WONOUTH PORTLAND CBAENT COMPANY THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW THE LAW OP PROBATE AND ADMINISTRATION FOR NEBRASKA , INCLUDING GUARDIANSHIP AND ADOPTION OF CHILDREN, WITH FORMS SECOND EDITION ADAPTED TO OREGON BY ARTHUR K. DAME, A. B., Of the Fremont, Nebraska, Bar POETLAND, OREGON" GEORGE A. BATESON & CO., INC. 1915 COPYEIGHT, 1902 BY AETHUE K. DAME COPYRIGHT, 1909 BY AETHUE K. DAME COPYEIGHT, 1915 BY AETHUB K DAME T D /*a.|. p 1915 SAN FRANCISCO THE FILMER BROTHERS ELECTROTYPE COMPANY TYPOGRAPHERS AND STEREOTYPERS PREFACE TO SECOND EDITION. The many new questions in regard to wills and settle- ments of estates that have been decided by our supreme court during the last thirteen years, as well as changes in statutory law, seem to demand a new edition of Pro- bate and Administration. With but one exception these cases merely apply old and well-established rules to new conditions without overruling earlier cases. The courts have made no radical changes in probate law. The legislature has made some sweeping changes providing for dispensing with administration in some cases, abolishing dower and curtesy, and substituting an interest in fee by virtue of the marital relation in place of such estates. The latter act has been pretty thoroughly construed by the supreme court. The first edition has been cited and approved by the courts of other states as well as of Nebraska. The entire work has been revised and rewritten and much new matter added. A few changes in arrange- ment will be noticed, particularly in Chapter II, which has been given a more appropriate title, "Preparation of Wills," and forms of clauses most frequently used in drafting wills added. At the suggestion of the publisher, I made a careful study of Oregon probate and guardianship law and practice, and finding that the substantive law was sub- stantially the same in both states, and that the differ- ences in practice were confined to but few matters, (iii) 729412 IV PREFACE TO SECOND EDITION. guardianship law being identical with our own, I have adapted or, perhaps more properly speaking, annotated the book to Oregon by including the Oregon statutes where they differed from those of Nebraska, citing the Oregon cases, and inserting a few special Oregon forms. The new edition, therefore, containing a gen- eral statement of the principles governing the execution and probate of wills, the various matters and proceed- ings connected with the settlement of estates, the ap- pointment, powers and duties of guardians, and adop- tion of children, with a systematic arrangement of the statutory law of both states on the different topics, will be of value to the Oregon as well as the Nebraska lawyer. All distinctively Oregon matter is ' ' set solid, ' ' so that its local character can be told at a glance, and appears in the index, which gives both page and sec- tion number. The forms are indexed in connection with the different subheads. A brief summary of the laws passed at the last ses- sion of the legislature affecting probate and guardian- ship matters has been added as an Appendix. I wish to extend my thanks to the members of the profession for the many valuable suggestions I have received from them in regard to the revision, and I trust that the new edition will be of great help in the solution of questions arising in the settlement of es- tates and guardianship matters. Fremont, May 3, 1915. AETHUE K. DAME. TABLE OF CONTENTS. CHAPTER I. ORGANIZATION, POWERS AND JURISDICTION OF THE COUNTY COURT. 1. Establishment of Courts of Probate Jurisdiction. 2. Bond and Oath of County Judge. 3. Liability of His Sureties. 4. Vacancies. 5. How Vacancies Filled. 6. Disqualification of County Judge. 7. Effect of Disqualification. 8. Appointment of Acting County Judge. 9. Jurisdiction of County Court Statutory. 10. Equitable Nature of County Court Proceedings. 11. Implied or Inherent Jurisdiction. 12. Clerk of County Court. 13. County Court Practice and Procedure. 14. Process and Service Thereof. 15. Attorneys. 16. Guardians ad Litem. 17. Ke cords of County Court. 18. Certifying Records. 19. Probate Books as Public Becords. 20. County Judges' Fees. 21. Sheriffs' Fees. 22. Printers' Fees. 23. Witnesses' and Appraisers' Fees. 24. Original Jurisdiction of District Court Over Probate Matters. CHAPTER II. PREPARATION AND DRAFTING OF WILLS. 25. Will Definitions. 26. Elementary Eules for Drafting Wills. 27. Restrictions on Devises and Bequests. VI TABLE OF CONTENTS. 28. Rule in Shelley's Case. 29. Devise of an Estate in Fee Simple. 30. Presumption as to Conveyance of Fee. 31. Determinate Fees. 32. Life Estates. 33. Future Estates. 34. Estates upon Condition, or Contingency. 35. Trusts. 36. Charities. 37. Particular Words and Phrases Commonly Used in Wills Defined. 38. Object of Bequest or Devise. 39. Object of Bequest or Devise Concluded. 40. Eesiduary Estate. CHAPTER III. EXECUTION OF WILLS. 41. Statutory Requirements Concerning Signature and Witnesses. 42. Signature. 43. Witnesses. 44. Attestation. 45. Alterations. 46. Republication. 47. How Nuncupative Will Executed. 48. Soldiers' and Marines' Wills. CHAPTER IV. TESTAMENTARY CAPACITY. 8 49. Who may Make Wills. 50. Sound Mind. 51. Physical Weakness. 52. Old Age. 53. Insanity. 54. Insane Delusions and Eccentricities. 55. Will Executed During Lucid Interval. 56. Drunkenness. 57. Lawful Influence. 58. Lawful Influence Concluded. TABLE OF CONTENTS. VU CHAPTER V. REVOCATION OF WILLS. I 59. Definition. 60. How Wills Kevoked Statutory Provisions. 61. Eevocation of Will by Destroying It. 62. Eevocation by Executing New Will. 63. Implied Eevocations. 64. Changes in the Estate. 65. Death of Devisee or Legatee. 66. Eevocation by Marriage. 67. Eevocation by Birth of Issue. 68. Eevocation by Divorce. 69. Eevivor of Wills. CHAPTER VI. LOST WILLS. 70. Presumption from Failure to Find Will. 71. Jurisdiction of County Court Over Lost Wills. 72. Evidence Necessary to Establish Lost or Destroyed Will. CHAPTER VII. PROCEEDINGS TO COMPEL PRODUCTION OP WILL IN COURT. 73. Deposit of Will in County Court. 74. Duties of Other Person to Deliver Will. 75. Proceedings to Bring a Will into Court. 76. Liability for Failure to Deliver Will. CHAPTER VIII. PROBATE OF WILLS. I 77. Definition of the Term "Probate" as Applied to Wills. 78. Statute of Limitations. 79. Petition for Probate of a Will. VU1 TABLE OF CONTENTS. 80. Notice of Hearing. 81. Facts Necessary to be Proved on Probate of Will. 82. One Witness Only Required When Will not Contested. 83. Testamentary Character of Instrument Proposed as a Will. 84. Contestants of Wills. 85. Evidence of Mental Capacity. 86. Expert Evidence. 87. Undue Influence Definition. 88. Conditions Constituting Undue Influence. 89. Undue Influence and Mental Capacity. 90. Unjust Provisions Evidence of Undue Influence. 91. Undue Influence of Person Holding Special Relation of Trust. 92. Undue Influence of Draftsman of Will. 93. Execution of Will Obtained by Fraud. 94. Evidence of Undue Influence and Fraud. 95. Will of Person Under Guardianship. 96. Declarations of Testator. 97. Fraud and Undue Influence By Whom Shown. 98. Effect of Will Obtained by Fraud. 99. Invalid Bequest or Devise. 100. Omitting Reference to Children. 101. Probate of Foreign Wills. 102. Probate of Nuncupative Wills. 103. Probate of Wills Executed Outside the State by a Resident Thereof. 104. Costs in Will Contests. 105. Reducing Testimony on Probate of Wills to Writing. 106. Order Admitting Will to Probate. 107. Certificate of Probate of Will. CHAPTER IX. REVOCATION OF PROBATE. 108. Revocation of Probate Definition. 109. Grounds for Revoking Probate of Will. 110. Power of County Court to Revoke Probate of Wills. 111. Procedure for Revoking Probate. 112. Facts Necessary to be Established. 113. Effect of Order of Revocation. 114. Revocation Because Testator is Living. TABLE OF CONTENTS. IX CHAPTER X. COLLECTION AND MANAGEMENT OF THE ASSETS OF THE ESTATE BEFORE THE APPOINTMENT OF AN EXECUTOR OR ADMINISTRATOR. 115. Special Administrator "When Appointed. 116. Jurisdiction of Court to Issue Letters. 117. Evidence Xotice. 118. Bond of Special Administrator. 119. Powers and Duties of Special Administrator. 120. Accounting by Special Administrator. 121. Discharge of Special Administrator. CHAPTER XI. LETTERS TESTAMENTARY. 122. Executors Administrators "With the Will Annexed, 123. To Whom Letters may Issue. 124. Eight to Act as Executor not Assignable. 125. Joint Executors. 126. Grant of Letters and Bond. 127. Oath of Executor. 128. Bond of .Residuary Legatee. 129. Appointment of Administrator With the Will Annexed. 130. Preferences. 131. Procedure. CHAPTER XII. DETERMINATION OF HEIRSHIP WITHOUT AD- MINISTRATION. 132. When Administration may be Dispensed With. 133. Procedure. 134. Hearing Decree. 135. Determining Right of Succession Without Administration. 136. Petition for Decree Determining Succession. 137. Citation Hearing. 138. Decree Determining Succession, ; TABLE OF CONTENTS. CHAPTER XIII. APPOINTMENT OF ADMINISTRATORS. 139. Administration Definitions. 140. When Administrator Appointed Resident Estates. 141. Who is Capable of Administering an Estate. 142. Who Entitled to the Appointment. 143. Next of Kin. 144. Eight of Creditor to Administer. 145. Administration of Estates of Nonresidents. 146. Appointment of Administrator When Assets Consist of Cause of Action for Death of Decedent. 147. Petition for Appointment. 148. Notice of Hearing. 149. Hearing on Petition for Letters. 150. Hearing Selection of Administrator. 151. Order Granting Letters. 152. Bond of Administrator. 153. Oath of Administrator. 154. Letters of Administration cannot be Attacked Collaterally. CHAPTER XIV. REMOVAL OP EXECUTORS AND ADMINISTRATORS. 155. Ending of Authority Pending Administration. 156. Removal of Eevocation of Letters. 157. Personal Representative cannot be Removed Except for Cause. 158. Removal on Account of Nonresidence. 159. Removal for Failure to Observe Statutory Requirements. 160. Removal for Mismanagement. 161. Removal for Incapability and Unsuitableness. 162. Removal of Administrator by Subsequent Probate of Will. 163. Removal of Executrix or Administratrix by Marriage. 164. Removal on Account of Insufficiency of Bond. 165. Proceedings to Remove Personal Representatire. 166. Who may File Petition. 167. Hearing on Charges. 168. Order of Removal. TABLE OF CONTENTS. XI CHAPTER XV. APPOINTMENT OF ADMINISTRATOR DE BONIS NON. 169. Definition When Appointed. 170. Jurisdiction Petition. 171. Notice Hearing. CHAPTER XVI. INVENTORY AND APPRAISEMENT. 172. First Duty of Personal Eepresentative. 173. What Property must be Inventoried. 174. Personalty Generally. 175. Emblements. 176. Fixtures. 177. Personal Property not in Possession of Eepresentative. 178. Property the Title to Which is Questioned. 179. Keal Estate. 180. What Need not be Inventoried. 181. Failure of Executor or Administrator to File Inventory. 182. Appointment of Appraisers. 183. Duties of Appraisers. 184. Inventory of Administrator De Bonis Non. 185. Inventory not Conclusive. CHAPTER XVII. ALLOWANCES FOR THE SUPPORT OF THE FAMILY. S 186. Allowances of Specific Articles. 187. Persons Entitled to Allowance. 188. Nature and Object of the Allowance, 189. How Allowance Barred. 190. Amount of Allowance. 191. Payment of Allowance. 192. Allowance How Obtained. XU TABLE OF CONTENTS. CHAPTER XVIII. COLLECTION OF ASSETS. 193. Eight of Executor or Administrator to Possession of Personal Property. 194. Eight to Assets Before Grant of Letters. 195. Executor De Son Tort. 196. Limitation on Authority of Executor or Administrator Over Assets. 197. Proceedings to Eequire Disclosure of Assets. 198. Examination Nature of Proceedings. 199. Possession of Eeal Estate. 200. Eecovery of Eeal Estate by Heir or Devisee. 201. Survival of Causes of Action. 202. Eevivor of Actions on Death of Plaintiff. 203. Actions for Causing Death of Decedent. 204. Mortgages. 205. Suits How Brought. 206. Degree of Diligence Eequired of Executor or Administrator in Eeducing Assets to Possession. 207. Special Proceedings to Becover Personalty. 208. Compromising Debts With Leave of the Court. 209. Eight to Compromise Debts Without Leave of the Court. 210. Eight to Submit Claim to Arbitration. 211. Eight to Adjust or Compromise Eeal Estate Contracts. 212. Actions to Eecover Assets Transferred in Fraud of Creditors. 213. Suit by Creditor. 214. Indemnity Bond. 215. Nature of the Action. 216. Eight of Heir or Legatee to Collect Assets. 217. Debt of Executor or Administrator to the Estate. CHAPTER XIX. MANAGEMENT OF ESTATES. 218. General Powers of Executor or Administrator. 219. Actions Against the Estate. 220. Management of Eeal Estate. 221. Power of Executor to Sell Beal Estate. 222. Sales by Administrator With the Will Annexed. TABLE OF CONTENTS. Xlll 223. Sales of Personal Property. 224. Executor or Administrator not to be a Purchaser. 225. Caveat Emptor. ^226. Eight of Creditor, Heir or Legatee to Follow Assets. 227. Assets of Estate Held by Heirs or Legatees. 22S. Contiibution by Heirs or Devisees for Payment of Debts. 228a. Eecovery of Property from Distributees. 228b. Liability of Heirs for Debts. 229. Investment of Assets. 230. Liability of Executor or Administrator on His Own Contracts. 231. Contracts of Decedent. 232. Personal Representative not Authorized to Carry on Decedent's Business. 233. Liability for Carrying on Decedent's Business. 234. Devastavit. Definition. 235. Liability for a Devastavit. 236. Eights in Regard to Negotiable Instruments. CHAPTER XX. PARTNERSHIP. 237. Dissolution of Partnership by Death Rights of Surviving Partner. 238. Duty of Surviving Partner. 238a. Administrator of a Partnership. 238b. Power of Administrator of a Partnership. 239. Settlement Between Personal Bepreaentative and Surviving Partner. 240. Partnership Real Estate. 241. Settlement With Special Administrator. 242. Account of Special Administrator. 243. Sale of Interest of Estate in Partnership Property. 244. Notice Hearing. CHAPTER XXL MORTGAGING REAL ESTATE BY EXECUTORS AND ADMINISTRATORS. 245. Authority of Executor or Administrator to Mortgage Real Estate. 246. Jurisdiction of County Court to Grant License to Mortgage. XIV TABLE OF CONTENTS. 247. Appointment of Special Administrator to Execute Mortgage. 248. Hearing on Petition and Application License. 249. Mortgages and Notes. 250. Discharge of Special Administrator. CHAPTER XXII. ENFORCEMENT OF DECEDENT'S CONTRACT FOR SALE OF REAL ESTATE. 