date, and that the same will not become due until after the expiration of four years from the date of the bond of C. D., administrator of the estate [or, executor of the last will and testament] of said A. B., deceased. He therefore asks that said C. D. may be ordered to retain in his hands a sufficiency of the assets of said estate to pay said note when the same becomes due ; or that said C. D. may be directed (in case his consent can be obtained) to pay said note out of the funds of said es- tate now in his hands, upon discounting the interest upon the amount of said note for the unexpired term. R- 62. Order of probate judge to pay preceding claim. (Page 121.) It appearing that R. R. has a valid claim against the estate of A. B., deceased, which will not become due until after the expiration of four years from the date of the bond of C. D., as administrator of said es- tate [or, executor of the last will and testament of said decedent],* it is ordered, by and with the consent of said R. R. and said C. D., that said 0. D., out of the assets of said estate in his hands, pay to said R. R. the amount of his aforesaid claim, upon discount being made of the interest upon the same for the unexpired term. [Or, that C. D. retain in his hands sufficient assets of the estate of said A. B., deceased, to pay the claim of said R. R., when the same becomes due; or, commencing at the *, and E. B. and C. B., heirs at law of said decedent, offering to give bond to the said R. R., for the payment of his said claim, when the same becomes due, it is ordered that said heirs give bond to said R. R., in the sum of dollars, with sureties to be approved by this 266 poajvis. court, conditioned for the payment of the claim of said R. R., as aforesaid, in case the same should be proved to be a valid claim against said estate.] 63. Bond of heirs under preceding order. (Page 121.) Know all men by these presents, that we, E. B., C. B., G. R., and C. T., are held and firmly bound unto R. R.; in the penal sum of dollars, to the payment of which we jointly and severally bind our- selves, our heirs, executors and administrators, if default be made in the condition following : Whereas, R. R. has filed his petition in the probate court within and for the county of , and State of Ohio, alleging that he holds a claim against the estate of A. B., deceased, consisting of a note, dated , 18 , and calling for dollars in years from date; and praying that inasmuch as said note will not become due until after the expiration of four years from the date of the bond of C. D., the ad- ministrator of the estate [or, executor of the last will and testament] of said A. B , deceased, said C. D. may be ordered to pay said claim forthwith, upon rebate of interest, or that he may be ordered to retain in his hands sufficient assets of said estate to pay said claim when the same becomes due ; and whereas, the said E. B. and C. B., heirs at law of said A. B., deceased, have offered to said probate court to give bond for the payment of said claim, in case the prayer of said R. R. should not be granted, which offer has been accepted by the court; now, therefore, if the said E. B. and 1 C. B. shall pay the claim of said R. R., when the same becomes due, in case it shall be proved to be a valid debt of said estate, then this obligation to be void ; otherwise to be and remain in full force and effect. Signed and sealed by us, this day of - Executed in presence or E FORMS. 2G7 Petition of executor or administrator for leave to give notice of appointment. (Page 123.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : Your petitioner, C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, respectfully represents that by accident [or, mistake] he failed to give notice of his appoint- ment within the three months limited for that purpose by law, and that he has but recently discovered that such notice was not given. He therefore prays that he may be authorized to give said notice now, and that he may be permitted to perpetuate the evidence of the publication of the same as if such notice had been given within the legal period aforesaid. C D , Executor of A. B., deceased. 65. Order of probate court in the preceding case. (Page 123.) Upon petition of C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, and it appearing that said C. D., by accident [or, mistake] failed to give notice of his ap- pointment according to law, leave is granted the said C. D. to give such notice now, as of the time when the same ought to have been given. o 268 FORMS. 66. 1 Petition for sale of real estate to pay debts. (Pages 181, 132, 135, 136.) CASE No. . county, Ohio, ss., Probate Court. Petition to sell real estate. C. D., administrator of the estate" of A. B., deceased, plaintiff, vs. E.F. ; G. H.,1. K.,S. T. t U. V., A. V., L. B., a minor over fourteen years of age; M. B. and N. B., minors under fourteen years of age; Y. B., widow of said decedent, and the heirs of R. B., deceased, de- fendants. The said plaintiff represents that valid debts of decedent, amount- ing to dollars, have already been presented to your petitioner for payment (a schedule of which debts is hereto attached) ; that the costs of administration will amount to about dollars, and that the total value of the personal estate and effects of said decedent is but dollars, being wholly insuflicient to pay the debts and costs afore- said; and that it is therefore necessary to s.-il MM! estate of said de- cedent to pay said drl.t-. Said plaintiff further represents that said A. B. died seized in fee simple of the following described real estate, situate in the county of , and State of Ohio, to wit : [Here describe the property.] Said plaintiff further represents that said real estate was appraised in accordance with an order of the court by the appraiser* of the per- sonal property of said decedent, and that the amount of said appraise- ment is $ ; that said decedent died leaving the said Y. B. his widow, who is entitled to dower in said premises ; that [and in a similar manner clearly state an;/ other facts directed by law or required by the circum- stances of the ease to be stated] . Said plaintiff therefore prays that [here ask whatever the jacts and cir- cumstances above set forth require ; for instance, among other things] the dower of said Y. B. may be set off and assigned to her in said prem- ises ; and that your petitioner may be authorized to sell said premises, subject to said doAver estate, to pay said debts, according to the statute in such case made and provided. C -D , A Case No. , Co., Ohio, Probate E. F. and others. j Court. E. F. and G. H. have voluntarily entered their appearance, and need not be served. J. K. is usually in his office, No. , street, this city, and resides in the village of , this county. S. T. lives and works on his farm, about two miles east of said village. The residence of U. V. is unknown. A. V. lives at , county, Iowa. Said minors all live with their parents, No. , street, this city, where they and their father may generally be found after o'clock, p. M. 70. Affidavit to obtain publication, etc. (Pages 136, 137, 207.) CASE No. . C D., administrator of the estate "I county,0hio,*s., Probate Court. of A. B., deceased, plaintiff, ! Affidavit to obtain publication, and vs. f that the {names and] residences of E. F. et al., defendants. J certain defendants are unknown. State of Ohio, county, ss. C. D., the said plaintiff, being sworn, says that the defendant, A. V., FORMS. 271 is a non-resident of Ohio, and that service of summons on him can not be made in this state ; that the residence of U. V. is [or, if so, say, the residence of the defendant, U. V., and the names and residences of the heirs of II. B., deceased, defendants, are] unknown to the plaint- iff, and can not with reasonable diligence be ascertained, such diligence for that purpose having already been used, and that service of sum mons upon him [or, them] can not be made; and that the case is one of those mentioned in Section 5048 of the Revised Statutes of Ohio. Sworn [or, affirmed] to and subscribed before me, this day of , A. D. 18. B M , Probate judge. 71. Notice to parties by publication, and proof of same. (Pages 62. 99. 114, 136, 137, 138.) LEGAL NOTICE [or, Simply, NOTICE]. A. V., who resides at , in county, Iowa; [add, if so] U. V*., whose residence is unknown ; [also add, if so] and the unknown heirs of R. B., deceased, one of the heirs at law of A. B., deceased, will take notice that C. D., administrator of the estate [or, executor of the last will and testament] of A. B., deceased, on the day of , A. D. 18 , filed his petition in. the probate court within and for the county of , and State of Ohio, alleging that the personal estate of said de- cedent is insufficient to pay his debts and the charges of administering bis estate ; that he died seized in fee simple of the following described real estate situate in said county, to wit: [here describe the property} ; that Y. B., as widow of said decedent, is entitled to dower in said premises; and {here also state the other material facts of a similar nature contained in the petition]. The prayer of said petition is for the assignment of dower to said Y. B., for a sale of said premises, subject to such dower estate, for the payment of the debts and charges aforesaid, for [here also state the other objects, if any, sought for in the petition]. The persons first above mentioned will further take notice that they have been made parties defendant to said petition, and that they are 272 FORMS. required to answer the same on or before the day of , A. D. 18. C D , Administrator [or, executor^ as aforesaid. , 18. The publication of this notice must be proved by affidavit, which may be as follows : State of Ohio, county, ss. X. Y., being duly sworn, says that he is the publisher [or, foreman, or otherwise, as may be\ of the , a newspaper printed * and in gen- eral circulation in said county, and that a notice, of which the an- nexed is a true copy, was published in said paper on of each week for six consecutive weeks, beginning on the day of , 18 . If said paper be a daily, the following may be added : Affiant further says that a daily and weekly edition of said news- paper is published ; that said notice appeared in the daily edition ; that the circulation of the daily in said county exceeds that of the weekly, and that the cost of publication in the daily does not exceed that in the weekly. X Y . Sworn [or, affirmed] to and subscribed before me, this day of , 18. S C , Notary public, county, Ohio, When the affidavit is made by the executor or administrator, the foregoing may be altered as follows : C. D., being duly sworn, says that the is a newspaper printed [and conclude as above after the * ]. A copy of the notice must be attached to the affidavit in either caae. 72. Bond of persons interested in estate for the payment of debts, in order to stay sale of real estate. (Page 140.) . Know all men by these presents, that we, C. B., E. B., L. S., and R. II. are held and firmly bound unto C. D., administrator of the estate [or, executor of the last will and testament] of A. B., deceased, in the sum of dollars, to the payment of which we hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following : Whereas, the said C. D., as administrator [or, executor] as aforesaid, on the day of , 18 , filed his petition in the probate court within and for the county of , and State of Ohio, alleging that the FORMS. 273 personal estate of the said decedent is insufficient for the payment of his debts and the charges of administering his estate, and praying for the sale of certain real estate therein described to pay the same; now, if the said C. B. and E. B., heirs at law of said A. B., deceased [or, other person interested], shall pay all the debts mentioned in said peti- tion and the schedule thereto attached, that shall eventually be found due from said estate, with the charges of administering said estate, and the allowance in money to the widow, in case the personal estate of said decedent shall be insufficient therefor, and in case an order for the sale of said real estate shall not be granted by said court, then this obligation to be void : otherwise to be and remain in full force and effect. Signed and sealed by us this day of Executed in presence of 73. Order to assign dower and appraise. (Page 142.) C. D., administrator of the estate [or, executor] of A. B., de- ceased, \ Petition to sell real estate. vs. Y. B. and others. On motion to the court by , counsel for plaintiff, it is ordered that R. T., H. O., and C. G., three judicious, disinterested men of the vicinity, freeholders, being first duly sworn, do, upon actual view of the premises in the petition described,* set off and assign unto Y. B., widow of said A. B., deceased, one full, equal third part of the same as her dower estate therein ; and that they make return of such as- signment, together with a just valuation of said real estate, subject to such dower, to this court, with all convenient speed. When not otherwise specially ordered, the committee are authorized to appraise all the real estate mentioned in the petition, even though it should be situate in more than one concty. O 18 274 i FORMS 74 Order to appraise and sel,free of dower. (Page 142.) Follow preceding form to the *, and add: mike a just valuation of th same in money; and that said plaintiff thereupon proceed, according to law, to sell said real estate, upon the premises, at not less than two- thirds of such appraised value, upon deferred payments not exceeding two years. Should there be a widow, and should she elect to take the value of her dower in money, the entry should show that she filed her answer waiving an assignment of dower, and the order should be that the property be appraised and sold free fron? dower. When the sale Is to take place at the door of the court bouse, the order of th* court need not specify the place. It is only when sale is to be made elsewhere that tbe order must mention the place. O 75. Appointment of guardian ad litem. (Page 139.) Petition to sell real estate. C. D., administrator of the estate [or, executor] of A. B., de- ceased, vs. Y. B. and others. On motion,* Esq., is apppointed guardian ad litem, for C. B. and and R. B., minors, defendants to said petition. 76. Order of sale subject to appraisement in inventory. Follow the preceding form to the *, and add : and it appearing that by order of the court an appraisement of the premises described in the petition was made by the appraisers of the personal estate of said A. B., deceased, and inserted in the inventory, and that said A. B., de- ceased, left no widow, it is ordered that said plaintiff proceed accord- ing to law to sell said real estate, upon the premises, at not less than two-thirds of such appraised value, upon deferred payments not ex- ceeding two years. o FORMS. 275 77. Oath of appraisers of real estate. (Page 143.) The State of Ohio, county, ss. R. T., H. 0., aud C. G., being sworn, say that they will faithfully and impartially discharge all the duties enjoined upon them by law, as ap- praisers of the real estate of A. B., deceased, under an order of the probate court of said county, in the case of C. D., administrator of the estate [or, executor] of said A. B., deceased, against Y. B. and others, according to the best of their understanding and ability. E T , Sworn to and subscribed before me, this day of , A. D. 18 . Justice of the peace [or, other proper officer}. 78. Report of appraisers. (Pages 143, 144, 146.) First insert certificate of oath, Form No. 77. C. D, administrator of the estate [or, -j j ft Pro bate Court of executor] of A. B., deceased, I countV( Ohio Petition to Y. B. and others. J sel1 real estate ' In compliance with the order of the court in this case, the under- signed (having been first duly sworn, and having actually viewed the premises in said petition described) do set off and assign unto Y. B., widow of A. B., deceased, as her dower estate* in said premises, the following described portion [or, portions] of the same, to wit: [Here describe, by metes and bounds, and distinctly, the tract or tracts set off.~\ And we do appraise the value of said premises, subject to said dower estate, at dollars. Given under our hands, this day of , A. D. 18 . R T , H , 276 FORMS. Fees of appraisers: R. T., -r- days, $ . H. 0.,- " $ . C. G., " $ . Surveyor P. P. fees $ . L. L. Jus. Peace, sw'g app 25 cts. When several tracts are described in the petition, and dower is assigned in one tract for all, the foregoing form may be altered at the *, as follows : in all the real estate mentioned in said petition, the following described tract >[or, tracts] to wit : [Here describe the dower."] And we do appraise the value of said several tracts as follows: The one containing acres, in which dower has been assigned, and subject to and incumbered by said dower, at dollars ; the one containing acres, which is unencumbered by dower, at dollars, etc., etc. Should dower be assigned specially, as of rents and profits, Form N>*>. 78 may be altered as follows commence after the parenthesis : do find that said premises are not divisible, and that dower can not be assigned therein by metes and bounds ; and in lieu of such dower we do assign to Y. B., widow of said A. B., deceased, dollars, being one-third of the estimated net yearly rents and profits of said premises, to be paid to her annually during life. And we do estimate and appraise said real estate, subject to the payment of said annuity, at dollars. And close as in the first instance. Should the allowance in lieu of dower be made alien upon several tracts or lots, the amount charged upon each should be specifi- cally stated, and the appraisement should be made accordingly. Should the appraisers set off a homestead, the following may be inserted after the dower iu Form 78: And we do set off and assign unto Y. B., widow, and E. B. and C. B., minor children [or, to Y. B., widow; or, to E. B. and C. B., minor children] of A. B., deceased, as a homestead, the following described parcel of the real estate in the petition described, estimated to be of the value of five hundred dollars, to wit : [Here describe the homestead.] And the report should show tbat the appraisement was made subject to dower and homestead. FORMS. 79. 277 Report of appraisers approved, and sale ordered. (Page 147.) C D., administrator of the estate [or, executor] of A. B., de- ceased, } Petition to sell real estate. vs. Y. B. and others. Now comes , counsel for the plaintiff, and produces to the court the report of an assignment of dower and appraisement herein made by R. T., II. O., and C. G., in pursuance of a former order of this court; and it appearing upon examination that said report is in all respects regular and correct, the same is hereby approved and confirmed ; and it is ordered that said plaintiff proceed according to law to sell the real estate in the petition described, subject to said dower estate, upon the premises, at not less than two-thirds of such appraised value, and upon deferred payments not exceeding two years. 80. Bond of executor or administrator when he is ordered to sell more real estate than necessary to pay debts. (Page 147.) Know all men by these presents, that we, C. D., U. V., and W. X., are held and firmly bound unto the State of Ohio in the sum of thousand dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the conditions following: Whereas, in a certain cause pending in the probate court of the county of , and State of Ohio, wherein C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, is piaintiff, and Y. B. and others are defendants, the said C. D. has been ordered by said court to sell more real estate than will be neces- sary for the payment of the debts of said decedent and the charges of administering his estate : Now, if the said C. D. shall account for and pay over, to the persons legally entitled thereto, all the proceeds of the real estate so ordered to be sold, that shall remain after the pay- 278 FORMS. ment oi the debts and charges aforesaid, then this obligation to be void : otherwise to be and remain in full force and effect. Signed and sealed by us this day of , A. D., 18 . Executed in presence of C D , [L. s.] U V , [> s.] W X . [L. s.] 81. Notice of sale to be published or posted up. (Page 149.) ADMINISTRATOR'S SALE OF REAL ESTATE. In pursuance of an order of the probate court of county, Ohio, I will offer for sale, at public auction, on , the day of , 18 , at o'clock, forenoon, upon the premises, the following de- scribed real estate, situate in the county of and State of Ohio, to wit : \_Here describe the property] . Appraised at $ . Terms of sale : One-third in hand, one-third in one year, and one-third in two years from the day of sale, with inter- est ; the payments to be secured by mortgage upon the premises sold. Administrator [or, executor'] of A. B., deceased. The terms may be altered to suit the order of the court. For suggestions relative to terms, see Chapter VII. 82. Report of executor or administrator when no sale is effected. (Pages 149, 150.) C. D., administrator of the estate [or, executor] of A. B., de- ceased, vs. In the Probate Court of county, Ohio. Petition to sell real estate. Y. B. and others. In pursuance of the order of court in this case, I gave notice of sale by publication in the , a weekly newspaper of general circulation in said county of , for at least four successive weeks prior to the day of , 18 ; and on that day, at o'clock, forenoon, upon the premises, in accordance with said notice of sale, I offered the real FORMS. 279 estate in the petition described for sale, subject to the dower estate of Y. B. therein ; and no bid being offered, said premises were not sold. I thereupon gave notice of sale by publication [and continue as before]. In order to obtain a reappraiaement, it is necessary to show that the property was adver- tised and offered twice. Administrator [or, executor] of A. B,, deceased. 83. Order of reappraisement. (Pages 149, 150.) C. D., administrator of the estate [or, executor] of A. B., de- ceased, vs. Y. B. and others. Petition to sell real estate. On motion to the court by , counsel for the plaintiff, and it ap- pearing that the real estate described in the petition has been twice offered for sale and not sold for want of bidders*, it is ordered that the appraisement heretofore made may be set aside, and that said premises be reappraised by the oaths of D. H., 0. B., and F. S.; and that said plaintiff thereupon proceed to sell said premises subject to such reappraisement, in accordance with the former order of this court. 84. Order to sell at a fixed price. (Pages 149, 150.) Follow the preceding form to the *, and add : It is ordered that said plaintiff proceed to sell said premises accord- ing to law and the previous order of this court at a sum not less than dollars. 280 FORMS. 85. Report of sale. (Page 150.) C. D., administrator of the estate" [or, executor] of A. B., de- ceased, v*. In the Probate Court of county, Ohio. Petition to sell real estate. Y. B. and others. In pursuance of the order of the court in this case, I gave notice of sale by publication in the , a weekly newspaper of general circu- lation in said county of , for at least four successive weeks prior to the day of , 18 ; and on that day, at o'clock, forenoon, upon the premises, in accordance with said notice, I offered the real estate in the petition described for sale, subject to the dower estate of Y. B. therein, when R. P. bid to pay for the same the sum of dol- lars, which being the highest and best bid that was offered, and more than two-thirds of the appraised value of said premises, I then and there sold the same to him, subject to said dower estate, for that sum. Terms of sale : One-third of the purchase money to be paid in hand, one-third in one year, and one-third in two years from the day of sale, with interest, the payments to be secured by mortgage upon the prem- ises sold. , 18. C D , Administrator [or, executor] of A. B., deceased. If the property was sold at private sale by order of court, report accordingly, and attach the affidavit given as Form No. 155. O 86. Sale approved and deed ordered. (Page 151.) Now comes said plaintiff [or, , counsel for the plaintiff], and pro- duces to the court the report of a sale made by said plaintiff in pur- suance of an o'-der hereinbefore made ; and it appearing upon exam- ination that said sale has in all respects been legally made, the same is approved find confirmed; and said plaintiff is ordered to execute and deliver to the purchaser at said sale, a proper deed for the real estate BO by him sold as aforesaid. Ii there be a widow, and her dower be paid to her in money in lien of land or of renti and profits, the amount so allowed her should be fixed by the court, and be stated In this entry. Should there be other liens on the land sold, the court may also order a distribution of th proceed* of the sale, in e:me such order has not been made. FORMS. 281 87. Deed of executor or administrator ; two forms. (Page 151.) Know all men by these presents, that, whereas 0. D., as executor of the last will and testament [or, administrator of the estate] of A. B., deceased, on the day of , A. D. 18 , filed his petition in the probate court within and for the county of , and State of Ohio praying for an order to sell the following described (among other) real estate of the said A. B., deceased, situate in said county, to wit: [hert describe the property], for the payment of the debts of said decedent, and the expenses of administering his estate. And whereas, such proceed- ings were had that the dower estate of Y. B., as widow of said dece dent, was assigned to her in said premises, as follows: [Here describe the dower}. And said C. D. was ordered to sell said premises at public auc- tion [or, at private sale, as the case may be], according to law, subject to said dower estate. And whereas, said C. D. [here say, if so, having first duly advertised said premises for sale], on the day of , 18 , sold the same, subject to said dower estate, at public auction [or, at private sale, as may be], to R. P., for the sum of dollars; and the said R. P., having complied with the terms of sale, said sale was after- ward approved and confirmed by said court, and said C. D. was ordered to execute and deliver to said purchaser a proper deed for said prem- ises, according to the statute in such case made and provided: all which will more fully appear by the records of said court, to which reference is here made. Now, therefore, I, the said C. D., as executor [or, administrator] as aforesaid, in consideration of the premises, and by virtue of the pow- ers in me vested by law and the order of said court, do hereby give, grant, bargain, sell, and convey, unto the said R. P., the real estate aforesaid, subject to said dower estate, with all and singular the ap- purtenances. To have and to hold the same unto the said R. P., and unto his heirs and assigns forever. In testimony whereof, I, as executor [or, administrator] as aforesaid, hereto set my hand and seal, this day of , A. D., eighteen hundred and -. Executed in presence of C D , [L. s.[ C , As executor [or, administrator'] as above L L . mentioned. \_Hsre follows the acknowledgment. See next page."] NOTE. The recitals in the first paragraph above should, of course, conform to the facts in each case. For instance, if tin- decedent loft no widow, there will be noth- ing to say about proceedings as to dower. These recitals may be made even more extensive, if desired: but this is unnecessary. The briefer form, given on next page, is, perhaps, preferable to the longer one on this page. 282 FORMS. Another form. Know all men by these presents, that, whereas, by virtue of an order of sale made by the probate court within and for the county of , and State of Ohio, C. D., as executor of the last will and testament [or, administrator of the estate] of A. B., deceased, on the day of , 18 , sold at public auction [or, at private sale], to R. P., for the sum of dollars, for the payment of lawful claims against the estate of said A. B., deceased, the following described real estate of snid A. B., deceased, to wit: [here describe the property'], subject to the dower estate of Y. B. therein, which is as follows : [lieredescrilje the dower], whicli sale was afterward approved and confirmed by said court, and said C. D. was ordered to execute and deliver to said R. P. a deed for said premises, subject to said dower estate, according to the statute in such case made and provided: all which will more fully appear by the records of said court, to which reference is here made. Now, therefore conclude as in the preceding form. ACKNOWLEDGMKNT. The State of Ohio, county, ss. On this day of A. n. 18, before me, the undersigned author- ity, personally came the above-named C. D., the executor of the last will and testament [or, the administrator of the estate] of A. B., de- ceased, the grantor in the foregoing deed, and, as such executor [or, administrator], acknowledged the signing and sealing thereof to be his voluntary act and deed, for the uses and purposes therein specified. Witness my hand and seal, the day and year last above mentioned. H M , Notary public, county, Ohio. 88. Motion by executor or administrator for an order to apply a portion of the avails of a sale in partition to the payment of debts, etc. (Page 153.) In the Court of Common Pleas of county, Ohio: C B et al. 1 In partition. vs. v Motion for application of a portion R B et al. ) of the purchase money. C. D., administrator of the estate [or, executor], of A. B., deceased respectfully represents that the personal estate of said decedent, .sub ject to administration, amounts to dollars, and that the valia debts of said decedent, with the expenses of administering his estate, amount to dollars. FORMS. 28;') Further represents that the real estate sold by proceedings in this ase is liable for the payment of said deficit. He therefore asks the court to make an order, directing that out of the first moneys arising from said sale, an amount sufficient to pay the residue of said debts and expenses be paid to him by the sheriff of said county. C D , Administrator [or, executor] of A. B., deceased, This motion should be accompanied by a certificate of the probate judge, showing that the amount asked for will be necessary for the payment of the debts of the decedent. See Form No. 157. 89. Account of executor or administrator for settlement with the court. (Pages 156, 157.) Final [or, partial J ] account of C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased. Accountant charges himself as follows : Amount of sale bill. -$ " received of G. H. on note Principal $ Interest " " " L. S. " book account " " " T. C. " note (not inventoried) " for one hog (not inventoried) sold at private sale " of R. P. on real estate sold him " of interest received on sale notes " received of the administrator of the estate of H. B., deceased, the father of A. B., deceased.. ., Etc., Etc. And accountant claims credit for the following payments, made in behalf of said estate : Paid M. N., appraiser ...Voucher No. 1 $ " U.S., auctioneer. " " 2 - " C. T., for threshing grain " " 3 " C. C., for coffin for deceased " " 4 " Y. B., widow's allowance " " 5 1 T. R., physician's bill, last sickness " " 6 1 Where several accounts are flled, it is a good practice to entitle them' First account, second account, final account of, etc. 284 FORMS. Paid L. S., in full of note ........................... Voucher No. 7 ...... $ - " J. R M " " .account ...................... " " 8 ...... - " S. C., legacy in full ............................. " " 9 ...... - Etc., Etc. Accountant claims the ordinary legal compensation for his services. And asks that he may be allowed, as compensation for extra ser- vices performed, the additional sum of $90.00, for the reasons fol lowing : Accountant says that G. H., from whom he collected the sum of - dollars, resides in St. Paul, Minnesota; and that he was compelled to make several trips to that place, in order to secure to the estate the payment of said claim. His necessary expenses were - dollars, and the time employed - days. For these he thinks an extra allowance of $90.00 to be but reasonable. The notes against T. U., V. W., and R. S., mentioned in the inven- tory, were not collected, on account of the insolvency of said debtors. The book account against X. Y., mentioned in the inventory, was paid in the lifetime of the decedent, as appears by his receipt, exhib- ited to me by said X. Y. Executor [or, administrator] of A. B., deceased When an account is filed within the time allowed by law or the court, the dates of the various receipts and payments need not be given. The foregoing *'jrm is preferable to making schedules of the various items of receipt and payment : 1. Because it is not so com- plicated. 2. Because only persons of experience in administration business can properly arrange the items in their appropriate schedules; and, 3. Because such schedules are tin necessary, whether the estate be solvent or insolvent. /% 90. J Affidavit to partial or final account. (Page 163.) The State of Ohio, county, ss. C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, being sworn, says that the foregoing account is in all respects just and correct, as he verily believes [if any of the property were sold at private sale by order of court, here add'], and that the private sale of the property therein mentioned as made by order of court, was made after diligent endeavor to obtain FORMS. 285 the best price for the same, and that the sale reported is for the high- est price that could be obtained for said property. 'C D . Sworn [or, affirmed] to and subscribed by said C. D.. before me, this day of , A. D. 1 8 . W B Probate judge 91. Authentication of account of executor or administrator against the estate of the decedent. (Pago 113.) Au affidavit may be made to the account according to Form 49; and, if required, a receipt in the same form as in the case of anothe" creditor. 92. Settlement of account and order of distribution. (Page 165.) Final [or, partial] account of C. D., executor of the last will and tes- tament [or, administrator of the estate] of A. B., deceased. This account having been carefully examined, is approved and set- tled. The court finds that after payment of all valid claims against said estate there remains in the hands of said executor [or, adminis- trator] a balance of dollars, which he is ordered to distribute ac- cording to the will of said decedent [or, according to law]. 93. Receipts of heirs, upon final distribution of estate. (Page 175.) Received , 18 , of C. D., executor of the last will and tes- tament [or, administrator of the estate] of A. B., deceased, dol- ZOb FORMS. lars, in full of * my share of said estate as one of the heirs at law of said decedent, upon final distribution. When the money is received by a guardian for hie ward, the receipt may proceed from the * as follows : the share of E. B., as one of the heirs at law of said decedent, upon final distribution. Guardian of E. B. When a receipt is taken from a husband and wife for the wife's share of an estate, the above form may be altered at the * as follows : the share of - - - , as one of the heirs at law of said decedent, upon final distribu- tion. - o - 94. Account of distribution among heirs. (Page 176.) To the Hon. the Judge of the Probate Court within and for the county of - , and State of Ohio : The undersigned, executor of the last will and testament [or, ad- ministrator of the estate] of A. B., deceased, respectfully reports, that in pursuance of the order of said court, he made distribution of the amount found in his hands upon final settlement as follows : To Y. B., widow of the decedent, Voucher No. 1, $ - " C. B., heir at law of the decedent, " " 2, - M T? "D " ' << " *i 9 xj. x>., 6, - Executor [or, administrator] of A. B., deceased. The State of Ohio, - county, ss. C. D., being sworn, says that the foregoing account of the distribu- tion of the estate of said A. B., deceased, is in all respects correct. Sworn [or, affirmed] to and subscribed by said C. D., before me, this -- day of - . A. D. 18. W - B -- , Probate judge. FORMS. 287 95. Order of probate court to invest unclaimed money. (Page 176.) In the matter of the estate of A. B., deceased : It appearing that the sum of dollars, to which L. B. is entitled under the order of distribution made by this court upon settlement of the account of C. D., executor of the last will and testament [or, ad- ministrator of the estate] of A. B., deceased, has remained for more than six months unclaimed by said L. B., it is therefore ordered that said C. D. loan said amount, upon bond and mortgage, to accumulate for the benefit of said L. B. ; according to the statute in such case made and provided. r\ 96. Memorandum of investment under preceding order. (Page 176.) In pursuance of the order of the probate court of county, Ohio, I have loaned the sum of dollars, .to which L. B., as one of the heirs at law of A. B., deceased, was entitled under the order of distribution of said estate, and which remained in my hands for more than six months, unclaimed, to , for years, with interest at the rate of per centum per annum, and have taken the bond of said with a mortgage upon certain of his real estate to secure the payment of the same, and have tiled said bond and mortgage in said probate court, according to law. C D , Executor [or, administrator^ of A. B., deceased. 97. Order of the probate court directing that the money invested under the order, Form No. 95, be paid to the person entitled thereto (Page 177.) In the matter of the estate of A. B., deceased: L. B. having made satisfactory proof to the court that he is the dis- 288 FORMS. tributee entitled to the money loaned upon bond and mortgage by C. D., executor of the last will and testament [or, administrator of the es- tate] of A. B., deceased, in. pursuance of the order of this court, it is ordered that the clerk of the court of common pleas of this county, in whose hands the aforesaid securities now are, transfer and deliver the same to the said L. B. 98. Petition to compel distribution. (Page 177.) The State of Ohio, county, ss. PROBATE COURT. C B , plaintiff, ] vs. C. D., executor of the last will and testament > Petition. [or, administrator of the estate of A. B., deceased, defendant. C. B., the plaintiff, says, that as one of the heirs at law of A. B., de- ceased, he is entitled to dollars, under the order of distribution made by the. probate court within end for the county of -, and State of Ohio, upon settlement of the account of said C. D., as execu- tor of the last will and testament [or, administrator of the estate] of said A. B., deceased. Plaintiff further says, that although more than thirty days have elapsed since said order of distribution was made, the said C. D. has not paid to the plaintiff said sum of dollars, nor any part thereof, although requested so to do ; but to pay the same has wholly neglected and refused. Wherefore the plaintiff asks judgment and execution against the said C. D., for said sum of dollars, with interest thereon from the day of , A. D. 18 , being the day on which said money was demanded. The State of Ohio, county, ss. C. B., being sworn, says he believes the statements of the foregoing petition to be true. Sworn [or, affirmed] to and subscribed by the said C. B., before me, this day of , A. D. , Probate judgt. FORMS. 289 99. Citation of executor in preceding case. (Page 177.) The State of Ohio, county, ss. To C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased : Whereas, C. B., on the day of , A. D. 18 , filed his petition in the probate court within and for the said county of , alleging that as one of the heirs of said A. B., deceased, he is entitled to the sum of dollars, with interest thereon from the day of , 18 , under the. order of distribution made by said court, upon settle- ment of your account as executor [or, administrator] of said A. B., de- ceased, which you neglect and refuse to pay, although requested to make payment, and although more than thirty days have elapsed since said order of distribution was made. You are therefore hereby required to appear in said court, on or before the [not less than twenty nor more than forty days from the date of the writ], to answer said petition, and show cause, if any you have, why judgment should not be rendered and ex- ecution awarded against you for the amount claimed by said petitioner under the order of distribution aforesaid. Witness my signature and the seal of our said court, at [L. s.] , this day of A. D. 18 . W B , Probate judge. 