251. Executor or Administrator has No Inherent Authority to Exe- cute Deed to Real Estate. 252. Enforcement of Decedent's Eeal Estate Contracts. 253. Petition for Enforcement of Contract to Convey Keal Estate. 254. Notice of Hearing. 255. Hearing on the Petition. 256. Costs. 257. Specific Performance of Contracts to Convey Eealty. 258. Contracts Covering Homesteads. CHAPTER XXIII. FOREIGN AND ANCILLARY ADMINISTRATION. 259. Limitation on Powers of Executor or Administrator at Com- mon Law. 260. Powers of Foreign Executor or Administrator Within this State. 261. Limitation on Powers of Foreign Representatives. 262. Rights of Nebraska Administrator in Other States. 263. Jurisdiction of the Court to Appoint Ancillary Administrator. 264". Purposes for Which Appointment Proper. 265. Procedure for Appointment. 266. Hearing Order for Appointment. 267. General Rules Governing Ancillary Administration. 268. General Powers and Duties of Ancillary Administrators. 269. Allowance and Payment of Claim. 270. Accounting by Ancillary Administrators. 271. Disposition of Surplus After Paying Debts. TABLE OP CONTENTS. XV CHAPTER XXIV. ALLOWING CLAIMS AGAINST THE ESTATE. 272. Creditor's Interest in the Estate of a Decedent. 273. Power of County Judge to Allow Claims. 273a. Presentation of Claims to Eepresentative. 273b. Duty of Eepresentative. 273c. Special Proceedings Against Estate. 273d. Suit Against Eepresentative. 274. Time and Place for Hearing Claims. 275. Notice to Creditors. 276. Claims Which Need not be Filed. 277. Claims Which Need not be Filed Concluded. 278. Property Held by a Trustee. 279. Statute of Limitations. 280. The Statutes of Nonclaim. 281. The Two Years' Limitation. 282. Proving Claims. 283. Proving Claims Concluded. 284. Funeral Expenses. 285. Funeral Expenses Concluded. 286. Claims Against an Estate Accrued Demands. 287. Claims Becoming Due After Death. 288. Express Contracts to Pay for Services Eendered. 289. Implied Contracts to Pay for Services Eendered. 290. Implied Contract to Pay for Services Eendered Concluded. 291. Conversations and Transactions With Decedent. 292. Competency of Adverse Party. 293. Adverse Party. 294. Waiver of Objections. 295. Declarations and Admissions to Third Party in Presence of Claimant. 296. Claims for Breach of Covenants. 297. Claims Due Nonresidents. 298. Joint Claims. 299. Executor's or Administrator's Claims. 300. Contingent Claims. 301. Contingent Claims Becoming Absolute. 302. Contract to Bequeath or Devise Property. 303. Consideration of Contract. 304. Belief Granted. XVI TABLE OF CONTENTS. 305. Writings of Deceased Persons as Evidence. 306. Extending Time for Presentation of Claims. 307. Order Extending Time for Filing Claims. 308. Order Allowing Claims. CHAPTER XXV. SALES OF REAL ESTATE FOR PAYMENT OF DEBTS. 309. Creditor's Lien on Realty. 310. Duty of Executor or Administrator to Procure License. 311. Nature of Proceedings. 312. When and Where Petition Filed. 313. Necessary Parties to Proceeding. 314. Necessary Allegations of Petition. 315. Description of Lands. 316. Order to Show Cause. 317. Service of Order to Show Cause. 318. Payment of Debts to Prevent Sale. 319. Hearing on the Application. 320. Hearing Insufficiency of Personal Property. 321. Hearing Debts and Expenses of Administration. 322. Hearing Lands Subject to Sale. 323. Order of Sale or License. 324. Additional Bond. 325. Notice of Sale. 326. Sale Subject to Liens. 327. Oath of Executor or Administrator. 328. Sale. 329. Adjournment of Sale. 330. Executor or Administrator not to be a Purchaser. 331. Confirmation of Sale. 332. Confirmation of Sale Concluded. 333. Sale of Contract Interest in Land. 334. Death of Executor or Administrator Pending Proceedings. 335. Sales by Foreign Executors or Administrators. 336. Taxation of Costs. 337. Executor's or Administrator's Deed. 338. Title of Purchaser. 339. Sale of Property in Which a Homestead is Included. TABLE OF CONTENTS. XVU CHAPTER XXVI. COLLATERAL ATTACK ON PERSONAL REPRE- SENTATIVE'S SALES. 340. When Action may be Brought. 341. Void and Irregular Sales. 342. Attacking the License. 343. Attacking the License The Petition. 344. Attacking the License Order to Show Cause. 345. Jurisdictional Irregularities. 346. Failure to Give Bond. 347. Failure to Take Oath. 348. Notice of Time and Place of Sale. 349. Compliance With the Order of Sale. 350. Purchase by Disqualified Party. 351. Fraud. 352. Eights of Purchaser at Void Sale. CHAPTER XXVII. PAYMENT OF DEBTS AND EXPENSES. 5 353. Time Within Which Debts are Payable. 354. Time Granted an Administrator De Bonis Non to Pay Debts. 355. Assets Liable for the Payment of Debts. 356. Order of Application of Personalty to Payment of Debts. 357. Direction in Will for Payment of Debts. 358. Debts Charged on the Beal Estate. 359. Assets not Liable for Debts. 360. Adjustment of Liens on Realty. 361. Liability of Heirs, Legatees and Devisees for Payment of Debts. 362. Actions Against Heirs, Devisees and Legatees. 363. Actions Against Executors and Administrators. 364. Executor or Administrator not Subject to Garnishment. 365. Classification of Claims for Payment of Debts. 366. Interest on Claims. 367. Order for Payment of Claims. 368. Payment, How Made. 369. Liability of Executor or Administrator to Creditors. XV1U TABLE OF CONTENTS. CHAPTER XXVIII. PAYMENT OF LEGACIES. | 370. Personalty the Primary Fund for Payment of Legacies. 371. Charges on Real Estate for Payment of Legacies. 372. Sales of Real Estate for Payment of Legacies. 373. Payment of Legacies to Debtors and Creditors. 374. Vesting of Legacies. 375. Lapsed Legacies. 376. Lapsed and Void Legacies. 377. Abatement of Legacies. 378. Ademption of Legacies. CHAPTER XXIX. GIFTS CAUSA MOHTIS AND ADVANCEMENTS. 379. Gifts Causa Mortis Defined. 380. What Property Subject to Gift Causa Mortis. 381. Effect of Gift. 382. How Validity of Gift Determined. 383. Advancement Defined. 384. Changing Character of Payment. 385. Evidence Necessary to Prove Advancement. 386. Testate Estates. 387. Value of Advancement. 388. Advancements and Distribution. CHAPTER XXIX-A. DOWER AND CURTESY. 388a. Definitions. 388b. Dower in Mortgaged Property. 388c. Dower of Aliens and Nonresidents. 388d. Property Subject to Dower. 388e. Requisites of Dower and Curtesy. .388f. Dower and Curtesy How Barred. 388g. Election Between Jointure and Dower and Devise and Dower or Curtesy. TABLE OF CONTENTS. XIX 388h. Assignment of Dower. 3881. Assignment of Dower by County Court. 388j. Assignment of Dower by Circuit Court. 388k. Dower in Lands that have Enhanced in Value. 3881. Dower in Lands that have Depreciated in Value. 388m. Dower in Lands not Capable of Division. 388n. Damages for Withholding Dower. 388o. Incidents of Dower. 388p. Dower Eecoyered by Default or Collusion. CHAPTER XXX. ASSIGNMENT OF HOMESTEAD. 389. Descent of Homestead. 390. How Homestead of Surviving Spouse Barred. 391. Rights of Survivor in Homestead. 392. Assignment of Homestead by Cfeunty Court. 393. Selection and Setting Out Homestead from Larger Tract. 394. Assignment of Homestead by District Court. 395. The Remainder in the Homestead Property. CHAPTER XXXI. INHERITANCE TAX. 396. Nature of the Tax. 397. Tax on Inheritance, Devises and Requests. 398. Property Transferred in Contemplation of Death. 399. Property Liable to Taxation. 400. Jurisdiction of County Court Over Inheritance Tar. 401. Duties of Appraisers. 402. Duties of Appraisers Concluded. 403. Assessment of the Tax. 404. Appeals. 405. When Inheritance Tax Due. 406. Payment of Inheritance Tax by Executor, Administrator or Trustee. 407. Refunding Excess or Erroneous Payment. 408. Action for Recovery of Tax. 409. Inheritance Tax Records. 409a. Life Expectancy Tables. XX TABLE OF CONTENTS. CHAPTER XXXII. ACCOUNTING. 410. Duty of Executor or Administrator to Bender an Account. 411. When Accounting Eequired. 412. Proceedings for an Accounting. 413. Annual or Interlocutory Accounts. 414. Debtor Side of Account General Charges. 415. Debtor Side of Account Interest. 416. Debtor Side of Account Lands Purchased. 417. Credit Side of Account General Charges. 418. Costs and Expenses of Administration. 419. Costs and Expenses of Administration Concluded. 420. Fees of Executor or Administrator. 421. Fees and Special Compensation. 422. Notice of Hearing on Administration Account. 423. Hearing on the Account. 424. Hearing on the Account Concluded. 425. Order Allowing Final Account. 426. Coexecutors and Coadministrators. 427. Equitable Action to Eecover Assets. 428. Accounting by Former Executor or Administrator With Admin- istrator De Bonis Non. CHAPTER XXXIII. DIVISION OF -THE ESTATE. { 429. Descent of Eeal Estate to Surviving Spouse. 430. Barring Inheritances. 431. Election Between Will and Distributive Share. 432. Election on Behalf of Survivor. 433. Effect of Bejection of Will. 434. Descent of Eeal Estate to Heirs. 434a. Descent of Eeal Estate to Heirs Concluded. 435. Descent of Eeal Estate to Heirs Concluded. 436. Kindred of the Half Blood. 437. Descent of Estate of Illegitimate. 438. Eight of Illegitimate to Inherit. 439. Inheritance by Adopted Children, TABLE OF CONTENTS. XXI 440. Posthumous Children. 441. Share of Child not Provided for Toy WiEL 442. Eights of Nonresident Aliens. 443. Distribution of Personalty. 444. Exceptions to Eight to Inherit. 445. Escheats. 446. Personalty Distributed as Eealty. 447. Decree of Distribution. 448. Petition for Decree. 449. Hearing on Application for Distribution. 450. Eequirements of Decree. 450a. Special Proceedings for Determining Heirship. 450b. Citation and Service. 450c. Hearing on the Petition. 450d. Decree Designating Heir. 451. Nature of Decree. 452. Discharge of Executor or Administrator. CHAPTER XXXIV. ENFORCEMENT OF PROBATE BONDS. 453. Purpose for Which Bond is Given. 454. Failure of Bond to Comply With Statute. 455. Common-law Bond. 456. Cumulative Bond. 457. Liability of Sureties of Coexecutors and Coadministrators. 458. Who can Bring Suit on Probate Bond. 459. Proceedings Necessary in Order to Sustain Action on Probate Bond. 460. Fixing Liability of Bondsmen. 461. What Constitutes a Breach of the Bond. 462. What Constitutes a Breach of the Bond Concluded. 463. Losses not Covered by Bond. 464. Eesiduary Legatee's Bond. 465. Suit by Administrator De Bonis Non. 466. Authority to Bring Suit on Bond. 467. Time Within Which Action may be Brought. 468. Liability of Sureties. 469. Liability in Eegard to Eeal Estate. 470. Liability for Proceeds of Sales of Eeal Estate Under Order of Court. XX11 TABLE OF CONTENTS. 471. Action on the Bond. 472. Action, When Barred. CHAPTER XXXV. APPEALS AND PROCEEDINGS IN ERROR. 473. Review of Judgments and Decrees. 474. Parties to Appeal or Proceedings in Error. 475. Appealable Orders. 476. Appeals by Personal Representatives. 477. Appeals by Other Parties. 478. Appeals by Other Parties from Decrees Adverse to the Estate. 479. Transcript. 480. Administration Pending Appeals. 481. Proceedings in Appellate Court. 482. Failure to Perfect Appeals. 483. Order or Decree of District Court. 484. Writs of Error. 485. Procedure. 486. Supersedeas Bond. 487. Summons in Error. 488. Hearing in District Court. 489. Judgment of District Court in Error Proceedings. CHAPTER XXXVI. APPOINTMENT AND REMOVAL OF GUARDIANS. 490. Guardians Definition. 491. Powers, Rights and Duties of Natural Guardians. 492. Testamentary Guardians. 493. Appointment of Guardian of a Minor. 494. Guardians of Minors Who have No Estate. 495. To Whom Letters may Issue. 496. Procedure for Appointment of Guardian of a Minor. 497. Hearing. 498. Appointment of Guardian for Insane or Incompetent Person. 499. Temporary Guardian. 500. Hearing. 501. Guardian for Spendthrift. TABLE OF CONTENTS. XX111 502. Contracts of Spendthrift Pending Appointment of Guardian. 503. Nature of Order Appointing or Refusing to Appoint a Guard- ian. 504. Guardian's Bonds. 505. Joint Guardians. 506. Guardian of Nonresidents. 507. Removal of Guardians. 508. Notice to Guardian. 509. Appointment of Successor. CHAPTER XXXVII. POWERS AND DUTIES OF GUARDIANS. 510. Inventory and Appraisement. 511. Custody of Person of Ward. 512. Support of Minor Ward. 513. Support of Incompetent or Spendthrift. 514. Labor and Services of Ward. 515. Collection of Assets. 516. Action Against Ward. 517. Contracts of Guardians. 518. Payments of Debts of Ward. 519. Powers and Duties in Regard to Real Estate. 520. Investment and Management of Personal Estate. 521. Investment and Management of Personal Estate Concluded. 522. Liability of Guardian for Negligence. 523. Liability for Ill-treatment of Ward. 524. Rights of Foreign Guardian in This State. 525. Additional or Cumulative Bond. CHAPTER XXXVIII. GUARDIANS' SALES AND MORTGAGES OF LANDS. 5 526. Power of Guardian to Sell Real Estate. 527. Procedure for Sale. 528. What Interest in Lands may be Sold. 529. Petition-. 530. Order to Show Cause Service. 531. Hearing on the Application. XXIV TABLE OF CONTENTS. 532. License. 533. Bond and Oath. 534. The Sale. 535. Confirmation of Guardian's Sales. 536. Sales by Foreign Guardians. 537. The Rule of Caveat Emptor. 538. Division of the Proceeds. 539. Action for Recovery of Lands Sold by Guardians. 540. Estoppel of Former Ward. 541. Action by Party Claiming Adversely to Ward. 542. Collateral Attack on the License. 543. Collateral Attack, Bond and Oath. 544. Collateral Attack Notice of Sale and Sale. 545. Mortgage on Minor's Lands Application. 546. Proceedings on the Application. 547. Sales of the Interest of Insane Spouse in Real Estate. 548. Hearing and Bond. 549. Sale and Confirmation. CHAPTER XXXIX. ACCOUNTS AND SETTLEMENTS OF GUARDIANS. 550. Annual Account of Guardian. 551. Guardian's Account Debit Side. 552. Guardian's Accounts Credits. 553. Power to Compel Interlocutory Accounting. 554. Discharge of Guardian. 555. Settlement Out of Court. 556. Action to Set Aside Settlement. 557. Action by Ward for Property Fraudulently Transferred. 558. Final Accounting in County Clerk. 559. Hearing on Guardian's Account. 560. Order Allowing Final Account of Guardian. 561. Liability of Sureties on Guardian's Bond. 562. Release of Sureties. 563. Action on Guardian's Bond. 563a. Appeals in Guardianship Matters. TABLE OF CONTENTS. XXV CHAPTER XL. ADOPTION OF CHILDREN, 5G4. Adoption Definition. 565. Who may Adopt a Child. 566. Consent of Parents or Guardians. 567. Proceedings for Adoption. 568. Notice of Hearing. 569. Hearing on the Petition. 570. Decree of Adoption. APPENDIX. (Pages 963 to 966.) TABLE OF CASES. (Pages 967 to 1056.) INDEX. (Pages 1057 to 1125.) PKOBATE AND ADMINISTRATION, CHAPTER I. ORGANIZATION, POWERS AND JURISDICTION OF THE COUNTY COURT. 1. Establishment of Courts of Probate Jurisdiction. 2. Bond and Oath of County Judge. 3. Liability of His Sureties. 4. Vacancies. 5. How Vacancies Filled. 6. Disqualification of County Judge. 7. Effect of Disqualification. 8. Appointment of Acting County Judge. 9. Jurisdiction of County Court Statutory. 10. Equitable Xature of County Court Proceedings. 11. Implied or Inherent Jurisdiction. 12. Clerk of County Court. 13. County Court Practice and Procedure. 14. Process and Service Thereof. 15. Attorneys. 16. Guardians ad Litem. 17. Kecords of County Court. 18. Certifying Records. 19. Probate Books as Public Records. 20. County Judges' Fees. 21. Sheriffs' Fees. 22. Printers' Fees. 23. "Witnesses' and Appraisers' Fees. 24. Original Jurisdiction of District Court Over Probate Matters. 1. Establishment of courts of probate jurisdiction. The literal definition of the word "probate" is formal legal proof used, especially in reference to wills. 1 Its meaning, however, has become broadened 1 Cyclopedic Law Diet.; Bouvier's Law Diet.; Webster's Diet. 1 Pro. Ad. 1 PROBATE AND ADMINISTRATION. [Chap. 1 by usage, until even in statutes and judicial opinions it includes the appointment of administrators and pro- ceedings generally in a court of first instance for the distribution of the property of a decedent to the par- ties such court shall find entitled to the same. At the first session of the territorial legislature laws were passed establishing a probate court with original plenary jurisdiction, within the limits of the county. over all matters pertaining to the settlement of the es- tates of decedents, including sales of real estate for the purpose of paying debts and expenses of administra- tion, and guardianship matters. 2 With the adoption of the constitution of 1875 the old probate court ceased to exist, and a county court vested with full probate and guardianship jurisdiction in each organized county in the state took its place. 3 It also possesses an ex- tensive jurisdiction over civil and criminal cases. In the exercise of its jurisdiction over probate and guardianship matters it is a court of record, whose judgments and recitals are entitled to the same pre sumptions as those of a court of general jurisdiction. 4 All of its sessions are held at the county seat. It is deemed always open, and any cause, matter or proceed- ing may be proceeded with therein at any time after the giving of notice or the service of process in the mode prescribed by law, 5 but for the purpose of cor- 2 Gen. Sess. Laws, vol. 1, p. 176. 8 Const., art. 18, 15; Martin v. Grover, 9 Neb. 265, 2 N. W. 354. 4 Beer v. Plant, 1 Neb. Unof. 372, 96 N. W. 348; Scott v. Flowers, 61 Neb. 620, 85 N. W. 857; Genan v. Roderick, 4 Neb. Unof. 436, 94 N. W. 523; Kolterman v. Chilvers, 82 Neb. 216, 117 N. W. 405. 5 Rev. Stats., e. 16, 77, [1204]. (2) Chap. 1] THE COUXTT COUBT. 2 reeling and modifying its decrees, it is considered as holding four terms of three months each per year. 6 It is presided over by one judge, who is elected by the duly qualified voters of his county, at the general election held on the first Tuesday in November of each even-numbered year, and holds his office for two years and until his successor is elected and qualified. 1 Al- though many complicated legal questions come before this court, the legislature has not seen fit to demand any special qualifications of the judge who presides over it, and any person eligible to a county office may be chosen to fill it. In Oregon, like powers are vested in a county court of each county, which in the exercise of the same is also a court of record, and of general and superior powers. 8 It holds regular terms on the first Monday of each month, 9 and is deemed always open for the transaction of such probate and guardianship matters as may be had without the presence of or notice to another. 10 It is presided over by one judge elected by the voters of his county for a term of four years, 11 and, as in Nebraska, it is not necessary that he be a lawyer. 2. Bond and oath of county judge. Before entering upon the duties of his office, the county judge is required to give a bond conditioned 6 Civ. Code, 656. T Const., art. 8, 20; Bev. Stats., e. 20, [1954]. 8 Const., art. 7, p. 1; Bussell v. Lewis, 3 Or. 389; Tustin T. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119. Laws 1913. p. 467. 10 L. O. L.. 936. 946, 947. 11 Const., art. 8, 511. (3) 2 PROBATE AND ADMINISTRATION. [Chap. 1 upon the faithful discharge of all the duties required of him by law, for the use of any person injured by a breach of the same. He is also required to take the constitutional oath of office, which must be indorsed upon his bond. 12 The bond must be executed by at least two sufficient sureties, freeholders of the county, or by a surety com- pany authorized to do business in the state, 13 and in a penal sum as follows: In counties having a population of less than six thousand, five thousand dollars; in counties having a population of over six thousand and less than twenty thousand, ten thousand dollars, and in counties of over twenty thousand population, fifty thousand dollars; and no person can become surety for the same officer for more than two successive terms. 14 It must be approved, both as to form and sufficiency of sureties, by the county board, and filed and recorded in the office of the county clerk, with a certificate of approval indorsed thereon, on or before the first Thurs- day after the first Tuesday in January next succeeding the election, that being the date on which the newly elected officer enters upon his duties. 15 A county judge re-elected or reappointed to that office is upon the same footing as one for the first time elected, he must qualify by taking the constitutional oath, giving bond and rendering an account of all pub- lic funds in his possession, and, should he be holding over by reason of a failure to elect or appoint his suc- 12 Const., art. 1, 8; Duffy v. State, 60 Neb. 812, 80 N. W. 264; Rev. Stats., c. 58, 177, [5707]. as Rev. Stats., c. 58, 185, [5715]. 14 Rev. Stats., c. 58, 185, 1&4, [5715], [5724]. 15 Rev. Stats., c. 58, 194, 187, 181, [5724], [5717], [5701]. (4) Chap. 1] THE COUNTY COURT. 3 cessor, or the failure of such elected or appointed suc- cessor to qualify, he must qualify anew within ten days from the date on which his successor should have qualified. 16 The failure of the officer-elect to qualify within the time limited by law creates a vacancy, ipso facto. The provision of the statute is self-acting, and unless the person elected files his bond within the time required, and takes the oath, he loses all right to the office, and the vacancy can be filled without any previous judicial determination of the fact. 17 Form No. 1. OATH OF COUNTY JUDGE. I do solemnly swear (or affirm) that I will support the constitution of the United States and the constitution of the state of Nebraska, and will faithfully discharge the duties of county judge of county according to the best of my ability, and that at the election to which I was chosen to fill said office I have not improperly influenced in any way the vote of any elector, nor will I accept or receive, directly or indirectly, any money or other valuable thing from any company, corporation or person, or any promise of office, for any official act or influence. Dated this day of , 19 . (Signed) J. K., County Judge. 3. Liability of sureties. Sureties upon the bond of a county judge undertake to answer for the acts of their principal by virtue of his office only, and not for those done under color of office. They are not liable for assets of an estate which 16 Eev. Stats., c. 57, 192, 193, [5722], [5723]. 17 State v. Lansing, 46 Neb. 514, 64 N. W. 1104; Holt County r. Scott, 53 Neb. 176, 73 N. W. 681. (5) 3 PKOBATE AND ADMINISTRATION. [Chap. 1 came into the possession of the judge before letters of administration issued, and which were converted by him. 18 A conversion under such circumstances and failure to deliver the property to the administrator is a felony. 19 Form No. 2. BOND OF COUNTY JUDGE. Know all men by these presents, that we, J. K., as principal, and C. D. and E. F., all of county, Nebraska, as sureties, are held and firmly bound unto the county of and state of Nebraska in the penal sum of ten thousand dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns, by these presents. Whereas, on the day of , 19 , said J. K. was duly elected to the office of county judge of said county of ; Now, therefore, the condition of this obligation is such that, if the above bond, J. K., shall pay over, according to law and to the persons entitled thereto, all moneys which shall come into his hands by virtue of his office, and shall faithfully discharge all the duties required of him by law, then these presents to be null and void, other- wise to be and remain in full force and effect. (Signed) J. K. C. D. E. F. The foregoing bond approved both as to form and sufficiency of sureties. (Signed) L. M., O. P., B. D., Commissioners. 18 Stephens v. Hendee, 80 Neb. 754, 115 N. W. 283. 19 Hendee T. State, 80 Neb. 80, 113 N. W. 1050, (6) Chap. 1] THE COUNTY COUBT. 4 Form No. 3. JUSTIFICATION OF SURETY. State of Nebraska, County, as. C. D., of said county, being first duly sworn, on oath says that he is the owner of the following described real estate situated in said county (describe real estate), and is worth the sum of dollars over and above all legal exemptions, debts, and demands of every description. (Signed) C. D. Subscribed in my presence, and sworn to before me this day of , 19 , (Signed) V. S., Justice of the Peace. An official bond is not required of a county judge in Oregon. He qualifies by taking an oath or affirmation to support the constitution of the United States and the constitution of the state of Oregon, and also an oath of office. 20 4. Vacancies. The office of county judge is a constitutional one. 21 It becomes vacant by the death of the incumbent, his removal from the state, resignation, conviction of a felony, impeachment or becoming of unsound mind. 22 A vacancy also occurs when the duly appointed or elected officer neglects to have his official bond exe- cuted, approved and recorded as required by law. Such neglect vacates the office ipso facto, and the vacancy is filled as in other cases. 23 A vacancy may exist although the duties pertaining to the office are 20 Const., art. 15. 21 Const., art. 6, 1. 22 Const., art. 3, 20; L. O. L.. 3433; Or. Const., art. 8, | 11. 23 Rev. Stats., c. 58, 111, [5721]; State v. Lansing, 46 Neb. 514, 64 N W. 1104. (7) 5 PROBATE AND ADMINISTRATION. [Chap. 1 being discharged by a person temporarily appointed by proper authority, as where the county judge re- moves permanently from the county while a person appointed by the county board is occupying the posi- tion. As soon as such temporary absence becomes per- manent, and the judge becomes a resident of another state or county within this state, the authority of the appointee ceases, and a vacancy occurs which must be filled in the manner provided by the statute. 24 A county judge cannot be removed from office for misconduct or maladministration, except by impeach- ment in the same manner as other judicial officers and state officers. 25 Vacancies occurring by reason of the judge removing from the county, or failure of the elected or appointed officer to qualify, require no judicial determination. Should it appear prima facie that events have occurred which subject the office to a judicial declaration of being vacant, the authority having power to fill it may proceed at once to elect or appoint a successor in the manner provided by law. 26 5. How vacancies are filled. If the vacancy occurs more than one year before the next regular election, the unexpired term exceeding one year, it must be filled by special election; if less than one year, by appointment by the county board. 27 There is no provision in the statute for the appoint- 24 Prather v. Hart, 17 Neb. 598, 24 N. W. 282. 25 Conroy v. Hallowell, 94 Neb. 794, 144 N. W. 896. 26 Prather v. Hart, 17 Neb. 598, 24 N. W. 282; State v. Lansing, 46 Neb. 514, 64 N. W. 1104. 27 Rev. Stats., c. 20, 339, [2278], [2279]. (8) Chap. 1] THE COUNTY COUET. G ment of a temporary or acting county judge to hold the office when the vacancy must be filled by a special elec- tion, between the time when the vacancy occurs and the date when the newly appointed officer qualifies. An appointee under such circumstances would prob- ably be held a de facto county judge and his acts as such valid. 28 In Oregon, the vacancy is filled by appointment by the governor, and the appointee holds the office until the next general election when his successor is elected for the full term of four years. 29 6. Disqualification of county judge. A county judge is disqualified by statute from acting in any case or matter in which he is next of kin of the deceased, or where he is devisee or legatee under a will, or is one of the subscribing witnesses thereto, or where he is named as executor or trustee therein, or where he is related to any party in interest in any pro- ceeding before him, by consanguinity or affinity, or has such an interest therein as would preclude him from acting as a juror in such case or matter, or where he has acted as attorney or counsel in any case or matter before him. 30 These restrictions, which are more stringent than those of the common law, would bar him from sitting on the probate of a will which he has drafted. 31 Under the Oregon practice he is disqualified by direct interest, relationship by consanguinity or affin- 28 See Dredla v. Bache, 60 Neb. 655, 83 N. W. 916. 29 Const., art. 5, 16; State v. Johns, 3 Or. 536. so Eev. Stats., c. 16, 79, [1206]. 31 Moses v. Julian ; 45 N. H. 52. (9) 7 PROBATE AXD ADMINISTRATION. [Chap. 1 ity within the third degree, or having been attorney in the proceeding for either party. 32 7. Effect of disqualification. The disqualification of a county judge does not bar him from performing mere ministerial acts, requiring no exercise of judicial discretion, such as filing papers or issuing process or notice of hearing, 33 but whenever a matter arises in which his judicial discretion must be exercised, his disqualification completely deprives him of jurisdiction over such proceeding. 