100. Notice to party by publication. (Page 178.) LEGAL NOTICE. C. D.', who resides in the State of Indiana, will take notice that C. B., on the day of , A. D. 18 , filed his petition in the probate court within and for the county of , and State of Ohio, alleging, that as one of the heirs at law of said A. B., deceased, he is entitled to the sum of dollars, with interest thereon from the day of , 18 , under the order of distribution made by said court upon settlement of the account of said C. D. as executor [or, administrator 19 290 FORMS. of the estate] of said A. B., deceased; and that although more than thirty days have elapsed since said order of distribution was made, and although payment has been demanded of said C. D., he has neg- lected and refused to pay said C. B. the amount claimed by him as aforesaid. The prayer of the petition is for judgment and execution against the said C. D. for the amount due said C. B., as aforesaid. Said petition will be for hearing on the [at least six weeks notice must be given}. Proof of publication must be made as directed in Form 71. 101. Judgment against administrator or executor in preceding case. (Page 178.) C. D., executor [_or, administrator] \ Citation to enforce d istrib tion - of A. B., deceased. The said defendant having been legally served with process [or other- wise, as the case may be'], and failing to appear and show cause why the plaintiff ought not to have judgment and execution against him for the amount claimed in the petition, this cause comes on for hearing upon said petition and the testimony. And the court being fully ad- vised in the premises, finds the allegations of said petition to be true, and that there is due to the plaintiff, from the defendant, under the order of distribution mentioned in the petition, the sum of dol- lars. It is therefore considered by the court that the said plaintiff re- cover against the said defendant said sum of dollars, with the costs of this suit, taxed at ; and that execution issue against the goods and chattels, lands and tenements of said defendant, to make the same, according to law. FORMS. 291 102. Representation of insolvency. (Page 181.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, executor of the last will and testament [or, ad- ministrator of the estate] of A. B., deceased, respectfully represents that the total value of the personal estate of said decedent is but dollars ; that the costs of administration and other preferred claims against said estate amount to dollars, and that the balance of the assets, applicable to the payment of ordinary claims, will not exceed dollars. That valid claims against said estate have been presented to and allowed by the undersigned, amounting to dollars, as will appear by the following schedule: Name of cred- itor. Nature of claim. Original amount. Interest. Amount now due. C. T. L. S. G. E. C. C. etc , etc. v Note. Book account. Judgment. Xote. $70 00 7 00 170 00 60 00 $15 00 1 10 11 00 Bal. due. $85 00 8 10 181 00 16 10 Wherefore the undersigned asks that said estate may be declared insolvent, and that such proceedings may be had in the premises as are authorized by law. Jg Q J) Executor [or, administrator} of A. B., deceased. 103. Order of court, declaring insolvency of estate. (Page 181.) It appearing upon the representation of C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, that said estate is probably insolvent, it is ordered that said estate be, and hereby is, declared to be probably insolvent, and that* L. K. and 202 FORMS. C. II. proceed according to law, as commissioners, to receive and ex- amine claims against said estate; and it is ordered that they give no- tice of the times and places of sitting to receive and examine such claims, by publication for three weeks in the naming the newspaper. When no OOtntMSSionera are appointed, it is the duty of the executor or admin imitator to proceed in their stead ; and the foregoing form maybe altered at the *, as follows : said executor [or, administrator] give notice of the same by publication for six weeks in the , a newspaper published at , in the county of , in the form prescribed by the statute. 104. Notice of insolvency ; to be posted up or published. (Page 182.) NOTICE. On the day of , in the year 18 , the probate court of- declared the estate of A. B., deceased, to be probably insolvent. Cred- itors are therefore required to present their claims against the estate to the undersigned, for allowance, within six months from the time above mentioned, or they will not be entitled to payment. Executor [or, administrator'] of A. B., deceased. This form was copied from the statutes. \ 105. Oath of commissioners of insolvency. (Page 184.) The State of Ohio, county, ss L. R. and C. H. being sworn, say that they will faithfully and impar- tially discharge all the duties enjoined upon them by law as commis- sioners to receive and examine claims against the estate of A. B., de- ceased, which ha* been declared to be probably insolvent by the pro- bate court of said oounty, according to the best of their understanding and ability. L R , FORMS. 293 Sworn [or, affirmed] to and subscribed before me, this day of , A. D, 18. W P , Justice of the peace [or other authorized officer]. 106. Report of executor or administrator as commissioner of insolvency. (Page<183.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned,* executor of the last will and testament [or, ad- ministrator of the estate] of A. B., deceased, makes report, that he gave notice in due form of law of the probable insolvency of said es- tate ; and that after carefully examining the claims against said estate presented to him for allowance, he has made disposition of the same as follows : Names of Creditrs. Nature of Claim. Original amount. Amount now due. REMARKS. C. T. L. S. G. R. C. C. L. G. etc., etc. Note, Book Acc'nt, Judgment, Note, Book Acc'nt, $70 00 7 00 170 00 60 00 4 07 $86 50 8 90 184 00 62 00 ' 4 80 Allowed. [ficient proof. Not allowed for want of suf- Allowed. Barred by stat. of limita'ns. Allowed. Respectfully submitted, -, 18. Executor [or, administrator} of A. B., defeated. 107. Notice to be posted up or published by the commissioners. (Page 184.) NOTICE. The creditors of A. B., deceased, will take notice, that the under- signed have been appointed commissioners to receive and examine claims against said decedent, ami that they will ait for that purpose at 294 FORMS. the office [or, house] of H. R., in , on , the day of 18 ; on , the day of , 18 ; and on , the day of . 18 . Unless the claims of creditors are presented to the under- signed for allowance upon one of the days mentioned, they will not be entitled to payment. , 18. L R , K C , Commissioner x. 108. Oath of claimant. (Page 184.) You do solemnly swear [or, affirm] that you will true answers make to such questions as shall be asked you, touching your claim against the estate of A. B., deceased, so help you God [or, under the pains and penalties of perjury]. 109. Oath of witnesses. (Page 184.) You do solemnly swear [or, affirm] that you will true answers make to such questions as shall be asked you, touching the matter now in hearing, so help you God [or, under the pains and penalties of perjury]. 110. Report of commissioners. (Page 185.) Follow Form No. 106 to the *, and add : Commissioners appointed by said court to receive and examine claims against the estate of A. B., deceased, respectfully report, that in pursuance of the order of the court they gave notice of the times and places of sitting to receive and FORMS. 295 examine such claims ; and that the following claims were presented to them, viz: Here insert a schedule of claims as in Form 106. Respectfully submitted, 18. L R , C II , Commissioners. Should any claim presented to the commissioners be disallowed, and the claim- ant appeal from our decision, the report may slate the facts as follows : Disal- lowed, and claimant appeals to the court of common pleas. Appeal bond in $ filed. o 111. Bond of creditor for appeal from decision of commissioners of in- solvency. (Page 186.) Know all men by these presents, that we, and , are held and firmly bound unto C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, in the sum of dollars; to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following: Whereas, L. R. and C. H., commissioners appointed by the probate court of county, in the State of Ohio, to receive and examine claims against the estate of the said A. B., deceased, have refused to allow a claim of dollars against the same presented by the said ; from which decision the said has appealed to the court of common pleas of said county of : Now, if the said shall prosecute his Baid appeal to effect, and shall pay the costs that may have accrued thereon, and that may accrue thereon in the court of common pleas, in case his said claim shall be disallowed by the said court, then thia obligation to be void : otherwise, to be and remain in full force and effect. Signed and sealed by us, this day of , A. D. 18 . Executed in presence of , [L. s.] r, a -i L 1 " 8 - J 296 FORMS. 112. Order of distribution after return made by commissioners, or executor or administrator. (Pages 188.) In the matter of the estate ) of A. B., deceased. { The commissioners appointed by this court [or, the executor; or, administrator of said A. B., deceased] having made report that the valid claims against said estate amount to dollars ; it is ordered that the executor [or, administrator of the estate] of said decedent, after deducting from the assets in his hands the amount necessary to pay the costs of administration that may yet accrue, pay over to the creditors whose claims have been allowed under the proceedings in insolvency, an equal portion, according to their respective claims, of the balance of the assets then remaining; and that he make report to this court of such distribution. 113. Receipt of creditor upon receiving dividend. (Page 192.) Received, , 18 , of C. D., administrator of the estate of A. B., deceased, dollars and cents, in full of the proportion of eaid estate applicable to the payment of the above [or, within] claim. L L . 114. Report of distribution among creditors. (Page 192.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : In compliance with the order of said court, I applied the assets of A. B., deceased, remaining in my hands, as follows : Balance of assets after payment of preferred claims.. $ FORMS. 297 From which deduct costs of administration which have accrued since filing partial account $ Leaving for distribution among general creditors Amount of debts allowed as valid Dividend per cent The following is a schedule of the debts paid, with the amount paid upon each : Names of Creditors. Nature of Claim. Original Amount. Interest Due. Total Due. Amount Paid. No. of Voucjer. C. T. Note, $70 00 SIC 50 S86 50 $43 25 1 G. R. Judgment, 170 00 14 00 184 00 92 00 ; 2 L. G. Book Account, 4 07 73 4 80 2 40 ' 3 etc., etc. -, 18-. The State of Ohio, Respectfully submitted, Executor [or, administrator] of A. B., deceased. county, ss. C. D., being sworn [or, affirmed], says that the foregoing account and statement are in all respects correct. Sworn [or, affirmed] to and subscribed before me, this day of , A. D. 18. W B , Probate judge. 115. Petition of executor or administrator to complete contract of decedent for sale of land. (Pages 136, 207.) CASE No. . C. D., executor of the last will and ") testament [or, administrator of the estate] of A. B., deceased, plaintiff, vs. u. B., 0. 11., I. K., S. T., U. V., f A. V. ; L. B., a minor over fourteen years of age ; M. B. and N. B., minors under four- teen years of age, defendants. The said plaintiff represents that on the day of , A. D. 18 , county, Ohio, ss. Probate Court[ or, Court of Common Pleas].- Petition to complete contract for sale of land. 298 FORMS. the said A. B., then in full life, entered into a contract in writing with the said E. F. for the sale of the following described real estate, situate in the county of , and State of Oliio, to wit: [describe tie property] upon the following terms : [state the terms] as will appear by said con- tract [or, a copy of said contract] hereto attached. [Here set forth in plain language all other pertinent fads, as for instance :] That said L. E. paid to said A. B., in his lifetime, the first, second, and third installments, and has paid to said plaintiff, since the deafh of said A. B., the fourth installment of said purchase money. And plaintiff says that said E. F. is ready and willing to pay the balance due upon said contract, as soon as a valid deed can be made to him for said premises. Plaintiff further represents that all the other defendants named are heirs at law of said A. B., deceased. Plaintiff therefore prays that said heirs at law may be made defend- ants to this petition, and that said plaintiff may be authorized, upon payment of the residue of said purchase money, to execute and de- liver to said E F., in behalf of the aforesaid heirs at law of said de- cedent, a deed in fee simple for the real estate hereinbefore described. C D , Administrator, [or, H. G., Alt' y for plaintiff.'] State of Ohio, county, ss. C. D., the plaintiff named [and conclude in all respects as in Form 66] 116. Notice to parties by publication, and proof of the same. (Pages 136, 137, 207.) LEGAL NOTICE. A. V., who resides at , in county, Iowa [add, if so :] U. V., whose place of residence is unknown, [also add, if so :] and the un- known heirs of R. B., deceased, one of the heirs at law of A. B., de- ceased, will take notice that on the day of , A. D. 18 , C. D., executor of the last will and testament [or, administrator of the es- tate] of A. B., deceased, filed in the probate court [or, court of common pleas] within and for the county of , and State of Ohio, a petition, alleging that [then briefly set forth the facts contained in the foregoing form, as for instance:'] on the day of , 18 , the said A. B., then in full life, entered into a contract in writing with E. F.. for the sale of the following described real estate, s-ituate in said county, to wit : [de,scri l i FORMS. 290 the property'], upon the following terms : \_state the terms']. That said E. F. paid to said A. B., in his lifetime, the first, second, and third install- ments, and to said C. D., after the death of said A. B., the fourth in- stallment of said purchase money. That said E. F. is ready and will- ing to pay the balance due upon said contract, so soon as a valid deed can be made to him for said premises; and that G. H., I. K., S. T., U. V., A. V., L. B., M. B., N. B., and said unknown heir are the heirs at law of said decedent, A. B. The prayer of the petition is for authority to make a deed to said L. E., in behalf of said heirs at law, upon payment of the residue of said purchase money. The persons first above mentioned will further take notice that they have been made parties defendant to said petition, and that they are required to answer the same on or before the day of , A. D. 18. , 18. C D , Executor [or, administrator] of A. B , deceased. The proof of the above publication must be made in all respects as directed in Form 71. 117. Executor or administrator ordered to make deed. (Page 207.) C. D., executor [or, administrator] ofl A. B., deceased, 1 Petition to comp i ete contract. vs. E. B. and others. J If there are minor defendants, first enter the appointment of a guardian ad liUm Form No. 75. The said defendants having been all legally notified of the pendency of said petition, this cause now comes on for hearing upon said peti- tion, the answer of the guardian adlitem, and the testimony. And the court being fully advised in the premises,. finds that said A. B., on the day of A. D. 18 , being then in full life, entered into a con- tract in writing with L. R. for the sale of the premises in the petition described. That said L. E. paid the first, second, and third install- ments of the purchase money to said A. B., before his decease, and has since paid to the petitioner the fourth installment of the same; and that said L. E. is ready and willing to comply with so much of said contract as remains unfulfilled by him, so soon as a valid deed for said premises can be made to him. It is therefore ordered, that upon pay FORMS. ment of the residue of said purchase money, said C. D., executor of the last will and testament [or, administrator of the estate] of said A. B., deceased, for and on behalf of the heirs at law of said decedent, exe- cute and deliver to said L. 11. a deed in fee simple for said premises, according to the statute in such case made and provided. 118. Deed of executor or administrator in preceding case. (Pa^-e 207.) all men by these presents, that, whereas, on the day of , A. D. 18 , C. D., executor of the last will and testament [or, ad- ministrator of the estate] of A. B., deceased, filed his petition in the probate Court within and for the county of , and State of Ohio, against E. B., etc., heirs at law of said decedent, for authority to make a deed to L. II., 011 behalf of the heirs at law of said decedent, for the following described real estate, situate in said county of , and State of Ohio, to wit : [describe the property.], in compliance with the terms of a contract in writing entered into on the day of , A. D. 18 , between the said A. B., then in full life, and said L. II. And whereas, such proceedings were had that the said C. D. was ordered by eaid court, as executor [or, administrator] as aforesaid, and for and on behalf of the heirs of said decedent, to execute and deliver to the said L. R. a deed in fee simple for said premises, upon payment of the pur- chase money remaining unpaid, which order is in woi'ds as follows, to wit : [here copy the order in full, inclosing it in quotation marks], all of which will more fully appear by the records of said court, to which reference is here made: and the said L. R. having paid- the residue of said pur- chase money ; now, therefore, I, the said C. D., executor of the last will and testament [or, administrator of the estate] of said A. B., deceased, by virtue of the powers in me vested by law and the order of said court, for and on behalf of the heirs at law of said decedent, do hereby give, grant, bargain, sell, and convey unto the said L. R. the premises hereinbefore described, with all and singular the appurtenances. To have and to hold the same unto him, the said L. R., and unto his heirs and assigns forever. FORMS. 301 In testimony whereof, I, as executor [or, administrator] as aforesaid, hereunto set my hand and seal, this day of , A. D. 18 . C D , [L. a.] Executor [or, administrator^ of A. B., deceased Executed in presence of For acknowledgement, see Form 87. 119. Petition for extension of time for making sale of personal property, or for permission to sell the same at private sale. (Pages 82, 99.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : The undersigned, executor of the last will and testament [vr, sv\- ministrator of the estate] of A. B., deceased, respectfully asks lor an order * extending the time for making sale of said decedent's personal property, subject to sale, from the three months specified by statute, to months, for the following reasons : 1st. 2d. etc. C D , Executor [or, administrator] as aforesaid. If an. order to sell at private sale is desired, proceed as above to the *, and then tdd : authorizing him to sell, at private sale f, the following articles, they being subject to sale, to wit: [Sere enumerate the articles, or otherwise clearly designate them.~\ Said authority is asked for the following reasons: [Give reasons.] C D , Executor [or, administrator] as aforesaid. If authority/ to sell at private sale for less than the appraised value is deemed necessary, follow the form last given, but insert at the j~ these words : at prices less than their appraised value, if. said appraised value can not be ob" tained [and conclude as above~\. Though not usually done, the probate judge may require the following affidavit to be made to the foregoing motion: * The State of Ohio, county, ss. C. D., being duly sworn, says that the various matters and things contained in the foregoing motion are true, as he verily believes. 302 FORMS. Sworn to and subscribed before me, this - day of - , A. D. 18 . G -- W -- , Prolate judge. \ 120. Affidavit to obtain authority to sell at less than appraised value. (Pages 83, 99.) The State of Ohio, - county, ss. E. F., being duly sworn, says that * he has read [or, has heard read; or, that he knows the facts set forth in] the petition to which this af- fidavit is annexed ; that he has no interest whatever in the matters therein referred to; that said property [or, debts, etc.~] mentioned in said petition can not be sold at its [or, their] appraised value, and that it will be for the best interest of the estate of the said A. B. to sell said articles at prices less than their appraised value, as he verily be- lieves. C - D - . Sworn [or, affirmed] to and subscribed before me, this - day of - , A. D. 18. N - E - , Notary public, - county, Ohio. At least three affidavits similar to the above must be annexed to the petition, or these may be combined into one, in form as follows : Another form. State of Ohio, - county, ss. E. F., G. H., I. K., and L. M., being duly sworn, each for himself says that [and continue from the * exactly as above to the signatures. Each affiant must then sign his name as follows :] J Sworn [or, affirmed] to and subscribed before me, this - day of -- , A. D. 18 . M - E - , Notary public, - county, FORMS. '60'6 121. Allowance of the further time, or authority, asked for in the pre- ceding motion. (Pages 82 83, 99.) On motion and affidavit [or, affidavits] filed, and for good cause shown, C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, is * allowed months in addition to the three months usually allowed by statute, in which to sell the personal property of said decedent subject to sale. [Or this:] On motion [follow the above to the *, and then add :J authorized to sell, at private sale, the personal property designated in said motion. [And, if so, also add:] And it further appearing by said motion and by the affidavits of four disinterested persons, that said property can not be sold for its appraised value, and that it would be for the best interest of said estate to sell the same at a less price, it is also ordered that said property may be sold for the highest price that can be ob- tained therefor, regardless of its appraised value. Bond of foreign executor or administrator. (Page 211.) Know all men by these presents, that we. C. D., S. H., and P. L., are held and firmly bound unto the State of Ohio in the sum of dol- lars, to the payment of which we hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following: Whereas, in a certain case pending in the probate court of the county of , and State of Ohio, wherein the said C. D., as executor of the last will and testament [or, administrator of the estate] of A. B., deceased, is petitioner, and Y. B. and others are defendants, the said executor [or, administrator] has been ordered by said court to sell certain real estate of said decedent, to pay his debts and legacies, and the charges of administering his estate: Now, if the said C. D. shall account and dispose of the proceeds of such sale in payment of the debts and legacies of said decedent, and the charges aforesaid, ac- 304 FORMS. cording to the laws of the state of [the state in which he was appointed], then this obligation to be void : otherwise to be and remain in full force and effect. Signed and sealed by us, this day of , A. D. 18 , Executed in presence of C D , [L. s.] S H , [L. s.] P L . [L. s.] 123. Bond of foreign executor or administrator, when ordered to sell more real estate than necessary to pay debts, 'etc. (Page 211.) (See Form No. 80.) 124. Notice to an executor or administrator that a motion will be made to require him to give additional bond. (Page 56.) To C. D., executor of the last will and testament [or, administrator of the estate of A. B., deceased : You are hereby notified that on the - day of - , 18 , a motion will be made in the Probate Court of - county, Ohio, for an order of said court requiring you to give additional bond as executor [or, administrator], for the reason that [here state the reason]. -- ( 1 8. E - B - , One of the heirs at law of said A. B., deceased. A copy of the above notice must be served on the executor or administrator named therein, or on each of them, if there be more than one. Proof of service must be made by affidavit of the person or officer who served the notices,* which may be as follows, or as given In Fcrm VU. The State of Ohio, - county, ss. C. C., being sworn, says that on the - day of - , A. D. ]8 , he served the within [or, above ; or, annexed, etc.] notice upon C D. and (a) g5124, 5125. 0400. r,411 FORMS. H05 E. F., in said notice named, by delivering to each of them a true copy thereof. C C . Sworn [or, affirmed] to and subscribed Jaefore me, this day of , A. D. 18. Probate judge. 125. Order of court requiring executor or administrator to give addi- tional bond. (Page 57.) It appearing to the court that the sureties in the bond of C. D., as executor of the last will and testament [or, administrator of the es- tate] of A. B., deceased, are insufficient [or other reason], said executor [or, administrator] is ordered to give additional bond in dollars, with sureties to be approved by this court. 126. > Notice of a surety that he has filed a petition to be released from further liability. (Page 56.) To C. D., administrator of the estate of A. B., deceased : You are hereby notified that on the day of , 18 , I filed my petition in the probate court of the county of , and State of Ohio, praying to be released from future responsibility as one of the sureties upon your bond as executor of the last will and testament [or, administrator of the estate] of said A. B., deceased, for the reason that \_here state the reason}. Said petition will be for hearing on the day of , 18 , at o'clock, forenoon. A copy of this notice must be served upon each of the persons therein named, at least flv days before hearing, and proof of service made as in No. 124. 20 306 FORMS. 127. Application of surety to be released from further liability. (Page 56.) To the Hon. the Judge of the Probate Court within and for the county of , and the State of Ohio : Your petitioner, L. M., respectfully represents that he s one of the sureties of C. D., in a bond dated , 18 , given by said C. D., as executor of the last, will and testament [or, administrator of the es- tate] of A. B., deceased ; that [here state the reason why a discharge is asked for] ; and that your petitioner is desirous of being released from his said suretyship. Your petitioner therefore prays that said C. D. may be required to enter into a new administration bond, according to law, and that your petitioner may be discharged from future responsibility as surety as aforesaid. L M . 128. Order of court discharging surety. (Page 56.) L. M. having filed his petition to be discharged from future respon- sibility as one of the sureties upon the administration bond of C. D., as executor of the last will and testament [or, administrator of the e tate] of A. B., deceased, for the reason that [here state the reason alleged in thepetition] ; and it appearing that notice of the filing, prayer, and time of hearing said petition has been given to the executor [or, adminis. trator], and no good cause being shown why the prayer of said peti- tioner should not be granted, it is ordered that said L. M. be dis- charged from further responsibility upon said bond, and that said C. D. give a new bond as such executor [or, administrator], in the sum of dollars, with sureties to be approved by this court. FORMS. 307 129. Petition of the sureties of an executor or administrator for a bond of indemnity. (Page 57.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : Your petitioners, L. M. and N. 0. respectfully represent that they are sureties in the administration bond of C. D., as executor 6f the last will and testament [or, administrator of the estate] of A. B., deceased, and that said C. D. is wasting and unfaithfully administering said es- tate, to the great detriment of the rights and interests of your peti- tioners. Your petitioners therefore pray that said C. D. may be compelled to file an account of his administration, and to execute to your petition- ers a bond of indemnity, according to law. M- N- 130. Order of court requiring executor or administrator to execute a bond of indemnity to his sureties. (Page 57.) On petition of L. M. and N. 0., sureties in the administration bond of C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, and it appearing to the court that said executor [or, administrator] is wasting and unfaithfully administering said estate, it is ordered that said C. D., within days, file an ac- count of his administration, and also execute a bond of indemnity to said sureties in the sum of dollars, with sureties to be approved by this court. 308 FORMS. 131. Bond of residuary legatee. (Pages 46, 63.) . Know all men by these presents, that we, C. B., H. G., and C. C. are Jheld and firmly bound unto the State of Ohio, in the sum of dol lars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following : Whereas, by the last will and testament of A. B., deceased, duly ad- mitted to probate, by the probate court within and for the county of , and State of Ohio, the said C. B. is made residuary legatee of all the estate, both real and personal [or, of the personal estate] of said A. B., deceased : Now, if the said C. B. shall pay all the debts and leg- acies of the said decedent, together with the charges of administration, and all other legal claims against said estate, then this obligation to be void : otherwise to be and remain in full force and effect. Signed and sealed by us at , this day of , A. D. 18 . Executed in presence of C B , [L. s.] H G , [L. s.] [L. s.] 132. Notice to executor or administrator residing out of the state to settle his accounts. (Page 53.) To C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased: You are hereby notified that unless you render an account of your administration of said estate, to the probate court of county, Ohio, on or before the day of , A. D. 18 , a motion will then and there be made to remove you from your said trust, and to appoint a suitable person in your stead. , 18. C B , One of the heirs at law of A. B., deceased [or other party interested^. Proof of the service of this notice must bo made in the same manner as No. 124. FORMS. 309 133. Citation of executor or administrator residing out of the state, re- quiring him to settle his account. (Page 53.) The State of Ohio, county, ss. To C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased: You are hereby required to render an account of your administra- tion of the estate of said A. B., deceased, to the probate court of county, Ohio, before the day of , A. D. 18 , or to appear in said court and show cause why you should not be removed from your Baid trust, and a suitable person appointed in your stead. Witness my signature and the seal of said probate court, at [L. s.] , this day of , A. D. 1 8 . W B , Probate judge. A copy of this writ must be delivered to the executor or administrator, and proof of such delivery must be made by the affidavit (see Form 124) of the person by whom the same was done, or in such other way as the court may direct. The courts will now probably, aaa gen- eial rule, require citations to be served and returned by the sheriff. 134. Petition of widow for increase of allowance. (Page 69.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : Your petitioner, Y. B., widow of A. B., deceased, respectfully repre- sents that the appraisers of the personal estate of said decedent al- lowed the sum of dollars, in property and money for the sup- port of your petitioner, and of C. B. and E. B., minor children of said decedent, for one year from the time of his death ; that said sum is in- sufficient for the purpose aforesaid, and that they will require the ad- ditional sum of dollars. Your petitioner therefore prays that the allowance aforesaid may be increased by said sum of dollars, and that the executor [or, admin- istrator of the estate] of said A. B., deceased, may be directed to pay 310 FORMS. the same over to your petitioner, in pursuance of the statute in such case made and provided. Y B , Widow of A. B., deceased. 135. Petition of creditor for decrease of widow's allowance. (Page 69.) To the Hon. the Judge of the Probate Court within and for the county of , and State of Ohio : Your petitioner, X. Y., respectfully represents that the appraisers of the personal estate of A. B., deceased, allowed the sum of for the support of Y. B., widow of said decedent, and of C. B. and E. B., minor children of said decedent, for one year from the time of his death ; that said sum is greatly in excess of the amount of money nec- essary for the suport of said widow and minor children for one year, in the style said decedent was accustomed to support them before his death; that said estate is insolvent; that, under the circumstances, the said allowance is unjust and inequitable to the creditors of said A. B. Wherefore, your petitioner prays that said allowance may be reduced to the sum of $ , and that the executor [or, administrator of the estate] of said A. B. may be directed to apply the difference between said sum of $ and the amount of said allowance to the payment of the claims against said estate, in the order prescribed by law. X Y Creditor of said estate. O 136. Administrator's affidavit that no will exists. (Paue48.) State of Ohio, county, ss. C. D., who applies to be appointed administrator of the estate of A. B., deceased, being sworn, says that there is not, to his knowledge, any last will and testament of the said alleged intestate, A. B. < ' D . Sworn [or, affirmed] to and subscribed before me, this - - day o/ , A. D. 18. W- - B , Probate judge. FORMS. 311 137. Revocation of letters upon discovering will. (Pages 54, 59.) A last will and testament of A. B. having been found, produced in ourt, and duly proved and allowed according to law, the letters of administration on the estate of said A. B., heretofore granted to C. D., in the belief that said A. B. had died intestate [or, because said will could not be found] are hereby revoked and annulled; and the said C. D. is divested of all power, authority, and control over the estate of said A. B., deceased. 138. Requisition on executor or administrator to reject claim. (Page 111.) To C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased ; SIR: Take notice that I, E. F., an heir [or, creditor] of said dece- dent [or, I, E. F., who have purchased from G. II., an heir of said de- cedent, certain property inherited by said heir from said decedent], do hereby require you to reject and disallow a certain claim of $875 for professional services as physician, claimed to have been rendered by R. S. to said A. B. during his last sickness [or otherwise describe the claim], said claim having been, as I am informed, presented to you by the said R. S. for allowance against said estate. Dated , 18. E F , 139. Bond to pay costs of contesting claim above mentioned. (Page 112.) Know all men by these presents that we, E. F., G. F., and 0. P., are held and firmly bound unto C. B., executor of the last will and testa- ment [or, administrator of the estate] of A. B., deceased, and unto his successors in the%administration, for the benefit of the estate of said A. B., deceased, in the sum of dollars [double the probable amount of 312 FORMS. all costs and expenses of contesting claims in the various courts], to the pay- ment of which we hereby jointly and severally bind ourselves, oui heirs, executors, and administrators, if default be made in the condi- tion following : Whereas, R. S. has presented unto the said C. D., executor [or, ad- ministrator de bonis non, etc., as may be], for allowance against the estate of the said A. B., a certain claim of $ - for - [or otherwise describe the claim, as in the above requisition]. And whereas, the said E. F. has filed in the probate court of -- county, Ohio, a written requisition on said C. D., executor [or, admin- istrator] to disallow and reject said claim : Now, therefore, if the said E. F. shall pay all costs and expenses of contesting said claim, in case judgment therefor shall be finally obtained against said C. D., execu- tor, or his succsseor or successors, then these presents shall be void: otherwise to be in full force and effect. Signed and sealed by us on this - day of - , A. D. 18 . Executed in presence of E - F - , [L. s.] G - F - , [L. s.] p _ p _ PL s 1 140. Notice to executor, etc*, that requisition has, been filed. (Page 112.) To C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased: You are hereby notified that E. F., on the - day of - , 18 , filed in this, the probate court of - county, a written requisition on you, as such executor [or, administrator, etc.], to disallow and reject a certain claim, it being represented in said requisition that said claim is of $ - , for - , and that said claim has been presented to you by R. S. for allowance to him by you against the estate of A. B., deceased. The said E. F. also, on the same day, filed in this court a bond con- ditioned to pay all costs and expenses of contesting said claim, in case it be finally allowed. -- , 18. I - D - , Probate judge FORMS. 313 141. Notice to claimant that claim is rejected. (Page 112.) To R. S. : SIR : You are hereby notified that the claim of $ , for here- tofore presented by you to me as executor of the last will and testa- ment of A. B., deceased, for allowance against the estate of said A. B., and allowed [or, taken into consideration for allowance, etc., as may be] by me, is disallowed and rejected by me, because of a certain requisi- tion and bond filed in the probate court of county, by E. F. on the day of , 18 . , 18. C D , Executor [or, administrator] as aforesaid. 142. Order of court concerning executor's claims ; journal entry. (Page 113.) C. D., executor of the last will and testament [or, administrator tf the estate] of A. B., deceased, having, on the day of , 18 , presented to the court for allowance to him against the estate of said A. B., a certain claim amounting to dollars, for a horse sold and delivered by said C. D. to said A. B., during his lifetime, it is ordered by the court that the testimony concerning said claim shall be heard on the day of , A. p. 18 [not less than four nor more than six weeks from day of presenting claim], a,nd an order is this day issued to said executor [or, administrator] in the language as follows : [Here copy the following order]. 143. Order directed to the executor. (Page 113.) To C. D., executor of the last will and testament [or, administrator of the estate] of A. B., deceased : You are hereby ordered to give notice in writing to all the heirs, leg 314 FORMS. atees, and devises of said decedent, who are interested in his estate, and to C. S. and M. S., creditors of said estate, that you have, on the day of , 18 , presented to this court for allowance to you against said estate a certain claim, which claim you shall describe in said notice ; and that the day fixed for hearing the testimony touch- ing said claim is the day of , 18 . You shall serve a copy of said notice on each of said parties at least twenty days before said day of hearing, or by publication according to law on such as are non-residents of this county. j B Probate judge. 