34 Not only are judicial acts performed by a disqualified judge void, but they are so opposed to the American standards of fairness and impartiality demanded of its judges that the parties cannot, either by waiver or agreement, vest the court with jurisdiction. 35 Form No. 4. OBJECTIONS TO COUNTY JUDGE ON ACCOUNT OF EELATIONSHIP. In the County Court of County, Nebraska, In the Matter of the Estate of A. B., Deceased. Comes now C. D. and respectfully represents unto the court that on the day of , 19 , he filed his petition in said court for the probate of the will of said A. B., and for the appointment of G. H. as executor of said will; that said matter was set for hear- ing by said court for the day of , 19 , and notice thereof ordered published in the , a newspaper published at and within the county aforesaid; that J. K., the judge of said court, 32 L. 0. L., 956. 33 State v. Gurney, 17 Neb. 523, 23 N. W. 524. 34 Moses v. Julian, 45 N. H. 52; Gay v. Minot, 3 Cush. (Mass.) 352; Schoonmaker v. Clearwater, 41 Barb. (N. Y.) 200. 35 Walters v. Wiley, 1 Neb. Unof. 235, 95 N. W. 456; Edwards v. Rus- sell, 21 Wend. (N. Y.) 63; People T. De La Guerra, 24 Cal. 77. (10) Chap. 1] THE COUNTY COURT. 7 is disqualified from acting in any proceeding in the settlement of said estate, for the reason that the said J. K. was a son-in-law of said A. B. (is an heir at law of said A. B.) (legatee under the will of said A. B.) [state other grounds of disqualification, if any such exist]. Your petitioner therefore requests that L. M., of said county, or some other competent person, be appointed, acting county judge for the purpose of hearing and determining all matters pertaining to the settlement of said estate that may come before said court. Dated at , Nebraska, this day of , 19 . (Signed) C. D. Form No. 5. VERIFICATION. State of Nebraska, County, as. C. D., being first duly sworn, on oath says that he has read the foregoing petition by him subscribed, and knows the contents thereof, and that the facts therein set forth are true, as he verily believes. (Signed) C. D. Subscribed in my presence, and sworn to before me, this day of , 19 , (Signed) E. F., Notary Public. Form No. 6. OBJECTIONS TO COUNTY JUDGE ON ACCOUNT OF BIAS AND PARTIALITY. In the County Court of County, Nebraska. In the Matter o-f the Estate of A. B., Deceased. Comes now C. D. and respectfully represents unto the court that he is a grandson and heir-at-law of said A. B.; that on the day of , 19 , E. F. filed his petition in said court for the probate of an alleged will of said A. B., and for the appointment of him, said E. F., as executor thereof; that said matter was set for hear- ing by said court for the day of , 19 , and notice thereof ordered published in the , a newspaper printed and pub- lished in said county; that J. K., the judge of said court, is dis- qualified from acting in said matter, for the following reasons: That the said J. K. is the attorney for said proponent, said E. F. ; that said J. K. drafted said alleged will, and was present when the same (ID 8 PEOBATE AND ADMINISTRATION. [Chap. 1 was signed Toy said A. B.; that your petitioner has filed objections to the probate of said alleged will on the ground that said E. P. exerted undue influence over said A. B., and said instrument is no-t the will of said A. B., and that the signature of said A. B. to said instrument was obtained by the fraud of said proponent E. F.; that said J. K. may be a material witness in said matter. [Add prayer as in No. 4.] Form No. 7. REQUEST FOE APPOINTMENT FOR ACTING COUNTY JUDGE TO ACT IN A CERTAIN CASE. To the County Board of County, Nebraska: I hereby request your honorable body to appoint a competent and disinterested person to act as judge of the county court of said county, in a certain matter therein pending, entitled "In the Matter of the Estate of A. B. Deceased," for the reason that I am disqualified to act therein. Dated this day of , 19 . (Signed) J. K., County Judge. Form No. 8. REQUEST FOR APPOINTMENT FOR ACTING COUNTY JUDGE ON ACCOUNT OF ABSENCE OF JUDGE FROM THE COUNTY. To the County Board of County, Nebraska: I respectfully request your honorable body to appoint a suitable and disinterested person to act as judge of the county court of said county during my temporary absence therefrom. Dated this day of , 19 . (Signed) J. K., County Judge. 8. Appointment of acting county judge. Whenever a county judge is disqualified from hear- ing any cause pending in his court, or is temporarily disabled by sickness or otherwise, the county board may appoint a competent person to act in his place, (12) Chap. 1] THE COUNTY COURT. 8 who shall have the same authority and be subject to the same restrictions as the regular incumbent. 36 In the case of the disqualification of the county judge, the duties of the appointee are limited to the particular matter which was the cause of the appoint- ment being made. He is entitled to access to the office and the seal, papers and records whenever necessary. 37 In the case of other temporary appointments, the power of the appointee ends when the inability of the judge to act is removed. A county judge who is disqualified should himself request the county board to appoint .someone to take his place. Any person having a legal right or bene- ficial interest in any probate or guardianship matter, such as a proponent, heir, devisee or legatee, may file objections to the qualification of the judge and thus secure the appointment of a disinterested person. An acting county judge must give bond and have the same approved in the same manner and form as though he were regularly elected or appointed, and also take the oath of office. The presumption is that he was regularly appointed by competent authority, and it is not necessary, in any matter coming before him, for the records to show his right to act in the 36 PROBATE AND ADMINISTRATION. [Chap. 2 36. Charities. There are no statutory restrictions in this state on bequests or devises to public charities. Such charities include gifts to municipalities for all classes of public improvements, 74 for the relief of poverty and sick- ness, 75 for the assistance of widows, orphans and chil- dren, 76 gifts for schools and colleges, 77 or for promo- tion and general diffusion of useful knowledge, for churches, 78 as well as for missionary and charitable purposes. Such gifts may be made to incorporated associations or in trust for denned purposes. The beneficiaries need not be named with the same degree of exactness as in the case of other trusts. The trustee may be given power to select the objects of the charity and devise a plan for the application of the funds. The exercise of the discretion vested in him is deemed the act of the will of the testator. 79 The gift may be of a base fee determinable upon condition, or the property placed in the hands of trustees for the use of the charity. 80 In the latter case the officers of a bank were deemed proper trustees of a bequest of shares of its 74 Coggeshall v. Pelton, 7 Johns. Ch. (N. Y.) 292; Burbank v. Bur- bank, 152 Mass. 254, 25 N. E. 427. 75 St. James Orphan Asylum v. Selby, 60 Neb. 796, 84 N. W. 273; Derby v. Derby, 4 E. I. 414. 76 Camp v. Crocker, 54 Conn. 21, 5 Atl. 604. 77 Vidal v. Philadelphia, 2 How. (U. S.) 127. 78 Royer v. Potter, 94 Neb. 280, 143 N. W. 299. 79 St. James Orphan Asylum v. Selby, 60 Neb. 796, 84 N. W. 273, 75 Neb. 591, 106 N. W. 604; In re Nilson's Estate, 81 Neb. 809, 11 N. W. 971. 80 Royer v . Potter, 94 Neb. 280, 143 N. W. 299. (50) Chap. 2] PREPARATION AND DRAFTING OF WILLS. 37 stock to a church, the income to be used for religious purposes. The most essential element of a bequest or devise to a charity is a sufficient definition of its objects and purposes and designation of its beneficiaries; if to trus- tees for the purpose of establishing a charity, it should state the objects and purposes of the charity. It may contain directions for the investment of funds and direct how they shall be used. The details may be left to the trustees, and it will be upheld if sufficiently specific to establish the charity and place the general management and control in the hands of the trustees. 81 37. Particular words and phrases, commonly used in wills, defined. The words "lands, tenements, and hereditaments" are the most comprehensive of any applicable to real estate. They include every species of realty, cor- poreal and incorporeal, leasehold and reversionary interests. 82 The words "estate" and "property" are the most comprehensive terms that can be used in disposing of a man's possessions by will. They are practically identical in their meaning, and either, when used with- out qualifying expressions, include everything that be- longed to the testator, both realty and personalty. 83 81 In re Creighton's Estate, 91 Neb. 654, 136 N. W. 1001; St. James Orphan Asylum v. Selby, 60 Neb. 796, 84 N. W. 273; 75 Neb. 591, 106 N. W. 604; Chick v. Ives, 2 Neb. Unof. 879, 90 N. W. 751. 82 3 Kent, Com., 13th ed., 401; 1 Jarman, Wills, 177. 83 Deering v. Tucker, 55 Me. 284; Jackson v. Housel, 17 Johns. (N. Y.) 281; Spencer v. Higgins, 22 Conn. 529; Monroe v. Jones, 8 R. L 526. (51) 37 PROBATE AND ADMINISTRATION. [Chap. 2 The word ''house" is generally construed as synony- mous with the common-law "messuage," including the lot upon which the building stands, barns, outbuild- ings, gardens and lawns appurtenant thereto. 84 A "farm" is the entire tract or tracts of land owned, used and occupied as such by the testator as proprietor. 85 "Homestead," used in referring to a farm, means the entire farm occupied as such by the testator, and is not limited to the legal homestead defined by statute. 86 A devise of the "rents and profits" of lands has been held to pass the title to the laribl itself, where other parts of the will indicate an undoubted intention of the testator to give the devisee such power over the land as would require him to possess the fee. 87 "Property," when used in connection with the words "money and effects," by reason of association with such other words, is limited to personalty alone, and would not include realty. 88 "Goods, chattels and effects" include the entire per- sonal estate, but if the words are goods, chattels and effects in a particular place, choses in action would not be conveyed, for they have no locality. 89 84 Bennet v. Bittle, 4 Rawle (Pa.), 339. 85 Aldrich v. Gaskill, 10 Cush. (Mass.) 155. 86 Kennedy v. Kennedy, 105 111. 350. 87 Bowen v. Payton, 14 R. I. 257; Ryan v. Allen, 120 111. 648, 12 N. E. 65. 88 Brawley v. Collins, 88 N. C. 605. 89 Stuckey v. Stuckey, 1 Hill Eq. (S. C.) 309; Penniman v. French, 17 Pick. (Mass.) 404. (52) Chap. 2] PREPARATION AXD DRAFTING OF WILLS. 37 "Effects" include personalty only, and cannot be broadened to embrace realty, unless an intention to that effect clearly appears in the will. 90 "Money" is not limited to gold, silver and paper cur- rency, but includes bank deposits, both general time certificates and savings bank deposits. 91 A bequest of "all my moneys after paying my just debts," in a will containing no residuary clause, has been extended to include deposits in a savings bank and stock of a cor- poration, thus making the word almost synonymous with "personal estate." 92 The words "keep, care for and support," as ap- plied to a person, mean the furnishing of room, board, clothing, medical services when needed, personal neces- sities, and such care and ministrations as the circum- stances of the party demand. 93 "Personal property" sometimes has in a will a dif- ferent meaning from that given to it in general. It may be limited in its meaning where a use of it in its broadest signification would defeat the evident intent of the testator. 94 A bequest of "personal property," with a direction to the legatee to sell the same, would not generally include bonds, notes, mortgages, or choses in action, as such property is not considered o Doe d. Hick v. Bring, 2 Maule & S. 448. 91 Paup v. Sylvester, 22 Iowa, 375; Dabney v. CottrelPs Admx., 9 Gratt. (Va.) 572. 92 Jenkins v. Fowler, 63 N. H. 244; Decker v. Decker, 121 111. 341, 12 N. E. 750. 93 Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004. 94 Kempf's Appeal, 53 Mich. 352, 19 N. W. 31; Benton v. Benton, 63 X. H. 289. (53) 38 PEOBATE AND ADMINISTRATION. [Chap. 2 subject to sale by direction of a testator after vesting in the legatee. 95 38. Object of bequest or devise. The term " children" as used in a will is generally limited to the direct issue of the testator, 96 and a gift to children cannot be extended to include the children of a child not living at the date of the execution of the will. 97 Where there are no persons strictly an- swering to that class, grandchildren may be allowed to take, that being the evident intent of the testator. 98 A gift to nephews and nieces includes only those re- lated by blood, and not by marriage only, 99 and not great-nephews and great-nieces, 100 unless a contrary in- tention appears in the will, taken as a whole. Brothers, sisters and cousins include those of the half as well as the whole blood. 101 The term "issue" is a word of very extensive mean- ing, including all the lineal descendants. 102 It may, 95 German v. German, 27 Pa. 116; Alexander v. Alexander, 41 N. C. 230. 96 Sydnor v. Palmer, 29 Wis. 226; Brown v. Brown, 71 Neb. 200, 98 N. W. 718; Cummings v. Plummer, 94 Ind. 403; Webb v. Hitchins, 105 Pa. 91; Castner's Appeal, 88 Pa. 478; Schaffer v. Eneu, 54 Pa. 304; Osgood v. Loverig, 33 Me. 469. 07 Bollinger v. Knox, 3 Neb. Unof. 811, 92 N. W. 994. 98 Ewing's Heirs v. Handley's Exrs., 4 Litt. (Ky.) 346; In re Utz's Estate, 43 Cal. 201; Beebe v. Estabrook, 79 N. Y. 246; In re Schedel's Estate, 73 Cal. 594, 15 Pac. 297. 99 Campbell v. Clark, 64 N. H. 328, 10 Atl. 702; Green's Appeal, 42 Pa. 30. 100 Campbell v. Clark, 64 N. H. 328, 10 Atl. 702. 101 Luce v. Harris, 79 Pa. 432. 102 Hall v. Hall, 140 Mass. 267, 2 N. E. 700; Wistar v. Scott, 105 Pa. 200. (54) Chap. 2] PREPARATION AND DRAFTING OF WILLS. 39 by reason of the connecting sentences, be limited to children. Whenever the legatees are described as "issue," children, sons or daughters, only those of legitimate birth are meant. 103 If the parents are dead, leaving no legitimate children, or the will shows plainly that illegitimate children were intended, they will take. 104 "An 'heir' is he upon whom the law casts the estate immediately on the death of the ancestor. ' ' 105 As used in a will, it is strictly a word of limitation. A bequest of property to one's heirs is to those who would be entitled thereto under the statutes of distribution and descent; 106 and the same is true of a devise of real property. 