144. Notice of executor or administrator to heirs, etc., concerning his claim. (Pages 113, 114.) To : You will take notice that I have presented to the probate court of county, Ohio, for allowance to me against the estate of A. B., late of said county, deceased, a certain claim of $150.00, for a horse sold and delivered by me to said A. B., during his lifetime, at his request [or otherwise describe the claim, as may be], and that said court has fixed the time for hearing the testimony touching said claim on the day of , A. D. 18 . C D , Executor [or, administrator] of said A. B. A copy of the above notice must be served upon each of the persons designated by the order of the court commnuding such notice, at least twenty days before the time of hearing. Proof of service may be made to the court by the affidavit of the person or officer serving the aotice. This affidavit may be as follows : (See references to statutes, Form 124.) The State of Ohio, county, ss. C. D., being duly sworn, says that he served the above [or, within; or, annexed] notice upon S. B. and M. B., on the day of , 18 , and upon X. Y. on the day of , 18 [etc., specifying the persons served, and the day of service on them], by delivering to each a true copy thereof. C D . Sworn [or, affirmed] to and subscribed by said C. D., before me, this day of , 18. W B , Probate judge [or, justice of the peace, etc.] FORMS. 315 145. Foregoing notice, when served by publication. (Page 113.) S. B., C. B., and N. S., residents of county, Ohio, and R. S , a resident of county, Indiana, interested in the estate of A. B., de- ceased, late of county, Ohio, as heirs or otherwise, will take notice that I have presented to the probate court of county, Ohio, for al- lowance to me against the said estate, a certain claim of $150.00 for a horse sold and delivered by me to said decedent during his lifetime, at his request, and that the testimony concerning said claim will be heard by said court on the day of , 18 . Executor [or, administrator] of said A. B Dated , 18. 146. Bond of appellant in proceedings on executor's or administrator's claim. (Page 115.) Know all men by these presents, that we, X. Y., E. E., and G. H., are held and firmly boudd unto the State of Ohio, for the use of \jiere name the persons interested in the judgment appealed from], in the penal sum of \_here name a sum at least double the probable costs of the proceedings to be had in consequence of said appeal] ; to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators, if default be made in the condition following: Whereas, C. D. executor of the last will and testiment [or, adminis- trator of the estate] of A. B., late of county, deceased, did, on or about the day of , A. n. 18 , present to the probate court of said county for allowance in favor of said C. D., against the estate of said A. B., a certain claim of dollars, for ; and, Whereas, said court heard the testimony touching said claim on the day of , A. D. 18 ; and, thereupon, did, on the same day [or, on the day of . A. D. IS , <>$ may be~\, allow said clainf against said estate, from which decision the said C. D. [or. X. Y.] has appealed to the court of common pleas of sasd county of . Now, if the said X. Y. shall pay all costs that may be awarded against him in said court of common pleas, in the proceedings therein lo POEMS. to be had concerning said claim, then this obligation to be void: oth erwise to be and remain in full force and effect. Signed and sealed by us, this day of , A. D. 18 . Executed in presence of X Y , [L. s.] E F , [L. s.] G H , [L. s.] o 147. Affidavit of proposed bondsman. (Pages 46, 48, 50, 51, 55, 112, 124, 147, 211.) State of Ohio, county, ss. B. S., one of the sureties on the bond of C. D., administrator of the estate [or, executor of the last will and testament ; or otherwise, as may be] of A. B. deceased, being duly sworn, says that he is a resident of - county, Ohio; that he is worth, beyond the amount of all his debts, at least dollars; and that he has real estate, liable to exe- cution in the State of Ohio, amounting in actual value at least to the sum of dollars, beyond the amount of all his debts and liabilities, and exemptions. B S . Sworn to before me, and subscribed in my presence, this day of , 18. W P , Probate judge. NOTE. "A court or an officer, authorized by law to approve a surety, may require such person to testify, orally or In writing, touching his sufficiency; but this shall not, in itself, exonerate the officer in an action for taking insufficient surety.* " Sureties must be residents of this state, and worth, in the aggregate, double the sum to be secured, beyond the amount of their debts, and have property liable to execution in this state equal to the sum to b secured " li It should be the rule in every court to require from each proposed surety, a written affidavit, similar to the above, to be filed with the bond in the court taking the same, and this rule should be observed in every instance. The law specifies (see pages referred to at head of the foregoing form) that the bond of executors, etc., shall be "with two or more sureties," in such amounts, etc., as shall satisfy the court. The above provisions specify the least qualifications that will satisfy the law. The judge may require something more: and, in view of the case with which personal property may be disposed of, removed from the state, or effectually concealed, and of the dif- ficulty of pursuing real property outside of the county of the court, the following rule, adopted by the Probate Court of Hamilton county, is not unreasonable: "By order of court. On all bonds taken in this court, there shall not be less than two sureties who must be residents of this county ; and such sureties on each bond must, in the aggregate, own real estate in this county worth double the amount of the bond, beyond their debts, and have real estate in this county liable to execution, equal 10 the amount stated iu the bond." Journal 65. p. 162. (a) 4952. (b) ? 4953. FORMS. 317 148. Consent that notes, etc., may be distributed in kind. (ttige 127.) C. 1)., executor of the last will and testament [or, administrator of the estate] of A. B., deceased, having represented to us that all the debts of said decedent are paid, and that he still holds certain notes, bonds, etc., to wit: [briefly describe them] in his hands undisposed of, and to the proceeds of which we are entitled, we hereby consent to the distribution of the same, or of any part thereof in kind, to such persons as are willing to take the same. B - M etc., etc. 149. Receipt for note, etc., paid out as above assented to. (Page 128.) Received of C. D., executor of the last will and testament of A. B., a certain promissory note for $ - , dated - , payable to the order of -- , in - after date, signed by -- , and now amount- ing to sixty-five dollars and twenty cents, and accepted as distribution to me in lieu of the last-named amount of money. -- , 18. A - W - 150. Additional bond of administrator de bonis non who sells real estate to pay debts. (Page 131.) Same as Form No. 80, except that C. D. must be designated as " ad- ministrator de bonis non of the estate of A. B., deceased," instead of " ad- ministrator." 318 FORMS. 151. Application for appointment of guardian ad litem. (Page 139.) CASE No. . C. D., administrator of the estate of 1 county, Ohio, ss., Probate A B., deceased, plaintiff, Court. vs. f Application for appointment of E. F. and others, defendants. J guardian ad litem. The said L. B., a minor defendant, over fourteen years of age [or, C. D., plaintiff; or, S. C., a friend of said L. B.], hereby applies for the appointment of a guardian ad litem for the said L. B. in this cause, and that H. M. be appointed said guardian. , A. D. 18. L B , [or, C. D. ; or, S. C.] 152. Answer of guardian ad litem. (Pages 139, 140.) CASE No. - . C. D., administrator of the estate "1 of A. B., deceased, plaintiff, - county, Ohio,ss., Probate Court. vs. I Answer of minor defendants. E. F. and others, defendants. J And now come the said L. B., M. B.. and N. B., the minor defend- ants to the petition in said cause, by II. M., their guardian ad litem, here- tofore appointed in said cause by sid court, and, for answer to said petition, deny nil the material allegations therein contained, prejudicial to said minor defendants ; and further say, that they are of tender years, and not acquainted with the law in such cases. They therefore pray the court to protect their rights in this case, and for such relief as may be just. L - B - , N - B By H Guardian ad litem. The answer of a guardian ad litem need not be veiTfied on oath. (a) 5103. See note 1, p. 277, Giauque's Manual for Guardians. FORMS. 163. Answer of decedent's widow, waiving dower in land, and asking for its value in money. (Page 142.) CASE No. . I :. D., administrator of the estate of A. B., "1 county, Ohio, ss. } deceased, plaintiff, Probate Court. vs. | Answer of decedent's E. F.and others, defendants. widow. The said Y. B., widow of said A. B., deceased (by A. D , her guard- dian, ;/ so), hereby consents to the sale of the said premises prayed for in plaintiff's petition in this cause, and waives the assignment of dower in said premises to her by metes and bounds, or in rents and profits, and asks the court to allow her, in lieu of said dower, such sum of money, out of the proceeds of such sale, as the court may deem to be the reasonable value of her dower interest in said premises. Y B . (Widow's own signature.) (or, Y B , By A G , her attorney.) (or, Y B , By A D , her guardian.) State of Ohio, county, ss. Y. B., being duly sworn, says that she is the widow mentioned in the foregoing answer, and that the several matters and things set forth in said answer are true. Y B , i [or, A D .] Sworn (or, affirmed) to and subscribed before me, this day of A. D. 18. Probate judge, [or, other competent officer. ~\ The foregoing answer, when made by the guardian, need not be rerified on oath (a) 5103,r 320 FORMS. 154. Entry of approval of foregoing answer, the widow being insane or imbecile. (Page 142.) C. D., administrator of the estate ~| of A. B., deceased, plaintiff, .p etition for 6ale of rea i estate . E. F. and others, defendants. J It appearing to the satisfaction of the court that the said Y. B., widow of A. B., deceased, is insane [or, imbecile], and that it is for her interest that said premises be sold free from her dower, the filing of her answer, in her behalf, by A. D., her guardian, is hereby ap- proved. 155. Affidavit as to how private sale was made. (Page 151.) The State of Ohio, county, ss. G. D., being duly sworn [or, affirmed], says that the private Bale of property, made by order of court, as represented in the report to which this is attached, was made after diligent endeavor to obtain the best price for the property, and that the sale reported is for the highest price that he could get for said property. C D . Sworn [or, affirmed] to and subscribed before me, this day of , A. D. 18. Probate judge. This affidaTit should be attached to the report of file made to the court. See Form No. 86. FORMS. 321 156. Executor's or administrator's written statement of the assets, indebt- edness, etc., of the estate, in case of partition suit. (Pages 114, 153.) CASE No. . C. D., administrator of the estate of A. B. deceased, plaintiff, vs. E. F. and others, defendants, county, Ohio, ss., Probate Court. Statement of assets, debts, and expenses of said estate. Now comes the said C. D. [by C. H., his attorney, if so], and states that the assets, indebtedness, and expenses of said estate are respect- ively as follows : ASSETS. Cash on hand Promissory notes, from which will probably be realized. (Etc., etc.) Total $560 30 DEBTS AND EXPENSES. Expenses of last sickness and funeral Widow's allowance Promissory note due to X. Y (Etc., etc.) Total $2755 00 560 30 (Probable) excess of indebtedness and expenses over assets... $2 194 00 Said plaintiff therefore respectfully asks the court for a certificate of the amount necessary to pay said indebtedness and expenses in ad- dition to said assets, so that the said plaintiff may present the same to the court, where proceedings in partition of the lands of said de- cedent are [or, have been] pending. 21 o 322 FORMS. 157. Certificate above referred to. (Page 153.) C. D., administrator of the estate ~| county. Ohio, ss., of A. B., deceased, plaintiff, Probate Court. vs. \ Certificate of amount necessary to E. F. et al., defendants. pay decedent's debts. State of Ohio, county, s.s. I, , sole judge and ex-nfficio clerk of the probate court within and for the county aforesaid, do hereby certify that I have ascertained from a statement of the assets, indebtedness, and expenses of the said estate, made, and presented by said administrator to this court, and from other sources; that the sum of , in addition to said assets, will be necessary to pay said indebtedness and expenses. In testimony whereof, I have hereunto set my hand and af- [L. s.] fixed the seal of the said court at Cincinnati, this day of , A. D. 18. , Probate judge and ex-officio clerk. 158. Executors or administrator's notice to commissioners of insolvent es- tate that an appeal will be taken. (Page 186.) To J. R., R. S., and E. R., commissioners of the insolvent estate of A. B., deceased : You are hereby notified that I, as administrator of the estate [or, executor of the last will] of said A. B., deceased, intend to appeal to the \here name the court to which appeal is made], from your decision ren- dered on the day of , 18 , allowing, as valid claim against said estate, the claim of X. Y. for $ , for [and here further describe the claim as may be necessary to clearly identify it.'] Administrator [or, executor] as aforesaid. FORMS. 323 159. Attested account to obtain a mechanic's lien on a house or other structure, the decedent having been a head-contractor. (Page 223.) [Prepare an account of the items of work, materials, or machinery furnished by the de Aedent, giving dates, prices, etc., obtaining information from account book of decedent, or other reliable sources; and if any credits or set-ofTg exist against the account, enter them upon the account nlso. Special cure should be taken to state in the account the date when the _/ir>< item of labor was done or materials were furnished, as the lien attaches upon whatever interest the owner then had, or afterward acquired, in the property ; and to state the date of the last item of work done or materials furnished, as the account must be filed within four months after this last date. The items of this account may be given ai suggested below, or as in Form 100, omitting all it< ms after the words, " total cost of im- provement." The affidavit may then be written below the account, on the same piece oi paper, or may be on a separate piece of paper, and attached to the account.] Account of materials furnished by A. B., deceased, to E. F. for re- pairing his dwelling-house on street, in the village of , county, Ohio. April 3, 1878. 3, 3, 3, May 1, 1, 1, 2, 5, 8. 1", Jnlv 6. 1878. . "' 19, ' Sept. 7, " 2,000 ft. weather-boarding, at $17.00 per 1,000 ft 20,000 shingles, at $3.75 per 1,000 $34 00 75 00 1C 00 6 00 51 00 3 75 45 00 3000 3 00 16 (10 4 00 25 00 10 00 10 00 $283 75 45 00 1.000 ft. scaffolding at Silfi.OOper 1000 ft 2 kegs nails, at 83.00 per keg 3,000ft. weather-boarding, at $17.00 per 1,000 ft 1,000 shingles, at $3.75 per 1,000 1,500 ft. flooring, at $3.00 per hundred ft 1,500 ft. joist, board measure, at 2 cts. per foot 150 ft. studding, board measure, at 2 cts. per foot 801) ft. plank, board measure, at 2 cts. per foot 200 ft. joist, board measure, at 2 cts. per ft CREDITS ON THE ABOVE. Total credits Remaining due 238 75 The State of Ohio, county, ss. C. D., being sworn, says that he is executor of the last will and testament [or, administrator of the estate] of A. B., deceased ; that, to the best of his knowledge and belief, the foregoing account [or, the account hereto attached, marked " Exhibit A"] is in all re- spects a correct account of labor done [or, materials, or, machinery furnished ; or, of the labor done and materials furnished, etc., a* may le] by the said A. B. during his life, to and for the said ; 324 FORMS. that there are no credits or set-offs against said account, except those set forth therein ; that there remains due to the estate of said A. B. thereon, and unpaid, the sum of dollars and cents, as in said account set forth; that said labor was done [or, said materials were furnished, e,1c..~] under and' by virtue of a verbal con- 'tract [or, a written contract, a true copy of which is hereto attached, marked "Exhibit B"] between said A. B. and said [_If the contrast was verbal, and any amounts or times of payments were specified therein, hire, state that the amounts and times of payments to be made under such verbal contract were as follows : and here state the amounts and times of payments, as specified in the contract ; or, if so, that no amounts nor times of payment were specified in said contract) ; that said labor was done [and materials furnished, etc., as may be\ for constructing [or, altering, repairing, ete.~\ a certain dwelling-house [or other structure according to the facts~\, standing on a lot [or, lots, or, tract] of land described as fol- lows : \JELere describe the land; as, for instance, lot, or, the east half of lot, etc., number , in the village of , in county, and State of Ohio, as shown on the plat of said village, recorded in plat book No. , page , of the records of said county ; or describe by giving section, township, range, etc. ; or in any other way that may clearly designate the land~\. (See de- scription in form 160). Affiant further says that he, as executor [or, administrator] afore- said, is the rightful owner of said claim, and that he asserts a lien on said premises to secure said claim. Sworn [or, affirmed] to and subscribed before me, this day of , A. D. 18. C H , Justice of the peace. 160. Attested account to obtain a mechanic's lien on lands abutting on road, sidewalk, drain, sewer, etc., the decedent having been a head-contractor. (Page 224.) [Prepare an account as directed in the preceding form. But the account in thin case must contain, in addition, an estimate per front foot of the value of the labor done or materials furnished, or both, along the line of the street, etc., when the contract is made with several owneis ; and the number of front feet abutting on the lines of such owners an fail to pay must be stated in the account. But if that part of the road etc., affected by said labor or materials abut upon the lot or farm of one owner only, between whom and the decedent the contract was made, then the number of front feet and the estimate per foot need not be given. If there be more than one owner, the number of front feet owned by those who hav FORMS. 325 paid in full need not be given. It must be remembered that if the improvement is to b paid by the property on both sides of the road or street the number of front feet will then be twice as great as the length of the improvement. Suppose, for instance, that G. H., owning GO feet front on a certain street, and J. K., owning 40 feet adjoining, and that on the other side, and opposite, L. M. owned 50 feet, N. 0. 25 leet, and P. Q.25 feet, and that these five had employed A. B., during his life, to con- struct a sewer in front of their property, which he had done, and that G. H. and N. 0. had paid ! .n full, and L. M. in part. The account could then be made otrt as follows :] Account of labor done and materials furnished for constructing a sewer abutting on the lots situate on each side of W. street, 100 feet next west of Y. street, in the town of , in county, Ohio. June 3 to 9,1878. 30 days' labor excavating, by 5 men, at 81. 25 per day. $3750 9" 13, 20 days' labor excavating, by 4 men, at SI. 25 per day. 2500 15, 50 bushels lime, at 15 cts. per bu 7 50 15, 10 loads sand, at 50 cts. per load 5 00 15, 10,000 brick, at $7.50 per 1,000 75 00 18, 20 loads limestone rock, at $1.20 per load 2400 18 to 23, 10 days' labor bricklaying, by 2 men, at $2.00 per day. 2000 July 1 " 7, 12 days' labor refilling trench, by 2 men, at $1.25 pet- day 15 00 24, " 6 days' lab'-r, 2 men and teams, removing earth, etc., at $3.50 per day forl man and team 21 00 Total cost of improvement 8230 00 Total length of improvement 200 feet. Value of said labor and materials, per front foot of laid abutting land $1.15 RELATING TO J. K. No. of said front feet owned by J. K., 40 July 24, 1878. Total due on said labor and materials for J. K 40 00 Credits and set-offs on J. K.'s acc't, none. RXLATING TO P. Q. No. of said front feet owned by P. Q., 25 July 24, 1878. Total due on said labor and materials for P. Q 28 76 Credits and set-offs on P. Q.'s acc't, none. RELATING TO L. M. No. of paid front feet owned by L. M., 60 July 24. 1878. Total due on said labor aim materials for L. M Credits and set-offs on L. M.'e acc't. Sept. 3, 1778. By cash 2500 Oct. 3, 1878. By bill of goods purchased 7 50 Total sets-offs and credits, on L. M.'s account.. 32 60 Balance due from L. M.... 25 00 State of Ohio, county, ss. C. D., being sworn, says that he is executor of the last will and tes- 326 FORMS. tament [or, administrator of the estate] of A. B., deceased; that, to the best of his knowledge and belief, the foregoing account [or, the account hereto attac-hed, marked " Exhibit A "] is in all respects a cor- rect account of the labor done and materials furnished by the said A. B. during his life, to and for the said J. K., P. Q., L. M., and others, that there are no credits or set-offs against said account except those set forth therein ; that there remains due to the estate of said A. B there on, and unpaid, the sum of ninety-nine dollars and seventy-five cents, as in said account mentioned; that said labor was done, and said ma- terials were furnished by virtue of a verbal contract [if the contract was a written one, follow directions given in Form 159) between the said A. B. and the said J. K., P. Q., and L. M.; that the amount of pay- ment for said labor and materials was not specified in said contract, and that the time of payment was to be as soon as the job should be completed [or otherwise, according to the facts. See Form 159]; that said labor was performed and said materials were furnished for constructing a sewer abutting on the lots of land, bounded and described as follows: A part of lot No. , in the town of - , in - county, Ohio, fronting on the north side of W. street, be- ginning at a point on the north line of said W. street, sixty (CO) feet west of the northwest corner of said W. street and Y. street; thence extending westwardly along said north line, forty (40) feet to a point, and from these two points extending northwardly at right angles to said north line, one hundred and fifty (150) feet to an alley. [A nd similarly, or in some other way that will clearly designate them, describe the lots of P. Q. and of L. M. See description in Form 159.] Affiant further says that he, as executor [or, administrator] afore- said, is the rightful owner of said claim, and that he asserts a lien on Baid premises of J. K., P. Q., and L. M. to secure said claim. C -- D -- . Sworn (or, affirmed) to and subscribed before me this -- day of - , A. D. 18. Justice of the pe&ee. FORMS. 327 161. Attested account of labor done or materials furnished, or both, by a deceased sub-contractor, material-man, laborer, etc., on a house or other structure. (Pages 227, 228.) i Prepare an account of the items of work, materials, or machinery furnished by the de- cedent, giving dates, prices, etc., nbtain'ng information from account book of decedent, or other reliable sources ; and if any credits or set-offs exist against the account, enter them upon the account also. The account given in Form 159, and the account given in Form 160 as far as to words " total length of improvement," may serve to indicate how the account should bfl prepared in this case, The following affidavit may then be written below the c- couut, on the same piece of paper, or may be on a separate piece of paper, and attached to the account. Such an attested account should be filed with each of the owners.] The State of Ohio, county, ss. C. D., being sworn, says that he is executor of the last will and testament [or, administrator of the estate] of A. B , deceased ; that, to the best of his knowledge and belief, the foregoing account [or, the account hereto attached, marked " Exhibit A"]- is in all respects a correct account of labor done [or, materials, or, machinery furnished, or, of the labor done and materials furnished, etc., as may be] by the said A. B., as a sub-contractor [or, as a material-man, or, laborer, etc.~\, during his life, to and for P. S., who was head-contractor [or, to T. L., who was a sub-contractor under P. S., the head-contractor, or, to A. R, who was a sub-contractor under T. L., who was a sub-contractor under P. S., the head-contractor, or otherwise set forth the decedent's conned ion with, the owner through the various sub-contractors and head-contractor'] employed by X. Y. [or, -if there be more owners than one, name all of them} for the con- struction [or, repair, or, removal, etc., as maybe} of a certain * dwelling- house [or, other structure, as may be, and here describe the house, etc , by giv- ing its location or otherwise, with sufficient clearness to leave no doubt in the owner's wind as to what structure is meant, as for instance situate on the northwest corner of W. and Y. streets, in the town of , in county, Ohio, or, three-story brick dwelling-house, now being erected on the north side of W. street, sixty feet west of the nortwest corner of W and Y. streets, in the city of , in the county of , and State of Ohiof], under and by virtue of a conti'act between the said A. B. and the said P. S. [or, A. R., or, T. L., as may be] ; that said construc- tion [or, repairing, etc.'} was provided for in a contract between said head- con tractor and said X. Y. [name all the owners if more than one}, the owner [or, owners] of said structure. That there are no credits or set- The * and the f are referred to in Form 1G2, and hare no other significance. 328 FORMS. offs against said account, except those set forth therein ; that there re mains due to the estate of said A. B. thereon, and unpaid, the sum of dollars and cents, as in said account set forth. Affiant further sa"ys that he, as executor [or, administrator] afore- said, is the rightful owner of said claim, and that he requires said owner [or, owners] to retain from said head-contractor all subsequent payments, as security for the payment of said account. C D . Sworn [or, affirmed] to and subscribed before me, this day of , A. D. 18. C II , Notary public, county, Ohio [or other authorized officer}. 162. Attested account of labor done or materials furnished, or both, by a deceased sub-contractor, material-man, laborer, etc., on a road, sidewalk, ditch, etc. (Pages 227, 228.) [Prepare the scconnt exactly as in Form 101, except, that the part from the * to the f should be changed to read as follows]: 'road [or, sewer, or, sidewalk, etc., as may be] abutting on [and here de- scribe the land or lots on which the road, sewer, etc., abuts, with sufficient clear- ness to leave no Joubt in the minds of the various owners as to what road, ditch, etc., is meant. Such descriptions as given in Forms 159, 160, or 161 would bi sufficient.] 163. Notice to owner that a mechanic's lien is in existence. (Page 227.) To : You are hereby notified that on the day of , 18 . I, aa ex- ecutor of the last will and testament [or, administrator of the estate] r-f A. B., deceased, took a mechanic's lien on [here describe the property subjected to the lien], to secure the claim of said decedent, amounting to $ 1 for work and labor done on [nr, for materials furnished for] aid FORMS. 329 dwelling-house [or, store ; or, road, etc.] by said A. B. during his life, and that said lien is now in existence and unsatisfied. Executor [or, administrator} as aforesaid. ,18-. 164. Notice to lienholder to commence suit. (Page 227.) To : You are hereby notified that I, as executor of the last will and tes- tament [or, administrator of the estate] of A. B., deceased, require you to commence suit, within sixty days from the receipt of this notice, to enforce the alleged lien filed by you on the day of , 18 , to secure your alleged claim of $ , upon the following described prem- ises : \Here describe the property upon which the lien has been taken.~] Executor [or, administrator] as aforesaid. , 18. 165. Notice of intention to dispute claim, given to executor or adminis- trator, (Page 228.) To C D , Executor of A. B., deceased: You are hereby notified that I intend to dispute the account of H. C., amounting to $ , furnished to you by said H C., for the pur- pose of making subsequent payments due me from you a security for the payment of said amount, and of which account you furnished me a copy on the day of , 18 . 330 FORMS. 166. Cancellation of mechanic's lien, to be indorsed on the lien. (Page 226.) * I certify that the within lien has been fully satisfied, and that it may be canceled of record C D , Executor [or, administrator'] of A B., deceased. , 167. Return on summons, and verification thereof, when served by plaint- iff or other person. To be endorsed on the summons. (Page 135.) Received the within summons, , 18 , and served the same on E. F., I. K., and S. T., on the day of , 18 ; (etc., specifying the persons served and the date of service on each) by delivering to each of them personally a true copy thereof. C D . The State of Ohio, county, ss. C. D., being sworn, says that the foregoing return, and each state ment therein, is true, as he verily believes. C D . Sworn to before me and signed in my presence, this day of 1*-. II M , Probate judge (or other officer^ as may be) ANNUITY TABLE 331 ANNUITY TABLE. Showing the Value of an Annuity on a Single Life, according to the CARLISLE Tables of Mortality. EXPLANATION OP THE TABLE. To find the value of a widow's dower by the following table, first com- pute the interest for one year, at six per cent., upon one-third the value of the entire property subject to dower/and multiply the amount thus ascer- tain ed. by the amount set opposite the widow's age, in the six per cent, col- umn of the tables. Example : Suppose a widow aged sixty years is en- titled to dower in real estate that sells for $3,000.00. The interest on one. third of this sum, for one year, is $130.00. Opposite the widow's age, in the six per cent, column, is 8.304. Multiply $60.00 by 8.304, and the result will be $498.24 the present value of the dower Age. 4 pr cent. 5 pr cent. 6 pr cent. 7 pr cent. 8 pr cent. 9 pr cent. 10 prceiit. 1 10.555 13.995 12.079 10.605 9.439 8.502 7.732 2 17.726 14.983 12.920 .11.342 10.088 9.080 8.251 3 18.715 15.824 13653 11.978 10.651 9.584 8.705 4 19.231 16.271 14.043 12.322 10.957 9.858 8.954 5 19.592 16.590 14.326 12.574 11.184 10.064 9.141 6 19.745 10.735 14.460 12.698 11.298 10.168 9.237 7 19.790 10.790 14.519 12.750 11.354 10.221 9.287 8 19.704 16.786 14.527 12.770 11.371 10.240 9.306 9 19.091 10.742 14.500 12.754 11.302 10.236 9.304 10 19.583 16.669 14.449 12.717 11.334 10.214 9.286 11 19.468 16.581 14.385 12.609 11.296 10.183 9.26' 12 19.G35 16.495 14.322 12.021 11.259 10.153 9.23b 13 19.209 16-406 14.257 12.572 11.221 10.123 9.213 14 19.082 16.317 14,191 12.522 11.182 10.091 9.187 15 18.955 10.2i'8 14.126 12.473 11.144 10.001 9.161 10 18.836 10.145 14.067 12.429 11.111 10.034 9.140 17 18.722 10.067 14.011 12.3S9 11.081 10.011 0.122 18 18.607 15.988 13.956 12.348 11.051 9.988 9.104 19 18.487 15.905 13.897 12.806 11.019 9.963 9.085 20 18.362 15.818 13.835 12.259 10.985 9.937 9.064 21 18.232 15.727 13.769 12.210 10.948 9.909 9.041 22 18.094 15.629 13.697 12.166 10.906 9.876 9.015 23 17.950 15.520 13.621 12.098 10.861 9.841 8.987 24 17.801 15.418 13.541 12.037 10.813 9.802 8.955 25 17.045 15.304 13.450 11.972 10.762 9.761 8.921 26 17.480 <5 188 13.369 11.904 10.709 9.718 8.886 332 ANNUITY TABLE. ANNUITY TABLE Continued. Age. 4 pr cent. 5 pr cent. (i pr cent. 7 pr cent. 8 pr cent. 9 pr cent. 10 pr cent, 27 17.320 15.065 13.276 11.832 10.652 9.671 8.847 28 17.154 14.943 13.183 11.759 10.594 9.624 8.808 29 16.997 14.827 13.096 11.693 10.542 9.582 8.773 30 16.852 14.723 13.020 11.686 10.498 9.548 8.747 81 16.705 14.617 12.942 11.578 10.454 9.514 8.719 32 16.553 14.506 12.860 11.510 10.407 9.476 8.690 33 16.391 14.387 12.771 11.448 10.355 9.435 8.057 34 16.219 14.260 12.G75 11.374 10.297 9.389 8.619 35 16.041 14.127 12.573 11.205 10.235 9.339 8.578 36 15.856 13.987 12.465 11.211 10.168 9.285 8.534 37 15066 13.843 .12.355 11.124 10.098 9.228 8.488 38 15.471 13.094 12.289 11.034 10.020 9.169 8439, 39 15.272 13.642 12.120 10.939 - 9.960 9.107 8.388 40 15.074 13.389 12.002 10.845 9.875 9.046 8.337 41 14.883 13.244 11.887 10.757 9.804 8.991 8.292 42 14.695 13.101 11.779 18.671 9. 7;', 7 8.937 8.249 48 14.505 12.956 11.668 10.585 9.609 8.883 8.206 44 14.309 12.805 11.551 10.494 9.597 8.826 8.160 15 14.105 12.648 11.428 10.;;<7 9.520 8.764 8.111 46 13.889 12.48Q 11.296 10.292 9.436 8.697 8.056 47 13.662 12.301 11.154 10.178 9.344 8.622 7.!. 'J5 48 13.419 12.107 10.998 10.052 9.241 8.537 7.925 49 13.153 11.892 10.823 9.908 9.121 8.437 7.840- 60 12.869 11.660 10631 9.749 8.987 8.324 7.744 51 12.566 11.409 10.422 9.573 8.838 8.197 7.634 52 12.258 11.154 10.208 9.392 8.684 8.064 7519 53 11.945 10.892 9.987 9205 8.523 7926 7.399 54 11.627 10.624 9.761 9.011 8.356 7.781 7.272 55 11.300 10.347 9.524 8.807 8.179 7.627 7.137 56 10.966 10.063 9.279 8.595 7.995 7.465 6.994 67 10.626 9.771 9.027 6.375 7.802 7.294 6.843 68 10.287 9.478 8.772 8.153 7.606 7.120 6.687 59 9.963 9.199 8.529 7.940 7.418 6.954 6.539 00 9.663 8.940 8.304 7.743 7.215 6.800 6.402 61 9.398 8.712 ' 8.108 7.572 7.095 6.669 6.285 62 9.137 8.487 7.913 7.403 0947 6.539 0.171 63 8.872 8.258 7.714 7.229 6.795 6.404 6.052 64 8.593 8016 7.502 7.042 6.630 6.258 5.922 65 8.307 7.765 7.281 6.847 6.457 6.104 5.784 66 8.010 7.503 7.049 0.641 6.272 5.988 5.635 67 7.700 7277 6.803 6.421 6.075 5.760 5.474 68 7.380 6.941 6.540 6.189 5.866 5.570 5.:',01 69 7.049 6.643 (i.277 5.945 5.643 5.308 5.115 70 6.709 6.336 5.997 5.690 5.410 5.153 4.918 71 ' 6.358 6.015 5.704 5.420 5.100 4.92:5 4.704 72 6.025 5.711 5.424 5.102 4.922 4.701 4.498 73 5.725 5.435 5.170 4.927 4.704 4.499 4.309 74 5.458 5.190 4.944 4.719 4.511 4.319 4.142 75 5.239 4.989 4.760 i 4.540 4.355 4.175 4.008 76 5.024 4.792 4.679 : 4.382 4.200 4.031 3.874. ANNUITY TABLE. 333 ANNUITY TABLE Concluded. Age. 4 pr cent. 5 pr cent. 6 pr cent. 7 pr cent. S , i cent. 9 pr cent. 10 pr cent. 77 4.825 4.609 4.410 4.227 4.056 3.898 3.751 78 4.622 4.422 4.238 4.067 3.908 3.760 8 623 79 4.393 4.210 4.040 3.883 3.736 3.599 3.471 80 4.183 4.015 3.858 3.713 3.577 3.450 3.331 81 3.953 3.799 3.656 3.523 3.398 3.282 3.172 82 3.746 3.606 3.474 3.352 3.237 3.130 302P 83 3.534 3.406 3.286 3.174 3.069 2.970 2.877 84 3.329 3.211 3.102 2.999 2.903 2.813 2.728 85 2.115 3.009 2.909 2.815 2.727 2.644 2.567 86 2.928 2.830 2.739 2.652 2.571 2.495 2.423 87 2776 2.685 2.599 2.519 2.443 2.372 2.304 88 2.683 2.597 . 2.515 2.439 2.366 2299 2.234 89 2.577 2.495 2.417 2.344 2.276 2.211 2.150 90 2.416 2.339 2.266 2.198 2.133 2.072 2.015 91 2.398 2.321 2.248 2.180 2.115 2.054 1.997 92 2.492 2.412 2.337 2.266 2.198 2.135 2.075 93 2.600 2.518 2.440 2.367 2.297 2.232 2.170 94 2.650 2.569 2.492 2.419 2.350 2.284 2.221 95 2.674 2.596 2.522 2.451 2.383 2.319 2.258 96 2.628 2.555 2.486 2.420 2.358 2.298 2.239 97 2.492 2.428 2.368 2.309 2.253 2.199 2.150 98 2.332 2.278 2.227 2.177 2.129 2.083 2.039 99 2.087 2.045 2.004 1.964 1.926 18.89 1.856 100 1.653 1.624 1.596 1.669 1.543 1.617 1.433 334 DEFINITION OF TERMS. DEFINITION OF TERMS. A coJicil is defined by Blackstone to be " A supplement to a will, or an addition made by the testator, and annexed to, and to be taken as a part of a testament, being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator." A nuncupative will is an unwritten, or verbal will. A legacy i p . a gift or bequest of goods or money by will ; and a legatee is one to whom such bequest is made. A devife is a gift of real estate by will : the person who gives is called the devisor, and he or she who receives, the devisee. An executory devise of lands is such a disposition of them by will that no estate vests upon the death of the devisor, but only upon Borne future contingency. A testator is one by whom a will is made. A testatrix is a female testator. A person who at his 'death leaves a valid will is said to die testate, and one who dies without having made a will, intestate. A residuary legatee is one to whom the remainder of a testa- tor's estate is given after the payment of his debts, legacies, etc. A will is said to be admitted to probate when it is established by the testimony of the subscribing witnesses ; and admitted to record, when a copy of such will, with a copy of the order of court admitting the same to probate, is recorded in a state or county other than the one in which it was admitted to probate. An executor is one appointed by a testator to carry into effect his will and settle his estate. An executrix is a female executor. An administrator is one who settles the estate of a deceased per- son who dies without having made a will. An administrator with the will annexed is one appointed to settle the estate of one who has made a will, but named no executor therein, or, having named an executor, he declines to serve. An administrator de bonis non DEFINITION OP TERMS. 33& is one who is appointed to settle an estate which has been pre- viously settled in part by an executor or administrator. An ad- ministratrix is a female administrator. The certificate of appointment \vhich an executor receive* from the court is called his letters testamentary; and the certifi- cate received by an administrator, his letters of administration. A chose in action is a thing in action, or the right which a man has in any particular instance to bring suit to recover money or property to which he is entitled. A tenant by the curtesy is a man who holds a life estate in lands by right of his wife, as dower is the life estate of a woman in one-third of the real estate of which her husband was seized during marriage. Lands, tenements,- and hereditaments mean simply real estate, or that which savors of the realty. A fee simple is an estate without limitation or condition, and which a man holds " to him and his heirs forever : generally, absolutely, and simply." A fee tail is an estate given by deed or will to a person, and to the heirs of his or her body, without the power of disposing of the same. A contingent remainder is where an estate in remainder (that is, an estate limited to take effect after another estate in the same property is determined) is made to depend upon the happening of an uncertain event. An equitable estate is where one has an interest in real estate, but lias not the legal title. The* law provides that ' the term ' will ' shall be construed to include codicils as well as wills; every word importing the mas- culine gender may extend and be applied to females as well as males ; every word importing the singular number only may extend to and be applied to several persons or things as well ap one; and every word importing the plural number only may extend to and be applied to one person or thing as well as sev eral." a (a) 5913. APPENDIX. 337 APPENDIX. [ADDITIONAL NOTES.] ADVANCEMENT. (See 55-58, post.) BOND, AND SUITS THEREON 1. In an action against an executor to recover for goods sold to the tes- tator, the defense was that the testator's wife owned a stock of goods, and carried on business on her own account, and that the goods in controversy were sold to heron her sole credit: Held, That it was not competent for the executor, as against the plaintiff to prove that the widow took what was left of the stock at the deatli of the testator, and appropriated the same to her own use. Johnson v. Hawkins, 31 Ohio St. 137. BOOK ACCOUNT 2. A credit upon an account after the cause of action on- the same is barred by the statute of limitations, will not be treated as part payment thereof, unless shown to have been so intended by the parties. Kaufman, Adm'r, . Broughton, 31 Ohio St. 4:24. See Watts v. Shewell, 31 Ohio St. S84. COURTESY 3. A husband, surviving his wife, has a vested estate by courtesy in the separate property of his wife, of which she died seized. Hall v. Hall, 32 Ohio St. 184. 4. Where it appears that a deceased wife, at the time of her death, owned land in her own right, and no state of facts then existed that would bar the surviving husband's right to the courtesy therein, and the land is in the pos- session of another, the surviving husband has a right of action to recover the possession thereof. Ib. See also 52, 53, post. DAMAGES DEATH BY WKONGEUL ACT 5. It is not only the right of the conductor to expel from a train a drunken, unruly, boisterous passenger, but when such a person endangers by his acts the lives of people, it is the duty of such conductor to remove such passen- ger in order to protect others from violence and danger. But this right must be reasonably exercised, and not so as to inflict wanton or unnecessary '2,2. '338 APPENDIX. DAMAGES, ETC. Continued. injury upon the offending passenger, nor so as to needlessly place him in circumstances of unusual peril. If, having exercised reasonable prudence, considering the time, place, and circumstances, as also the condition of the drunken man himself, the conductor expels such passenger, who is afterward run over and killed by another train, not in fault, the expulsion itself is not such proximate caue of the death as will make the company liable. Rail- way Co. v. Valleley,'32 Ohio St. 345. 6. Where a railroad company, engaged in ballasting its road, employed a- hand to assist in loading and unloading a gravel train, ana in the execu- tion of this service it was necessary for him to ride on the train from the gravel pit to the place of unloading the train being run under the di- rection of a conductor, and said hand having nothing to do with its man- agement : Held, That such hand, while riding on the train, was a mere employe, and did not assume the character of a passenger; that he and the engineer of the train were engaged in a common service, and that, as he was not under the control or subject to the orders of the engineer, the rail- road company can not be held liable for negligence of the engineer, result- ing in his death, if it was not guilty of negligence in selecting the engineer. Kumler v. Railroad Co., 33 Ohio St. 100. 7. The employe of a railroad company takes the ordinary hazards of the service, also such risks as arise from his own negligence, or that of such of his fellow employes, engaged in a common service with him, as have no au- thority or control over him ; but takes no risks arising from the negligence of the company, or of a fellow-servant placed by the company in authority over him. Railway Co. v. Knitta), 33 Ohio St. 468. 8. It; however, such employe, "with a full knowledge of an habitual and continued negligence of the company or his superior fellow-employe it some particular matter, acquiesces therein and continues in the service o. the company, without any objection or effort toward a correction of the neg- lect, he thereby waives his right against the company and takes the risk upon himself. Ib. 9. Where it was the custom of such employes operating a railroad train to switch cars from the main track to a sidetrack while the train is running, and to make such switches on the order of the conductor, without his per- sonal supervision, as required by a rule of the company : Held, That an employs, who accepted service on the train subordinate to the conductor, with full knowledge of such custom, or continued in the service after ac- quiring such knowledge, without any objection, and acquiesced in the cus- tom, waives all right he might have against the company arising from such mode of doing the business, or from the neglect of the conductor in not personally superintending it, as required by the rule of the company; and if he be injured in making such customary switch through his own neglect APPENDIX. 339 DAMAGES, ETC. Continued. or that of a fellow employe on the train having no control over him, no re- covery therefor can be had against the company. Ib. 10. A master, whether an individual or a corporation, is responsible to his servants for his own negligence; but, as a general rule, not for that of their fellow-servants. Kailway Co. t>. Lewis, 33 Ohio St. 196. 11. Where, however, a master places one servant in a position of subordi- nation to another servant, and the subordinate servant, without fault, is in- jured through the negligence of the superior servant, while both are acting in the common service, the master is liable therefor. Ib. 12. Whether or not one servant is placed by a common master under the control of another servant, thereby creating the relation of superior and subordinate between them, must be determined from the evidence in each particular case. Ib. 13. Where an engineer and brakeman were employed by a railroad com- pany in operating the same train, and there was no evidence to prove that the brakeman was placed in a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain specified signals, as " a notice" to apply or loose the brakes, and requiring the brakeman to manage the brakes " according to circumstances and the signals of the engineman,'' and placing the brake- man, while on the train, in subordination to the conductor: Held, That the engineer and brakeman were servants of the company, engaged in a com- mon service; that the relation of superior and subordinate did not exist be- tween them ; and that, therefore, the company was not responsible to the brakeman for an injury occasioned by the negligence of the engineer. Ib. 14. Where, in an action brought in this state against a master by a servant, for an injury sustained in another state, through the negligence of a superior servant, while engaged in the same service, and the answer merely stated that, by the law of that state, a servant has no action against the master for the negligence of a fellow servant: Held, That the answer fails to meet the case, in not stating what the law of that state was, when the negligence complained of is that of a superior servant, and that a demurrer to the an- swer may, for that reasqn, be sustained. Ib. 15. If an employe enters into or remains in the service of a railroad com- pany, with a knowledge of its rules and regulations, he must be held as un- dertaking to acquiesce therein; and if he is afterward injured, by reason of his violation of such rules and regulations, he can not claim that their rea. sonableness is a question to be decided by a jury, in an action by him to recover damages for the injury thus occasioned. Wolsey v. Railroad Co., 33 Ohio St. 227. 16. If the employe has suffered an injury, brought about by a violation 840 APPFADIX. DAMAGES, ETC. Continued. of the plain instructions of his principal, he can not hold his principal lia- ble therefor. Ib. As to presumption of death, see note 25-28, next page. DOW K II 17. The power given to an assignee in insolvency, by the 5th section of the uct (S. & C. 395) regulating the mode of administering assignments in trust for the benefit of creditors, to sell and convey the real estate assigned, does not enable such assignee to extinguish, by sale, the inchoate right of dower of the wife of the assignor in the assigned property. Dvvyer v. Gar- lough, 31 Ohio St. 157. 18. Where, in a suit brought to enforce a vendor's lien for purchase- money, to which the vendee and his wife, and also the holder of a subse- quent mortgage executed by the vendee alone, are made defendants, and the proceeds of sale of the land covered by the liens are more than sufficient to discharge the vendor's claim, the wife is entitled, as against such mort- gagee, to assert her contingent right of dower in the surplus fund. Unger 0. Leiter, 32 Ohio St. 210. 19. But such right of the wife must be protected'in a mode which will not interfere with the right of the mortgagee to subject the whole estate of the husband in the premises to the present satisfaction of the mortgage debt in its order of priority. Ib. 20. Therefore, when such surplus is insufficient to discharge fully the mortgage debt, the court should not (against the will of the mortgagee) direct one-third of the surplus fund to be put on interest by the sheriff, dur- ing the life of the wife, for the purpose of securing her contingent dower interest. Ib. 21. The proper course, in such a case, is to award to the wife, from the surplus fund, the value of her contingent right of dower therein, to be as- certained by reference to the tables of recognized authority on that subject, in connection with the state of health, and constitutional vigor of the wife and her husband. Ib. 22. A release of the wife's inchoate right of dower is a valid considera- tion for a conveyance of property to her. Singree v. Welch, 32 Ohio St. 320. 23. Such conveyance will not be held fraudulent and void as to the hus- band's creditors, unless the amount of consideration received is so dispro- portioned to the value of the wife's contingent dower, as to be unreasona- ble. Ib. 24. So great is the difficulty of estimating the worth of contingent dower rights so uncertain and imaginary are the values which are the necessary elements of the computation that the court will not pronounce the trans- action fraudulent, from the fact that the wife insisted upon and received a APPENDIX. 341 DOWER Continued. sum greater than her dower, if the facts do not show mala fides in her or her husband. Tb. 25. If a husband leaves his family and usual place of residence, and goes to parts unknown, or a distant state, and is not heard from for a period of seven years, a presumption arises that he is dead. Kosenthal v. Mayhugh, 33 Ohio St. 1-55. 26. Where such presumption exists, and where the husband has aban- doned his wife and minor children, without other means of support than tl"3 house and lot on which he resided before such abandonment, she may act.and contract as a feme sole. Ib. 27. If, in fact, the husband is not dead, yet, in such case, she is capable of binding herself, by way of equitable estoppel, by her acts and contracts, as fully as if she were a feme sole. Ib. 28. And if she join with the children who have come of age, in order to induce a sale of said real estate for their mutual benefit, in representing that he is dead, and thereby, and for value received, effects a sale of such real estate, and also joins them, as widow, in a conveyance in fee, with cove- nants of general warranty, and the contract is fully executed by the pur- chaser: Held, That, although the husband be living, and although such conveyance does not operate as a release of her inchoate right of dower, yet she is barred, by way of equitable estoppel, from treating her contract as a nullity, and from asserting her right to have dower assigned, upon the actual death of her husband. Ib. 29. It is not necessary, to constitute such equitable estoppel, that a party should design to mislead ; it is enough if the act or declaration was calcu- lated to. and did in fact, mislead another, who acted in good faith and with reasonable diligence. Ib. 30. In a suit for dower, while the amended section 313 of the civil code, passed April 13, 1874 ^71 Ohio L. G8), was in force, the heir of the deceased husband was a competent witness for the defense, where the title of the de- ceased husband was in issue. Black v. Hoyt, 33 Ohio St. 203. 31. Whether he would have been a competent witness under said section, as it was in force prior to the passage or subsequent to the repeal of said amended section, quaere t Ib. 32. The delivery of a deed by the grantor to the officer taking the ac- knowledgment, with unqualified instructions to deliver it to the grantee whenever he calls for it, followed by an acceptance of the title to the land conveyed, operates to invest the grantee with the title to the land, although, for convenience merely, the grantee permits the officer to retain possession of the deed. Ib. 33. If. after such absolute delivery to the officer, and acceptance by the grantee, but before he takes actual possession of the deed, the grantor mar* 342 APPENDIX. DOWER Continued. ries, his wife is not vested with an inchoate right of dower in the premises, and, on her surviving her husband, she is not entitled to dower therein. Ib. See also note 97. ELECTION 34. Where a widow elects not to take under the will of her deceased hu*. band, she can take nothing in virtue of the bequests made to her by tha will, in lieu of dower. Jones v. Lloyd, 33 Ohio St. 572. 35. Where dower is barred by a legal jointure, an election, under section 43 of the wills act, is not necessary to entitle the widow to take the provis- ions made for her in her husband's will; but where the bar is by an equita- ble jointure or settlement merely, quaere? Bowen v. Bowen, 34 Ohio St. 164. 36. The year within which the election under said section must be made begins to run from the date of the service of a citation ; and where the widow, appearing in open court, without service of a citation, declines to make her election, she does not thereby waive the issuing and service of a citation, or estop herself from denying that a citation had been i.-sued and served. Ib. 37. Whether a widow can take the provisions made for her in the will of her husband, and also claim under an antenuptial contract, whereby her right of dower is barred, depends on the intention of the testator. Ib 38. Where, by antenuptial settlement, a sum of money is secured to the wife, to be paid after the husband's death, and, by a subsequent will, the husband directs all his just debts of every kind to be first paid, and makes provision for the support of his wife during widowhood, with a declaration that the intent and meaning of the testator was to give to his wife the provis- ion made for her in his will, she may claim the provision in the will, and also that made for her in the settlement. Ib. See also 88, 89, 97, post. EXECUTORS AND ADMINISTRATORS 39. It is a well settled rule in equity, that a trustee is not permitted to so manage the subject of his trust as to make profits or gain therefrom for himself. The beneficiaries in the trust have a right to expect and require the exercise of his best judgment, care, and diligence on their behalf, and the gains resulting therefrom inure to their sole benefit. Cox v. John, 32 Ohio St. 532. 40. What such trustee may not do directly, he is not permitted to do through the intervention of an agent or attorney. Ib. 41. An administrator can not, therefore, be allowed, directly, or through his attorney, to compromise, adjust, and settle claims against the estate for which he is acting, for less than their face, and to put the difference in his own pocket. Ib. APPENDIX. T>43 EXECUTORS AND ADMINISTRATORS Continued. 42. And the rule is the same, whether the attorney, through whom such compromise and settlement is effected, acts for the administrator officially or personally ; and whether he acts, in making such settlement, as the at- torney of the administrator, solely, or for him and others, with a view to their joint profit. "What the administrator may not do singly, the policy of the law will not permit him to participate in doing. In either case the dis- counts obtained from creditors must inure to the benefit of the estate. Ib. 43. Upon final settlement of the administrator's accounts, it is not the duty of the probate judge to provide for the payment of claims against the estate which no creditor is asserting. Ib. 44. Nor is it within the jurisdiction of the probate court, upon such final settlement, to determine the state of accounts between the administrator and the several distributees to whom any balance found in his hand may be payable. The court can only order distribution of such balance according to law, leaving the state of accounts between the parties to be inquired into when such order of distribution is sought to be enforced by the respective distributees. Ib. 45. Under section 169 of the administration act (1 S. & C. 599), the filing of exceptions to an account of an executor or administrator in the settle- ment of an estate, raises a matter of dispute between the exceptor and such executor or administrator as to the items of said account excepted. Stay- ner's case, 33 Ohio St. 481. 46. When such matter in dispute has been duly heard and determined by the court, it can not again be called in question by either of the same parties on the hearing of a subsequent account, without leave of the court. Ib. 47. Exceptions are filed to items of a partial account, which are heard and determined by the probate court. On appeal to the common pleas, the matter in dispute is again fully heard and determined: Held, That the hearing and determination of the matters involved in the exceptions by the common pleas is final and conclusive in the probate court between the same parties, on the hearing of all subsequent accounts. In such case, the probate court has no power to open up or disregard the order or judgment of the court of common pleas in the settlement of the disputed items in the former account. Ib. 48. The provision of said section 169, which authorizes the opening up of all former accounts for the correction of errors or mistakes therein, upoc the filing of subsequent accounts, does not authorize the probate court to open up or vacate, at the instance of either of the parties thereto, a former order by the court of common pleas on appeal, in the settlement of a former account. Ib. 49. Where the matter had been heard and determined by the common 344 APPENDIX. EXECUTORS AND ADMINISTRATORS Continued. pleas on appeal from the settlement of a partial account, that court will not, on the hearing of another appeal on a subseqqent account, on the motion of either of the same parties, reopen the former adjudication for the purpose o* a hearing of the exceptions to the partial account, upon the same evidence, or upon evidence that might have been adduced on the former trial. Ib. 50. "While the court of common pleas has power, for good cause, on the hearing of a subsequent account, which comes before it by appeal, to open up the Settlement of a former partial account, made before the filing of such subsequent account, yet it is not error for it to refuse to do so, where the only cause assigned for such rehearing is, to enable a party to have a new hearing upon the same facts that existed, and might have been adduced at the former hearing. Ib. 51. A testator directed his executor, by his will, to sell his real estate, and, after having set aside a specified sum for the support of his widow, to divide the remainder of the proceeds of the sale among his eight children. After the testator's death, and before the executor sold said real estate, G., a son of the testator, mortgaged his interest therein, to secure the payment of a loan of money: Held, That such mortgage operated as an equitable assign- ment to the mortgagee, of the interest of G. in the proceeds of the sale of said real estate by the executor. Horst v. Dague, 34 Ohio St. 371. See note J^; 30 O. S. 181 ; Ib. 454; 37 O. S. 282, 532. WIDOW 52. A wife, living separate and apart from her husband, brought an action for alimony, and obtained a decree requiring her husband to pay her a defi- nite sum semi-annually, during her life. The payment of this ?um, the husband secured, and then gave the remainder of his property, consisting of a note and a mortgage of the value of $1,500, to his children, and soon thereafter died. The widow caused letters of administration to be granted, and appraisers to be appointed, who set off and allowed for her year's sup- port the sum of $800. The administrator brought an action against the mortgagor and said children, to obtain a decree declaring the gifts to the children void, and the application of the fund arising from the mortgage to the payment of said allowance to the widow. The court found that in making the gifts to said children, by the deceased, no fraud was intended, other than what was to be implied from the transaction : Held, That the ad- ministrator was not entitled to recover. Lockwood v. Krum, 34 Ohio St. 1. 53. Where the appraisers of the personal estate of a decedent, first ap- pointed, failed to make to the widow any allowance for her year's support, and the probate court, on her application, appointed new appraisers to make such allowance, the executor and administrator should have notice of the proceedings; but the irregularity of making the order and allowance, with- APPENDIX. 345 WIDOW Continued. out such notice, should be corrected in the probate court; and where appli- cation was made to that court for the purpose, and overruled, and the record does not show that any injustice was done, no ground of reversal is shown. Heck v. Heck, 34 Ohio St. 369. See also 1, 34-38, ante; 88, 94, post. WILLS 54. S. devised a portion of his real estate to his son, R., and the remain- der thereof to his son, W. He also bequeathed to W. all his personal estate, and charged the devise to AV. with the payment of certain legacies to his remaining children ; providing that, should W. feel unwilling to accept the provision made for him, and assume and pay the legacies charged, the will should be void, and all said estate administered as if he had died intestate. A\ . accepted the provision made for him, and assumed the payment of the legacies: Hel: legacies, but refused to pay M. L., claiming the right to hold the amount during her life, to be placed at interest for her benefit. Assuming that the limitation over to the living children of the testator, in the event that M. L. shall die leaving no child of her own, is valid, and not void as being inconsisteut with the first clause: Held, 1. That as the bequest over is upon uncertain contingencies that may never happen namely, the death of M. L., leaving no child of her own. with living children of the testator surviving her the children of t.ho t*w- 350 APPENDIX. WILLS Continued. tator, if they take at all, do so by way of executory devise, and not as lega- tees in remainder. 2. M. L. takes the bequest absolutely, and is entitled -to the possession thereof. Her estate, if the limitation ovor is valid, is liable to be divested by the happening of the contingencies named, and no estate or interest vests in the possible legatees over, until such contingencies hap- pen. 3. Upon final settlement of the estate, before the death of M. L., and in the absence of any provision of the will making it the duty of the execu- tor to hold and manage said legacy, she is entitled to receive the same. 4. If such limitation over is valid, the children of the testator, and not the executor, in the absence of a trust reposed in him, are the proper pai'ties to an action or proceeding to protect their contingent interest, if any necessity for such action arises. Lapham v. Martin, 33 Ohio St. 99. 83. The controlling principle in the construction of wills is the ascertain- ment of the intention of the testator; but where the intention remains in doubt, resort must be had to settled rules of construction for aid in the solu- tion of the difficulty. Linton v. Laycock, 33 Ohio St. 128. 84. The law favors the vesting of estates, and, in the construction of de- rises of real estate, the estate will be held to be vested in the devisee at the death of the testator, unless a condition precedent to such vesting is so clearly expressed that the estate can not be regarded as so vested, without directly opposing the terms of the will. To this end, words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and not the present right to the estate. Ib. 85. A devise to one when be arrives at a given age the intermediate es- tate being devised to another vests on the death of the testator, and is not defeated by the death of the devisee before the specified age. The words of futurity, importing contingency, are not necessarily inconsistent with the immediate vesting of the estate, but may be regarded as merely postponing the possession. Ib. 86. A devise, though not otherwise expressed, is implied in a direction in the will to divide an estate amongst specified devisees; and the rule vesting legacies bequeathed only by a direction to pay or divide at the time fixed for the payment or division, does not apply to devises of real estate. Ib. 87. "Where a testator devised his whole estate to his wife, until his young- est son became of age, " when " it was to be ' ; divided amongst all his chil- dren then living, or their heirs," and he made no other disposition of the remainder during the term of years, nor of the estate, in case his wife de- clined to take under the will, or died before the time fixed for the division, and it appears that he had no other motive in making the will than the creation of the estate for years for the benefit of his wife and certain other beneficiaries: Held, 1. Thut the disjunctive phrase, "or their heirs," does rot refer to the children living when the youngest arrives at age, but relates APPENDIX. S51 WILLS Continued. to such of them as may then be dead. 1. That the word heirs is not used as a word of purchase, creating a new class of beneficiaries, but is used as a word of limitation, so that, in case of the death of a child, bis share shall not go to the survivors, but pass as if inherited from the deceased. 3. That the estate vested in the children at the death of the testator, subject to the estate for years, and was not divested by the death of a child durirg the term, but his share descended to his heirs, who take the same by inherit- ance, and not as devisees under the will. Ib. 88. Where a husband devised real estate to his wife during her life, or whilo she remains unmarried, under which she takes possession and occu- pies the land with the knowledge of the heirs at law for a series of years after the time limited in which she may make her election, in the absence of any showing to the contrary she will be presumed to have made her election in fact. Nimmons v. Westfall, "} Ohio St. 218. 89. A testator by his will clearly vested the title to a specific portion of his real estate in his executors in trust, with directions to sell the land and distribute the proceed? equally among his heirs at law. and it .s claimed the executors are vested with a like trust and direction in and .iver other real estate devised: Hdd, That the court, in order to ascertain and carry out the intention of the testator in that respect, will look to tht whole will and all its parts. Ib. 90. W. devised to his wife, H., and his son, .T. H. W., by a dismict and in- dependent clause of his \yll, the use of certain real estate, du? ing the life of II., or while she remained unmarried, and then provided: - But at the death of my said wife, or if she should intermarry with any |.er?on after my decease, it i&my will that the said aforementioned mid doeo-ribed farm shall be sold, and the proceeds of the same be equally divided between my children or their heirs forever; or that they, my said children, divide said farm to suit themselves as they think best: Hfld, 1. By thi- devise, standing unaffected by the other provisions of the will, no trust estate is created in the executors. 2. Under this clause H. and .1. H. W. take estates for life in the land described therein, doterminable on the death or marriage of H.. with remainder in fee to the heirs at law of the testator. Ib. 91. The act of April 13, 1865, entitled "an act supplemental to the act to authorize the sale or lease of estates tail and estates for life in certain cases," by express provision extends and applies the acts of April 4, 1869, and March 30, 1864. to all estates tail or for life, with remainder over to any other person or persons, and to all determinable estates which may be cre- ated by will, etc., after its passage. Ib. 92. Under the act of April 4, 1859, and the acts supplementary thereto, the owner of the life estate in possession, created by will subsequent to April 13, 1865, may institute proceedings for the sale of both the life estate and the estate in remainder; and this may be done notwithstanding the tes- $52 APPENDIX. W I LLS Continued. tator may have made special direction in his will for the disposition of the land on the determination of the life estate. Ib. 93. The act of April 4, 1859 (S. & C. 550), and the supplemental acts of March 30, 1864 (S. & S. 346), and April 23, 1865 (S. & S. 347), in so far as they affect and apply to estates created subsequent to their passage, are not in cont"avention of section 19, of article 1, of the constitution of this state. Jb. 94. "Where a widow elects not to take under the will of her deceased hus- band, she can take nothing in virtue of the bequests made to her by the will, in lieu of dower. Jones r. Lloyd, 33 Ohio St. 572. 95. While a will should be read and construed by the light of the circum- stances under which it was executed, yet such circumstances can affect its construction only when it appears that they were known to the testator at the time of its execution. Ib. 96. The term heirs, when used in a will, is flexible, and should be so con- strued as to give effect to the manifest intention of the testator as ascer- tained by a due consideration of all the provisions of the will. Ib. 97. Where a testator makes a provision for his wife, in lieu of dower, and directs that, in the event of her claiming dower, the balance of certain per- sonal property bequeathed for her support " shall be shared equally among my heirs," the words " my heirs " will be construed as meaning my next of kin, or, my heirs according to the statute of distribution, exclusive of tny wife; though his wife, in case of intestacy, would, under the statute, have taken all such personal property. Ib. 98. Hence, where the brothers and sisters of the testator are his next of kin, and are recognized as such by the statute of descents and distribution, a.fter the wife, they are to be regarded as the legatees under such will in case the widow declines to accept its provisions. Ib. 99. Where a will has been signed for the testator by another person, in his presence and by his express direction, in the absence of attesting wit- nesses, the acknowledgment of the fact by the testator in the hearing of the witnesses, which is requisite, is not required to be made in any particular form of words or any specified manner; but, if by signs, motions, conduct, or attending circumstances the attesting witnesses are given to understand, by the testator, that he acknowledges the signature thereto as his, and the instrument itself as his will, it is sufficient. Haynes v. Haynes, 33 Ohio St. 598. 100. It is not necessary, in addition to such acknowledgment, that the testator should further acknowledge to each or both the attesting witnesses, that such signing was done in pursuance of his previous express authority and in his presence by the person signing for him. Ib. 101. The fact of such signing and the authority to sign, when done in the absence of the attesting witnesses, may be shown by the acknowledgment APPENDIX. 353 WILLS Continued. to the witnesses, or by other competent testimony, or may be presumed from the facts and circumstances of the case. Ib. 102. The execution of a will can not be assumed in the face of positive evidence to the contrary, or in the absence of all proof on the subject, ex- cept, perhaps, in case of ancient wills, merely because it purports to be the will of the testator, and the attestation is in due form ; yet it will not be de- feated by the failure of memory or corruption of the attesting witnesses, if it can be established by other competent testimony. Ib. 103. The original will, when not lost or destroyed, and not a copy from the record in the probate court, used in the pleadings, should be produced to the jury in proceedings to contest its validity. Such will is the basis of inquiry, and the trial, verdict, and judgment should be responsive to the question, whether that paper be the last will of the testator or not. Ib. 101. Where in such copy a devise of lands reads : " Eighty-six acres off the east side " of a half section owned by the testator, and the original will reads, l -west side" instead of "east side," and the jury finds "the paper writing produced " to be the will, and the court adjudges " the paper writ- ing mentioned in the petition " to be such will, the judgment does not fol- low the verdict, and the whole record leaves it uncertain what is the proper reading of the testator's will. Ib. 105. If, upon the face of the will, it is apparent that it has been altered in a material provision, and evidence is offered tending to show that such al- teration WHS made since its execution, as well as to show that it was made before ; it is the duty of the jury, in case the will is established, to de- termine the question in dispute, and establish the will as it read when exe- cuted. Ib. 106. If it appears that such alteration was made before execution, then the paper writing, as it reads after such alteration, is the will ; if made after such execution, and such alteration does not invalidate the instrument, such jury should, by special verdict, establish the will as it read before such alteration. Ib. 107. Proceedings to contest the validity of a will under the statute are in the nature of an appeal from the order of probate thereof, and all the ma- terial facts in issue, are to be heard and determined de novo as though such order of probate had not been made; except that such order of probate ia prima facie evidence of the due attestation, execution, and validity of the will, and the burden of proof is on the contestants to invalidate it. Ib. 108. A testator devised to his wife, during life or widowhood, all his real estate, accompanied by a bequest of personalty, as follows: "And all my personal property, household goods, and provisions, including moneys and credits of every description, which may be thereon at the time of my de- ceaso, during her natural life; she. however, selling so much thereof as may 23 354 APPENDIX. WILLS Continued. be sufficient to pay my just debts." He devised the remainder in said real estate to Ins three daughters in unequal portions. He bequeathed to one of his daughters $1,500; to another, $1,000; to a daughter of a deceased son, $500, and to her mother, $5 said legacies to be paid at the death of his widow; and declared that the legacy to the granddaughter, and the one to her mother, together with a tract of land conveyed to the son before his de- cease, made for them an equitable share of his estate. He also declaied that if, "at the death of my said wife, there should be any of my said per- sonal property or money, hereby devised to my said wife and heirs, left un- consumed," it should be divided between his three daughters and their heirs; and concluded as follows: "It is my will that all my money, depos- ited or otherwise, is to be left on deposit, at interest, during the lifetime of my said wife, except the interest to be drawn and used by her as she may need." He appointed his wife executrix of his will: Held, That the bequest of personal property, together with " moneys and credits of every descrip- tion," to the wife, during life, includes money and United States bonds on deposit in bank; and that what remains unconsumed of the same, at the widow's death, is to be applied to the payment of said legacies, the residue to be equally divided between the testator's three daughters. Gillen v. Kimball, 34 Ohio St. 352. So.- also 34-38, 51, ante; 35 O. S. 503; 36 O. S. 17. 109. "In all cases, however, in which a trustee places money in the hands of a banker, he should take care to keep it separate, and not mix it with his own in a common account; for, if he should so mix it, he would be deemed to have treated the whole as his own, and he would be held liable to the cestui que trust for any loss sustained by the banker's insolvency." 2 Story on Equity Jurisprudence, 1270. Also, Hill on Trustees, 375, 376; 1 Perry on Trusts, 344. 110. "But, with respect to losses sustained by the failure of bankers, or other persons into whose hands the money of the testator has been deposited by the executor, the rule, at least in equity, seems to be that where the deposit was made from necessity or conformably to the common usage of mankind, the executor will not be responsible for the loss." 2 Williams on Executors, 1545, 1546. 111. "An executor will not be liable for money allowed to remain with bankers who fail, where it is not an unreasonable sum for the executor to keep in bank, or where it was only reasonable for the money to be deposited there under the circumstances." Smith on Equity, paragraph 355. 112."An executor may deposit money in a bank, and he will not be respon- sible upon the bank's failure, if placed to a separate account, and he do not keep it there an unreasonable time: and a year is not too long." (Citing APPENDIX. 355 numerous English and American eases to sustain this.) 1 Perry on Trusts, $ 343, 344, 346. 113. Trustees and executors have a reasonable time to wind up a testator's estate, and make investments ; and they may, without responsibility, keep the money in a reliable bank for one year after the death of the testator ; but if they draw the money out of bank, and made any irregular invest- ment, or lend it to another bank on interest, they will be responsible for the loss of the money, even if the will directs that the trustees shall not be re- sponsible for losses by a banker, the construction of such direction being that the trustees shall not be liable for loss of money deposited with a banker in the ordinary manner. (Citing Johnston v. Newton, 11 Hare, 160; Swinfen v. Swinfen, 29 Beavan, 211; Wilkes v. Groom, 3 Dr. 584.) 1 Perry on Trusts, 346. 114. In Shaw v. Bauman, 34 Ohio St. 25 (in which a justice of the peace was held liable for money officially collected by him, and deposited in his own name in a bank which failed), the court use this language (p. 32): "The rule in equity is well settled. . . . that if a trustee deposits the funds of a trust estate in bank, in his own name, individually, with his own pri- vate funds, he thereby becomes debtor to the trust estate, and a creditor of the bank; and, in case the trust funds are lost through the insolvency of the bank, the trustee becomes individually liable for the loss. (Citing Wren v. Kirton, 11 Ves. 377; Macdonnell v. Harding, 8 Eng. Ch. 177; Rt Stafford, 11 Barbour, 353; Brown v. Recketts, 4 John. Ch. 303; Ins. Co. v, Lynch, 11 Paige, 520; Phillips v. Lamar, 27 Geo. 227.) INDEX 857 INDEX [THB FIGURES REFER TO THB PAGES.] ABATEMENT of certain actions, 96. ABSENT FROM STATE rights of persons who are or have been, 27. ACCOUNT administration when to be filed, 156, 189. when a second, third, etc., is required, 160. allowance of time to collect assets will not exempt from filing, 156. what it must contain, 156-159. should contain explanations, 162, 163. as to payments to heirs and legatees, 162. must be sworn to, 163. oath when rendered by two or more persons, 163. notice of filing of, 164. person making, may be examined under oath, 161. answers may be written and filed, 164. may be referred to master, 164, 165. exceptions to may be filed, and by whom, 166, 167. when opened for re-examinations, 166. upon re-examination of, what may be inquired into, 166. appeal from finding of probate judge, 165. how filing of enforced, 167. non-resident executor or administrator failing to file, 168. when estate insolvent, how filing of enforced, 192. in actions for not filing, what defense may be made, 196. how filed when decedent was executor, administrator, or guardian, 214 executor of executor must file an ; when, 47. kSee Forms. of executor and administrator with estate how to keep, and importance of accurate, 86, 87. of executor or administrator against decedent how allowed and paid, 112-115, 164. of labor and materials. (See Lien, Mechanic's.) ACCOUNT-BOOK. (See Blank-Book.) ACKNOWLEDGMENT of service sufficient, and how made, 138. of deed, form of, 282. ACT OF 1840 applicable to what estates, 213. ACT OF JULY 4, 1846 relating to wife's separate property, 69. 35 8. INDEX. ACT OF JULY 4, 1850 does not affect what, 145. ACTIONS abatement of certain, 96. survive death, in other cases, 96. revivor of, 96, 97. for damages, death by wrongful act, 92-95. for whose benefit, 92. pending at decedent's death, executor or administrator to be made a parlj to,"96. on rejected claim, 185-187. pending when estate declared insolvent, 190. pending at death of executor or administrator, 212. under mechanic's lien, 225, 226. creditor's time for bringing extended, when, and how much, 122, 123. against executor or administrator, may be brought, when and where, 92- 97, 111, 117, 120-124, 190-192, 193-199. to set aside fraudulent conveyance, 132. concerning contribution, 200-204. purchase money and order for deed may be both had in one action, 207, 208. may be brought on bond generally, and for what, 197. how and where brought, 197. may be brought against heirs, etc., to compel contribution, 200. to obtain balance of purchase money due estate, 207. See Forms ; Suit. ACTION, CIVIL sale of real estate made by, 130-140. order of distribution enforced by, 179. may be had to obtain instructions, 179. may be had to complete decedent's contract for sale of land, 206. how commenced, etc., 131, 135. petition in for sale of lands must contain what, 132-135. to complete contract above mentioned, where to be filed, 206. authenticated, how, 135. service on defendants in how obtained and served, 135-140, 206, 207. may be waived, 138-140. See Suit ; Bond, and suits thereon. ADDITIONAL ACCOUNT. (See Account.) ADDITIONAL BOND. (See Bond.) ADDITIONAL INVENTOEY. (See Inventory.) additional articles of property found after making inventory, what to do, 77. ADJUSTMENT of dilatory claims, 190. ADMINISTRATORS AND EXECUTORS account, inventory, and sale bill of should be required, before acceptance of resignation, 54. also before extending time to collect assets, 100. of deceased executors or administrator's estate must be filed by, 47, 156 how making and filing of enforced, 63, 75, 76, 77, 85, 100, 156, 167, 168, 192. how made out, 157. should include payments to legatees, hut not to heirs, 162. INDEX. 