107 A devise to "heirs" or "heirs at law" includes those only who are heirs at the time of the death of the decedent. 108 39. Object of bequest or devise Concluded. The terms "next of kin," "nearest of kin," and "nearest of blood" relations have substantially the same meaning, and primarily indicate the nearest de- 103 Collins v. Hoxie, 9 Paige (N. Y.), 88; Appel v. Byers, 98 Pa. 479; Hughes v. Knowlton, 37 Conn. 429. 104 Gelston v. Shields, 16 Hun (N. Y.), 143; Gardner v. Heyer, 2 Paige (N. Y.), 11; Stewart v. Stewart, 31 N. J. Eq. 398. 105 2 Bl. Com. 201. 106 Ferguson v. Stuart's Exrs., 14 Ohio, 140; Tillman v. Davis, 95 N. Y. 17; Hascall v. Cox, 49 Mich. 435, 13 N. W. 807; Corbitt v. Corbitt, 54 N. P. 117. 107 Ireland v. Parmenter, 48 Mich. 631, 12 N. W. 883; Loring v. Thorn- dike, 5 Allen (Mass.), 260. 108 Hill v. Hill, 90 Neb. 43, 132 N. W. 738; Minot v. Tappan, 122 Mass. 535; Stokes v. Van Wyck, 83 Va. 724, 3 S. E. 387; Dove v. Ton, 128 Mass. 38. (55) 39 PROBATE AND ADMINISTRATION. [Chap. 2 gree of consanguinity, and they are perhaps more fre- quently used in this sense than in any other. 109 The word "relations," when used in a will, is ordi- narily construed as including relatives by consanguin- ity, and excluding relatives by affinity, unless a con- trary intention is manifested. 110 It is a rather vague term, and generally means those who would be entitled to the property were the decedent intestate. 111 A hus- band is not next of kin or heir or relative of the wife, nor the wife of the husband. 112 The same rule for ascertaining who such parties are applies as for deter- mining who are the heirs of the decedent. 113 The term "legal representatives" has been construed to mean lawful heirs, and thus to entitle such repre- sentatives to the share which their ancestors would have taken, had they lived, in the estate. 114 The term "family" includes a person's wife and children 115 living in the same household with him. The meaning of the term must usually be determined from the will, taken as a whole. It may include those not living under the same roof, 116 and those living with 109 Swasey v. Jaques, 144 Mass. 135, 10 N. E. 758; Redmond v. Burroughs, 63 N. C. 242; Wright v. Methodist Episcopal Church, 1 Hoff. Ch. (N. Y.) 202. 110 Bennett v. Van Riper, 47 N. J. Eq. 563, 22 Atl. 1055; Esty v. Clark, 101 Mass. 36. l" Varrell v. Wendell, 20 N. H. 435. 112 Warren v. Englehart, 13 Neb. 283, 10 N. W. 401; Appeal of Dodge, 106 Pa. 216; Cleaver v. Cleaver, 39 Wis. 96; Wilkins v. Ordway, 59 N. H. 378. "3 Dove v. Torr, 128 Mass. 38; Letchworth's Appeal, 30 Pa. 1/5; Welsh v. Crater, 32 N. J. Eq. 177. 114 Marsh v. Marsh, 92 Neb. 189, 137 N. W. 1122; Rivenett v. Bour- quin. 53 Mich. 10, 18 N. W. 537; Heath v. Bancroft, 49 Conn. 220. us Bradlee v. Andrews, 137 Mass. 50. us Proctor v. Proctor, 141 Mass. 165, 6 N. E. 849. (56) Chap. 2] PREPARATION AND DRAFTING OF WILLS. 40 him, dependent upon him for support, who are not his children. A gift to a class as issue, children, grandchildren, nephews, or nieces, whether of the testator or of some other person, is to those who comprise the class at the death of the testator, and, unless otherwise provided, the law favors a distribution per capita rather than per stirpes; 117 and this is true where the devise or bequest is to a person and the issue or children of an- other person. 118 If there is any intention to the con- trary manifested, the distribution should be per stirpes. The law favors that construction of a will which will\ make a distribution as nearly conform to the general law of inheritance as the language will permit, and favors equities rather than technicalities. 119 The effect of section 50, chapter 17, Revised Stat- utes, providing that the share of a legatee dying before the testator shall go to his issue, would in many cases make a distribution per stirpes which would otherwise be per capita. 40. Residuary estate. Xo particular form of words is necessary to convey the residuary estate. It includes all the property, both 117 Losey v. Westbrook, 35 N. J. Eq. 116; Huntress v. Place, 137 Mass. 409; Campbell v. Clark, 64 N. H. 328, 10 Atl. 702. 118 Hill v. Bowers, 120 Mass. 135; McCartney v. Osburn, 118 111. 403, 9 N. E. 210; Burnet's Exrs. v. Burnet, 30 N. J. Eq. 595; Steven- son v. Lesley, 70 N. Y. 512. 119 Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537; Johnson v. Ballou, 28 Mich. 392; Letchworth's Appeal, 30 Pa. 175; Eberts v. Eberts, 42 Mich. 404, 4 N. W. 172; Toms v. Williams, 41 Mich. 574, 2 X. W. 814. 120 Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537. (57) 40 PROBATE AND ADMINISTRATION. [Chap. 2 real and personal, of every name, nature and descrip- tion, belonging to the testator, and not effectually dis- posed of by the other clauses of the will; 121 and lapsed, void and illegal bequests or devises, from whatever cause produced. 122 In Williams v. Johnson, 123 the court held a will disposing of "the balance of my means," where there had been previous bequests of personalty, as not including after-acquired realty. Unless there be a contrary intention expressed, it in- cludes reversionary interests, though created by the will itself. 124 It includes the income accruing from legacies and devises, the time for the payment of which is fixed at a future date ; 125 and this is true, although the residuary bequest or devise itself does not vest until a future date. Where the legatee refuses to accept the legacy, or the widow elects to take her statutory portion, instead of according to the will, the land so devised passes to the heir of the testator, and not to the residuary estate. 126 Where the residuary legacy is to two or more persons, the death of one or the lapse of his share for any reason will not pass his share to the other, but it will become a part of the 121 Bernard v. Minshull, 1 Johns. Ch. 276. 122 Drew v. Wakefield, 54 Me. 296; Tindall v. Tindall's Exrs., 23 N. J. Eq. 244; Tongue's Lessee v. Nutwell, 13 Md. 415. 123 112 111. 61. 124 Geyer v. Wentzel, 68 Pa. 84; Irwin v. Zane, 15 W. Va. 646; Brigham v. Shattuck, 10 Pick. (Mass.) 308; Floyd v. Carow, 88 N. Y. 560. 125 Kerr v. Bosler, 62 Pa. 187; Page's Appeal, 71 Pa. 402. 126 James v. James, 4 Paige (N. Y.), 117. (58) Chap. 2] PREPARATION AND DRAFTING OF WILLS. 40 Hi intestate estate. 127 This rule, of course, would not \ apply to a residuary bequest or devise to a child of the testator, the devisee or legatee dying before the testator and leaving issue. The bequest or devise would then pass to the issue. 128 127 Huber's Appeal, 80 Pa. 349; Burnet's Exrs. v. Burnet, 30 N. J. Eq. 595; Garthwaite's Exr. v. Lewis, 25 N. J. Eq. 351; Kerr v. Dougherty, 79 N. Y. 327. 128 Rev. Stats., e. 17, 2, [1266]. (59) CHAPTER III. EXECUTION OF WILLS. 41. Statutory Requirements Concerning Signature and Witnesses. 42. Signature. 43. Witnesses. 44. Attestation. 45. Alterations. 46. Republication. 47. How Nuncupative Will Executed. 48. Soldiers' and Marines' Wills. 41. Statutory requirements concerning signatures and witnesses. A will made within the state, other of course than a nuncupative instrument, in order to be effectual to pass the title to any estate, either real or personal, or ^*" ^^^ f* in any way affect the same, must be in writing, signed by the testator or by some person for him in his pres- ence and by his express direction, and attested and subscribed in the presence of the testator by two com- petent witnessesT) If the witnesses are competent at the time of its execution, their subsequent incompe- tency from any cause will not prevent the probate of the will and the allowance of the same. 1 It may be written on separate sheets of paper not fastened together, 2 and other papers already in exist- ence and fully executed may be incorporated into it by an apt clause for that purpose identifying them 1 Rev. Stats., c. 17, 26, [1290]; L. O. L., 7319; Wendel v. Furst (Or.), 136 Pac. 2; In re Manser's Estate, 60 Or. 229, 118 Pac. 1022. 2 Schillinger v. Bawek, 135 Iowa, 131, 112 N. W. 210. (60) Chap. 3] EXECUTION OF WILLS. 42 with reasonable certainty, and showing a clear inten- tion to make them a part of the will. 3 42. Signature to a will. The testator should sign his name in full at the. end of the will. Any clause inserted below the signature will not be considered as a part of the instrument. 4 If he is unable to write, the words composing his name may be written by some other person, and he himself affix his mark or cross or other character intended or adopted as and for a signature. 5 The person who writes the name of the testator must do so by his previously expressed direction and in his presence. 6 The request must be made, whether the testator immediately after the writing of the words composing the name made his mark or not. A mere knowledge by the testator that some person is signing or has signed his name to the instrument does not comply with the law, nor can he by an express act or direction .ratify a signature previously made. 7 The party who writes the testator's name must be competent to act as a witness, and should sign as 3 Hopper v. Hopper, 90 Neb. 622, 134 N. W. 235; Dodson v. Dod- son, 142 Mich. 586, 105 N. W. 1110; Gerrish v. Gerrish, 8 Or. 351. 4 Glancy v. Glancy, 17 Ohio St. 134. 5 Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372; McCoy v. Conrad, 64 Neb. 150, 89 N. W. 665; Pool v. Buffum, 3 Or. 438; More- land v. Brady, 8 Or. 312. 6 Pickett's Will, 49 Or. 127, 89 Pac. 377. ^ Murray v. Hennessey, 48 Neb. 608, 67 N. W. 470; McCoy v. Con- rad, 64 Neb. 150, 89 N. W. 655; Elliott v. Elliott, 3 Neb. Unof. 832, 92 N. W. 1006; Davidson's Estate, 70 Neb. 584, 97 N. W. 797; Isaac v. Halderman, 76 Neb. 823, 107 N. W. 1016. (61) 43 PROBATE AND ADMINISTRATION. [Chap. 3 such. 8 If the testator does not make his mark, the person who writes his name must state that he sub- scribed the testator's name at his request. 9 43. Witnesses. The two witnesses to a will should be persons who are given no beneficial interest under it. Bequests or devises to a subscribing witness do not make the will void, but, unless there are a sufficient number of dis- interested witnesses, invalidate the gift, except that a new charge on lands for the payment of devisor's debts does not render such creditor incompetent to act as a witness, 10 nor do devises and bequests to par- ties who would take were decedent intestate. Such parties take the same share as if decedent was intes- tate not exceeding the value of such gift, and are entitled to recover the same from the other benefi- ciaries. 11 A devise in trust in which the trustee has no beneficial interest, it has been held, does not dis- qualify such trustee from becoming a witness, 12 nor does a clause appointing " an attorney at law to assist the executor," being merely advisory, dis- qualify such attorney. 13 Under the Oregon statute, a legatee is also a compe- tent witness if before giving his testimony his bequest or legacy has been paid, accepted or released, or he 8 Herbert v. Eerier, 81 Ind. 1; Bobbins v. Coryell, 27 Barb. (N. Y.) 556. Pool v. Buffum, 3 Or. 438; Moreland v. Brady, 8 Or. 312; L. O. L., 7320. 10 Rev. Stats., e. 17, 29, [1293] ; L. 0. L., 7335, 7337, 7338. 11 Rev. Stats., c. 17, 30, [1294]; L. O. L., 7336. 12 Hogan v. Wyman, 2 Or. 304. 13 Pickett's Will, 49 Or. 127, 89 Pac. 337. (62) Chap. 3] EXECUTION OF WILLS. 43 has refused to accept the same on tender thereof, 14 but his credit is subject to the consideration of the court or jury. 15 The statute does not permit him to receive any compensation from any person interested in the estate for so testifying or subsequently receiving the gift. 16 A legatee or devisee who has attested the execution of the will and died before the death of testator or subsequently, and before he has received his bequest or legacy, or released or refused tender of the same, is also a legal witness. 17 Any persons who at the date of the execution of the will would be competent to testify in a court may be- come witnesses to it, 18 and their subsequent incompe- tency from any cause will not prevent the probate of the will if it be otherwise proved. 19 They should be parties who are sufficiently acquainted with the tes- tator to be sure of his testamentary capacity and iden- tity. 20 Relatives of beneficiaries, 21 or of the testator, who are given nothing by the will and are not his heirs are competent, 22 as is also a person named as executor who is not a devisee or legatee. 23 14 L. O. L., 7339. 15 L. O. L., 7340. 16 L. O. L., 7342. 17 L. O. L., 7341. 18 Carlton v. Carlton, 40 N. H. 14; O'Brien v. Bonfield, 213 111. 428. 19 Rev. Stats., c. 17, 26, [1290]; Hiatt v. McColley, 171 Ind. 91, 85 N. E. 772. 20 Brinckerhoff v. Remsen, 26 Wend. (N. Y.) 325; Scribner v. Crane, 2 Paige (X. Y.), 147. 21 Maxwell v. Hill, 89 Tenn. 584. 15 S. W. 253. 22 Sparhawk v. Sparhawk, 10 Allen (Mass.), 115. 23 In re Holt, 56 Minn. 33, 57 N. W. 219; In re Tierney's Estate, 103 Minn. 286, 114 N. W. 838. (63) 43 PROBATE AND ADMINISTRATION. [Chap. 3 The witnesses should be requested to act as such by the testator, or by some relative, or the attorney who prepared the will, under the express or implied direc- tion of the testator. 24 The signature of the testator should be made before that of the witnesses. Such signature is the first and most important act connected with the formal execu- tion of the instrument, and until signed it is merely an unexecuted writing. 25 The witnesses must sign in the actual presence of the testator. What constitutes actual presence has been the subject of much judicial discussion, and some very close distinctions have been drawn. The general rule is that they should subscribe their names to the will in some place in the same or ad- joining room, where the testator can observe their movements, and see that they write their names on the instrument which he has just signed; in other words, within the hearing, knowledge and understanding of the testator. 26 It is not necessary that the witnesses see the testator sign, if he acknowledges to them that he has signed the will and shows them his signature 24 Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372; Luper v. Werts, 19 Or. 122, 23 Pac. 850; In re Ames' Will, 40 Or. 495, 67 Pac. 737; Wendel v. Furst (Or.), 136 Pac. 2; In re Meurer's Will, 44 Wis. 392. 25 Dewey v. Dewey, 1 Met. (Mass.) 354; Schemerhorn v. Merritt, 123 Mich. 310, 82 N. W. 314; Smith v. Eyan's Estate, 136 Iowa, 335, 112 N. W. 8. 