359 ADMINISTRATORS AND EXECUTORS Continued. separate schedule should be filed in such case, why, 162. should contain what explanations, and why, 162, 163. must be sworn to, 163. must be accompanied by what vouchers. 163. must be referred to commissioner, 164, 165. may be excepted to, and reopened, 164, 166. must contain what charges and credits, 157-161. in mechanic's lien, 222-231. must be filed when, 53. 156, 161, 167, 168, 189, 192. tim for filing will not be extended, 156. when more than one required, 160. bi.t rendering a complete one at first would obviate this, 189. order of court settling, is appealable. 165. exceptions to may be filed, when, 166. may be reopened to correct fraud or mistake, when, 166, 176. will be filed and recorded in court, when, 1 7-3. may be settled before debts paid, and without liability, when, 181. why a complete account should be rendered at first, 189. in suit for not filing, what defense may be made, 196. in such suit, more costs than damages can not be recovered, 196. upfiointment of, find who may be who entitled to be, 44, 47, 48. what applicant should do and procure before asking for letters, 58-61 of decedent minor under guardianship must be appointed, 50. of estate of married woman must be appointed, 55. need not be sworn to discharge his duties, 213. must be appointed before suit can be brought against estate, 116. must exercise great care in taking notes, etc., 84, 158. must make affidavit on sale bill, 85. must not extend time of payment of note, 88, 89. appointed in place of one removed, 168. notice of appointment of how and when given, 62. effect of not giving, and how remedied, 123. bond of '. (See Bond, and suits thereon.) death, declination, etc., of effect of, 39. 40. compensation of none allowed in case of delay in administering, unless, 46, 49, 161. nor in case will provides it. unless, 160. additional, how obtained, 1(50, 101 duties, power.", and rights of can not sell property till bond is given, except, 47 can not interfere with estate till given, except, 47. can not sell property till inventory is made, 60. can not buy at his own sale, 84, 150. can not bring suit upon warranty in deed, unless, 92. can not continue business of decedent, 127, 128. can not sell lands if certain bond is given, 140. I can not rent, lease, or mortgage lands. 154. 155. can not assign certificate of entry or location of lands, 166, can not revive claim barred by lapse of time, 126. how claim saved from being so barred, 126. can not create a trust, 213 360 INDEX. ADMINISTRATORS AND EXECUTORS Continued. can not administer an executor's or administrator's estate, 47. but must file an account of, when, 47, 156. can not make any profits, nor suffer any loss, from estate, how, 168* may be appointed testamentary guardian, 9. may sue for waste, when, 92. may begin suit to obtain instruction as to will, 179. may sell lands without court's special authority, when, 39, 129,- 80. may also execute deeds in such case, 39. may continue suit, etc., during contest of will, 54. may enter lands to cultivate and gather crops, 74. may defer sale of crops, when, 81, 82. may sell personal property at private sale, when, 83. may make complaint when assets are concealed, etc., by any one, 78. aiay invest funds, how and when, 127, 151, 152. may distribute notes, bonds, etc., in kind, when, 127, 176, 177. may sell and sue for, what interest in lands, unless, 112, 113, 118. may pay legacies, when; receipt therefor, 124, 175, 176. nay have guardian appointed, when, 175. may file petition to obtain instructions in certain cases, 179, 180. may collect rents, when, 89. may foreclose or cancel mortgage, when, 90. may sue for trespass, waste, overflow of land, breach of warranty, sonal contract, when, 96. may sue for damages for death by wrongful act, 92-95. may sue generally on any personal contract of decedent, 92. may be sued generally, 117. may revive dormant judgment in favor of decedent, 96. may procure tombstones for decedent, 127. may compound with poor debtor, 99. may cause claim to be arbitrated, and how, 107-109. may reject, accept, or consider claim, when and how, 110. may testify in his own favor against estate, when, 113, 215-217. may pay debt before due, when and on what conditions, 116, 121, 200. may invest funds, when, 127. 100. may appeal from allowance of claim, how, 1.85, 186. may charge estate with cost of contesting claim, 187, 212. may appeal suit without giving bond, 220, 221, and note 186. may generally follow directions of will, 213. may safely follow agreements with heirs, etc., 213. may act as commissioner of insolvent estate, 181. duties of as such, 15(8-192. may erect tombstones, 161. may compel' suit to be brought when decedent was surety, 97. may bring suit upon decedent's personal contract, when and for what, 92.' may rescind decedent's contract for purchase of land, 205. nay rescind decedent's personal contract ,generally, 206. tnay prosecute suit begun by his predecessor, 52, 212. may resign for good cause at any time, 54. but must first file an account, 54. liability for previous acts not changed by resignation, 54. may contest claim sued for, even though previously allowed, 198. must be party to suit to contest will, 34. must make affidavit that no will exists, 48. must give bond, 9, 40, 41, 42 4">, 46, 47, 48, 51, 53, 55, 56, 57, 69, 63. 216. must convey partnership real pstiite, when, 75. INDEX. 361 ADMINISTRATORS AND EXECUTORS Continued. must file inventory in court, and when, 63, 75. must file account, when, 53, 150, 161, 167, 168. must sell personal property, how, when, etc., 81-85. must file sale bill, 85. must ret-iin copy of inventory, 75. must retain copy of sale bill, 85. must return certificate of appraiser's appointment, 64. must sell real estate, when, 129, 153, 75 must do what as to mortgages, 70, 72, 90, 91, 105, 118, 151, 154. must have court's authority to sell, when and when not, 129, 130. must receive copy of order of sale, 143. must give additional bond, when, 147. must give notice of sale, when, and how, 148, 149. must do what, when land won't sell, 150. must report proceedings to court, how, 150, 151. must enforce sale of lands held by trustee for payment of debts, 155. must set aside such sale when fraudulent, 155. must collect assets, how soon, 99-101. and settle within eighteen months, unless, 156. must file accounts, or be cited, when, 156, 192, 214. must file accounts of deceased executor or administrator, 156, 157. must make out account, how, 157-163. must be charged and credited, with what, in account, 157-161. must stand loss, of uncurrent, counterfeit,' deposited, etc., money taken, 161. must come with money to pay court fees, 164. must make himself party to certain actions of decedent, 96. must pay debts, and settle, how soon, 156. further time granted, when, how, and why, 99-101. 156, 183. must be made to file account, 87. must pay claims, when, and in what order, 102-128, 161, 181, 182, 188. must pay what taxes, and from what funds, 103, 104. must pay for making proof of allowed claim, 107. must satisfy lien on decedent's real 'estate, when and how, 118. must produce vouchers, and what may be such, 126, 127, 163, 164. must retain money to pay certain claims, 188. must retain money to pay certain costs, 189. must include contested claim among valid ones, when, 183, 187. must pay commissioners of insolvent estate, 192. must file account of deceased administrator's or executor's estate, when, 47, 156. must bring suit when surety requires this, in some cases, 97. must always receive assets; creditor and heir never, 100, 101. must represent estate insolvent, when and when not, 161, 181. must make tender of deed in certain cases, before suing, 207. must settle guardian's account, when, 214. should always have inventory and appraisement made, and why, 60, 61, 63. ehould consult attorney as to what are fixtures, 74. should get blank book, and keep accurate account, why, 86, 87. should settle counterclaims, etc., how, 87, 88. should take notes in what way, 91. should promptly collect claims, why, 88-90. should make himself party in certain actions, 96. should ask court to prescribe terms of sale, when, 149. should file separate schedule and account, how and why, 162. 362 INDEX. ADMINISTRATORS AND EXECUTORS Continued. should take mortgage on hinds sold, 151. should pay ordinary debts, only when, 106, 118, 102-128. should take receipts for all payments made, 126. should represent estate insolvent when, and when not, 105, 106, 119 161, 181-192. should keep memorandum of all claims presented, 111. should plead statute of limitations as defense against barred claims, 111, 125. should always take receipts for payments made, 126, 175. should satisfy lions out of personal property, when, 118. should sign note, how, 214. final discharge of how and when granted, and effect of, 176. foreign may be removed for not filing account and settling, 53, 167, 168. rights of, and remedies against, 167, 168, 209. suits by, 210. suit against, 211. sale of real estate by, 210, 211. when bond will be required of, 211. general duties and powers of same us of other executors and administra- tors, 209. may be compelled to account, distribute, etc., by what courts, 209, 210. must give security for costs, when, 210. liabilities of for waste, 57, 117. for damages caused by delaying inventory, when, 63, 85. for damages caused by other delays, 158, 193. on extending time of payment, 85, 88, 89. may be sued, and is liable on his bond, 77, 88, 117, 120-122, 183, 185, 186, 190, 191, 193-199, 200, 204, 230. not liable to pay claim, when, 106. not liable to suit after four years, unless, 120. as to assets received after four years, 120. on claim released to him by decedent, when, 71, 72. to citation and attachment for not filing papers, 76, 85, 100, 166, 157, 168, 192, 214. to account for what, at settlement, 84, 157-159. for loss to estate by reason of negligence, 88, 158, 161. as to executions issuing against, 94, 108, 109, 116, 183. not changed by extending time to give notice, 123, 124. when he neglects to sue in certain cases, 57. when he carries on business of decedent, 127, 128. under mechanic's liens, 230. to contribution when, 200-204. on contract of decedent. 92-96, 205. for costs, 103, 105, 183, 212, 218. on note, 214. on promise to pay decedent's debt, 214. for not paying taxes, 104. , to pay double value as penalty for what, 158. not accountable for debts, when, 158. for counterfeit, uncurrent, etc., money taken, 161. for deposited money, when bunk fails, etc., 162. ceases with receipt of final discharge, unless, 176. INDEX. 3G3 ^JDMINISTRATORS AND EXECUTORS Continued. may settle account without, when, 181. on bond, joint and separate, 199. resignation, removal, and revocation of letters of effect of, as to letters of administration, 45. settlement of its effect, 105. leveral sufficient causes for removal, etc. refusing to accept trust, 45. neglect to appear alter citation, 45. failing to give bond or additional bond, 45, 53, 55-67. marriage, in case of female 45, 55. appointment of successor, 51. neglecting or refusing to file inventory, sale bill, or account, 63, 76, 86 167, 168, 192. failing to indemnify sureties, 53. absconding or concealing himself, 53, 76, 192. existence of unsettled account, estate, and, 53. proving and allowing a will, 54. wasting or unfaithfully administering estate, 57. resignation for good cause may be accepted at any time, 54. in case of, his successor may continue suit begun, 196. sttits against. (See Bonds, and suits thereon.) sureties of how released, 38-42, 56, 57. must be indemnified, when and how, 53, 57. may sign bond out of court in some cases, 61. must be residents of this state, and other qualifications, 55, 60, 316. must be approved by court, 55, 60, 316. may compel suifto be brought on claim, when, 97. should be selected aud consulted, when, 60. not released by permission to give notice of appointment, 123, 124. miscellaneous as to unknown person, 58, 74. may be appointed testamentary guardian, 9. waste by administrator or executor, penalty for, etc., 57, 117. female, powers of cease at marriage, 45, 65. need not be removed during contest of will, 54. concerning release of claim against, by decedent, 71. acts of, previous to discovery of will, valid, 59. acts of, before death, resignation, or removal, valid, 57, 58, 59, 152. citation and attachment of, for not filing papers, 75, 76. 77, 85, 100, 156, 167, 168, 192, 214. committed to jail, why, and how released, 76, 77. notice to, when exceptions to inventory are filed, 78. necessity of keeping correct account, why, 86-?8. will be charged with what on settlement, and how, 87, 157-169, 161. entitled to what credits, 158-162. various suggestions as to prompt collection of claims, 88-90. effect of extending time of payment of notes, 88. execution may issue against, when, and how, 108, 116, 117, 178. execution may not issue against, when, 116. time for bringing suit against extended in certain cases, 120-122: control of over real estate, 38 (note 1), 89, 90, 91. 9'2, 30 40. AS to mortgaged premises of decedent. 90. 364 INDEX. ADMINISTRATORS A.ND EXECUTORS Continued, may collect rents, only when, 88 (note 1), 89. how he proceeds to sell real estate, 129-155. what to do when vacancy among appraisers occurs, 143. usually suggests names of appraisers, 143. sale of land by, not invalidated by death, removal, or resignation, 162. settlement of with court, how made, 164. publication concerning this settlement, 164. may be examined under oatll, and answers filed, 164. is chargeable with what, 157-1&9, 161. of creditor must begin action, if notified, when, 97. personally liable, if he neglects so to sue, 97. above does not apply to sureties of official bonds, 97. as to mechanics' liens, 95, 108, 222-231. as to desperate claims, 85. as to unknown person, 58, 74. powers of sometimes continue over long period of time, 100. assets must come to executor or administrator, and not to creditor, 100, 101. how he must collect his own claim against estate, 112-115, 164. deemed guilty of waste, when, and remedy in such case, 116, 117. possession of note by, no proof of payment by, 126. final discharge of can be had by, and effect of, 175, 176. proceeding against to enforce order of distribution, 177-180. proceeding when estate is insolvent, 181-192. judgment or award in such case, effect of, 183, 187, 188. concerning decedent's contracts, generally, 205. is not included in general rule requiring suit to be brought in name of real party in interest, 21^. when promise to pay off decedent's debt is binding, 214. when office ceases, 61, 55, 76, 100. how note by should be signed, 214. claim of against estate, how proved and paid, 112-115, 164. probate judge can not be, 214, 215. general provisions as to appeals, 219. general provisions as to testimony where adverse party is, 215. promise of to pay debt of estate out of his funds binding, when, 214. relating to partnership property, 74, 75, 158. relating to, when additional assets are discovered, 77, 83, 84. relating to, concerning appraisement and sale of emblements, or annual crop, 73,74, 81, 82. relating to claims due and assets received after four years, 120-122. relating to petition for sale of lands, 131-135. relating to homestead for widow and children, 144, 145, 146, 167, note, relating to, in certain partition sales, when debts are unpaid, 153. relating to mortgages, and mortgaged premises of decedent generally 90, 91. relating to desperate claims, 98-101. relating to unknown person, his money and effects, 58, 74. relating to, when commissioner of insolvent estate, 181, 192. administrator and administratrix (only] , who entitled to be, 47, 48. such persons may bo cited to appear and decline or accept, 48. or may be notified by person interested, 48. bow widow may decline, 48. INDEX. 365 ADMINISTRATORS AND EXECUTORS Continued. as to person she recommends, 48. applicant must file affidavit that no will exists, 48. bond of, its conditions and requisites, 48, 49. as to surviving partner, 49, 50. marriage of administratrix vacates office, 45, 55. letter granted, as of right, not granted after twenty years, except, 60. letter not granted on Jiving convict's estate, 50. minor's guardian can not settle estate ; administrator must be appointed, 50. See also Administrator and Executor ; Administratrix. executors, administrators with the will annexed, and residuary legatees (only) must be notified of will by probate judge, when, 19. may cause will to be brought into court, 23. receives a copy of will, 26. powers of with respect to real estate, 39, 40. in case of death of one of several, 29, 40. entitled to possession of real estate, when, 40. in case the one named in will dies, declines, etc., 40, 45. authorized by will to sell real estate need not apply for an order of sale, 39, 129. may lease real estate when will authorizes him, 90. who may and may not be, 44. named in will entitled to administer, 44, 45. if a minor is named as, what must be done, 44. when none named by testator, 45. when one of several dies, resigns, or is removed, 39, 40, 45. death of without having fully administered, 39, 40, 45. bond of, its requisites, 45, 46. may be exempt by will from giving bond, 9, 47. bond may nevertheless be required, 9, 47. may be removed, if bond not given, 45, 47. before giving bond, can not act, except to, 45. executor of an executor, duties of, 47. must list land, and pay taxes thereon, 47. compensation therefor. 47. See also Administrators and Executors. A.DMINISTKATORS DE BONIS NON entitled to letters even after twenty years, 50. when appointed, 47, 50, 57, 123. entitled to what assets, 57. ' powers of\ 54, 55, 57, 123. suits against, 122, 123. notice of appointment of, and why important, 123, 124. liability of in certain cases, 123. duty and liability of, as to assets received after long time, 12S. may bring suit upon bond of predecessor, 54, 55. must proceed with sale of real estate already begun, 131. must give further bond^in such case, when, 131. For general powers, duties, etc., of, see Executors and Administrators See forms. ADMINISTRATORS, FOREIGN. See Administrators and Executor* Foreign. 366 INDEX. ADMINISTRATORS, WITH WILL ANNEXED when appointed, 30, 44, 45, 47. powers of with respect to real estate, 39, 40, 153. must give bond, 45. failure to give bond may cause removal, 47. sureties of, or court, may require an indemnifying bond, 66. must give additional bond, when, 56. may require such bond from other, 56. sureties of, or court, may require him to account?, 56. may be removed on failure to comply, 57. sureties of must be inhabitants of this state, 55, 316. bond of, remains on file in court, 56. For general powers, duties, and liabilities, see Executors and Adminis- trators. ADMINISTRATORS, SPECIAL when appointed and for how long, 51. bond of, 51. duties of, 51, 52. powers and liabilities of, 51, 52. as to suits commenced by, 52. suit against, none can be brought by creditors, 62. can pay no debts, 52. compensation of, if, 52. when office ceases, 51. See Forms. For general powers and duties of, see, also, Administrators and Execit- tors. ADMINISTRATOR OF NON-RESIDENT PARTNER duties of, 49, 74, 75. See Forms ; Appraisement ; Administration ; Assets ; Affidavit ; Blank Hook; Bond; Citation; Claim; Compensation; Costs; Debts; Deeds; Directions, ; Distribution ; Execution ; Insolvent Estate ; Interest; In- ventory; Judgment; Letters; Notice; Note; Petition; Real Estate; Sale; Sale Bill; Suit, etc. ADMINISTRATRIX marriage of vacates the office, 45, 55. For general powers, duties, etc., of, see Administrators and Executors, and Administrators (only). ADMINISTRATION directions to persons about to apply for, 58-62. in what county application to be made for, 62. who entitled to, 47, 48. if these decline, what court must do, 48. declination of by widow and heirs, 48, 60. when persons entitled to incompetent, 48. or neglect to accept, 48. will not be granted of estate of person sentenced to penitentiary for life, 50. of estate of minor, 50. of estate of married woman, 55. of estate of persons dying out of the state, but interested in business therein, 49. of person on whom inquest held, 58. how obtained after twenty years, 50. what are and are not costs of, and how and when paid, 102, 103, 136. INDEX. 367 ADMINISI RATION Continued. list of property exempt from, 65. what shall be deemed unfaithful, 193. remedy therefor, 193. when a will directs that it shall proceed in a manner different from that prescribed by law, 213. See Forms ; Account. ADMISSIONS of claim will not preclude contesting its validity and suit, 198, 199. testimony concerning, in some cases, 215. ADOPTED CHILD ADOPTION. (See Heir.) ADVANCEMENTS bow mentioned in will, 15, 16 not assets, 71, 96. suits can not be brought to recover, 96. how adjusted between heirs, 173, 174. considered in settling with supposed dead child, 22, 23, 202. ADVERTISEMENTS concerning sale of land, must be posted up, when and where, 149. AFFIDAVIT to administration account, 151, 168. to account when there are two or more executors or administrators, 168. to inventory, 64, 65, 75, 7(3. made in proof of publication, 62, 114, 137. to obtain private sale below appraised value, 83. to obtain mechanic's lien, 95. to obtain further time to collect assets, 79-100. in proof of claim should be insisted upon, 107. can be made before what officers, 120, (>4, 76, 107, 143. to obtain appeal from decision of arbitrators, 108. to petition in sale of lands, 134. to obtain service by publication, 1:57. may be made in lieu of vendor, when, 126, 163. that name and residence of defendant are unknown, 138. as to manner sale of land was made. 151. to obtain additional compensation, 160. as to how private sale of chattels was made, 163. of claimant and witness in claim against insolvent estate, 184. of administrator that no will exists, 48. to gale bill, 85. See Forms; Oat It. AFFIRMATION. (See Affidavit.} AGE, OF FULL meaning of, 2 (note 2). of minor must be stated, when, 136. AGENT. (See Attorney.) ALLOWANCE- to widow and children for support not barred by what. 38. how made, 67, 69. may be reviewed, 69. how and when paid, 103, 158. order of preference of, 102, 103. bond to pay may be given, 140. See Forms. INDEX. ALLOWANCE Continued, of time to collect assets how obtained, 99. when not allowed, 99, 100. See Forms. of claim should be indorsed on claim, 110. on affidavit of administrator or executor, when, 126. does not preclude contesting claim, when sued for, 198, 199 ALTERATION OF WILL BY DEED, ETC. effect of, 21, 22. A MEN DM E NTS- making new parties to suit, 203. ANNUAL CROPS. (See Emblements.) ANNUITIES paid to widow in lieu of dower, in some cases, 133, 134, 144. table of, 331, 333. ANSWER must be filed, when, 137. of widow waiving dower, and effect of, 142. of insane widow may be by guardian, 142. APPEAL from refusal of probate court to admit will to probate, 27. concerning destroyed record, 33; as to inventory 78, in cases to contest validity of wills, 35. will not lie from order removing administrator, 53 (note). in proceedings against person suspected of concealing assets, 7'c- from decision of arbitrators, 108. from order settling administration account, 165. from order of court in application to perform contract of decedent, 207. in proceeding to enforce distribution, 180. from decision of commissioners of insolvency, 185, 186, 187. how and when taken in such case, 186, 187. failure to, how remedied in certain cases, 186, 187. bond for, its requisites/ etc., 185, 186, 187, 220, 221. executor or administrator may, without giving bond, when, 186 (note). 220, 221. from probate court to common pleas, 27, 28, 35, 53 (note 1), 79, 108, 109, 114, 165, 180, 207, 219-222. from common pleas to district court, 180, 219. from decision of court in trial of certain claims, 114. provisions of law governing, 192, 219-222. APPEARANCE voluntary, as defendant, how made, 138, 140. APPOINTMENT, NOTICE OF how and when given by executor or administrator, 62, 12K failure to give, how remedied, 123. liability for failure to give, 124. See Forms. APPRAISEMENT of personal estate will may direct that none shall be made, 9, 60. but one should in all cases be made 60, 63, 64. how made in general, 63, 80. INDEX. 369 APPRAISEMENT Continued. may by order of court include real estate, 63. when omission of directed by will, court may nevertheless require, 82. of partnership property, 75, 75. See Forms ; Appraisers; Assets; Claims; Personal Property, etc. of real estate may be inserted in inventory by order of court, 70. when so inserted, need not be re-appraised, unless, 142. order of, in general, 141, 142. order when real estate situate in two or more counties, 143. how made, 143-147. court may set aside, and order new, 149. See Forms; Real Estate, etc. APPRAISERS of personal estate selection and appointment, 60. how vacancy in filled, 64. how appointed when property situate in two or more counties, 64. order of justice, appointing appraiser, when and by whom filed, 64. must be sworn to the discharge of their duties, 64. their duties in general, 63-78. must sign inventory, 75. are not bound to search for property, 65. must set down each article separately, why, 70. fees of, 75. of partnership property how appointed, 74. See Forms ; Appraisement ; Personal Property, etc. of real estate appointment of, 142. how vacancy in filled, 143. appointment of when estate situate in two or more counties, 143. must be sworn, and by whom, 143. dutis of, under the order of court, 143-146. certificate of appointment of, 143. may call engineer to their assistance, 144. report of, 143, 146. fees of, 146. report of must be submitted to court for approval, 146. approval of report, 146, 147. can not be purchasers, 150. See Forms; Appraisement; Real Estate, etc. ARBITRATION claims may be referred to, 107, 183, 228. proceedings in, etc., 108-110, 228, 229. See Forms. of wills. (See Wills.) ARBITRATORS. (See Referees.) ASSAULT, ASSAULT AND BATTERY death abates action for, 96. ASSENT to distribution of notes, bonds, etc., in kind, 127. 370 INDEX. ASSETS surplus of must be paid into court, when, 50. administrator de bonis non entitled to possession of, 57. what are and what are not, 74, 69-75, 92. when additional are found, 77. as to property specially bequeathed, 82, 202, 204. may be appraised and sold, though will forbids this, 82. when to be collected, when time extended, 99, 100, 182, 189. how applied, 102-107, 112-127, 181, 185, 189. administrator or executor only can receive, and not creditor nor heir, lOflj 101. proceedings for concealing, embezzling, etc., 78-80. when received after four years, how applied, 120. as to partnership, 124, 125. when marshaled between heirs or lienholders, 133, 202. when exhausted in paying preferred claims, 100, 161, 181. an estimate of it should be made, when, 59. can not be turned into money till, 63. should be turned into money, when, 156. concerning partnership, 74, 124, 125. may be distributed in kind, when and how, 127. ordered to be distributed, when and how, 165, 188, 191. distributed pro rata, when, 104, 106, 119, 189, 190, 191, 192. when insufficient to pay all debts presented, what to do, 104, 161, 181. duty of foreign executor and administrator as to, 209-211. See Personal Property ; Forms. ASSIGNEE of mortgagee dying before foreclosure, what to do, 72. may not testify in his own favor, when, 215. See Personal Property; Money; Notes; Goods and Chattels. ATTACHMENT against executor or administrator for failing to file papers, 76, 85, 10$. 156, 167.-168, 192. may be had under mechanic's lien, 226. See Forms; Administration Account; Inventory ; Sale, Bill, etc. ATTORNEY, AGENT OR ATTORNEY suggestions as to, in writing will, 17. notice to, 31. may solicit letters of administration, etc., for client, 61. opinion of as to what are fixtures should be obtained, 74. necessity of employing, in certain cases, 96, 140, 199. duties, etc.. under mechanic's lien, 222-231. fees of, 103. remark concerning, in ?ale of land, 140. service of summons, order, etc., on, when good, 114. may make affidavit concerning summons, 136. when probate judge is, in a case, what to do, 214, 215. as to testimony of agent in certain cases, 215. AUCTION, AUCTIONEER duties upon sales Ijy, when and how paid, 127, 149. AUDITOR OF COUNTY duties of c'oncernirig property of unknown decedent, 68. AUTHENTICATED COPY. (See Certified Copy.) AWARD of arbitrators, 108, 109, 217, 218, 228. INDEX. BANKRUPT LAW OF UNITED STATES defense, when, 9ft. BANK-BILLS how inventoried, 71. BASTARDS rules as to inheritance by and from, 172. BEDS, ETC. who entitled to at appraisements, 66. BEQUEST to charitable purposes how expressed, 2, 3, 4. who may receive, 2, 3, 4. must be made, when, 2, 3. specific articles exempt from sale, unless needed for payment of debts, 82, 202, 204, to witness void, when, 24, 25. can not be sold, when, 81. BIBLE widow and children entitled to, 65. BILL OF EXCEPTIONS. (See Exceptions.) BLANK-BOOK to keep record of receipts and payments to be obtained, 85, 86. separate account of interest and principal should be kept in, 87. See Forms. BLOOD when relatives of whole, or half, inherit personal property, 170. BOND, AND SUITS THEREON requisites of, generally, 55, CO, 316, 57 may be given by heirs, to prevent sale of real estate, 140, 141. person requiring rejection of claim, must file a, 112. lor appeal in trial in such case, 115. may be given to creditor by heirs, for payment of claim not due, 121- 124. as to suit on such bond, i'2'2. may be given to prevent sale of land, 140. ' must be given by legatee, when, 124, 175. must be given by creditors on appeal from commissioners, 186. release from may be obtained, how, 97 t of administrator^ executor, and trustee testator may excuse giving of, by, 9, 45, 46, 47. may be required, when and by whom, 9, 40, 41, 42, 45, 46, 47, 48, 61, 66, 56, 216. additional may be required, 41, 53, 56, 57, 59, 147, 148. must be certified up to other court, when, 147, 148. must be filed in court, there to remain, 55, 56, 219. requisites ot, 40, 41, 46, 55, 60, 316, 57 conditions of, 41, 46, 48, 49, 51. sureties on may be released, and how, 56, 176. effect of such release, 56, 57, 176. new bond must then be given, 56. indemnifying bond must be given, when, 57. may be joint, or separate, 5-3, 199. may be signed out of court, when, 61, 316. effect of filling blanks in. after signing, 57. 372 INDEX. BOND, AND SUITS THEREON Continued. respective liabilities on, in such case, 199 none required of, on appeal, when, 180, 220, 221. certified copy of may be filed, when, 211. certified copy of will be furnished, when, 197, 198. suits upon, in general may be brought by administrator de bonis rion against his predecessor, 67,197. do not become barred, when, 89. may be brought, 57, 77, 193-199. by whom, 197. when, how, and by whom brought, 77, 193-199. persons liable to contribution may be made parties to, 198. allowance of claim no bar to defense against, by executor or adminis- trator, 198, 199. for not filing account, defense, 190. when bond joint, who liable to, 199. when bond several, 199. already begun, may be continued by successor of administrator who dies, resigns, etc., 196, 212. all matters upon, may be settled in one suit, 197. of special administrator its requisites, 51. See Forms, etc. of foreign executor or administrator when required, and its requisites, 209-211. See forms, of administrator with the will annexed its requisites, 45, 46. of residuary legatee when given, 46. its requisites, and effect, 46. See Forms. of legatee to refund, if necessary, 124, 176. of trustee its requisites, 40, 41. who may require trustee to give, 41, 42. testator may exempt trustee from giving, 41. of surviving partner, 74. for appeal, 185, 180, 187, 220, 221. BONDS must be mentioned separately in inventory, 70. must not be sold, when, 81. should be proved by affidavit of claimant, 107. become barred by what lapse of time, 89, 111, 123, 126, 126, 191. not so with official bond, 89. may be distributed in kind, when, 127. BOOKS widow entitled to what, 65. BOOK OP ACCOUNTS testimony concerning, in some cases, 216. INDEX. 373 BOOK-ACCOUNT how inventoried, 71. how estimated, 59. barred after what time, 89, 111, 123, 125, 126, 191. against heir of deceased, how adjusted in certain cases, 96. proved by affidavit of claimant, when, 107. testimony concerning, in some cases, 216. how barred, 89, 111, 124, 125. BRIDGES lien for labor and materials on may be taken, 222-231. subscriptions for are a debt against estate, 124. BROTHER when entitled to be administrator, 47. may be cited to accept or decline, 48. inherits personal property, when. 169, 170. BURIAL OF DECEDENT expenses of are preferred claim, 102. BUSINESS OF DECEDENT can not be continued, for what, 127, 128. CAPTIVITY persons in, rights of, 27, 34. CARRIAGES for funeral are preferred claims, 102. CERTIFICATE of appraisers appointment must be made by justice of the peace, 64, 148 and must be returned with the inventory or appraisement, 04, 143. CERTIFICATE OF DEPOSIT of will must be given, 17. CERTIFIED COPY of will and order of probate effect of, 26, 27. must be filed in other court, when, 27. of foreign will, effect of, 28, 29. of order, decree, etc. rejecting will must be filed in common pleas court, 27. must be sent by probate court to court of common pleas, 32, 220. must be sent by common pleas to probate court, 35, 221. of appointment of foreign trustee must be furnished, 42. of testimony, etc. of dead, etc., witness good in common pleas, 35. of bond will be furnished, and when, 197, 198. may be filed by whom, 211. CHARGE UPON LANDS BY WILL to be distinctly expressed, 15. not deemed revocation of will, 20. CHARITIES bequest to should be clearly expressed, 24. subscriptions to, how paid, 124. CHATTELS. (See Personal Property.) 374 INDEX. CHATTEL MORTGAGE- US effect, 91, 104. recorded, where, 91. refiled, when and where, 91. rights and duties of executor and administrator as to, 91. (See Mortgage.) CHILD CHILDREN omission of provision for in will does not invalidate it, 14, nor prevent inheriting property not disposed of by will, 14. effect of birth of subsequent to execution of will, 21, 22, 202, 203. erroneously supposed to be dead, entitled to full share of testator's estate 22, 202, 203. contribution in latter case, 22, 202, 203. rights of when adopted, 172, 173. entitled to homestead, and to one year's allowance, 67-69, 101. take dead parent's share of devise, 15. birth of revokes will, when, 21, 22. rights and remedies of one erroneously supposed dead, 22, 23, 202, 203. rights of under foreign will not concluded until, 29. right of to contest will continues till, 27, 34. right of to contest supplied record continues till, 33. unless of age can not be executor until, 44. entitled to administer estate, when, 47. entitled to what at making of appraisement, 05, 66. damages to for death by wrongful act. 92. business of decedent can not be carried on for benefit of, 127, 128. service of summons on, how made, 136-140. concerning guardian ad litem for, 139, 110. entitled to homestead, when, 144. may file exception to account, when, 167. when construed to mean legitimate child, 172. born out of wedlock legitimate, when, 172. descent of personal property to on final distribution, 168-173. share of each living to such property, 171. share of each dead goes to unborn, 171. legitimate, bastard, adopted, posthumous, respective rights of, 172-174. as to advancement made to, 173, 174. must contribute to pay claims, etc., when and how much, 22, 198, 200-204 See Allowance ; Homestead; Person Interested, of decedent. (See Child; Widow and Children.) CHURCHES. (See Subscriptions.) CITATION against widow to elect, must be issued, 36. against person entitled to administer, 48. for failing to file inventory, 76. against person concealing assets of estate, 78. for failing to file sale bill, 85. for failing to file account, 156. for failing to file account when estate insolvent, 192. for referees issues, 108. to compel distribution, 177. See Forms ; Executor; Administrator. CIVIL ACTION. (See Action. Civil.) INDEX. :J75 CLAIM in favor of estate effect of release of by will, 71, 204. how such claim inventoried, 71. against executor or administrator not released by his appointment, 71. should be inventoried, though released, 71. when such release effectual. 71. some must not be sold, when, 81. collection of to be speedy, 88, 89, 99. within what time to be collected, 99. time of payment of not to be extended in certain cases, 99, 100. when barred by statute of limitations, 8!), 111. 123, 125, 126, 191. when barred, how revived, and how not, 89, 123, 125, 126. when secured by mortgage, 90. for rent, 90. note for, bow taken, 91. for-death by wrongful act, 92. for money due upon sale of real estate, 91. desperate, how disposed of, 98-101. may be compounded in certain cases, 98, 99. may be filed in court in certain cases, 98. phould be secured by mechanic's lien, when, 95. should be collected within a year, 99. from partnership, how paid: 74, 75, 124, 125. may be paid over in kind, when and how, 127. should be collected before any order of distribution is made, 189. when concealment, etc., of suspected, what to do, 78. when met by counterclaim, how adjusted, 87. executor or administrator not liable for, when, 158. See Forms, against estates must be inventoried, 46, 48, 49, 51. must be administered. 46, 49, 51. if less than twenty dollars in all, no administrator need be appointed, 55, how counterclaim adjusted, 87. when secured by mechanic's lien, what must be done, 95, 222-231. payment of, generally, 102-128. due United States, what is, and when paid. 103. taxes and duties upon estate. 103, 104. preferred, when paid, 102-106, 161, 181, 182. what are preferred claim*. 102-106. such claims not utlected by solvency or insolvency of estate, 106. debt of decedent to wife before marriage not a claim, 107. debt of decedent to wife after marriage is a claim, 107. who may file requisition on executor or administrator to reject claim, 111, 112. ordinary, payment of, 104, 106, 118, 119, 181, 182. how proved, 103, 107. when paid pro rata, 104, 106, 119, 189, 190, 191. 192. may be referred to arbitration, 107, 183. proceedings under reference, 108-110. when and how allowed or rejected, 110-114, 126. list of to be kept, and why, 111. if rejected, when suit must be brought upon, 111, 125, 126. when suit may be brought upon, in general, 111, 113, 186, 187, 193, 200. 376 INDEX. CLAIM Contenued. duo administrator or executor, how proved and collected, 112-115, 164 215-217. what may be joined in one suit, 115, 116. as to joint contract notes, judgments, etc., 115. partnership debt, when paid, 124, 125. of executor or administrator entitled to no preference, 113. how collected when under fifty dollars, 113. how collected when over fifty dollars, 113-115. may be allowed by court on affidavit of administrator or executor, 126. when barred by limitation, 89, 123, 125, 126, 191. when not due, bow paid, 116, 121, 200. must be presented in less than one year, or, 116. when presented after estate paid away, 118, 119. when two or more are presented, exce'eding balance of assets on hand, 119. becoming due after four years, 121, 122. when barred not revived by appointment of administrator de bonis non. 123. what subscriptions are a, 124. against insolvent estate, must be presented, when, 182, 183, 191. such claim, if disallowed, may be arbitrated, or sued, and when, 107, 183. remedy on such claim, when allowed, 183, 187. when such claim barred, 183, 191. list of such claims must be presented to court by.administrator, etc., when and how, 183. such list must be altered, when and why, 183, 187. must be presented both to administrator and to commissioners, when, 184. commissioners may examine witness and claimant under oath, 184. appeal may be had, if claim is disallowed, 185. may be contested in a suit on bond, 198, 199. may be determined by suing, 198, 199. may be determined by jury, or by court, 199. or referred to a master, 199. contingent, how allowed and paid in certain ca-.o.