26 Drury v. Connell, 177 111. 43, 53 N. E. 368; Cook v. Winchester, 81 Mich. 581, 46 N. W. 106; Cunningham v. Cunningham, 80 Minn. 180, 83 K W. 60; Biggs v. Kiggs, 135 Mass. 238. (64) Chap. 3] EXECUTION OF WILLS. 44 thereto, 27 nor that the witnesses sign in the presence of each other, though this is the usual practice. 28 44. Attestation. To attest a will is to know that it was signed as such and to certify the facts required to constitute a legal publication. 29 It differs from merely signing one's name as a witness. Subscription is mechanical the act of the hand, a mere writing of one's name for the purpose of identification while attestation is mental. The witnesses should therefore learn from the testator tKat the instrument which they are called upon to sign, and which bears his signature, has been signed by him as and for his will. 30 It is not necessary that he in- form them in so many words that the instrument is his will. If he gives them to understand by signs, words or other manner that the instrument is intended for his last will, or if in answer to questions by them or the scrivener, or by expressly assenting to state- ments made by parties present, he gives the witnesses to understand that the instrument already signed is his will, the attestation is complete. 31 They need not know the terms of the will itself, but should see the 27 Haynes v. Haynes, 33 Ohio St. 598. 28 Holyoke v. Sipp, 77 Neb. 394, 109 N. W. 506; Johnson v. Johnson, 106 Ind. 475, 7 N. E. 201; In re Smith's Will, 52 Wig. 543, 8 N. W. 616. 29 Swift v. Wiley, 1 B. Mon. (Ky.) 114. 30 Abbott v. Abbott, 41 Mich. 540; Raudenbaugh v. Shelley, 6 Ohio St. 307; Adams v. Field, 24 Vt. 256. 31 Luper v. Werts, 19 Or. 122, 23 Pac. 850; Brinckerhoff v. Remsen, 8 Paige (N. Y.), 488; Harrington T. Stees, 82 111. 50; In re Johnson's Estate, 57 Cal. 529. 6 Pro. Ad. (65) 45 PROBATE AND ADMINISTRATION". [Cliap. 3 signature of the testator and the attestation clause, if there is one, besides having a personal knowledge that the testator intends the instrument for a will. 32 A formal attestation clause is not necessary to make a will valid. It may be probated when it contains no such clause whatever merely the signature of the testator and witnesses provided that their evidence shows that they signed it in the presence of the tes- tator and that all the formalities required by the stat- utes have been complied with. 33 An attestation clause reciting a compliance with the statutory requirements is prima facie evidence of a legal execution of the in- strument, 34 but does not do away with ordinary proof of the will. 35 The purposes for requiring wills to be attested are to prove the signature, obtain evidence of the capacity of the testator, and insure the identity of the will. 30 45. Alterations. Previous to the execution of a will alterations by erasure, interlineation or addition may be made, and are valid. 37 Unless they be of a minor character, such 32 In re Ayer's Estate, 84 Neb. 16, 120 N. W. 491; Haack v. Tobin, 79 Minn. 101, 81 N. W. 758; In re Will of McKay, 110 N. Y. 611, 18 N. E. 433; Simmons v. Leonard, 91 Tenn. 183, 18 S. W. 280. 33 Monroe v. Hudart, 79 Neb. 569, 113 N. W. 149; Williams v. Miles, 68,Neb. 463, 94 N. W. 705, 96 N. W. 151; Ferris v. Neville, 127 Mich. 444, 86 N. W. 960; Lautenschlager v. Lautenschlager, 80 Mich. 292, 45 N. W. 147. 34 Holyoke v. Sipp, 77 Neb. 394, 109 N. W. 506; Skinner's Will, 40 Or. '579, 62 Pac. 523, 67 Pac. 951. 35 Section 81, post. 3tr fl-Oreenl. Ev; 691 ; Lord v. Lord, 58 N. H. 7. 37 Ho'lman v. Kiddle, 8 Ohio St. 384. (66) Chap. 3] EXECUTION OF WILLS. 46 as slight changes in wording or correction of apparent errors, they should be noted in the attestation clause. Slight corrections and interlineations are presumed to have been made previous to the execution of the instrument. 38 The only way a will once made can be changed is by a codicil, or by an entirely new instrument exe- cuted in the same manner as the original. Altera- tions, though made without the expressed knowledge, permission or consent of the testator, do not invali- date it. It must be admitted to probate just as it originally stood, and parol evidence is admissible to prove what its contents were. 39 46. Republication of wills. If a will is not executed in the manner provided by law, it is absolutely void, and has no binding effect unless re-executed in the same manner as an original will. There is, however, one apparent exception to this rule. If the original will is void because not prop- erly executed, a codicil signed and attested in strict compliance with the statute, which in express terms confirms the will, is a republication and reacknowledg- ment of such will, and remedies all the defects in its execution. 40 38 Wheeler r. Bent, 7 Pick. (Mass.) 61. 39 Monroe v. Hudart, 79 Neb. 569, 113 N. W. 149. 40 Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422; McCurdy v. Neal, 42 X. J. Eq. 333, 7 Atl. 566; 1 Redfield, Wills, 288; Skinner v. American Bible Soc., 92 Wig. 209, 65 N. W. 1037; Vogel v. Lehritter, 139 N. Y. 223, 34 N. E. 914. (67) 46 PKOBATE AND ADMINISTBATION. [Chap. 3 Form No. 11. WILL BEQUEATHING EVERYTHING TO WIFE. The Last Will and Testament of A. B., of , County, Nebraska. I, A. B., of the city of , county, Nebraska, do hereby make, publish, and declare this my last will and testament in words and figures following:* I give, devise, and bequeath unto my wife, C. B., all my property of every description, both real and personal. I hereby constitute and appoint my said wife, C. B., executrix of this, my last will and testament, [if testator wishes to relieve her from the necessity of giving a bond add] and request that no other bond be required of her as such executrix except her own personal obligation. Dated at , Nebraska, this day of , 19 . (Signed) A. B. We whose names are hereunto subscribed do hereby certify that A. B., the testator, subscribed his name to this instrument in our presence, and in the presence of each of us, and declared at the same time, in our presence and hearing, that this instrument was his last will and testament, and we, at his request, sign our names hereto in his presence as witnesses. (Signed) E. F., of , Nebraska. G. H., of , Nebraska. Form No. 12. WILL GIVING LIFE ESTATE TO WIDOW, AND REMAINDER TO HEIRS. [As in No. 11 to *, then:] I give, devise, and bequeath unto my wife, C. B., the following described real estate [describe property] for and during her natural life; at her death, the remainder in said real estate shalj vest in my children, G. B., H. B., L. N., and C. M., as tenants in common. This devise is in lieu of any distributive share in my said estate given her by law. (2) I give and bequeath unto my son G. B. the sum of $ ; unto my son H. B. the sum of $ . (3) I give and bequeath unto my grandchildren, B. M., C. M., and F. B., the sum of $ each. (4) I hereby authorize and direct my said executors, provided the personal property which may come into their possession as such (68) Chap. 3] EXECUTION OF WILLS. 46 executors shall be insufficient to pay the legacies in paragraphs 2 and 3 mentioned, to sell the following described real estate, [describe property] or so much thereof as they may deem necessary, execute good and sufficient deeds therefor, and from the proceeds of such sale pay said legacies; any of the proceeds of such sale or sales re- mainirg in their hands to be invested as hereinafter directed. (5) I give and bequeath unto my wife, C. B., all my household furniture, jewelry, clothing, and personal effects. (6) I hereby direct, authorize, and empower my said executors to sell all the rest, residue, and remainder of my real estate, and con- vert the same into interest bearing securities, and from the income therefrom pay my said wife, C. B., the sum of $ per year dur- ing her natural life, or as long as she remains my widow, and the balance of said income to the children of my daughter L, N. Should my said wife remarry, her annuity shall be treated as a part of my residuary estate. (7) Upon the death or remarriage of my said wife, all the residue and remainder of my said estate, including any portion of the real estate in paragraph 4 mentioned which may not have been sold shall be equally divided between my children and the lawful issue of any deceased child, by right of representation. (8) I hereby revoke any former will or wills by me made. (9) I hereby constitute and appoint E. F. and G. H., of , County, Nebraska, executors of this, my last will and testament. Dated, etc. [Add attestation, Form No. 11.] Form No. 13. WILL PLACING PROPERTY IN CONTROL OF TRUSTEES. [As in No. 11 to *, then:] I give and devise to my executors and their successors in trust the following described property, [describe property] in trust, however, to receive the rents, issues, and profits thereof until my grandson C. B. shall attain the age of 25 years, when I give and devise the same to him, and direct my said executors to convey the same to him absolutely, and also to pay over to him all the rents, issues, and profits received by them therefrom after first paying the taxes on said lands and the cost of necessary repairs to the buildings thereon. (2) The balance of my real estate, and all moneys, notes, bonds, stocks, mortgages, and other securities. I give, devise, and bequeath unto my executors and their successors in trust, to invest and keep (69) 46 PROBATE AND ADMINISTRATION. [Cliap. 3 the same invested, and to receive the rents, issues, and profits there- of, and during the lifetime of my wife, C. B., out of said rents, issues, and profits, to first pay to her an annuity of $ per annum, and distribute the balance of said rents, issues, and profits among all my children equally, share and share alike, the issue of any de- ceased child taking, by right of representation, the share thereof which his, her, or their parent would have taken if living; and, upon the death of my said wife, divide my said estate among all my children and grandchildren in the same manner in which said rents, issues, and profits are to be divided. And for the purposes of the trust hereby reposed, my executors and trustees, and their succes- sors in trust, are authorized and empowered to sell and convey any and all the personal property, and any and all the real estate except that real estate mentioned in paragraph 1 of which I may die seised, and convert the same into money, and invest and keep invested the same for the purposes of the trust herein specified, and generally for such purposes, and, in their discretion, to convert realty into per- sonalty and personalty into realty. (3) For the purposes of carrying out this trust, my said executors and trustees are hereby authorized and empowered, if they think it best, to mortgage, for the sum of not more than $ , the follow- ing described real estate, , and use the proceeds of said mort- gage in the construction of a substantial brick or stone block on said property. (4) My clothing, jewelry, books, pictures, horses, carriages, sleighs, and household furniture and barn equipments I give and bequeath to my wife, C. B. The foregoing provisions for my said wife are in lieu of any statutory right or interest she may have in my estate. Dated at , Nebraska, this day of , 19 . (Signed) A. B. [Add attestation, Form No. 11.] Form No. 13a. EESIDUARY CLAUSE. The residue of my estate remaining after the satisfaction of the above bequests and devises, including after-acquired property, and any devise or bequest which may fail for any cause whatsoever, -I give and devise in equal shares to my children and the lawful issue of any deceased child, such issue taking by representation. (70) Chap. 3] EXECUTION OF WILLS. 46 Fonn No. 13b. DEVISE OF LIFE ESTATE WITH POWER OF SALE. I give and devise unto my wife C. B. the following described real estate: , to have and to hold the same during the period of her natural life, but with full power and authority to sell and convey any part or portion thereof at any time when it becomes necessary for her support, said support to be such as is suitable for persons of her age and social position, and of a like character to which she was accustomed during the later years of our married life. The remainder, if any, in said above-described real estate shall become a part of my residuary estate and shall pass as hereinafter provided. Form No. 13a DEVISE OF LIFE ESTATE WITH LIMITED POWER OF DIS- POSITION OF THE FEE. I give and devise unto my wife C. B. the following described real estate: , to have and to hold the same during the period of her natural life. Upon the death of my said wife I give and devise the remainder in said real estate to my children, and the lawful issue of any deceased child, in such shares or parts as my said wife may designate by her last will and testament. Form No. 13d. DEVISE OF LIFE ESTATE WITH FULL POWER OF DISPOSI- TION. I give and devise unto my wife C. B. the following described real estate, to have and to hold the same during the period of her natural life. I give and devise the remainder in said above-described real estate to such person or persons and in such shares or parts as shall be designated by said wife in her last will and testament, but should she fail to appoint as herein provided, such remainder shall become a part of my residuary estate and be disposed of as hereinafter directed. Form No. 13e. DEVISE SUBJECT TO AN ANNUITT. I give, devise and bequeath unto my son C. B. the following de- scribed real estate, subject, however, to the payment by him, said (71) 46 PROBATE AND ADMINISTRATION. [Chap. 3 C. B., to my sister L. M. of the sum of $ per annum during her lifetime; the first payment to be made within six months from the date of my death. Form No. 13f. DEVISE CONDITION PRECEDENT. I give and devise to my son C. B. the following described real es- tate: , upon condition, however, that my said son C. B. shall at the time of my death have been actually engaged in the occupation of farming continuously for not less than five years. In the case of a failure of said devise by reason of a noncompliance with the above condition, said real estate shall become a part of my residuary estate. Form No. 13g. DEVISE OF DEFEASIBLE FEE. I give and devise unto my daughter C. B. M. the following described real estate: ; provided, however, that should she, said C. B. M., die unmarried or before attaining the age of 21 years, said real estate shall be equally divided between my children and the lawful issue of any deceased child, such issue taking by representation. Form No. 13h. DEVISE OF REMAINDER WITH CONDITIONAL LIMITATION OVER. I give and devise the remainder in said above-described real estate to C. B., provided, however, that if said C. B. shall die without issue during the existence of said life estate, then and in that case I give and devise said remainder to E. F. Form No. 131. GIFT TO EXECUTORS FOR THE BENEFIT OF THE CHILDREN AND WITH POWER TO SELL AND DIVIDE PROCEEDS. I direct that my executors hereinafter named shall take charge of the residue and remainder of my estate, retain the same, except as hereinafter provided, until all of my children have attained lawful age, invest and keep invested the residue of the personal property, keep and maintain the buildings on the real estate in first-class tenant- able condition, with power to make such alterations and improvements thereon as is consistent with sound business management, and divide (72) Chap. 3] EXECUTION OF WILLS. 