-. I.S.J. amicable adjustment of may be made, 190. how paid when not due within four years, 121, 122. 185, 200. how allowed in such cases, 200. when suit must be brought thereon, 125, 126, 200. when payment of specially charged upon certain estate, heirs, or legatee*, 201, 202. bond to pay and prevent sale of lands, may be given by whom, 140, 141. undevised real estate to be first sold to pay, 5, 201. allowance of by executor or administrator no bar to a defense against iir suit upon bond, 198, 199. See Forms ; Debts of Decedent ; Affidavit ; Receipt, etc. of executor or administrator against the estate proof, and payment of, 112-115, 164, 215, 216, 217. See Forms. CLAIM, COUNTER adjustment of, 87. CLAIMANT must sue, when, 111. may require claim to be rejected, 111, 112. must present claim, when, 182, 183, 184. may bo examined under oath, 184. INDEX. 377 C L AIM A NT Continued. penalty for perjury by, 184. See Creditor ; Claim; Estate; Estate, Insolvent. CLERK of sale of personal property duties of, 83-85. See Forms. of township chattel rat-ftgage must be filed with, 91. of court may take affidavits, 107. duties of, as to award 6f arbitrators, 109. duties of, in civil action for sale of real estate, 135 et seq. duties of, when probate judge is interested in estate, 214, 216. duties of, in appeals, 219, 222. CLOCK widow and children entitled to, when, 66. CLOTH widow and children entitled to, when, 66. CODICIL how made, and effect of, 3, 16, 17. revokes will, when, 16. 19. COFFIN is preferred claim, 102. receipt for, how made, 127. COOKING UTENSILS set off to widow and children, 66. COMPENSATION of executor or administrator "amount of, and how paid, 159, 160, 161, 214. not allowed when delay occurred, unless, 46, 49. See Administrators and Executors ; Fees, of commissioners of insolvent estate, 192. See Fees. COMMISSION to take testimony of witness to will, 26. to take widow's election as to will, 26. COMMISSIONERS OF INSOLVENT ESTATE. See Estate, Insolvent COMMON OWNERS IN. See Owners in Common. COMMON PLEAS COURT. See Court of Common Pleas. COMPLAINT when assets are concealed, carried away, etc., 78. CONCEALING, CARRYING AWAY, OR EMBEZZLING ASSETS proceedings against persons suspected of, 78. See Forms. CONCEALING, DESTROYING, ETC., WILLS, 23, 24. CONDITION OF FAMILY rule for making allowance, 67, 68. CONSTABLE duties of, as to writs, 76. fees of, 218. 378 INDEX. CONSTRUCTION OF WILL rule of, and suit for, 23, 179, 180. CONTEST of will must be made, when, 34. time for, not extended by certain acts, 33. who may make, 34. of foreign, can not be made here, 35. of supplied record may be made, 34, 35. CONTINGENCY not happening, may prevent revocation of will, 2l. probate court may appoint trustee in certain, 42. CONTRACT personal barred after what lapse of time, 89, 123, 125, 126, 191. suit for breach of, 92. against estate how proved, 107. when joint, estate liable for, 115. what species of may be enforced against executor or administrator, 206, 206. may be rescinded, when, 205, 206. of deceased person, testimony concerning in some cases, 215. real may be enforced by executor or administrator, 206. must be done by civil action, 206. how such suit conducted, 206, 207. may be rescinded in certain cases, 132, 205, 206. may be defeated by widow, 208. order of court may be appealed from, 207. deed of executor or administrator and its effect, 207, 208. dower of widow in such case, 207, 208. See Forms. CONTRACTOR testimony against deceased in certain cases, 215. See Liens, Mechanic's. CONTRIBUTION in general, 200. among heirs in certain cases, 22. persons liable to may ve made parties to suit on administration bond, 198, 202, 203. in case of death of person liable to before paying, 203. when person liable to insolvent, 203. no on3 liable to contribute more than he received by will or bv'distribu. tion, 203. by certain persons in certain cases, 203. how suit brought to compel by creditors, 177, 203, 204. how brought to enforce .in certain cases, 203, 204. how enforced among and between heirs, legatees, and distributees, 204. CONVERSATIONS testimony concerning in certain cases, 215. CONVEYANCE fraudulent, how avoided, 1 '_':!. , See Sale; Deed; Heal Estate. INDEX. 1>7U COPY OF WILL must be shown to court in sale of lands, 133. is usually given to executor, 20. must be set forth in petition for sale of lands. 133. (See Certified Copy.} CORONER fees of, 218. CORPORATION death by wrongful act of, damages due from, 92. how ser% ice of summons made on, 136. CORRUPTION. (See Fraud.) COSTS of administration what are, and when and how paid, 102, 103, 105, 106, 109 112, 168, 159, 164, 178, 183, 186, 187, 192, 198, 212. 213. some things that are not, 103. expenses of sale of real estate. 105. are preferred claim. 102-106. 213. must be set out in petition for sale of real estate, 132. bond to pay, and prevent sale, may be given, 140, 141. failure to pay is breach of bond. 213. in aeneral when executor or administrator liable for, 178, 183, 186, 187, 212, 213. when order of sale of real estate objected to, 148. of reference of claims, 109, 110, 178, 183. taxed at discretion of court, in certain cases, 78, 148, 183, 186, 198, 212 deducted from damages, in certain cases. 95. how secured and paid on required rejection of claim, 112. can not be collected from executor, administrator, or estate, when, 1 16. executor should retain money to pay, 189. amount of plaintiff can recover, in suit on bond for not filing account 196. of filing account, etc., must be paid, when and how, 164. how charged in arbitration of claim against insolvent estate, 183. judgment and execution for awarded, when, 178. COUNTERCLAIM how adjusted, 87. COUNTY suits for sale of land should be in what, 130, 131. authenticated copy of will filed in other, effect of, 28. COUNTY AUDITOR. See Auditor of County.} COU N T Y T R E A S U R Y certain money of estate must be paid into, when, 80. COUNTY RECORDER. (See Recorder of County.) COURT to settle rights of child erroneously considered dead, 22, 202, 203. rules of, 61 (note). leave of, as to reopening matter previously tried, 166. leave of, to bring in new parties to suit, 203. 204. district appeals to, may be had, 180. 219. judgment of, concerning contested will certified to probate court, 35. of coD'inon pleas duties of. in contest of will, etc., 34, 35. 380 INDEX. Cou RT Continued. order of, concerning deed, 92, 206, 207. duties as to award of arbitrators, 109, 110. appeal to, may be taken, 27, 28, 35, 79, 108, 109, 114, 165, 180, 207, 219. general provisions governing manner of taking appeal, 219, 222. proceedings in on claim of executor or administrator, in appealed case 114, 115. proceedings for sale of real estate may be in, 130. action for recovery of certain lands must be in, 130, 132. may adjust all liens in such action, 132, 133. by leave of, insane widow's answer may be filed, 142. judge of may administer oath, 143. may adjust all liens, equities, etc., on lands to be sold, 133. proceedings in to enforce order of distribution, 179. suit on bond may be in, 197. suit to compel contribution may be brought in, 200. suit to complete contract for sale of land, 207. suit to compel foreign executor to account, 209. powers and duties of as to foreign executors, 209-211. powers and duties when probate judge is heir, legatee, etc., 214, 216- superior suit on bond may be in, 197. suit to compel contribution may be in, 200. COW- widow and children entitled to, or what else, 35. CREDIT at administrator's sale, must be given, when, 84. CREDITS must be inventoried, 46, 48, 49, 51. must be administered, 46, 49, 51. CREDITOR can not be a witness in his own behalf, except, 215. when entitled to administration, 48. may be cited to accept or decline same, 48. may be present at taking inventory and appraisement, 66. may ask court to review widow's allowance, 69. may compel filing of inventory, 76. rights of when assets are concealed, 78. desperate claims may be filed for benefit of, 98. must get assets through executor or administrator, 100, 101. must take assets in the order of their preference, 104. when to be paid pro rata, 104, 106, 119, 189-192. effect of his mortgage or other lien on personal property, 104, 105. may file requisition on executor or administrator to reject claim, 111, 112, rights and duties of generally in such case, 112, 113. notice to of certain trial of claim, 112. his rights as to newly received or discovered assets, 120. and as to claims not due till after four years, 120, 121, 200. may sue executor or adminisirator, when, and when not, 112, 117, 120- 122, 123, 177, 190-199. may he paid before debt due, on conditions, 116, 121, 200. not bound to refund, when, 119, 190. may compel distribution of estate, when, 177. time of for bringing suit extended when, 122. of partnership how paid out of assets, 124, 125. 'may bring suit on construction ot will, 180. INDEX. CREDITOR Contin ued. must do what, when estate is insolvent, 181-192. preferred creditors not bound to present claim to commissioners of insolv " ent estate, 182. but ordinary creditor must, and when, 182, 183. may be examined under oath as to claim, 184. liable to prosecution for perjury, when, in such case, 184. claim of disallowed, if he will not take oath, 184. must present claim against insolvent estate, when, 182-184. claim of barred if not then presented, 183, 191. may appeal if claim disallowed, and how, 185, 186. petition of in such cases, 186, 187. assets of insolvent estate distributed to, how, 188, 189. when right to sue barred in some cases, 191. how he may compel contribution from heirs, etc., to pay his claim, 200 CROPS, GROWING. (See Emblements.} CURTESY OP HUSBAND can not be barred by will, 7. CUSTOM to let widow select administrator is not a legal right, 48. DAMAGES for refusing to produce will, 24. for unfaithful administration, 63, 64, 193. for death by wrongful act, 92. how distributed, 95. for neglect to pay taxes, for waste, trespass, etc., 47, 92. DEATH does not stop running of statute of limitation, 125, 126. effect of on distribution of property, 168-173. by wrongful act or neglect who liable for, 92. who may sue for, 92. for whose benefit suit brought, 92. damages for, extent of, and how distributed, 92-96. of executor or administrator effect of, 39, 45, 47, 86. DEBTS of decedent must be paid as will directs, when, 5, 6, 82, 133, 202. remain a charge upon all his property, 4, 5, 46, 115, 124. when provision for payment of made by will, 5, 6, 82, 133, 202, 204. when payment of specially charged upon certain estate, heirs, legatoees, or devisees, 201, 202. order of payment of, 102-106, 181. due wife, extinguished by marriage, when, 107. debt due wife, contracted after marriage, valid, 107. when to be paid, 102-127. when barred by lapse of time, 89, 111, 123, 125, 126, 191. when so barred, how revived, if at all, 89. not due, how paid, 116, 121. ordinary, when paid, 104, 100, 118, 119, 182-192. must be presented to and allowed by executor or administrate'-, and when, 110, 111, 113, 116, 125, 126. due executor or administrator, how collected, 112-115. 382 FNT>EX. DEBTS Continued. when presented after estate paid away, 118, 119. may be made a charge on what, by will, 201, 202. promise of executor or administrator to pay out of his own estate, 214. special administrator can not pay, 52. bond of executors, etc., to pay, 63. wife's property exempt from payment of, 69. secured by mortgage is personal asset, 72. may be compounded, when, 99. subscriptions are, 124. may be paid before due, on what conditions, 116, 121, 200. must be set out in petition for sale of land, 132. how affected by act of July 4, 1850, etc., 145. how some debts allowed by court on trial must be paid, 188. when court will order all to be paid, 191. residuary legatee may give bond to pay, 46. See CLaim against Estate, in favor of estate may be compounded, when, 98, 99. when to be collected, 86-101. release of by will, 71, 204. executor or administrator not responsible for, when, 168. See CLaim in favor of Estate ; Partnership Debts. DEBTOR may be discharged on part payment of claim, when, 99. DECISION of arbitrators. (See Referees.} of probate court appeal from may be had, when, 79, 219. of commissioners of insolvent estate appeal may be had, when, 186, 187. transcript of must be furnished, when, 220. DECLINATION OF ADMINISTRATION BY WIDOW AND NEXT OF KIN^ when obtained, and how, 48, 60. See Forms. DECREE. (See Decision; Order of Court.) DEED- of executors generally its effect, 39, 40, 75. must be tendered, when, 91, 92. of executor or administrator for real estate sold by order of court requisites and effect of, 151, 152. See J'orms. in completion of contract of decedent its requisites and effect, 206, 207. must be tendered, when, 207. See Forms. oj administrator with the will annexed in certain cases, 40. of decedent making advancement to neir, effect of, 178. INDEX. DEFENDANTS. (See Parties to Action.) DEFENSE what may be given in, in suit on bond, 196. DEFINITION OF TERMS, 334, 335. DELAY when there is in granting letters, what should be done, 51. 52. DEMURRER must be filed, when, 137. DEPOSIT of will* how made, 17-19. of money loss of, by whom borne, 162. DEPOSITION of witness may be taken, 26. who may take in such ease, 26. testimony concerning admitted, when, 216. may be taken generally, 218. DESCENT of personal property order of, 168-173. DESPERATE CLAIMS what constitutes, 98. how disposed of, 99, 100. See torms. DEVISE OF LANDS what passes by, 9-14, 20, 22. as to charge upon, 15, 20, 21. to charities, how expressed, and must be raado, when. 2. 3. 4. by whom may be made, 2, 4. when estate incumbered subsequent to, 21, 22. to whom may be made, 2, 4. is subject to decedent's debts, 4. descends to heirs, when, 15. lapses, when, 15. failure to make to child does not invalidate will, 14, 23. forfeited by neglecting to probate will, 24. of witness, void when, 24. title to, when in other county, how perfected, 27. proceedings to obtain construction of, 179, 180'. DEVISEE what and who may be, 2, 4. upon death of. who takes, 15. concealment of will bv, effect of, unless, 24. when witness to will, effect of, 24, 202, 208. remedy against, on decedent's agreement to convey land, 20. bound to contribute from devise, when and how much. 22, 24 released from contribution, when, 22. must probate will in three years or forfeit devise, 24. inust proluue copy of -will in other county, when, 29. "effect of delay in such case, 29. must be parties to contest of will, 34. may compel inventory to be filed, 70. may make complaint when asset? are concealed, 78 383 384 INDEX. DKVISKE Gmthic>/. claim may be filed in court for benefit of, when, 98. notice to, of trial of certain claims against estate, 113. must be made defendant in certain actions, 132, 198. unknown, made party to suit, how, 138. title of to land of, may be ordered sold, 141. must contribute to pay claim, legacy, etc., when, and how much, 22, 198, 202-204. may be party to, or bring suit on, bond, to settle all matters, 198. may be charged by will with payment of debt, legacy, etc., 201. rights of, as to foreign executor or administrator, 209-211 when executor or administrator may heed consent of, 213. when probate judge is a, what must be done, 214, 215. See Forms. DIGGING GRAVE is preferred claim, 102. DIRECTIONS to persons about to apply for administration, 58. for sheriff, in relation to serving writs, 140, 207. DISABILITY rights of persons under, cease, when, etc., 27, 29, 34, 142, 169, 201 See Married Women; Minors; Child; Insane Person. DISCOUNT of debt or claim paid before due, 121, 200. DISINTERESTED PERSONS arbitrators must be, 107. appraisers must be, 142. entry in book made by, is competent evidence, when, 216. DISTRIBUTEE rights of, a* t^ foreign executor and administrator, 209-211. DISTRICT COURT. (See Court, District.) DISTRIBUTION of estate advancements, how adjusted in, 96, 97, 173, 174. in what order made, and who receive the estate, 168-173. order of court to make, 133, 148, 162, 165, 188, 204, 209. how such order enforced. 177-180, 199. when additional order of to be made, 189. of notes, stocks, etc., may be made in kind, when, 127. not disturbed by judgment and appeal, when, 188. when heirs die, 171-173. of person dying out of state, but interested in business therein, 174, 176. report of may be made, 175, 176. vouchers of, how recorded, 176. when money unclaimed, bow invested, 176. how enforced, 177-179. when estate insolvent, order of, 188, 189. what should be done before order made in cases of insolvent estates, 189. See Forms ; Insolvent Estate, etc. of proceeds of sale of lands- court may direct how to be made, 133. DITCH OR DRAIN pay for labor and materials on may be secured, how, 222-231. INDEX. 385 DOCKET transcript from must be made, when, 178, 179, 215, 220. DOUBTS as to sufficiency of assets to pay debts, course to pursue, 124. DOW Ell- can not be barred by will, 7. nor by order of court, 207. nor by deed of executor or administrator in completion of contract of decedent, unless, 207. may be relinquished, how, 207. provision in lieu of should be distinctly stated, 8. provision in lieu of may be rejected by widow, when, 36, 39. tacts as to must be given in petition for sale, 134, 207. land assigned for may be sold subject to, 142, 143. may be waived by widow in her answer. 142. when paid in money, how fixed by court, 280, note. by metes and bounds, 142. specially, as of rents and profits, 143, 144, 147. manner of assigning, 144, 145, 147. in equitable estate, adjustment of, etc., 133. assignment of upon petition for sale of real estate to pay debts, 134. statements concerning must be made in petition for sale of land, 134. secured by making it a charge on the land, 147. refusal to relinquish may defeat contract, when, 208. DRAIN. (See Ditch.} DUE BILL how proved, 107. barred, when, 89, 123, 125, 126, 191. ELECTION BY WIDOW. (See Widow.) EMBLEMENTS, OR ANNUAL CROPS what are, 73. assets, 73. who may enter upon land to cultivate, cut, etc., 74. sale of, may be deferred, when, 82, 83. may be sold, when and how, at administrators' discretion, 82, 83. notice to purchaser of land concerning, 149. EMBEZZLING ASSETS proceedings against persons suspected of, 78-80. See Forms. ENTAILMENT OP ESTATE prohibited by law, 6. ERROR proceedings in, may be had when, 114. ESTIMATE of probable assets, 59. object of, 59. should include what, 59. of labor and materials under mechanic's lien, 228. EVIDENCE notice of appointment is, of what, and when, 62. of witness, must be reduced to writing and filed in court, when, 78. executor or administrator may give, in his own favor, when, 115, 216. rules governing, in some cases. 215. 216. 25 INDEX ESTATE in general acquired subsequent to execution of will, 9. devise of, what passes, 9-14. of inheritance, passes by will, without the word " heir," etc., 10-14. specifically charged with payment of debts, 15, 115. of minor under guardianship, settled by administrator or executor, and not by guardian, 50. of married woman, administered as other estates, 55. entire, liable for payment of debts of decedent, 4, 5, 124, 153. 202, 204. how liable for partnership debts, 124, 125. undevised first liable for payment of debts, 5, 201. no profit or loss to executor or administrator by increase or decrease of, 158. distribution of, how made, 168. liable for joint contract of, and judgment against, decedent, 115. if paid away at the expiration of one year, 118, 189. act of 1840 not applicable to settlement of, retrospectively, 213. of person dying out of the state, but interested in business therein, 49, 174, 175. may be settled in what suit, 197, 198. certain porticos of, may be charged with payment of debt or legacy, 201. balance of, need not contribute to such debt, etc., unless, 201. descends to unborn child, how and when, 22, 202, 203. and to witness to will, 24, 202, 203. See Estate, Insolvent, equitable order for appraisement and sale of, 133. rule for making appraisement of, 146. insolvent set off against, how adjusted, 88. when to be represented as such to court, 106, 119, 161, 181, 190. when representation not necessary, 106, 119, 120, 161, 189. how represented as such, 18]. effect of, upon payment of clniras, 161, 182. appointment of commissioners of, 181, 182, 183, 184. executor or administrator may act as commissioner of, 181, 185s. duties of same, and proceedings under order, 182-i < *4. time for proving claims against, 12, 183, 184. report of commissioner* of', 184, 185. disputed claims against, may be refr.*ec' or s-iecl, 183. cost of reference of claim against, 183. appeal from decision of commissionerc. 185. 186. how contingent claim against, allowed, IbtY claim may be appealed, when, 186, 187. order of distribution of, 188, 189. but exceptions will first be heard, 188. and pending ^uit must iirst be determined, ^SS. and assets be collected, account filed, etc., 189. as to distribution of further assets, 1811. claim aguinst, forever barred, unless presented to c.-mmissiocerb, or to executor or administrator as commissioner, 191. when insolvency not ascertained within three years, 192. suit can not be brought against executor or administrator alter insol- vency declared, except, etc., 190, 191. INDEX. 387 ESTATE- -Continvrd. as to actions pending when estate declared to be insolvent, 191. when ascertained to be not insolvent, 191. solvency or insolvency of may be ascertained by suit, 192. how filing of account of executor or administrator enforced, after dis- tribution of, 19'2. subject to redistribution by contribution, to what extent, 200-204. of an executor or administrator, by whom administered, 47, 156. See F'.inns. commissioners of insolvent appointment of, 181 ? 182, 183. 184. when an executor or administrator may act instead of, 182. his duties, in general, in such case, 182-184. may administer oath to claimant, 184. appeal from decision of, how taken, 185, 186. necessarv notice in such case, 186, 187. report of. 184, 185. when commissioners appointed, their duties in general, 183-186. compensation ot, 192. EXAMINATION of witness to will, 24, 25. of witness to widow's declination, 48. of witness in case of exceptions to inventory, 78. of persons suspected of concealing, embezzling, etc., assets, 78, 79. in latter case must be in writing, and filed in court, 79. of administrator or executor, to his account filed, 164, 1(35. EXCEPTION to inventory may be filed, 78. to decision of court may be taken, 114. to administration account may be filed, 164, 166, 167. and with account may be referred to a master, 164, 165. in proceedings to enforce distribution, 180. in proceedings as to insolvent estates, 188. EXECUTION how obtained and enforced, in certain cases, 79, 80. void, in certain cases, 80. when it may issue against executor or administrator, and its effect, 116, 117, 178, 192. can not issue on what award or judgment, 116, 183, 187. EXECUTOR. (See Administrators and Executors.} EXECUTRIX married women can not be, 44. poweis of cease upon marriage, 55. il> Administrators and Executors. EXPENSES of last sickness and funeral what are, and how and when paid, 67, 102, 103, 158. necessary, of family include what, 68. of sale of real estate include what, 105, 106. of proving claim against estate, who pays, 107. of administration. (See Costs.) INDEX. FATHER. (See Parents.) FEES are preferred claims, when, 102, 103. of probate judge on deposit of will, 17. on account, when to be paid, 102, 103, 105, 164. of tvitnesses and officers generally, 218. as to verbal will, 43. of justice of the peace for issuing order to appraisers, 64. for swearing appraisers, 103, 105. of constables, 218. of appraisers, 75, 103, 146. of sheriff \ 103, 218. of printer, 103, 105. of arbitrators or referees, 109, 218. of executors and admistrators, 40, 49, 159-161, 214. of commissioners of insolvent estate, 192. of surveyor, 105. of attorney, 103, 105. of juror, 218. of coroners, 218. FEE SIMPLE passes by will without the word " heirs," etc., 9-14. FIXTURES what sometimes are, 74. FOREIGN EXECUTORS AND ADMINISTRATORS. (See Admin* trator and Executor, Foreign.) FOREIGN TRUSTEE. (See Trustee.) FOREIGN WILL how admitted to record, 28, 30. can not be contested here, 35. set aside where made, when an how far invalid here, 35. powers of executors appointed by, over real estate, 39, 40. trustee appointed by, 42. FORMS acceptance of resignation, 246. account final or partial, 283. affidavit to, 284. settlement of, and to compel, 283, 308, 309. petition for writ of citation, to enforce filing of, 243. writ of citation to enforce filing of, 244. against estate, proof of, 258. arbitration of, 259. of executor or administrator against estate, 285. authentication of, 285. INPEX. 889 FORMS Continued. of distribution among heirs, 286. to obtain mechanic's "lien, 323, 324, 327, 328. See Citation, etc. Title, Forms, acknowledgment of deed by executor o administrator, 282. administration application for appointment of, 234. special application for appointment of. 246. affidavit ~of administrator that no will exists, 310. of executor or administrator to inventory, 242. to sale bill, 252. to obtain extension of time, 252. to obtain service of summons by publication, 270. when names of places of residence of parties unknown, 270, 271. to publish notice to parties of filing petition to sell real estate, 272. of appraisers of personal estate, 240. of appraisers of real estate, 275. to final or partial account. 284. to claim against estate. 258, 285. as to how private sale was made, 320. of commissioners of insolvent estate, 292. of claimant in same, 294. of witness in same, 294. of service of notice to heirs, etc., of conveying claim, 314. of publication of notice of same, 298. proof of, 299. of creditor to claim, 258. of proposed surety or to amount of his property, 316. to accounts to obtain mechanic's lien, 323, 324, 327, 328. to petition for extension of time, etc., 301. to obtain leave to sell at less than appraised value, 302. of service of notice on executor of motion, 304. See Oath. Title, Forms, allowance of time to collect assets, 258. to sell at less than appraisement, etc., 303. motion and affidavit to obtain, 257. of claim by executor or administrator, 263, 265. for support of widow and children, 240, 241. petition of widow for increase of, 309. petition of creditor to decrease, 310. of executors and administrator's claims; various forms, 313-316. See Petition. Title, Forms. answer of widow, waiving dower, and asking for its money value, 319. of guardian ad litem, 318. appeal notice of, 322. application for letters testamentary, or of administration, 234. for appointment of special administrator, 2-16. 390 INDEX. FORMS Co>itiHetf. to compel filing of inventory, 243. to compel filing of sale bill, 243. to compel filing of account, 243, 308. for writ of citation or summons, 243. for order requiring executor or administrator to file inventory or sal* bill, 251. for authority to sell desperate claims, 255. for extension of time, 257. for allowance of claim due, after four years v 265. for leave to give notice of appointment, 267. for order to sell real estate for payment of debts, 268. to apply proceeds of sale in partition to payment of debts, 282 of surety to be released from further liability, 305. of sureties for bond of indemnity, 307. for appointment of guardian ad litem, 318. for increase of allowance to widow, 309. for decrease of allowance, 310. See Petition. Title, Forms, appointment of appraisers of personal estate, 235. of same by justice, 289. of guardian ad litem, 274. of appraisers of real estate, 273. of commissioners of insolvent estate, 291, 292 of executor or administrator, 235. of same, application for, 234. notice of, 238. of special administrator, 247. of same, application for, 246. as to leave to give notice of, when neglected at proper time, 267 See Journal Entries ; Notice. Title, Forms, appraisement notice to widow and heirs, 239. notice of to be posted up, 239. in general, 240, 242. of goods and chattels, claims, etc., 241. of real estate, 275. appraisers of personal property, appointment of, 235. appointment of same by justice, 239. oath of, 240. of real estate, 273. oath of, 275. report of, 275. report of, approved, 277. approval of arbitrators by justice, 259. of same by probate judge, 260. of award of referees, 262. of report of appraisers of real estate, 277. of sale of real estate, 280. of widow's answer, 3'20. arbitration ^ agreement to refer claim to, 259. INDEX 301 FORMS Continued. docket entries in by justice, 260. docket entries in by clerk, 261. Arbitrators approval of by justice, 259. approval of by probate judge, 260. citation of, 260. award of, 261. confirmation of award of, 262. Seo Arbitration. Title, Forms. tu.iet.f- complaint for embezzling, concealing, etc., 248. citation of person suspected of concealing, '248. order as to person suspected of concealing, 249. examination of person suspected of concealing, 249. judgment against person suspected of concealing, 250. petition for extension of time to collect, 257. allowance of time to collect, 258. statement as to, in partition suit, 321. judge's certificate as to same, 322. See Insolvency of Estate, assignment of dower, 276. of homestead, 276. attachment order of, 244. writ of, 245. authentication of claim against estate, 258. of claim of executor or administrator against estate, 286 of petitions, 319. award of arbitrators, 261. confirmation of, 2(i2. blank book entries in of roceipts and payments, 254. Sow/ 1 of executor, or of administrator with will annexed, 236. of administrator, or administrator de bonis non, 237. of special administrator, 247. to re-deliver property specifically bequeathed, 250. of legatee who demands legacy before four years, 263. order of court in such case. 264. of heirs to pay debt due after four years, 266. for payment of debts, to stay sale of real estate, 272. of executor or administrator, when ordered to sell more real estate than necessary to pay debts, 277. of creditor, for appeal from decision of commissioners of insolvent es- tate, 295. of foreign executor or administrator, 303. of same, when ordered to sell more real estate than necessary to pay debts, 304. additional, required, 305, 317. of residuary legatee, 308. 392 INDEX. FORM s Continued. petition of surety in to be released, 306. petition of sureties in for bond of indemnity, 307. to pay costs of contesting rejected claim, 311. of appellant, in proceedings on executor's claim, 315. aliidavit of proposed surety to, 316. See Journal Entries. Title, Forms, citation of person named executor, to accept or decline, 232. of widow and heirs to accept or decline administration, 234. application for, in general, 243. ' writ of, requiring the filing of inventory, sale bill, or account, 244, of person suspected of concealing or embezzling assets, 248. of referees, 260. of executor or administrator in proceedings to compel distribution, 289; of executor or administrator residing out of state, to settle account, 309. of referees in arbitration case, 260. cancellation of mechanic's lien, 330. claim proof of, 258. agreement to refer to arbitration, 259. of executor or administrator, proof of, 263, 265. allowance of by executor or administrator, 263. rejection of by same, 263. due after four years, petition to allow, 265. allowance of, 265. See Journal Entries ; Bond. Title, Forms, complaint against person suspected of concealing or embezzling assets, 248. concealing assets complaint for, 248. citation of person suspected of, 248. order as to refractory party, 249. heading for examination of party, 249. judgment against same, 250. confirmation of report of appraisers of real estate, 277. of report of sale of real estate, 280. of award of arbitrators, 262. consent to sale of real estate, 269. to distribution of notes, etc., in kind, 317. receipt in such cases, 317. contest of claim requisition to reject, 311. bond to pay cost of contest, 311. notice of filing requisition, 312. notice of rejection, 313. contract of decedent petition to complete, 297. notice of filing petition, 298. order to make deed, 299. deed of executor or administrator, 300. INDEX. 393 FORMS Continued, declination of trust by executor, 232. of administration by widow and heirs, 233. deed of executor or administrator upon sale of real estate, 281, 282. of same, in completion of contract of decedent, 300. acknowledgment of, 282. desperate claim? petition to sell, 255. notice of filing petition to sell, 255. order to sell, 256. notice of sale of. 256. return of sale of, 257. directions to sheriff, 270. discharge of surety, 306. distribution order of, 285. among heirs, account of, 286. proceedings to compel under, 288. of insolvent estate, report of, 293, 294. - of insolvent estate, order of, 296. of notes, bonds, etc., in kind, 317. receipt in such case, 317. docket entrirs of justice in arbitration case, 260, 261. and rule made by clerk in arbitration case, 261 dower assignment of, 276. See Journal Entries. Title, Forms. embezzling assets See Concealing Assets. Title, Forms. entries in blank book, of receipts and payments, 254. docket, of justice, in arbitration case, 260. docket, and rule of clerk, in arbitration case, 261. examination of person suspected of concealing, etc., assets, heading for, 249. extension of time to collect as&ets application for, 257. allowance of, 258. final account See Account. Title, Forms. guardian ad liiem appointment of. 274. application for appointment of, 318. heading for examination of person suspected of concealing assets, 249. homestead assignment of, 276. 394 INDEX. FORMS Continued, indemnity bond of, 307. indebtedness as to in partition suit, 331, 322. Insolvency of estate representation of, 291. declared by court, 291. notice of, 292. report of executor or administrator as commissioner of, 293. report of commissioners of, 294. bond for appeal from, 295. order of distribution in, 296. receipt of creditor in, 296. report of distribution, 296. notice of appeal on, 322. mr-entory affidavit to, 242. application to enforce filing of, 243. citation to enforce filing of, 244. application for order to make, when executor exempt by will, 251. order to make, though will excuses, 251. See Journal Entries. Title, Forms, investment See Unclaimed Money. Title, Forms, journal See Journal Entries. Title, Forms, journal entries grant of letters testamentary or of administration, 235. order of attachment, 244. revocation of letters, 245. resignation of executor or administrator, 24(3. appointment of special administrator, 247. order as to refractory party, in proceedings for concealing, etc., assets, 249. judgment against person suspected of concealing, etc., assets, 250. order requiring executor to make inventory or sale when exempt by will, 251. application for such order, 251. order to sell desperate claims, 256. extension of time to collect assets, 258. approval of referees, 259, 260. v confirmation of award of referees, 262. order requiring legatee to give bond, when legacy demanded within four years, 261. order to pay claim due after four years, 265. authorizing executor or administrator to give notice of appointment, 267. order to assign dower and appraise, 273. order to appraise and sell, 274. appointment of guardian ad litem, 274. order to sell, subject to appraisement in inventory, 274. appraisement approved and sale ordered, 277. order of re-appraisement, 279. order to sell real estate at fixed price, 279. INDEX. 395 FORMS r,mf in ucd. sale of real estate approved, and deod ordered, 280. settlement of account and order of distribution, 285. order to invest unclaimed money of heir?, '287. order for paying over money so invested to heir, 287. judgment against executor or administrator in proceedings to compel distribution, 290. declaration of isolvency of estate, 291. o.vler for distribution of assets of insolvent estate, 29(3. order for executor or administrator to make deed in completion of con- tract of decedent, 299. order to give additional bond, 305. discharge of surety from further liability, 306. order for bond of indemnity to sureties, 307. order concerning hearing of executor's or administrator's claim, 813. order directed to executor, 313. approval of widow's answer, 320. judgment against party for concealing or embezzling assets, 250. against executor or administrator in proceedings to compel distribution 290. on award of referees, 262. legacy bond to redeliver, 250. letters testamentary or of administration application for, 234. grant of, 235. form of, 238. revocation of, 245, 311. lien, mechanic's accounts to obtain, 323, 324, 327, 328. notice to owner of existence of a, 328. notice to lienholder to commence suit, 329. notice of intention to dispute claim, 329. cancellation of, 330. mechanic's lien See Lien, Mechanic's. Title, Forms, memorandum of investment of unclaimed money, 287. money See Unclaimed Money. Title, Forms, motion and affidavit to obtain extension of time, 257. to apply proceeds of sale in partition to payment of debts, 282. notice to widow and heirs to accept or decline administration, 233. of appointment of executor or administrator, 238. to widow and heirs of time of making appraisement, 239. of time of making appraisement to be posted up, 239. of sale of personal property, - of filing petition to sell desperate claims, 255. of sale of desperate claims, 256. of appointment, petition for leave to give, 267. 396 INDEX. FORM 8 Continued. to parties by publication of filing petition to sell real estate, 271. same to complete contract, 271 proof of, 272. waiver of, 2G9. of sale of real estate, 278. of proceedings to compel distribution, 289. of insolvency of estate, 292. to creditors by commissioners of insolvent estate, 293. of filing petition to complete contract, by publication, 298. proof of, '2!)'.). tc executor or administrator that he will be required to give additional bond, 304. that surety has filed petition to be relieved from liability, 305. to executor or administrator residing out of the estate to settle, 308. for appeal insolvent estate matter, 322. of intention to dispute claim, 311. by court to executor, 4 etc., that requisition to reject claim and bond it filed, 312. to claimant that claim is rejected, 313. to heir, etc., that his claim will be heard, when, 314, 315. proof of, 314. to owner that a mechanic's lien has been taken, 328. to lienholder to begin suit, 329. of intention to dispute claim, 329. note for property purchased at sale of personal estate, 253. in favor of estate taken by executor or administrator, 256. oath of appraisers of personal estate, 240. of executor or administrator to inventory, 242. of same to sale bill, 252. to obtain extension of time, 257. of same to final or partial account, 284. of appraisers of real estate, 275. of commissioners of insolvent estate, 292. of creditor to claim, 258, 285. to creditor in cases of insolvent estate. 294. of witness in same, 294. See Affidavit. Title, Forms. orders of appraisers appointed by justice of the peace, 239. to executor to give notice as to his claim, 313. See Journal Entries. Title, Forms, partial account See Account. Title, Forms, partition, 321, 322. petition for writ of citation or summons, 243. for order requiring executor to make a sale, when exempt from by will, 251. to sell desperate claims, 255. for extension of time, 257, 301 . for leave to sell at private sale, 301. for allowance of claim after four years, 265. INDEX. 397 FORMS Continued. of executor or administrator for leave to give notice :>f appointment. 