46 the income between my said children in equal shares. Should any child die before final distribution is made as hereinafter directed leaving issue or a surviving spouse, or both, such issue or spouse, or both, shall be entitled to the share of such deceased child in said in- come. My executors may, in their discretion, advance to any child from his or her share in the body of said residue such amounts as may seem to them desirable for his or her education. As soon as practicable after all my children then surviving have become of lawful age, I authorize and direct my executors to sell said estate so placed in their charge and divide the proceeds thereof equally between my surviving children and the lawful issue or surviving spouse, or both, of any deceased child, such issue or spouse, or both, taking by representation, and all advancements made to any child being taken into consideration in making such distribution. Form No. 13 j. GIFT TO WIFE OF STATUTORY SHARE. I give, devise and bequeath unto my wife, C. B., all that right, share or interest in my estate to which she would be entitled by virtue of the marital relation should I die intestate, including a life estate in that portion of my real estate comprising my statutory homestead. Form No. 13k. GIFT TO A CHURCH. I give, devise and bequeath unto the trustees of the First Congrega- tional Church of , Nebraska, all the residue and remainder of my estate, in trust, for the purposes and with the restrictions herein set forth. Said sum shall be invested by said trustees and their successors in trust, and the income therefrom devoted by them, said trustees, to the uses and purposes of said church. The principal shall at all times be kept inviolate. Form No. 13L GIFT TO A CHURCH WITH LIMITATION OVER ON FAILURE OF CONDITION. I give, devise and bequeath unto the wardens and vestrymen of St. James Episcopal Church of the following described real estate: , together with the sum of $ for the purpose of erecting a building on said lot to be used by said church as a rectory. In case (73) 46 PROBATE AND ADMINISTRATION. [Chap. 3 said building or other building erected on said lot is used for any other purpose, said lot and building shall become the property of my heirs. Form No. 13m. DEVISE DISCHARGED FROM LIEN FOR DEBTS OF DEVISEE. I give and devise unto my son C. B. the following described real estate, to have and to hold the same during the period of his natural life, provided, however, and this devise is upon this express condition, that said devise shall not be chargeable with any debts, claims or de- mands now existing or which may hereafter exist against the said C. B. The remainder in said real estate, unencumbered as herein expressly provided, shall at his death vest in his issue. Form No. ISn. BEQUEST TO TRUSTEE FOR REASONS WHICH TERMINATE THE TRUST WHEN THEY OCCUR. I give and bequeath unto my son C. B. the sum of $ , in trust for the use and benefit of my daughter L. M., and I hereby authorize and direct my said trustee to invest said sum in proper securities or otherwise and pay the income and such part or portion of the prin- cipal sum as may be needed for the suitable support and maintenance of my said daughter and her children, and if any sum remains at her death, pay the same to her said children. My reason for this bequest in trust is that it is my wish that my said daughter have the benefit of said bequest for herself and children without any interfer- ence on the part of her husband G. H. M., and that no part or portion of the same shall ever come into his control. [This bequest gives the cestui que trust the right to the entire fund remaining on the termination of the marriage by divorce or death of the husband. To insert a clause to that effect is improper.] Form No. 13o. SPENDTHRIFT TRUST. I give, devise and bequeath unto C. D., of , the following de- scribed property: , in trust, however, with full power and au- thority to devote the income of said property, or such portion thereof as may be necessary for the support and maintenance of my son C. B. in manner and form suitable to his rank and social standing, during his lifetime. Said trust shall be administered under the control of (74) Chap. 3] EXECUTION OF WILLS. 46 the court of , , in the event that said trustee or his successor or successors and said cestui que trust are unable to agree on the amount necessary for his support or the times and manner of payment of the same. Upon the death of said C. D. the estate of remainder in said prop- erty, together with the unexpended income, shall become the property of his lawful heirs. Form No. 13p. BEQUEST IN TRUST FOB INVALID SON. I give and bequeath unto C. D., of , in trust for the use and benefit of my invalid son C. B., the sum of $ . I direct my said trustee to devote the income of said bequest, or such portion of the principal as may be for the best interest of my said son, for his care, support, maintenance and general welfare. Any residue remaining on the termination of this trust shall become the property of the heirs of my said son. Form No. 13q. DEVISES TO CHILDREN VESTING WHEN THEY ATTAIN FIXED AGES. I give and devise to my son C. B. the following described real es- tate: ; provided, however, that this devise shall not vest in possession in said C. B. until he becomes of lawful age, and that my wife M. B. shall have the use, control and possession of said property until said C. B. becomes of age. I give and devise unto my daughter L. B. the following described real estate: ; provided, however, that this devise shall not vest in possession in said L. B. until she attains the age of 21 years. Should my said daughter L. B. die without issue before attaining the age of 21 years, said devise shall vest in her brothers and sisters, but possession by each of his or her share shall be postponed until he or she becomes of the age of 21 years. Until said devise or devises vest in possession my said wife, M. B. shall have the use, control and possession of said property. Form No. 13r. DEVISE WITH RESTRICTION AGAINST SALE OF LIQUORS ON THE PREMISES. I give and devise unto my sons A. B. and C. B. the following de- scribed real estate: ; subject, however, to the following condi- (75) 46 PROBATE AND ADMINISTRATION. [Chap. 3 tions and restrictions, which said conditions shall be strictly construed in favor of the state of Nebraska, with limitation over in case of failure of condition. This devise is upon these express conditions: No malt, spirituous, vinous or intoxicating liquor shall ever be manu- factured, sold, stored, kept, bargained, traded or given away on said real estate or in any building or structure which now is or may here- after be erected on said premises. Every instrument of conveyance of said real estate or of any part or portion thereof, or of any right or interest therein, executed by any devisee, heir or grantee of said real estate, or any part or portion thereof, or any right, title or interest therein, shall set out this paragraph numbered of this my said will in full. Upon any breach of conditions and restrictions in this devise con- tained, the ownership and right to the possession of the lot or tract on which such breach occurs, or of the tract or lot the title to which or any right or interest therein is attempted to be conveyed without reciting this said paragraph of this my said will, with all the improvements thereon, shall at once vest in the state of Nebraska, and be held or disposed of as escheated property. Form No. 13s. DEVISE TO WIDOW OF LIFE ESTATE OB ESTATE FOB YEAES CHAEGED WITH SUPPOET AND EDUCATION OF CHILDEEN. I give and devise unto my said wife C. B. the following described real estate: ; to have and to hold the same during the period of her natural life or as long as she remains my widow ; pro- vided, however, that my minor children shall be entitled to their sup- port, maintenance, and an education equivalent to that afforded by the ordinary high schools of the state from the income of such devise. Upon the death or remarriage of my said wife the remainder in said real estate shall vest in my heirs. Form No. 13t. GIFT TO WIDOW WITH POWEB OF SALE FOB SPECIFIC PUEPOSES. I give, devise and bequeath unto my wife C. B. the following de- scribed property, to have and to hold the same in trust for the use and benefit of my minor children: . Said bequest and the income from said devise shall be used for the support, maintenance and educa- tion of said children. Should said bequest and said income prove in- (76) Chap. 3] EXECUTION OF WILLS. 46 sufficient therefor, I hereby grant unto said trustee full and complete power and authority to sell and convey, provided said bequest be exhausted, any part or portion of said devise for the purpose of creat- ing a fund, which shall be invested by her, and the income therefrom, with such part of the principal as she may deem for the best interest of my children, shall be used for the purposes above set forth. For the purpose of carrying out the provisions of this paragraph I grant unto my said wife full power and authority to execute and deliver necessary deed or deeds of conveyance of any part or portion of said real estate. I direct that an accurate account be kept by my said wife of the amounts expended from this gift for the purpose of de- fraying the expenses of the education of any child at any other than the public schools of this county. When all my children are of law- ful age, this trust shall cease and determine, said trust property shall be sold by said trustee and the proceeds divided between my children and the lawful issue of any deceased child, such issue taking by repre- sentation; payments for the purpose of defraying the expenses of the education of any child at other than the public schools . of this county to be treated as an advancement in determining the share of such child or his or her issue. Form No. 13u. APPOINTMENT OF SOLE TRUSTEE WITH PROVISIONS FOR A SUCCESSOR. I hereby constitute and appoint E. F., of the city of , 'sole trustee for the purpose of carrying out the provisions of the trust pro- vided for in paragraph No. of this will. In case of the death, resignation or removal from office of said trustee, I hereby appoint such person as may be designated by the county court of , , as his successor, and such successor shall, on the approval of bond in such amount as may be required by said court have and possess the same powers and authority as I have granted said E. F. Form No. 13v. APPOINTMENT OF JOINT TRUSTEES WITH POWERS TO SURVIVOR OR SURVIVORS. I hereby constitute and appoint C. D., E. G. and F. H., of the city of , joint trustees for the purpose of carrying out the provisions of the trust provided for in this my said will. Should any of said trustees fail to qualify, or die, resign or be removed from office, the remaining trustees or trustee shall have and possess the same power and authority as is granted to them jointly. (77) 47 PROBATE AND ADMINISTRATION. [Chap. 3 47. How nuncupative will executed. A nuncupative will must be executed in the presence of at least three witnesses. One of whom the testator must request to bear witness that such waS his will, or words to that effect. It must be made at the time of the last sickness of the deceased, and in the place of his or her habitation, or where he or she had re- sided for the space of ten days or more next before the making of such will, except when such person was unexpectedly taken sick away from home, and died before he or she had returned to his or her habitation. 41 The essential element of a nuncupative will is a tes- tamentary intention, expressed verbally, during the "last sickness" in the presence of the lawful number of competent witnesses, one of whom has been espe- cially requested by the testator to bear witness as to the disposition to be made of the estate. The wit- nesses must possess the same qualifications as the wit- nesses to a written will, and it cannot, therefore, be established by the oaths of persons who take a bene- ficial interest thereunder. 42 By "last sickness" is meant the illness immediately preceding death, when the physical, and oftentimes the mental, powers are fast waning, and there is no expectation of recovery. Unless death follow very soon thereafter, or the testator immediately lapse into an unconscious state, and so remain until final dis- solution takes place, his nuncupative will should be 41 Eev. Stats., c. 17, 27, [1291]. 42 Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450. (78) Cliap. 3] EXECUTION OF WILLS. 47 refused probate. Death or unconsciousness must fol- low immediately its execution. 43 After six months have elapsed since the speaking of any testamentary words* the will cannot be proved unless the words or their substance were reduced to writing within six days after they were spoken, nor shall letters testamentary be issued, or the probate of any nuncupative will be granted, until at least four- teen days have elapsed since the decease of the testator. 44 If the estate bequeathed or devised is under $150 in value, a strict compliance with the rule as to the place where made and number of witnesses is not neces- sary. 45 If the estate so attempted to be bequeathed exceeds $150 in value, the will is void only as to the excess. 46 Nuncupative wills are not favored by law, and a strict compliance with the statutory provisions there- for is essential to their validity. 