207. to sell real estate for payment of debts, 268. to compel distribution, '288. to complete contract of decedent, 297. of surety to be released from further liability, 306. of sureties for a bond of indemnity, 307. for application of proceeds of sale of real estate in partition to payment of decedent's debts, 282. of widow for increase of allowance, 309. of creditor for decrease of allowance, 310. for appointment of guardian ad litem, 318. proof of claim, 258. of publication of notice of filing petition to sell real estate, 271 of service of notice of filing petition to complete contract, 299. of publication of notice of same, 298. precipe, 269. property exempt from administration, schedule of, 240. belonging to widow in her own right, schedule of, 240. publication notice by, of filing petition to sell real estate, 271. proof of, 272. notice by, of proceedings to compel distribution, 289. notice by, of insolvency, 293. notice by, of filing petition to complete contract, 298. proof of, 299. re-appraisement order of, 279. receipts for payments made in discharge of claims, 264. of heirs upon final distribution, 285. of creditors of insolvent estate, upon distribution, 296. for note, etc., distributed in kind, 317. re-delivery bond as to special legacy. 250. referees approval of by justice, 259. approval of by probate judge, 260. citation of, 260. award of, 261. confirmation of award of, 262. rejection of claim by executor or administrator, 263, 311-913. report of sale of desperate claims, 257. of referees, 261. of appraisers of real estate, 275. of " no sale " by executor or administrator, 278. of sale, by same, 280. of distribution of estate among heirs, 286. of executor or administrator as commissioner of insolvent estate, 293, 398 INDEX. FORMS Continued. of commissioner of insolvent estate, 294. of distribution among creditors of insolvent estate, 296. representation of insolvency of estate, 290. requisition on executor, etc., to reject claim, 311. resignation of executor or administrator, 246. acceptance of, 246. return See Report. Title, Forms, revocation of letters testamentary of administration, 245, 311. sale bill in general, 252. affidavit of executor or administrator to sale bill, 253. petition to compel filing of, 243. citation to compel same, 244. application for order requiring executor to file, when exempt by will, 251 order of probate judge in latter case, 251. sale of personal property notice of, 252. affidavit as to how sale made, 320. of desperate claim, 257. sale of real estate order of, 273, 274. petition for, 268. notice of, 278. report of, 280. approval of report of, 280. sale note, 253. statement of assets, etc., by executor or administrator in partition suit, 32] schedules of exempt property, widow's allowance, 240-242. summons waiver of, 269. Return on, 330. See Citation. Title, Forms, surety petition of to be released from further liability, 306. notice of, in such case, 305. petition of, for bond of indemnity, 307. order granting bond of indemnity. 307. time motion and affidavit to obtain extension of, 257. order of extension by court, 258. unclaimed money order of court to invest, 287. memorandum of investment of, 287. order to pay over to person entitled to, 287. rouehers for payments made upon claims, 264. See Receipts. Title, Forms. INDEX. tt FORMS Continued, waiver of summons and consent to sale, 269. widow schedule of allowance for support of, 240. petition for increase of allowance of, 309. petition for decrease of allowance of, 310. assignment of dower and homestead to, 276. answer of as to dower, etc., 319. approval of answer, 320. W HI revocation of letters, on finding of, 254. wrifs citation of person named executor to appear and accept or decline let- ters, 232. citation or summons, requiring executor or administrator to file inven- tory, sale bill, or account. 244. of attachment, 24-3. citation of person suspected of concealing, etc.. assets, 248. citation of referees, 260. citation of executor or administrator in proceedings to compel distri- bution, 289. citation of executor or administrator residing out of state, requiring him to settle his account, 309. See CUaiion. Title, Forms. FRAUD AND CORRUPTION may be alleged in actions to recover land fraudulently conveyed. 132. action for, survives, when, 96. judgment obtained by, set aside, 108. conveyance obtained by, set aside, when, 132. account cf administrator may be reopened for, when, 166. payments in advance by owner of building, etc,, by, are void against me chanic, laborer, etc., when, 229. FREEHOLDERS sureties must be, 60, 316. appraisers of personal estate need not be, 60. appraisers of real estate must be, 142. FRUIT when assets, 73. FUNDS of estate, or trust how invested. 127. of unknown person must be paid into court, when, 68- may be claimed by heirs, etc., 68. FUNERAL EXPENSES what are, 102. how and when paid, 4", 58, 102. mourning clothes are not, 103. rank of, same as administration expenses, 103. GOODS AND CHATTELS must be inventoried, and how. 46, 48, 49, 51, 63. must be administered, 46, 49, 51. 400 INDEX. GOODS AND CHATTELS Continued. must be included in estimate, 59. widow and children entitled to what at inventory, 65, 66. held by widow in her own right, G9. when concealment, etc., of suspected, what to do. 78. any gift, grant, or conveyance of void, when, 80. See Forms. GRAIN IN THE GROUND assets, 73. when and how sold, 81, 82. GRANTEE may not testify in his own favor, when, 215. GRASS when assets, 73. GRANDCHILDREN inherit personal property, when, 171-173. GRAVE digging is preferred claim, 102. . receipt for, how made, 127. GRAVE CLOTHES are preferred claim, 102. GUARDIAN administrator or executor must settle account of, when, 214. of minor exempt from giving bond, when, y. may be appointed by will, 8, 9. executor or administrator can not be, when; can be, \vhen, 8, 9. married woman can not appoint by will, when, 8, 9. may select what property for ward at appraisement, 66. may assent to sale of real estate to pay debts, when, 142. must be appointed to receipt for moneys due, 175. how effected, if delayed, 175. in case of death, how his account settled, 214. of insane or imbecile widow duties of in sale of land to pay debt, 142. GUARDIAN AD LITEM as to appointment of, 139, 140. duties of in suit for sale of land, 139, 140. can not waive notice or service of summons, 139. good practice to appoint, when, 140. See Forms. HALE' BLOOD when relatives of inherit personal property, 170. HEIR HEIRS entitled to property devised or bequeathed to charitable purpose, less, 2, 3. can not divest land from lien for debts of decedent, 4, 5. take the fee of real estate devised to another for life, when, 13. indebtedness of to testator should be explained in will, 15, 16. inherit property 'if will is not probated, when, 24. must be made parties to contest of will, 34. of unknown person nmy claim funds, when, 38, 74. INDEX. 401 HEIR HEIRS Continued. not entitled to possession of real estate, when, 40. declination of administration by, 45, 60, Gl. probable difficulties of, if no inventory and appraisement made, 60, 61, 63. must be notified concerning appraisement, 64. may be present at taking ol' appraisement, 65. may ask for review of widow's allowance, 69. may compel filing ot inventory, 63, 76. rights of, when assets are concealed, 78. desperate claims may be filed in court for benefit of, 98. can get assets only through executor or administrator, 100, 1Q1. may file requisition on administrator or executor to reject claim, 111, 112 must file bond in such case, 11:2. rights, etc., of, in such case^ll'J, 113. notice to, in such case, 112. may dispute claim due after four years, 121, 122. may give bond to creditor for payment of such claim, 121. must be parties to suit for sale of land, 132. when unknown and a necessary party to suit, 138. title of to land may be ordered sold, 141. can not make sale of decedent's real estate in such manner as to divest it of the lien of creditors, 153. for what purpose receipts of included in account, 162. order of descent among, generally, 168-173. share of estate upon final distribution, 171. death of, before distribution, who take, 171. adopted children, rights of, 172, 173. as to advancements made to, 173, 174. should give receipt, when, 175. may sue to compel distribution of estate, when^ 177. are to be made parties to action, 132, 198. must contribute to pay claim, legacy, etc., when, and how much, 22, 198, 200-204. must make deed by executor or administrator, when, 207. may compel making of deed, in certain case, 207. rights of as to foreign executor or administrator, 209-211. unanimous consent of, its effect at times, 213. when probate judge is, what must be done, 214,215. may testify in his own favor, when, 215. See Forms. HOLDEK OF CLAIM. (See Claimant.) HOMESTEAD how assigned, and sundry matters relating to, 144-146. reverts to executor or administrator when there are no minor children, 101. exempt from execution, 144. or from sale by executor or administrator, till when, 144, 145. how affected by law of 1850, 145. no exemption of, under mechanic's lien, 230. See Forms. HUSBAND must be notified of intended probate of will, when, 19. does not become administrator or executor by marrying administratrix or executrix, 55. debts of, not pnid by wife's property, 69. rights of, as to wife's claims to money, 72. 26 402 INDEX. HUSBAND Continued. rights of, as to damages for death by wrongful act, 92. debt due from, to wife, when valid, 107. entitled to what personal property, on final distribution, 169 ILLUSTRATION of how personal property descends, 171, 172. IMBECILE. (See Insane Person.) INCUMBRANCE UPON REAL ESTATE DEVISED no revocation of devise, 20. INDORSEMENT on deposited will, 18. INDEMNITY to sureties, 57. to administrator or executor by legatee, when, 175. INFANT meaning of, in eye of the law, 2 (note 2). See Minor; Heir ; Child. INHERITANCE rules of, 168. INJURY to real estate by sale, must be pleaded 114. INQUEST administration of estate of person on whom held, 68. INSANE PERSON can not be executor of will, 44. right of, to contest will continues till, 27. rights of, under foreign will, not concluded till, 29. right of to contest supplied record continues till, 34. when probate judge must elect for, under will, 38, 39. if executor or administrator becomes, court may remove him, 68 answer of insane widow may bo made by guardian, 142. may file exceptions to account, when, 167. right of, to sue not concluded till, 201. INSOLVENT ESTATE. (See Estate, Insolvent.') INTENTION of testator, 9, 10, 14, 15, 22, 23, 37, 82. See WiU. INTEREST executor or administrator should keep separate account of interest, 87 157. should be saved, how, 130. executor or administrator not chargeable with on money in bands, un less, etc., 158, 175. is charged with, 157. nor liable for after order of distribution, unless, etc., 153, 175. but must account for interest received on sale notes, 86, 167. in land what may be sold to pay decedent's debts, 131. INVENTORY will may direct that none shall be made, 9. but probate court may at any time require one to be made, 63. law requires one as condition of bond, 46. INDEX. INVENTORY Continued. should in all cases be made, 60, 61, 63. when to be made, 63, 65. notice of taking of, when and to whom given, 64 vacancy in appraisers, how tilled, 64. when property situate in two or more counties, 64. before making, appraisers must be sworn, 64. affidavit must be attached to, 65. who may be present at making of, 65. best method of making, 65. of property exempt from administration, 65, 66. of allowance to widow and children for support, 67-69. of property held by widow in her own right, 69, 72. of assets, in general, 65-78. may include real estate, 63, 70. of goods and chattels, 69-7 of claims, 70-72. must enumerate each article separately, why, 70. meaning of ' original inventory," 75. of claims released by will. 71. 72, 204. must be subscribed by appraisers, 75. must be returned to probate judge, 75. affidavit of executor or administrator to, 75, 76. who may take this affidavit, 7(3. filing of, how enforced, 53, 76. additional, when necessary, 77. and how filing of enforced, 53, 76, 77. exceptions to may be filed ; and appeal allowed, 78. of partnership property how made, etc.. 74. See forms. J X V EST3I EXT. ( See Money.) ISSUE. (See Child Children.) JAIL person refusing to produce will, may be imprisoned in, 24. administrator, etc., may be imprisoned in, when, 76. how released from, 70. person refusing to appear when cited, or to answer, may be put in until, 76, 78. JOURNAL approval as to distribution of notes, etc., must be entered in, 127. JOU RX A. L EXT RIES transcript of must be made, when, 220. ^ee Forms. JUJ)GE. (See Probate Court ; Court of Common Pleas.) JUDGMENT o' higher court in appealed case, sent to probate court, 35. dormant, to be revived, 96. ^:iinst decedent, when paid in certain cases, 105. on award of referees, 108, 109, 183. against person suspected of concealing or embezzling assets, 79. in favor of state, or administrator, for benefit of estate, 79. such judgment is a lien upon what real estate, 79. how such judgment enforced, 79. appeal from may be had, in such case, 79. 404 INDEX. JUDGMENT Continued. void, when, 80. revivor of dormant, in certain cases, 'Jii. against executor or administrator, in certain cases, 100, 117. as to claim rejected at instance of heir, creditor, etc., 112. against decedent on joint contract, estate liable, 115. owner of must be made party to suit for sale of lands, 132. may be adjusted in such suit, 132, 133. must bo stated in the petition, 134. not binding on defendant, when, 135. against administrator or executor, to compel distribution, 178. lien and execution on same, 178. against executor or administrator, under order of distribution, 178, 179, on claim against insolvent estate, effect of, 183, 191. payment pro rata on several will be made, when, 192. on one delinquency docs not preclude other actions, 198. may be appealed from, when, 219. tSee Forms. JURY tries validity of will, 34. distributes damages in certain actions, 92, 93, 95. may determine amount of claim, 198, 199, 203. what questions may be referred to, 217, 218. fees of jurors, 218. JUSTICE OP THE PEACE may fill vacancy among appraisers, 64, 143. must then make certificate, 64, 143. may appoint all in other county, 64. fees for above, 64. may administer oath, when, 64, 76, 107, 143. action against, for misconduct abates by death, 96. powers and duties of, in arbitration of claims, 108-110. LABOR pay for, secured by mechanic's lien, when and how, 222-231. LANDS. (See Real Estate.) LAST SICKNESS expenses of, what are and how paid, 67, 102, 158. LEASE FOR YEARS assets, 73. LEASEHOLD, PERMANENT- real estate, 73, 131. how sold to pay decedent's debts, 73, 131. LEGACY payment of charged upon real estate, 15. how and when paid, 124. not a preferred claim, 124. real estate may be sold to pay, 153. when require'! before the expiration of four years, 124, 176. See Forms. LEGAL PROCEEDINGS can not be had against estate without appointment of administrator, 116. See Actions ; Suit. LEGATEE payments to, 124, 162. INDEX. . 405 L EG ATEE Continued. requiring legacy before the expiration of four years, 124, i75. bound to contribute from legacy, when, and how much, 22, 24. released from contribution, when, 22. must be made parties to contest of will, 34. must be notified concerning appraisement, 04. may be present at taking of appraisement. Go. may ask court to review widow's allowance, 69. may compel filing of inventory, 76. rights of when assets are concealed, 78. notice to of trial of certain claims against estate, ]12. must wait for legacy till all debts are paid, 124. must give indemnifying bond, when, 124. payment to a proper item in account of administrator, 162. should give recoipt, when, 175. may sue to compel distribution of estate, when, 177. may sue for legacy due, 195. must be made defendant in what action, 198. must contribute to pay claim, legacy, devise, etc., when, and how mnch, 22, 198, 200-204. may be charged by will with payment of debt, etc., 201, 202. other legatees need uot contribute to such debt, unless, 201, 202. rights of as to foreign executor or administrator, 209-211. unanimous consent of, its effect at times, 213. when prrbate judge is a, what must be done, 214, 215. may not testify in his own favor, when, 215, 216. LEGATEE, KESIDUAEY takes dead child's share of real estate, when, 15. lands passing to, subject to lien of decedent's creditors, except, 46. need not file inventory nor sale bill, when, 46, 60, 63. bond of, privileges, etc, 46, 60, 63, 81. qualifications of sureties of, 316. LETTERS testamentary to whom they will issue, 44-47. when one of several executors refuses or neglects to take out, 45. in what county obtained, 52. when they will issue to foreign executor, 45. how applied for, 58-6.!. none will issue till bond is filed, 61, 62. revocation of, 53-57, 76, 85, 100, 167, 168, 192. first obtained exclude all others, 52, 53. will not be issued to a probate judge, 214. what to do in such case, 214, 215. See Forms. o/ administration who entitled to, 45, 47-51. in what county obtained, 52. first obtained, exclude all others, 52, 53. applicant for, must fil'.: affidavit and bond, 48. none will issue till bond is filed, 61, 62. will not issue as of right after twenty years, 50. upon estate of person dying out of the state, but interested in business therein, 49. 406 INDEX. LETTERS Continued. when persons entitled to, neglect to take out, 48. when notice must first be given, 50. will not issue upon estate of person sentenced to penitentiary for life, 50. of the estate of a minor, 50. of a married woman, 55. revoked by discovery of a will, 54. revocation of for various reasons, 53-57, 76, 85, 167, 168, 192 will not be issued to a probate judge, 214. what to do in such case, 214, 215. See Forms. of administration with the will annexed when they will issue, 30, 44, 45, 47. may be revoked, 76, 85, 100, 167, 168, 192. See Forms. of administration de bonis non when they will issue, 47, 50, 123. may be revoked, 76, 85, 100, 167, 168, 192. LEVY on personal estate of decedent remains good, 104. proceeds of sale must be applied to satisfy, 104, 105. LIABILITY of estate for decedent's debts and obligations, 4, 5, 46, 124, 153, 202, 204. of executor, surety, etc., not affected by resignation, 54. of decedent as surety terminated, how, 97, 176. of executor and administrator under mechanic's lien, 222-231. of same for taking bad notes, uncurrent money, etc., 84. of same for waste, 117. of personal property to satisfy lien on realty. 118. on bond. (See Bond.} of administrator de bonis non, 123. of executor for taxes, 47. as to uncurrent, counterfeit, deposited, etc., money, 161, 162. of heirs, legatees, devisees, etc., to contribution, 200-204. of surety, how terminated, 56, 97. LIBEL death abates action ior. 9iJ. LIBRARY who entitled to part of, 65. See Lien, Mechanic's; Levy; Mortgage; Judgment. LIEN mechanic's not impaired by homestead exemption, 145. how obtained, and when, 95, 222-231. may be taken on what, 222-22G. may be taken for what labor, materials, machinery, etc., 222, 225. duties and liabilities of executor arid administrator in relation to, 230. also of owner of real estate, vessel, structure, abutting land, 227-231, also of head-contractor, sub-contractor, laborer, material men, 222- 231. runs from what time, and how long, 224, 225. property subject to, how described, (Forms) 224-228. contract, if written, a copy of must be attached, 224. must be filed, where and when, 224, 227-229. INDEX. 407 K Continued. when paid pro rata, '2'2~>. actions on, 225, 226, 227. if property won't sell, will be rented and proceeds applied, 225, 226. if amount secured by is tendered and not taken, what, 226. must be canceled, when, 226. how canceled, 226. 330. when attachment under may issue, 226. arbitration under, 228. costs under, 228. order of precedence of, of laborer, sub-contractor, and head-contractor 228. collusion or fraud, effect of, 228, 229. rights of contractors, etc , when work on job is suspended, 229, 230. no homesteader other exemptions made, 230. See twins, on decedent 's property, generally his debts are a, 4, 5, 46, 124, 153, 202, 204. bond of residuary legatee does not divest, 46. heirs can not divest, by selling the property, 153. on personal estate of decedent remains sood, 104. proceeds of sale must be applied to satisfy, and how, 104, 105. order of priority of, generally, must be determined by the court, 105. on real estate, may be satisfied out of personal property, when, 118. must be stated in petition to sell land, 134. may be adjusted in such suit, 132, 133. L1SNHOLDER r, it bound to look to real estate only, 118. must be made party to suit for sale of lands, and why, 132, 134. See Lien ; Mortgage; Judgment. LIFE ESTATE when one passes by will, 13. fee vests in whom in certain cases, 13. LIMITATIONS OF ACTIONS, 89, 111, 125, 126. claim barred by may be revived how. 89. executor or administrator can not revive a claim barred by, 126. LOOM widow entitled to, 65. MACHINERY may or may not be assets, 74. MALICIOUS PROSECUTION death abates action for, 96. MANSION HOUSE widow's right to for one year, 38, 68, 14-3. may occupy or rent it for her benefit, 38 (note 1). MARRIAGE of administratrix or executrix revokes her letters, 55. but all her lawful previous acts as such are valid, 57, 58. proceedings begun by her for sale of lands do not abate by, 55 (note) of testatrix does not revoke her will, 21. debts due wife from husband before, when valid, 107. dissolution of, effect on legitimacy of issue, 172. effect on previously born children, 172. 408 INDEX. MARRIED WOMAN right of to make will under present and past laws, 2 (note 1). can appoint guardian by will, when, 9. will of not revoked by marriage, 21. right of to contest will continues until, 27, 33, 34. right to contest supplied record continues until, 29. right of under foreign will not concluded until, 29. can not be executrix. 44. can dispose of her property by will, 55. and appoint executor by will, 55. administration of estate of, 55. effect of signing mortgage, etc., 145. how receipt from should be taken by executor or administrator, 176. may file exceptions to account, when, 167. right of to bring action not concluded till, 201. MARSHALING ASSETS. (See Assets.) MASTER COMMISSIONER amount, etc., of claim may be determined by, when, 199. MATERIALS pay for secured, when and how, see Lien, Mechanic's. MATTER PREVIOUSLY TRIED can not be re-opened, when, unless, 166. MAYOR may administer oath, 64, 76, 107, 143. MECHANIC'S LIEN. (See Lien, Mechanic's.) MEDICINE is preferred claim, 102. METES AND BOUNDS when dower and homestead assigned by, 142, 144. MINISTERS. (See Subscription.) MIN Oil- administration of estate of, 44. can not be executor until, 44. executor or administrator can not be guardian of, when, 8, 9. rights of under foreign will not concluded until, 29. right of to contest will continues until, 27, 29, 34. right of to contest supplied record continues until, 33. estate of settled by administrator, and not by guardian, 50. entitled to what at making of appraisement, 65, 60. how served with summons, 136-140. how described in petition, 136. as to guardian ad litem for, 139, 140. entitled to homestead, when, 144. may file exceptions to account, 167. exceptions to account may be filed by, when, 167. right of to bring suit not concluded till, 201. can not agree to trial by referees, 218. See Person Interested; Child; Heir. MISCONDUCT IN OFFICE. (See Justice of ike Peace.) MONEY devise or bequest of, to charity, must be made how, 2, 4. must be inventoried, 46, 48, 49, 51, 77. must be administered, 46, 49, 51. 58, 77. INDEX. 409 MONE Y Continued. found on body of unknown person, how disposed of, 58, 74. must be included in estimate, 59. on hand, how inventoried, 63, 71. widow and children entitled to how murh, at appraisement, 69. claim for, due to widow, not assets, when, 72. when additional, is found, duty of administrator, 77. when concealment, etc.. of, suspected, 78. must he paid into county treasury, when, 80. when secured to decedent by mortgage, what to do, 90. due on real contract, what must be done, 91. amount of, on hand must be stated, when, 100. arising from sale of real estate, how applied, 105, 106. investment of, in certain cases, 127. assigned to widow in lieu of dower, when, 133, 142, 144. unpaid portions of, how received, 151. as to interest on any deposited, loaned, etc., 157. executor or administrator must charge himself with, 157, 158. executor or administrator entitled to what part of, collected, 159-161. whose loss, when uncurrent, counterfeit, etc., taken by executor and ad- ministrator, 161, 162. whose loss when depositary fails, 161. belonging to heirs unclaimed, bow invested, 176. how obtained by person entitled thereto, 177r See Forms. MORTGAGE on real estate must be separately mentioned in inventory, 70. must be considered personal assets, and be accounted for, 72. when claim secured by, powers of executor or administrator, 90, 91. upon personal estate of decedent, its effect, 91. must be recorded, where, 91. upon real estate of decedent, how paid, 90, 91, 105, 118. should be taken to secure purchase money of real estate sold for the payment ol debts, 151. executor or administrator may cancel or foreclose, 90. order of priority of, determined by court, 105. order of priority of, as to payment, 104. 105. executor or administrator can not mortgage real estate, 154. may be adjusted in action to sell lands to pay debts, 132, 133. must be stated in petition in such action, 134. homestead exemption does not defeat, when, 145. chattel, on personal property. (See Chattel Mortgage.) MORTGAGEE if he die before foreclosing, what to do, 72. must be made party to suit for sale of lands, 132. if not done, mortgage remains in full force, 134 (note). MOTION for extension of time to collect assets, 99. for transfer of proceedings to common pleas court, when probate judge is interested, 214, 215. MOTHER. (See Parents.} MOURNING CLOTHES not funeral expenses, 103. 410 INDEX. MUNICIPALITY may receive property by will, when. 4. NAME of child may be omitted from will, 14, 23. NEGLIGENCE liability for, concerning inventory, 63. liability for, in making collections, 88. liability for death caused by, 92. NEWSPAPER notice in, of presentation of foreign will, 29. notice in, of last wills admitted to probate, 33. notice in, of application for original letters of administration after twentj years, 50. notice in, of appointment as executor, etc., 62. notice in, of administrator's sale of property, 82, 148, 149. notice in, of sale of desperate claims, 98, 99. notice in, of trial of executor's or administrator's claim, 113, 114. constructive service of summons may be made in, 136. how such service made, when complete, etc., 136-138. what as to daily or weekly, 137. notice in, of accounts to be heard on settlement, 164. notice in, to foreign executor or administrator, 177, 178. notice in, of insolvency of estate, 192. NEW TRIAL may be had in contest of will, 34. NEXT FRIEND duties of, at appraisement, 65, 66. NEXT OF KIN must be notified before will can be probated, 19. remedy against, on decedent's bond, etc., to convey land, 20. entitled to administration, when, 47, 48. may be cited to accept or decline, 48. written declination of, should be obtained, when, 60. damages to, for death by wrongful act, 92. when legacy demanded before four years, must give bond, 124. inherit personal property, when, 170. are to be parties to action, 112, 198. NON-RESIDENT probate court must grant administration on estate of, when, 49. to whom court will grant above, 49. duties of such administrator, 50, 174, 175. may be served with summons or notice in newspaper, 113, 136. NOTARY PUBLIC may administer oaths, when, 64, 76, 107, 143. NOTE must be included in estimate, 59. must be separately mentioned in inventory, 70. given by surviving partner, 75. for personal property sold at sale, Si. for claim in i'avor of estate, should be made payable, how, 91. receipt for, when paid, should be taken, why, 126. for real estate sold, how secured, etc., 151. how made and signed by executor or administrator, 214. INDEX. 411 XOTE Continued. not to be sold, in certain cases, 81. why extension of time to pay should be refused, 88. bow sureties on released by negligence or leniency, 88, 89. barred by lapse of time, when, 88, 89, 111, 123, 125, 126, 191. against heir of decedent, how adjusted, in certain cases, 96. should be proved by affidavit of claimant, 107. receipt for should be taken when paid, 126. may be distributed in kind, when and how, 127. administrator liable for, to estate, when, 214. See Personal Property ; Forms. NOTICE that will is to be probated, 18. that deposited will is not demanded, 19. application to probate lost will, 31. presentation of foreign will for record, how made, 29. admission of lost, etc., will to probate, how made, 31. of appointment when and how given, 62. proof of, 62. failure to give extends time for bringing suit, 122, 128. failure to give eft'ect of, and how remedied, 122-124. of administrator de bonis non, 123. See Forms. of filing of petition to sell real estate how given, 135-138. waiver of,. 138-140. proof of, when by publication, 137. See Forms. of filing administration account how and by whom given, 164. of insolvency of estate, 182. See Forms. of taking inventory and appraisement when and to whom given, 64. See Forms. of sale of personal property when and how given, 82. should contain what, 82. See Forms. of sale of real estate how given, 148, 149. must be complied with, 149, 150. See Forms. to trustees that bond must be given, 41. tc interested parties that surety will ask to be released, 6*. how given, 40. of application after twenty years, 50 of exceptions to inventory, 78. 412 INDEX. NOTIC K Continued. how given, and when, 78, 98. hearing of, 78. of appeal when and how given, etc., 33, 186, 187, 220. in general to release estate from liability of decedent as surety, 97. when given by surety to executor or administrator, 56, 97. how given in such cases, 6, 97. of intention to ask court for order as to desperate claims, 98. of sale of such claims, 98. to persons interested as to trial of executor's or administrator's claim^ 113, 114. as to service of by mail, or at residence, 114. proof of service of, 114. to purchaser of land as to place of sale, growing crops, etc., 148, 149. to non-resident administrator or executor, 177, 178. how to be given when law does not direct the method, 187, 219. NUISANCE death abates action for, 96. NUNCUPATIVE WILL. (See Wills, Vcrhnl or XmirnpoHve.) NURSING DURING LAST SICKNESS is preferred claim, 102. OATH witness and claimant may be examined under, 184. See Affidavit ; Oath. Title, Forms. OBLIGATION IN WRITING barred by lapse of time, 88, 89, 111, 123, 125, 126, 191. See iSoie ; Bond, etc. OHIO, STATE OF bonds made payabje to. (See Bond.) inherits decedent's personal property, when, 170. OMISSION to provide for child in will does not invalidate will, 15. ORDER of court certified copy of, concerning will, filed in other county, 27, 28. certified copy of, concerning will, effect of, 28, 29. certified copy of, concerning will, may be recorded, where, 28. certified copy of, concerning will in appeal, 28. efl'ect of from probate court in higher court, 35. unnecessary to sale of real estate, when, 39. is sufficient voucher, when, 98. concerning award of arbitrators (-'rule"), 109. concerning notice of hearing of executor's or administrator's claim, 113, 114. concerning execution on judgment against executor or administrator, 116. concerning payment of claim falling due alter four years, 121. concerning bond for payment of claim falling due after four years, 121. concerning service of summons by publication, 138. concerning sale of lands to pay debts, 129, 133, 141, 142, 147, 151. directing final distribution. 165, 168. how such order enforced, 177-18U. INDEX. 413 4 > RD E K (..'uniht u ed. as to filial account may be appealed, 165. as to money of estate invested till demanded, 176. directing and protecting administrator and executor, and construing; will, 179, 180. declaring estate insolvent, 181. directing payment of claims, in such case, 191. concerning real contract of decedent, 206-209. enforcing sale of land must be recited in deed, 207. may be appealed from, when, 219. transcript of must be furnished, 220. of distribution proceedings in court to enforce, 177-180. when estate insolvent, 185-192. not disturbed by certain judgment and appeal, 185-187. what should be done by executor or administrator, before, 189. See Forms; Distribution, determining priority of liens when made, and by whom, 133. concerning inventory court may make, when, 63. ORDINARY CLAIMS. (See Claim, against Estate.) "ORIGINAL" INVENTORY what is meant by, 75. ORNAMENTS OF FAMILY who entitled to, 65. OWNER duties, liabilities, etc , of, under mechanic's lien, 222-281. OWNERS IN COMMON interest of must be stated in petition for sale of land, 134. PAPERS, ORIGINAL, IN A CASE may be used, how, in appealed cause, 221. PARENTS father or mother may appoint testamentary guardian, whom, when, how, for how long, 8. when entitled to administer estate, 44, 48. may be cited to appear and accept or decline, 48. damages to for death by wrongful act, 92. service on minor and also on either father or mother, 136. inherit personal' property, when, 170, 172. marriage and annulling marriage of, effect on children, 172. PARTITION when sale made in, executor or administrator may move court for appli- cation of purchase money, 153, 154. but a statement of assets, debts, etc., must first be filed, 153. See Forms. PARTNER assets of, how disposed of by administrator, 174, 176. surviving duties and rights of, 74, 75, 124, 125. testimony against deceased in certain cases, 215. 414 INDEX. PARTNERSHIP property- - not assets until, etc., 74, 124, 125. appraisement of, 74. avails of, paid administrator or executor, and how charged, 16a how disposed of, 174, 175. debts how paid, 74, 75, 124, 125. T ARTIES TO ACTION who are, 113, 114, 133. who may be or become, 113, 114, 133, 198, 204, 207. who must be defendants in suit for sale of land, 132, 133. how summoned, 135-139. may waive issuing and service of summons, how, 138-140. may consent to sale, how, 139, 140. when no service upon should be asked, 140. directions to sheriff as to where defendants can be found, 140, 207. duties of plaintiff in such suit, 129-150. can not testify in his own favor in what cases, 215. can not reopen matter previously tried, unless, 166. may contest claim sued for. even though previously allowed, 198, 199. if omitted in the petition, may be made parties, how, 203, 204. court may adjust all liens of, and settle all rights, 132, 133, 204. who may be in suit on decedent's contract concerning land, 207, 208. may testify in his own favor, when, 215, 216. consent of to reference of certain questions to referees, 217. PAY. (See also Fees; Compensation.) PAYMENTS made to heirs not entered on account of administrator, 162. duties of probate judge, as to above, 162. separate schedule of may be filed, why, 162. See Heirs; Legatees; Claim; Debts of Decedent; Insolvent Estate,, Subscriptions; Lien, etc.) PERJURY by claimant or witness, penalty, 184. PERSON of sound mind, etc., can make will, 2. refusing to bring will may be committed to jail, 23, 24. and will be liable to all damages, 23, 24. entitled to administer may be cited" to accept or decline, 48. suspected of concealing, etc., assets, may be examined in court, 178. may testify in his own favor, Vhen, 215, 21G. See Person Interested ; Party to Action ; Disinterested Person ; Heir, ete. PERSON INTERESTED in deposited will must be notified, when, 19. in undeposited will, may cause same to be brought into court, 23, 58, 69. may appeal from refusal to probate will, 27. must have will probated, how, 29. may contest will, 34. must be parties to such contest, 34. riiav require additional bond. 47. may notify who to accept or decline administration, 48. must be notified that release of surety is sought, 56. may compel filing of inventory. 03, 76. may sue to obtain construction of will, 180. INDEX. 415 PERSON INTERESTED Continued. may claim money, etc.. found on unknown decedent, 58, 74. may file exceptions to inventory, 78. may make complaint against one concealing assets of estate, 78. may have personal property sold in spite of will, when, 82. must be notified of trial of executor's claim against estate, 113. may appeal from decision of court in such case, if, 115. bond filed for benefit of, in certain cases, 115. may dispute claim due after four years, 121. and give bond to creditor for payment of such claim, 121. action may be brought on such bond, when and how, 122. must be made defendant, 132. may all consent to appear as defendants, 138, 140. and may consent to sale of land, avoiding summons, 139. may give bond to pay debts, etc., and sale will not be made, 140. may file exceptions to account, when, 166. mortgaged premises held in trust for, when, 90. entitled to money invested by order of court, when, 177. may sue executor, etc., to compel distribution, etc., 177-180. may be made parties to such action, for what purpose, 178. or to claim allowed in certain cases, 188. may be authorized to sue administrator, upon certain representations be ing made, 196. must contribute to pay legacy, etc., when and how much, 22, 200-204. rights of, as to foreign executors and administrators, 209-211. may unanimously authorize certain things, 213. when probate judge is a, what to do, 214, 215. PENITENTIARY imprisonment in for destroying, etc., will or codicil, 24. persons sentenced to for life not civilly dead, 50. PERPETUITY words of unnecessary in will, 9-13. PERSONAL contract. (See Contract, Personal.) liability. (See Executor and Administrator.) propert)! can be disposed of by will, 2. liable for debts of decedent, 4, 5, 124, 153, 202. 204. acquired after will is made will pass thereby, if, 9. legatee takes, subject to incumbrance, 20. title to, will not pass by unprobated will, 30. if less than twenty dollars, no administrator need be appointed, 55. must be inventoried, 40, 48, 49, 51. must be administered, 4t>, 49. 51. exempt from administration, who entitled to, 65-67. belonging to widow in her own right, not assets, 69. specifically bequeathed exempt from sale, unless required for payment of debts, 82, 204. sale of, in general, when and how made, 81-85. but notes, etc., must be sold, when, 81. private sale of; 82, 83. penalty for not selling, 15^. 193. when used, or disposed of by executor or administrator for bis own ben- efit, how accounted for, 158. found on unknown decedent, how disposed of, 58, 74. 416 INDEX. PERSO N A i. Continued. should in all cases be inventoried and appraised, some reasons why, 60, 61, 63, 64. an estimate of should be made, including what, 59. allowed to widow and children on making appraisement, 65-72. what must be inventoried, 69-75. held in trust, not appraised, when, 73. when effects of estate, and concealed, what may be done, 78. transfer of void, in certain cases, 80. must go to heirs and creditors through administrator or executor, in every case, 100, 101. may be taken to satisfy lien on real estate, 118. when proceeds from sale of real estate considered, 154. to whom paid out, on final distribution, 168. not liable for costs, in some cases, unless, 116. of estate liable to levy, etc., and not that of executor or administrator, 116, 117. when insufficient to pay debts, what to do, 129, 181. amount of appraisement of must be given in petition for sale of land, 132: administrator or executor charged with whole amount of, 157. See Forms; Sale of Personal Property ; Assets, etc. PETITION for sale of real estate to pay debts when and where to be filed, 73, 115, 135. what it must contain, 132-135. parties to, 132. prayer of, 134, 135. how sworn to, 134. notice to defendants, how made, 135-138. how service waived, and by whom, 138-140. prayer of, not granted, if bond given for payment of debts, 140, 141. to compel distribution, 177. for claim disallowed against insolvent estate, 186, 187. See Forms Real Estate of Decedent ; Notice, etc. for contest of will may be filed when, by whom, where, etc., 34. to obtain construction of will, may be filed, 179, 180. for requiring bond from trustee, 41, for appointment of trustee, 42. for additional bond of executor, etc., may be filed, 47. to complete contract for transfer of real estate, 206, 207. PHYSICIAN'S BILL is a preferred claim, 102. PICTURES widow entitled to what, 65. PLAINTIFF. (See Party to Action.} PLEADINGS when unnecessary, unless, 115. must show what, 212. POSSESSION of real estate, who entitled to, legatee or executor, 40. INDEX. 417 POWER TO MAKE DEED follows from power to sell, 39. PRECIPE must be filed with clerk of court, 135. must contain what, 135, 140. should follow petitiou on same sheet of paper, 140. when none should be filed, 140. PREFERRED CLAIMS. (See Claim against Estate.) LOW affected by certain judgments, 116. PRINTER may make proof of publication, 62, 272. fees of, 103, 105. P 111 V ATE SALE OF REAL ESTATE by executor or administrator, 148. of personal estate, 82, 83. PROBATE COURT PROBATE JUDGE may require bond from executor or administrator when will does not, 9. will uiay be deposited in, 17, 18. must give certificate therefor, 17. must indorse what thereon, 17. must give what notice of probate, 17. must give what notice if will is not demanded, 17, 18. may issue summary process to bring will into court, 23, 24. may compel attendance of witness, how, 25. may issue commission to take testimony of absent witness, 26. probated will and testimony mast be filed and recorded in, 26. duties of generally as to foreign wills, 27-30. refusal to probate will is appealable, 27. must transmit to other court what papers in such case, 27. must file papers from common pleas in contested case, 27. may record authenticated copy of will, 28-33. may probate will itself a second time, 28. may probate lost, spoliated, or destroyed will, 30-32. effect of order of, in other courts, 34. must issue citation to widow to elect, 36. must explain to widow her rights under will and law, when, 37. must issue commission to take her election, when, 38. must choose for her, when, 38, 39. election of widow must be entered on minutes of, 37, 38. must appoint suitable person to ascertain value of her dower, and of pro- visions of will for her, 39. may take joint or several bond, 41. 55. may require trustee to give bond, 40, 41. may appoint trustee under foreign will, 42. must appoint administrator with will annexed, when, 44-47 must grant letters testamentary or of administration, when, 44-47, 49, 59. must certify that delay in n ing papers was necessary, or, 46, 48. must cite person entitled to administration to accept or decline, 48. may require additional bond. 50, 57. may grant original letters of administration after twenty years, 50. notice iii such case must iirst be given, and how. 50. what probate court may grant letters of administration, 52. may issue citation, attachment, etc.. against special administrator, 52 may receive resignation of executor and administrator, 54. duties of, as to partnership real estate, 75. 27 INDEX. PROBATE COURT PROBATE JUDGE Continued. may continae administrator or executor when will is contested, 54. but must first, require an account, 54. must grant letters testamentary, etc.. when, 54. duty and power of as to removing executor and administrator, revoking letters, etc., 41, 52, 53, 54, 56, 57, 76, 85, 167. may compel filing of inventory, account, etc., 41, 52, 53, 54, 5(J, 57, 70, 85, 167. must approve sureties on bond, 41, 42, 45, 46, 48, 51, 5-5, 57, 115, 124, 140, 147. 175, 211, 219, 316. must make order concerning property found on unknown decedent, 58. must certify claimant's right thereto to county auditor, 58. may require inventory, though not required by will. 60. may make rules of court. 61 (note). may require sureties to make affidavit and sign bond in court, 61 (note), 316. attested notice of appointment of administrator or executor must be tiled in, when, 62. inventory must be filed in, when, 63, 75, 76. duty of when inventory not filed, 74. 76, 77. discretionary powers of as to inventory, 77. duties of when exception to inventory are filed, 78. may fill vacancy among appraisers, 64, 143. order appointing appraisers must be filed in, 64. may administer oaths, when, 64, 76, 107, 143. may direct real estate to be inventoried, 63, 70. may increase or decrease widow's allowance for one year's support, 69. decision of in such case may be appealed from, 219. may permit partner to take partnership assets, how, 74, 75. duties of, when effects of estate are concealed, embezzled, etc., 78-80. may authorize private sale, 82, 83. on what conditions, generally, 83. may order sale of personal property, "notwithstanding, 82. may give further time for making sale, 82. may enforce filing of sale bill, 85. order of, concerning deed, 91, 92, 207, 208. may permit what, as to desperate and bad claims, 98-101. may extend time to collect assets, only when, 99, 100. should then first require an account, 100. must determine order of priority of claim, 105. duties of, as to arbitration of claims, 108-110. duties of, when requisition to reject claim is filed, 111-113. notice by and in, how given, when law does notdirect how, 112 (note), 219. duties of, as to claims due after four years. 120-122, 200. decision of concerning such claims not conclusive, 121. may require legatee to give reiunding bond, 124. may allow certain claims to executor or administjator, on his affidavit, 12ft may allow for tombstones erected, when, 127. may allow notes, bonds, etc., to be distributed in kind, when, 127. has jurisdiction in sale of lands to pay debts, 130. proceedings for such sale must be by civil action, 130, 206. what such proceedings are, generally, 132-155. why best court for such proceedings, unless, 130, 131. may adjust lien in such action, 132, 133. must make order of distribution, 133. order of, concerning unknown heir, 138., INDEX. PROBATE COURT PROBATE JUDGE Continued. should appoint guardian ad litem. when, 139, 140. must approve answer of guardian, 142. when sale can and can not be ordered by, 140, 141, 205-209. duties of as to appraisement of real estate, 142, 143. . must approve report of appraisers, 146. 147. duty of as to action pending in other court, 147, 148. mjiy adjust all claims on land to be sold, 132, 133. must make order of distribution, and award costs, 133, 148, 162, *65, 188, 204, 209. force and effect of such order, 162. may direct manner, place, terms, etc., of sale. 148-150. must require report of and affidavit, and confirm sale, when, 150, 151. must order deed to be made, and balance of purchase money secured, 151. duty of in certain partition sales, 153, 154. must determine' amount of compensation of executor and administrator, 159. may require oath of one or all executors, etc.. to account, 163. may allow what expenditure without vouchers therefor, 163. must give notice, how, of when accounts filed will be heard, 164. may give further time to file exceptions to account, 164. may examine executor or administrator filing account, under oath, 164. and may reduce examination to writing, and file it, 164. may refer account to special commissioner, 164, 165. surplus of non-resident's estate paid into, when, 174, 175. must appoint guardian in certain cases, 175. will give final discharge to executor or administrator, when, 17C. directions of as to investing money on hand, 176. court responsible for such money. 170, 177. proceedings in, to enforce order of distribution, 177-180. v must reserve such ca>e to common pleas, when, 178. proceedings in as to insolvent estate, 181-192. may appoint commissioners to examine claims, 181. but should let executor or administrator act as such, why, 181, 182. should award costs in arbitration of claim in such case, how, 183. duties of as to contingent claim in some cases, 185. may authorize suit on bond, 196. duties and powers of as to decedent's contract to sell land, 205, 208. appeal from order, decree, or judgment, 27. 28, 35, 53 (note 1), 79, 108, 109, 114, 165, 180, 207, 219. powers and duties of as to foreign executors. 209-211. costs coming to. when and how^paid, 102, 103, 105, 158. 164, 178, 183, 186, 187, 198, 212, 213. if probate judge is heir, legatee, or otherwise interested, what must b done, 214, 215. shall determine what questions, 21T. may refer what questions to jury or referees, 217, 218. when manner of notice not specified by law, what, .219. proceedings in same as in common pleas, when, 219. duties, powers, etc., of, in cases appealed to higher court, 219-222. PROBATE OF WILLS. (See Wills; Probate Court. PKOCEEDINGS. (See Action; Probate Court; Common Plea* Court.) PROCEEDS OF SALE OF LANDS surplus considered what, 154. INDEX. PROOF of claim, 107. of publication, 114, 272. to final account, 163, 176. PROMISE, PERSONAL of executor or administrator to pay debt, binding, when, 214. ' PROPERTY set off to widow and children, 67-G9. PROVISIONS consumed before appraisement, 69. PROSECUTING ATTORNEY must collect money for benefit of estate, in certain cases, 80. his compensation, in such case.*, 80. must collect property for benefit of the state, when, 170. ' PUBLICATION OF NOTICE. (See Newspaper; Summons; Notice ; Forms. ) PURCHASER OF CLAIM. (See Claim; Claimant.) PURCHASER OF REAL ESTATE at administrator's sale remedy of, in certain cases, 161, 152. executor, administrator, or appraiser can not be, 150. title of to lands fraudulently sold, 131, 132. to lands purchased from heir, in some cases, is subject to what perils, 153. to land purchased from heir is good, unless, 29. QUESTION in proceedings in probate court determined, how, 217, 218. RAILROAD STOCKS. (See Stocks.) REAL ESTATE OF DECEDENT and also interest in, can be disposed of by will, 2. can be entailed to what extent, 6. dower and curtesy in can not be barred by will, 7, 8. what interest in passes by will, 9-14. goes to children or residuary legatee in certain ruses, 15. incumbrance on devised, does not revoke will, 20. devisee takes, subject to incumbrance, and to debts charged on it by will, 5, 15, 20. 201. when situate in more than one county what must be done, '27. title to derived from foreign will good, unless, 27. title to does not pass by unprobated will, 29, 30. acquired aft-r will is made, will pass thereby, if, 9. fee of goes to heirs, when, in case of estate for life to another, 13. must be inventoried, when, 40, 4U. powers of executors with respect to, 39, 40, 129, 155, 206-9. effect of death or failure to qualify of one of several executors, 39, 40. powers of foreign executor with respect to, 40. an estiniate of its value should be made, when, GO. undevised, first liable for payment of debts, 5, 201. can not be disposed of in such manner as to divust it of the lien of cred itors, 4, 5, 46, 124, 153, 202, 204. may be inventoried, when, 59, 70. permanent leasehold is, 73. any gift, grant, or conveyance of, void, when, 40, 80. taxes on, who to pay, etc., 77. partnership, who may buy and sell, 75. INDEX. 421 REAL ESTATE OF DECEDENT Continued. rents of, who may collect, and whose they are, 89, 90, also 38. note.1. who may cancel or foreclose mortgage on, 90. executors sometimes authorized by will to lease, 90. powers and duties of executor or administrator over, when mortgaged, 90, 91. injury to, who may sue for, 92. executors or administrators have nothing to do with, unless, 92. descends to heirs or devisees at decedent s death, 92. widow's right to rents of in certain cases, 38 (note), mechanic's lien upon may be taken, when, and how, 222-231. taxes on, how paid by executor or administrator, 104. must be sold to pay debts and legacy, 92. 129, 130, 153, 193. sale of to pay debts must be by civil action, 130. service of notice and all proceedings in such case must be as in other civil actions, 135. private sale of, 148. when and where order of sale of to be applied for, 129, 130. executor authorized by will, may sell without first obtaining order, 89, 129, 30, 40. what interest in may be sold, 75, 131. when fraudulently conveyed, how recovered, and when, 131, 132. when title to land so conveyed is good, 131, 132. holder of such land must be party to action for sale of to pay debts, 132. petition for sale of, what it must contain, 132-135. rival liens upon may be adjusted by court, 132, 133. guardian of minor heirs may assent to sale of, 139. sale may be prevented by bond for payment of debts, 140, 141. order for appraisement and sale of, when no dower to be assigned, 141 142. order for appraisement and assignment of dower, 141, 142. widow may waive assignment of by answer, 142. appointment of appraisers and duties of, 143-146. appraisement of when situate in two or more counties, 143. appraisement and sale of equitable interest in, 133, 134. dower in, how assigned, 142, 144, 145, 147. homestead in, who entitled to, arid how assigned, 144-140. appraisement of, bow made, 113-146. order of sale of, 146, 147. order of sale of, subject to appraisement in inventory, 141, 142. order of sale of more than required for payment of debts, 147, 148. costs, when order objected to, 148. may be sold at private sale, when, 75, 148. -^_ affidavit concerning private sale, 148. notice of sale of. 148, 149. sale of, when, where, and how made, 75, 148. terms of sale of, 148, 140. for how much sale must be made, 149. when re-appraisement of will be ordered, 149, 150. when no sale of ejected, 149, 150. executor, adminisirator, or appraiser can not purchase, 150. report of sale must be made, how, 150, 151. affidavit as to how sale was made, 151. mortgage should be taken from purchaser, 151. Dotes for purchase money of, how made and secured, 151. 422 INDEX. REAL ESTATE OF DECEDENT Continued. report of sale of, 150, 151. approval of sale, and deed ordered, 151. remedy of purchasers, in certain cases, 151, 152. sale of to pay debts not affected by deed, etc., of executor or administra- tor, 152. may be sold to pay legacy, when and how, 153. purchaser of from heir takes, subject to debts of decedent, 153. in certain partition proceedings, what to do when estate is in debt, 153. how proceeds of sale tpplied, 105. surplus proceeds treated as real estate, 1-34. proceeds of lands ordered to be sold by will are in equity considered per sonal property, 154. lien upon, how satisfied, 104, 105, 118. when several liens upon, how adjusted, 133. advancement of to heir, its effect, 173. when all of required to pay debts, etc., what to do, 181. executor or administrator can not mortgage, etc., 155. held in trust to pay debts, duties of executor or administrator as to, 155. sale of by foreign executor or administrator, 210, 211. death, resignation, or removal of executor or administrator will not in- validate sale of, 39, 40, 57, 58, 152. as to unexecuted contract of decedent for purchase of, 206. as to unexecuted contract of decedent for sale of, 207-209. undevised, must be first exhausted to pay debts, unless, 201, 202. See Forms; Appraisement; Petition; Appraisers; Lien; Notice; Mort- gage, etc. RE-APPRALSEMENT OF REAL ESTATE when ordered, 149, 150. See Form*. RECEIPTS for moneys paid to creditors their requisites, 126, 127. should be taken in every case, 126. must be filed with account, 163. See Vouchers; Forms, of widows and heirs upon final distribution, 175. should not be filed with account, unless, etc., 162. may be recorded, 176. effect of such record, 176. See Forms. for note, etc., distributed in kind, 127. RECORD must show what concerning will, 33. concerning destroyed record may be contested, 33. valid unless set aside in such contest, 33, 34. of final account will be made, when, 176. effect of recording receipts, 176. certified copy of, sent to common pleas, when probate judge is interested 214,215. See Wills. RECORDER OF COUNTY chattel mortgage filed with, when, 91. mechanic's lien filed with, when, 222, 223. INDEX 42:] RELEASE OF CLAIMS BY WILL effect of, 71, 204. REFEREES proceedings by and before, 108-110, 217, 218, 228, 229. trial by, how conducted, 217. how vacancy unions; filled. 217. powers of, 108-110, 217, 218, 228. when parties may select, 108, 218. may not act, when, 218, must sign exceptions. 218. how award of, set aside, 108, 109, 228. should award costs, how, in some cases, 183. compensation of. 109, 218. judgment upon award of, 108, 109, 218. See Form*. REJECTION OF CLAIM how made, and what is a, 110, 111. RELATIONSHIP, DEGREE OF~ how it affects distribution of personal property, 171, 172. REMEDY on bond, etc., to convey land subsequently devised, 20. REMOVAL OF EXECUTOR OR ADMINISTRATOR. (See Admini* t'ator and Executor.} RENTS any gift, grant, or conveyance of, void, when, 80. collection of, 38 (note 1), 89, 90. who entitled to, 38 (note 1), 90. debts may be paid out of, when, 213. RENUNCIATION OF 'ADMINISTRATION by widows and heirs, 45, 48, 60, 61. See Forms. REPORT of appraisers of real estate, 146. See Forms. of sale of real estate, 150, 151. See Forms. > of commissioners of insolvent estate, 184, 186. See Form*. of executor or administrator as commissioner of insolvent estate, 183. See Forms. of referees or arbitrators, 109. REPRESENTATIVES legal. (See Heirs, etc.} personal. (See Administrators and Executors.) RETURN of sheriff to summons, 136, 140. of appraiser of real estate, 143, 146. REQUISITION may be filed on administrator or executor to reject claim, 111, 112. RESIDUARY LEGATEE. (See Legatee, Residuary.) 424 INDEX. RESTRAINT person under can not make a will ; not under, may, 2, 14, 26. REVOCATION of will. (See Will.) of letters testamentary or of administration. (See Adminidrator and Exec* utor.) RIGHTS OF ACTION must be inventoried, 46, 49, 51. may bo administered, 46, 49, 51. may be paid over in kind, when and how, 127. ROAD pay for labor and materials on, may be secured, how, 222-231. RICHARD ROE AND FAMILY illustration of how personal property descends, 171, 172, RULE IN SHELLEY'S CASE inoperative in this state, 13, 14. of court as to arbitrator's reward, 109. may be made by court, 61 (note.) SALE of personal property may be dispensed with by will, 9. when and how made, 81-85. probate court may require at any time, 82. notice of, how and when given, 82. private sale of, 83. before sale, widow may take property at appraisement, 81. what to be sold, 83, 84. stocks, etc., may be sold, etc., how, 83. as to property specifically bequeathed. 82, 201. as to grain in the ground, 81, 82. when property discovered, not mentioned in inventory, 83, 8i terms of. and security, 84. notes for payment of, how drawn, 84. affidavit as to, how made at private sale, 163. penalty for not making sale, 193. See Forms ; Personal Property Notice ; Sale Kill, of real estate. (See Real Estate.) SALE BILL how prepared, and what it must contain, 83. must be signed by clerk, 84, 85. and returned by executor or administrator, 85. affidavit to, by executor or administrator, 85. what is an "original sale bill," 85. should be copied before filing, and copy retained, 85. how return of enforced, 85. court may distribute avails of, how, 133. amount of, how charged in account, 157. Seo Forms ; Citation ; Revocation of Letters, flc. SCHEDU LE of property set off to widow must be made;, OS. the several articles therein mentioned should be appraised, 68 INDEX. 425 SCHOOL AND OTHER BOOKS widow entitled to what, 65. SCHOOLS decedent's personal property applied to' support of, when, 170. SERVICE OF NOTICE. (See Notice; Newspaper; Summons.) SET-OFF what is properly a, and how adjusted, 87, 88. SETTLEMENT. (See Account; Administrators and Executor^ SEWING-MACHINE widow and children entitled to, when, 65. SEWER as to lien for labor and materials on, 222-231. SHEEP widow and children entitled to when, 66. SHERIFF duties of, as to writ against delinquent executor, etc., 76. duties of, as to service of notice to reject claim, 112 (note). duties of. as to service of summons, 185, 140. directions to, must be given by administrator, etc., 140. serves citation, when, 177. fee? of, 103, 218. SICKNESS. LAST expenses of, what are, how and when paid, 102, 103. SIDE SADDLE widow entitled to. when, 65. SIDEWALK as to lien for labor and materials on, 222-231. SIGNATURE must be at end of will or codicil, 3. See Note; Surety; Bond. SISTER inherits personal property, when, 169, 170. See Person Interested; Heirs. SLANDER death abates action for, 96. SPECI A L A DMINISTR ATOR. (See Administrator, Special SPECIFIC PERFORMANCE OF CONTRACT of decedent generally, 205. concerning purchase or sale of land, 205-208. how enforced, 206, 207. how widow may defeat, 208. See Forms; Contract. SPINNING WHEEL widow and children entitled to, when, 65. STATE OF OHIO inherits personal property, when, 170. bonds made to. (See Bond.) STATEMENT made to court in certain partition sales, 153. made to court when estate insolvent, 181. STATUTE OF LIMITATIONS, 89, 111, 123, 1L''. 126, 191. 426 INDEX. STEALING WILL punishment for, 24. STEAM ENGINE. (See Machinery.} STOCKS, RAILROAD, GAS, ETC. assets, when, and when not, 73. sale of, 83. may be paid over in kind, when and how, 127. STOV KS widow and children entitled to, when, 65, 66. SUB-CONTRACTOR. (See Lien, Mechanic's.) SUBPENA issues when, etc., 108. SUBSCRIPTIONS to ministers, charities, etc., how paid, 124. SUIT generally brought by special administrator does not abate, when, 52. who may prosecute such suit, 52. can not be brought against special administrator, 52. can not be brought by executor or administrator, for injury to lands of decedent, unless, etc., 92. upon personal contracts of decedent, 92. for death by wrongful act or neglect, U'J. abatement of r in general, 96. can not be brought to recover advancements, 96, 97. pending at death of decedent, executor or administrator must be made party to, 96. to recover possession of land fraudulently conveyed, 132. to enforce distribution, 177-180. pending at death of executor or administrator, his successor may be made party to, etc., 196, 212. for purchase money upon real estate sold by decedent, what to be done before bringing, in certain cases, 207. by foreign executor or administrator, 209. not dismissed for want of proper parties. 202, 203. how such may be brought into, 202, 203. upon claims against estate when brought, 111, 113, 125, 126. when barred, unless, 111, 125, 126, 183, 191. what may be pleaded as defense against, 111. costs can not be collected, when, 116. can not be brought against estate until administrator appointed, 115, 116 time for bringing extended, in certain cases, 117, 122. can not be brought after four years from date of bond, except, etc., 120, 122. rights and liabilities of parties, in certain cases, 122, 123. time for bringing against administrator de bonis non, 123. can not be brought after the estate declared insolvent, except upon pr& ferred or rejected claim, etc., 186, 190, 191. upon claim due after four years, 121, 191. to compel distribution of, 177-180. must be brought in name of real party in interest, except, 212. executor or administrator not liable for costs, unless, 212. upon administration bond. (See Bond, and suits thereon.) INDEX. 427 ."SuiT Continued. to obtain construction of will executor, administrator, creditor, legatee, etc., may bring, 179, 180. for contribution how and when brought by creditor to enforce, 200. trial in, 200. against whom, 200, 203, 204. how brought in certain cases, 203, 204. to compel distribution when and how brought, 177-180. See Forms ; Actioit ; Bonds, and suits thereon. SUMMONS is issued by clerk of court, when, 135. if not made upon nor waived by defendant, judgment does not affect him, 135. may be issued to other county, at request, 136. when returnable, 136. when other summons may issue, 136. may be made out the state, when, 136. actual service E revisions of law relating to, generally, 135, 136. ow made on adults, 135. how on minors over and under fourteen, 136. personal service of by copy may be made out of tate, 137, 138. constructive .iervi.-e provisions of law relating to generally, 13C-138. on whom may be made, 136. what notice given in what papers, how long, and when, 137. must state what, 137. copy of must be sent to defendant, by whom and how$ 136. is complete, when, 137. what affidavits must be filod, 137. when service unnecessary provisions of law relating to, generally. 130-137. who may waive, and how, 139, 140. what guardians may act for wards. 139, 140. what is the better practice as to minors, 140. SURETY SU RETIES in general on indemnifying bond, 57. on notes at administration sale, 84. on note, what acts of others will release, 88. when decedent liable in his lifetime, 97. notice to obtain release from, 97. on appeal bond, 115. rights of not affected by certain judgments, 116. of decedent rights of when estate insolvent, 115. of legatee to refund legacy of, 124. of executor and administrator who competent to be, 55, 60, 316. when insufficient or worthless, 56. when and how released from further liability, 56, 57, 176. must first give notice in such case. ">'j. INDEX. SURKTY SURKTIKS (.'on tin "('I . what is sufficient cause for release, 50. effect of release of, 50, 57. must bear expense of obtaining release, unless, 56. remedy of, in certain cases, 50. may require their principal to render an account, 57. and to give indemnifying bond. 57. must appear in person in court, when and why, 61, 31 G (notes). may si^n bond outside of court in some counties, 61, 316 (notes) released, unless certain actions are begun, when, 97. rights of not affected in certain cases, 115. may be made parties in certain suits, 179, 193-195. ma,y make what defense, 179, 196. judgment against in some cases, 179. as to contingent claim, 185. . wlio may sue, and why, 197. of foreign e.xecutor or administrator, 209-211. SURPLUS PROCEEDS from sale of real estate, how considered, 154. must be paid into court, when, 175. SURVEYOR fees of, 105. may be employed in assigning dower, etc., 144. SURVIVING EXECUTOR powers of, 39, 45. SURVIVING PARTNER. (See Partnership ; Partner.) TAXES \\hen and by whom listed and paid, 47, 104. are fourth in order of preference, 103, 104. no exemption from, 145. TEMPORARY ADMINISTRATOR. (See Special Administrator.) TERMS of sale of personal estate, 83, 84. of sale of real estate, 149. definition of, 334, 335. TESTATOR should clearly express trust, 2, 4, 40. can not by will release property from lien, for payment of debts, 4 6, 124, 153, 202, 204. may direct by will how debts, etc., shall be paid, 5, 6, 82, 133, 202. may appoint his executor guardian of his children, 9. may excuse executor or administrator from giving bond, 9. may excuse appraisement of personal property, 9, 60. may omit names of all his children in his will, 14. may change his will, how best done, 16, 17. may retain will, or deposit it in probate court, 17, 18, 19. may revoke his will, when, etc., 17-23. if trustees named by die, resign, etc., 41, 42. may make nuncupative will, when, 43. may charge certain parts of estate with payment of debts, legacies, etc. 201, 202. See Inventory ; S/ile Bill; Claims; Wills, etc. TESTAMENT, LAST WILL AND. (See mil.) TNDF.X. 429 T ESTA M ENT A R Y GUARDIAN may be appointed, 9. married women can not appoint, 9. executor may be, 8, 9. TESTAMENTARY TRUSTEE. (See Trustee.) TESTIMONY of witness to will taken as to what particulars, 25. of witness to will must be written and filed in court, 26. rules governing, in some cases, 1!15, 216. TIME, EXTENSION OF to collect assets at risk of executor or administrator, when, 88, 89. how obtained, 99, 100, 156. will not be granted, whsn, 100. in case ot insolvent estate, 182, 183, 184. to tnake sale may be had, when and how, 82. to bring suit, 122. to file accounts not granted, when, 156. TITLE to land, not disturbed by will, when, 29. to land, fraudulently obtained, good, when, 131, 132. to land, sold to pay debts of decedent, character of, 151, 152. TOMBSTONES executor or administrator may purchase, 127, 161. TOWN LOTS may be sold to pay debts of decedent, 131. dower in, 145. TRANSCRIPT of proceedings in probate court, filed in higher court, 178, 179, 22C. in appeal from decision of commissioners of insolvent estate, must one be filed. 136. of commissioners as to claims allowed or disallowed, 186. of orders, judgment, etc., to other court when probate judge is interested in estate, 215. of same in cases appealed to higher court, 220, 221. TREASURER of county, receives certain moneys, etc, on deposit, when, 58, 74, 170. TREES IN NURSERY assets, 44. TRESPASS UPON LANDS OF DECEDENT who may sue for, 92. TRIAL by referees, how conducted, 217. See Action ; Suit. TRUST should be clearly expressed in will, 2, 4, 40. lapse of, prevented how, 4. niiiy be executed by one trustee, if other die, etc., 41. executor or administrator can not create, 213. 430 INDEX. TRUST ESTATE not assets, 73. mortgaged premises are held as, for and by whom, 90. powers of executor or administrator as to, 155. TRUSTEES in general trust of. should be expressed, 2, 4, 40. should have large discretionary powers, when, 4. must give bond, unless, 9, 40, 41, 42. failure to give bond, 41. when one of several dies, resigns, or is removed, 41. how vacancy is filled, 42. appointed under foreign will, 42. under foreign will, may be appointed on petition, 42, 43. sureties of, their qualifications, 55, 310. must be made defendants in sale of lands, 132. may be compelled to execute trust by executor or administrator, when, 155. foreign must give bond, unless, 9, 42. must furnish probate court an authenticated record of appointment, 42 powers of, 42, 43. probrfte court may appoint, in certain cases. UNCURRENT MONEY by whom loss to be borne, 161, 162. UNCLAIMED MONEY OF HEIRS how invested, 176. how obtained by party entitled thereto, 177. See Forms. UNDERTAKING. (See Bond.) UNITED STATES, PAYMENT OF CLAIMS DUE TO order of preference of such claims, 103. such claims must be presented and proven as other claims, 10S UNKNOWN PERSON duties of regular executor or administrator of, 58. heirs, legatees, etc., of may claim such property, how, 68 disposition of property of, in certain cases, 58, 74. UNMARRIED WOMAN marriage of does not revoke her will. 21. may be administratrix or executrix, 44. when unmarried sister entitled to be, 47. may be cited to appear and accept or decline administration, 4fc authority of as executrix, etc., ceases on marriage, 55. See Widow. VACANCY amonq appraisers of personal estate how filled, 64. See Forms, among appraisers of real estate how filled, 143. in trusteeship how filled, 42. INDEX. 431 VALIDITY OF WILL how contested, 34. VERBAL PROMISE TO PAY barred after six years, 89. not binding on executor, etc., when, 214. VERBAL WILL. (See Wills, Verbal or Nuncupative.) VERDICT damages distributed by jury through, in some actions, 96. VOUCHERS- order of court as to desperate claims is a sufficient, 98. when and how to be taken for payments made, 126, 127. must be filed with administration account, 126, 163. of widow and heirs upon final distribution, 175. as to money invested. 176, 177. See Forms ; Receipts. WASTE executor or administrator guilty of may be required to indemnify hi* sureties, 57. cause on removal of executor or administrator, 57. when he may sue, and when not, 92. when he shall be deemed guilty of, 117. to what extent he is liable for, 117. WARRANTY, COVENANTS OF -executor or administrator can not sue for breach of, unless, etc., 92. WEARING APPAREL widow entitled to, of husband, when, 66. WIDOW allowance for one year's support. (See Widow and Children.) dower of can not be barred, how. 7, 207. provision in will in lieu of, 8 may be barred or relinquished by, how, 142, 207. how assigned, 142-146, 2'>7. adjusted by court, in equitable estate,- 130. annuity for, granted, 133. statements concerning, in petition to sell lands, 133, 134. * refusal to relinquish, may defeat sale, 208. as to land not subject to, 141. election o/, 1o take under will effect of, 36, 37. no bar to certain rights. 38. must be made by, in person, if able, 37. if unable, may choose by commissioner sent by court, 38. if insane, judge elects for her. how, 38, 39. mansion house she may occupy, or rent to others, 38 (note). rights of, to, 145, 68. personal property, right of, as to held in her own right, not assets of husband's estate, 69. is not subject to payment of husband's debts, 69. may take deceased husband's, at appraised value, if, 81. what should be set off to her by appraisers, 62-72. what her share of is, on final distribution, 168. 432 INDEX. WIDOW Continued, miscellaneous must be notified of intended probate of undeposited will, 19. entitled 10 administer her husband's estate, 47. court may join gome next of kin with, in such case, 47. declination of, to so administer, 48. has no right to select administrator, 48. written declination of, should be procured, when, 61. acts of, may make inventory very desirable, 60. must be notified concerning appraisement, 64. may be present at taking of appraisement, 65. may compel filing of inventory, 76. petition for sale of lands, must state rights of, 134. must be made party to such petition, 132. receipt of, should be taken, when, 175. must contribute to pay claim, legacy, etc., and how much, 22, 198, 202- 204. may sue for her share of estate, 195. may be made defendant in action on bond, 198. See Pcrxon Interested; Insane Person; Widow and Children; Forms. WIDOW AND CHILDREN entitled to what goods at making of appraisement, 62-72. rights of, when assets are concealed, 78. damages to, for death by wrongful act, 92-97,. entitled to a homestead, 101, 144. business of decedent can not be carried on for benefit of, 127, 128 must be made defendants to petition for sale of land, 132. descent of personal property to, on final distribution, 168, 169. may compel distribution, when and how, 177. allowance for one year's support of how made, 67-09. rule ior determining amount of, 67. may be reviewed and changed by court, 69. court's action in such case appealable, 219. order of preference of such allowance, 103. when and how paid, 102, 103. bond to pay, may be given, 140. effect of such bond, 141. See Forms; Person Interested; Party to Action; Child; Heir ; Minor. WIFE dower of, can not be barred by will, 7. can not bar husband's right of curtesy, 7, 8. damages to, for death by wrongful act, 92. debt to, from husband, when valid, 107. dues of, on final distribution, 168, 169. WILLS written preliminary statement concerning. 1. the term " will " includes what, 1. must be made at least one year beforo death, when, 2, ft. how made and signed, 2, 3, 17. who may make, 2, 3. joint will invalid, 2 (note 4). bequest to charities by, 2-4. must be clearly made, 2-4. INDEX. 433 W I LLS Con tinned. to pass real and personal estate must be in writing, 8, 7. can not release property from liability fur debts, 4, 5, 46, 124, 153, 202- 204. may direct how debts shall be paid, 5, 6, 82, 133, 202. real estate can not be entailed by, 6, 13. neither dower nor curtesy can be barred by, 7, 8. provision of in lieu of dower, how stated, 8. when record of destroyed, how readmitted to probate, 32, 33. binding unless contested within two years, except, 27. appeal upon refusal to admit to probate, 27. spoliated wills, generally, 30-32. lost or destroyed wills, generally, 32-34. how validity of contested, 34, 43 (note). concerning administrator, etc., in such case, 54. appeals of, in such case, 34. foreign can not bo contested here, 35. election of widow to take under, 36-30. may empower executor or administrator to sell real estate, 39, 128. or to lease the same, 90. concerning trust created by, 40, 41. guardians for minors may be appointed by, 9. may direct that no bond, inventory, or sale be required. 0. construction of, generally, 23, 179. 180. word " heirs " not needed in, to pass a fee simple, 9-14. intention of testator governs construction of, 8, 9, 10, 14, 15, 23, 37, 82 will pass estate acquired subsequent to execution of, when, 9. what passes by a devise; b} r a bequest, 9, 10, 20. ' failure to mention child in, does not invalidate, 14. nor prevent child from inheriting, what, 14. as to a charge upon lands devised, 15, 20, 21, 201, 202. advancements should be mentioned in, 15, 16. upon death of devisee who takes lands devised by, 15. 7imy be changed, how, 16, 17. parts of not affected by codicil remain in force, 16. general bints concerning, 17. tare in drawing urged, 17. may be deposited in probate court, how, etc., 17-jl9. certificate of deposit of given by court, 17. can not be probated without notice, to whom, 18. must not be read until, 17. to whom delivered before and to whom after testator's death, I't if not demanded, what must be done, 17, 18. how revoked, 19-23. jurisdiction over certain, belor.irs to what court, 19. what is not a revocation of, 20-22. not revoked by subsequent incumbrance of real estate devised, 20, 21. nor by subsequent marriage of testatrix, 21. effect of birth of children subsequent to execution of, 22. when child erroneously supposed to be dead, 22. what is not a revivor of old, unless, 22. how and when opened, 23, 24. concealment of by devisee, 23, 24. punishment for stealing, destroying, or secreting, 24. liow brought into court when not produced, 24. 25, 58. neglect to probate forfeits devise, when, 24. letters issue if it can not be found, if, 58. 434 INDEX. WILLS Continued. when witness to is also a devisee, 24. witness to. how brought into court, 25. examination of witnesses to, 25. when witness dead or gone to parts unkown, 26. or infirm or non-resident, 26. or testimony of can not be had in time, 26. -- admission of to probate, 20, 28. ^ authenticated copy of, proof of, 26 27, 28. original remains in court on file, 26. when lost, stolen, or destroyed, how proved, 32. effect oi in such case, 32, 83. when real (.-.state devised by situate in two or moro counties, 27. how admitted to record, 26, 27, 28. may provide for payment of liens, 118. may provide for marshaling of assets. 125, 126. when compensation as lived by. 137, 138. may provide that certain portions of estate, or certain legatees or de- visees only shall bo liable for debts, 201, 202. oi' decedent, in this state, may name executor, 44. who may or may not be executor of, 1 1. may empower executor or administrator to sue for breach of warranty, trespass, waste, overflow, when, 92. when executor is a minor, 41. when will is probated, what letters are granted, 45. when one year's allowance affected by, 67. claim released by to bo included in inventory, 71. such release invalid, when. 71, 204. naming debtor executor no release of claim, unless, 71, 204. discovery of revokes letters of administration, unless, 54. directions with regard to settlement of estate may, in general, be fol- lowed, 213. proceedings 10 obtain construction, 179, 180. copy of must be shown to court in suit for sale of lands. l'->'->. parts of must be set forth in petition, 133. may charge certain portions of estate with payment of d^.bt or legacy, 201, 202. See l'\u-ni.x. foreign, how admitted to record, 28-30. must be so admitted within four years: or, 2'.). must first remain on file two months, 29. ot no effect until admitted to probate or record, 29, 30. can not be contested here, 35. when set aside where made, how far invalid here, 35. powers of executors appointed by, over real estate, 39, 40. trustee appointed by, 42. as to will of alien, 30. codicil to making and effect of, 3, 16, 17. how signed, 3. how attested, 3. verbal or nuncupative off'jctual in passing personal estate only, 7, 43, how made, 43. how proved, and at whose expense. 4-i. INDEX. 435 WILLS Continued qualifications of testator, 43. not admitted to record, unless, 43. must be offered for probate within six months, 43. expense of proving, who pays, 43. expense, how reimbursed, 43. WITNESS to will must do what, at signing of will, 2, 3. how many needed, 3. how brought into court, 25. arrangement for voluntary appearance of should be made, 25. witnesses to will may appear at different times, 25. examination of, 25, .31. must state what, 25. testimony of must be reduced to writing, and filed, 25, 31 when dead or gone to parts unknown, 26. or testimony of can not be obtained, 26. deposition of infirm, etc., may be taken, 26, 31. when non-resident or infirm, 26, 31. when a devisee, 24, 202, 203. if such, in contest of will, dies, removes, etc., what may be done, 34, 36. when probate judge is a, what must be done. 214. in general creditor can not be in his own behalf, '2l. testimony of, when dead, how used, 35, 36. to widow's written declination, duties of, 48. on hearing of exceptions, may be subpened and examined, 78. also, when assets are concealed, 78. examination of in latter case, must be reduced to writing, 78, 79 subpenaed to appear before arbitrators, 108. oath to administered in certain cases, 184. lees of, 43, 218. penalty for by, 184. WHOLE BLOOD when relatives of, inherit personal property, 170. WOMAN debt due to extinguished by marriage, when valid, 107. See Married Woman ; Unmarried Woman ; Widow ; Parents ; Sister. WOOL) when cut, assets. 74. WOOL widow and children entitled to, when, 66. WRAPPER around deposited will, 17. indorsements thereon, 17. WRONGFUL ACT death by, etc., 92-96. YARN widow and children entitled to, when, 66. Iprff*^