47 A nuncupative will cannot revoke a written will, 48 nor convey real estate. 49 A nuncupative will of the above kind is not recognized by the Oregon statutes; the same formalities being required for a bequest as 43 Carroll v. Bonham, 42 N. J. Eq. 625, 9 Atl. 371; Yarnall's Will, 4 Rawle (Pa.), 46, 26 Am. Dec. 115. 44 Rev. Stats., c. 17, 28, [1292]. 45 Rev. Stats., c. 17, 27, [1291]. 46 Mulligan v. Leonard, 46 Iowa, 692. 47 Pollard v. McKenney, 69 Neb. 742, 96 N. W. 679, 101 N. W. 9; Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450; Maurer v. Beif- schneider, 89 Neb. 173, 132 N. W. 197. 48 McCune v. House, 8 Ohio, 154. * Maurer T. Reifschneider, S9 Neb. 173, 132 X. W. 197.' (79) 48 PROBATE AND ADMINISTRATION. [Chap. 3 for a devise, 50 with one exception mentioned in the succeeding section. 51 48. Soldiers' and mariners' wills. A soldier in actual service or a mariner at sea may dispose of his wages or other personal property by a nuncupative will. 52 If it be established by a prepon- derance of testimony that the disposition of the prop- erty is according to the intent of the testator, and that it was reduced to writing within thirty days, it may be probated. The term "soldier" in actual service or in military service means one serving in a place where actual warfare is going on, 53 and mariner, any person employed on sea-going vessels. 54 Under the Oregon statutes a holographic will executed by a mariner at sea or soldier in actual service would be entitled to probate as a will of personal property. 55 Form No. 14. NUNCUPATIVE WILL. State of Nebraska, County, S3. C. D., being first duly sworn, on oath says that he is a physician and surgeon residing and engaged in the practice of his profession in the city of , in said county; that he was well acquainted with A. B., late of said county, in his lifetime, and was his physician during his last illness; that said A. B. departed this life at the city of , in said county, on the day of , 19 , at 50 L. O. L., 7316. 61 See Montague v. Schieffelin, 46 Or. 413, 80 Pac. 654. 52 Rev. Stats., e. 17, 28, [1292] ; L. O. L., 7329. 53 Leathers v. Greenacre, 53 Me. 561. 64 Bouvier's Law Diet. 65 Montague v. Schieffelin, 46 Or. 413, 80 Pac. 654. (80) Chap. 3] EXECUTION OF WILLS. 48 about the hour of , M., of said day; that about the hour of , M., of said day, affiant, G. M., and L. M., each of said county, were present in the room with said A. B. ; that said A. B. was then and there in a very weak condition, and knew that death was imminent, and then and there said to affiant and said G. M. and L. M., In the presence of each of them, the following words: "This is my will. I give my wife, C. B., all my property, and I appoint her ex- ecutor of my estate. I want you to bear witness that this is my will." (Signed) C. D. Subscribed in my presence and sworn to before me this day of , 19. (Signed) H. C. M., Notary Public. 6 Pro. Ad. (81) CHAPTER IV. TESTAMENTARY CAPACITY. 49. Who may Make Wills. 50. Sound Mind. 51. Physical Weakness. 52. Old Age. 53. Insanity. 54. Insane Delusions and Eccentricities. 55. Will Executed During Lucid Interval. 56. Drunkenness. 57. Lawful Influence. 58. Lawful Influence Concluded. 49. Who may make wills. Any person of lawful age and of sound mind may dis- pose of his real and personal property by will, 1 even though he may be blind, 2 or deaf and dumb. 3 In Oregon a testatrix must be twenty-one years of age * 4 A $v- A*** /^^K' ** /% The common-law restrictions on the right of married women to make wills have been entirely removed. A testatrix cannot bar her surviving husband of his right to elect to take under the statute. 5 50. Sound mind. "Sound mind" which is essential to the execution of a valid will is hard to define, for it has a somewhat 1 Eev. Stats., c. 17, 22, 25, [1286], [1289]. 2 Elliott v. Elliott, 3 Neb. Unof. 832, 99 N. W. 1006; In re Pickett's Will, 49 Or. 127, 89 Pac. 377. 3 Brown v. Brown, 3 Conn. 299. 4 L. O. L., 7316. 5 Eev. Stats., c. 17, 5, [1269]; L. O. L., 7318, 7315; Runyon v. Winstock, 55 Or. 203, 105 Pac. 895. (82) Chap. 4] TESTAMENTARY CAPACITY. 50 different meaning when used in reference to testa- mentary capacity than in regard to general mental ability. Unimpaired mental vigor, a mind strong and able to comprehend any matter within the understand- ing of the average person, is not required of a testator. To establish an exact standard with which all minds must comply is impossible, and the law does not under- take to measure a testator's intellect and define the precise quality of mind and memory he must possess in order to lawfully dispose of his property at his death. A person of almost every grade of capacity above that of an idiot or lunatic may make a will. The rule deduced from the great mass of authority is that he must have sufficient mental capacity to know what property he possesses, where it is, its comparative values, what disposition he wishes to be made of it, and who are the natural objects of his bounty, and that he have sufficient memory to keep these matters in his mind until a will is prepared to carry these intended dispositions of his estate into effect. 6 The memory he is required to possess must be active, and sufficient to enable him to collect in his mind the 6 Hollering v. Kinnerberg, 78 Neb. 758, 111 N. W. 788; In re Nel- son's Estate, 75 Neb. 298, 106 N. W. 326; In re Sweeny's Estate, 94 Neb. 834, 144 N. W. 903; Thompson v. Thompson, 46 Neb. 157, 68 N. W. 372; Elliott's Estate, 3 Neb. Unof. 832, 92 N. W. 1006; Hubbard v. Hubbard, 7 Or. 42; Rothrock v. Rothrock, 22 Or. 551, 30 Pac. 453; Frank v. Shipley, 22 Or. 194, 29 Pac. 268; In re Hart's Will (Or.), 132 Pac. 529; In re Buren's Will, 47 Or. 307, 83 Pac. 530; In re Ames' Will, 40 Or. 495, 67 Pac. 737; Stevens v. Myers, 62 Or. 372, 121 Pac. 437, 126 Pac. 29; Bundy v. McKnight, 48 Ind. 502; Hampton v. Westcott, 49 N. J. Eq. 522; Kinne v. Kinne, 9 Conn. 104; Delafield v. Parrish, 25 N. Y. 9; Mulholland's Estate, 217 Pa. 65, 66 Atl. 150. (83) 50 PROBATE AND ADMINISTRATION. [Chap. 4 particular elements of the business to be transacted, and to hold them there a sufficient length of time to perceive their obvious relations to each other, and to form a rational judgment concerning them. 7 Ability to transact ordinary business is not, accord- ing to the weight of authority, a test of testamentary capacity, as is the almost universal opinion among lay- men. The courts confine the ability to the particular business of making a will. A person may not be able, either by reason of age or mental weakness, to enter understandingly into a business contract, and be obliged to intrust such matters to a guardian, but at the same time have sufficient mind and memory to know and thoroughly understand the amount and extent of his property and the disposition he wishes to make of it. 8 Mental weakness or a pronounced lack of mental capacity are not, of themselves, inconsistent with tes- tamentary capacity, 9 unless they go so far as to dis- qualify the party from knowing or appreciating the act in which he is engaged. 10 A lesser degree of mental ability is permitted where the estate is small or the will simple than in cases of 7 In re Downing's Will, 118 Wig. 581, 95 N. W. 876; Burney v. Torrey, 100 Ala. 157, 14 South. 685; Prather v. McCleland, 76 Tex. 574, 13 S. W. 543. 8 In re Ames' Will, 40 Or. 495, 67 Pac. 737; In re Cowdery, 77 Vt. 539, 60 Atl. 149; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Frazer v. .Tennison, 42 Mich. 220, 3 N. W. 882; Jackson v. Hardin, 83 Mo. 175; Draper's Estate, 215 Pa. 314, 64 Atl. 520; Hathorne v. King, 8 Mass. 371; Comstock v. Hadlyme, 8 Conn. 254. Pierce v. Pierce, 38 Mich. 412; Frazer v. Jennison, 42 Mich. 220, 3 N. W. 882. 10 Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717. (84) Chap. 4] TESTAMENTARY CAPACITY. 51,52 large estates or a complicated distribution of the prop- erty is attempted. 11 51. Physical weakness. The law recognizes the fact that many people delay making their wills until warned by sickness that the end is at hand. The rule is that when the testator has not reached old age, and there is no evidence of undue influence exerted upon him, or any circumstances tend- ing to show the same, physical weakness, provided it is not such as to prevent him from expressing his in- tentions, so that they can be understood, will not affect his testamentary capacity. 12 A testator who is very weak and fast losing strength, but still possessed of sufficient mental and physical ability to intelligently discuss questions relating to the condition and amount of his estate and his domestic relations, and then dic- tate the terms of his will, has undoubted testamentary capacity. 13 52. Old age. Old age, per se, is not inconsistent with unquestioned testamentary capacity. 14 Age and physical and mental weakness which sometimes accompany it may destroy such capacity where each standing by itself would be 11 Sheldon v. Dow, 1 Dem. Sur. (N. Y.) 502; Dillman v. McDaniel, 222 111. 276, 78 N. E. 591; In re Silverthorne's Will, 68 Wis. 372, 32 N. W. 287. 12 Rothrock v. Rothrock, 22 Or. 551, 30 Pac. 453; Stackhouse v. Horton, 15 N. J. Eq. 202. 13 Stackhouse v. Horton, 36 Neb. 393, 54 N. W. 670; In re Hobbins, 41 Mont. 39, 108 Pac. 7; Mullan's Will, 140 Wis. 291, 122 N. W. 723. 14 Chrisman v. Chrisman, 16 Or. 127, 18 Pac. 6; Clark v. Ellis, 9 Or. 129; Collins v. Townley, 21 N. J. Eq. 353; In re Humphrey, 26 N. J. Eq. 513. (85) 52 PKOBATE AND ADMINISTRATION. [Chap. 4 entirely insufficient, 15 and it is an important element in connection with undue influence, requiring a close scrutiny of all the surroundings and conditions. 16 The fact that the aged testator is suffering from a stroke of paralysis or apoplexy 17 does not necessarily affect his mental condition. Though the mental capacity of the testator may be weakened by age, or age and disease, if he yet have sufficient capacity to comprehend the act which he is performing, and strength of mind to form a fixed in- tention in regard to the disposition of his property, and vigor to carry out that intention, his will would be valid. 18 Forgetfulness of recent events is not incapa- city. 19 It often happens that aged and infirm persons, who seem to have lost nearly all recollection of different subjects, when their attention is fixed on their busi- ness, property or family relations, have an exception- ally clear, fixed and distinct understanding of their property and what they want to do with it. 20 It was said by Chancellor Kent that "the will of an aged man ought to be regarded with great tenderness 15 Hall v. Perry, 87 Me. 569, 33 Atl. 160. 16 Wilson v. Mitchel, 101 Pa. 495; Jackson v. Hardin, 83 Mo. 175; Schneider v. Vosburgh, 143 Mich. 476, 106 N. W. 129. 17 In re Wilson, 78 Neb. 758, 111 N. W. 788; In re Wheaton, 68 N. J. Eq. 562, 59 Atl. 886. 18 Thompson v. Thompson, 46 Neb. 157, 68 N. W. 372; Elliott v. Elliott, 3 Neb. Unof. 832, 92 N. W. 1006; In re Nelson, 75 Neb. 298, 106 N. W. 326; Stull v. Stull, 1 Neb. Unof. 380, 96 N. W. 196; Ames' Will, 40 Or. 595, 67 Pac. 737; Perkins v. Perkins, 116 Iowa, 253, 90 N. W. 55; In re Buren's Will, 47 Or. 397, 83 Pac. 530; Cline's Will, 24 Or. 178, 33 Pac. 542. 19 Eddy's Case, 32 N. J. Eq. 701. 20 Taylor, Md. Jur., 336. (86) Chap. 4] TESTAMENTARY CAPACITY. 53 when it appears not to have been obtained by fraudu- lent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated." 21 53. Insanity. Insanity may be defined as "derangement of intel- lect." A distinction exists between insanity and idiocy. The former embraces those unfortunate per- sons who have lost either in whole or part the reason- ing faculties they once possessed, while the latter never had any reasoning faculties. The term "non compos mentis" applies to both. The statement is frequently made in the books that the will of an insane person is worthless. This is not strictly true. The medical profession recognizes dif- ferent varieties and phases of mental derangement, many of which are only partial and affect certain acts. A person may be partially deranged and yet possess unquestioned testamentary capacity. The true test of that insanity which renders a will invalid is the exist- ence of delusions which prevent the testator from in- telligently comprehending his estate, and the persons who would be naturally expected to be the objects of his bounty. An insane delusion is a state of facts existing in the mind of a person which have no actual existence except in his imagination, and which can- not be removed by any amount of reasoning and argument. 22 21 Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 148. 22 Bundy v. McKnight, 48 Ind. 503; Stanton v. Weatherax, 16 Barb. (N. Y.) 259; Florey's Exrs. r. Florey, 24 Ala. 241; Middleditch v. (87) 54 PROBATE AND ADMINISTRATION. [Chap. 4 If these delusions are in regard to other matters than his family relations and those who would be the prob- able objects of his bounty or his estate generally, they would not incapacitate him from making a valid will. The delusion must be in regard to some particular matter which directly affects the testamentary act. 23 A believer in some occult or speculative form of so- called religious doctrine is not incompatible with tes- tamentary capacity, 24 unless the effect of it is to unseat the judgment and dethrone the reasoning powers, in which event his will should be denied probate. 25 54. Insane delusions and eccentricities. As a result of the rule that insanity, in order to viti- ate a will, must be in regard to the testamentary act itself, it follows that an undoubted monomaniac may be capable of disposing of his property by will, 26 and Williams, 45 N. J. Eq. 726, 17 Atl. 826; Smith v. Smith, 48 N. J. Eq. 566; Haines v. Hayden, 95 Mich. 332, 54 N. W. 911. 23 McClary v. Stull, 44 Neb. 175, 62 N. W. 501; Potter v. Jones, 20 Or. 239, 25 Pac. 765; Eice v. Rice, 50 Mich. 448, 15 N. W. 545; Lee v. Scudder, 31 N. J. Eq. 633; Chaffin's Will, 32 Wis. 557. 24 Robinson v. Adams, 62 Me. 369; McClary v. Stull, 44 Neb. 175, 62 N. W. 501; Connor v. Skaggs, 213 Mo. 334, 111 S. W. 1132. 25 Taylor v. Trich, 165 Pa. 586, 30 Atl. 1053; White's Will, 121 N. Y. 406, 24 N. E. 935; Orchardson v. Cofield, 171 111. 14, 59 N. E. 197. 20 Dunham's Appeal, 27 Conn. 192; Benois v. Murrin, 58 Mo. 307; Johnson v. Johnson, 105 Md. 81, 65 Atl. 918; In re Segur, 71 Vt. 224, 44 Atl. 342; Fraser v. Jennison, 42 Mich. 231, 3 N. W. 882; Stull v. Stull, 1 Neb. Unof. 389, 96 N. W. 200; Smith v. Smith, 48 N. J. Eq. 566, 25 Atl. 11; Tawney v. Long, 76 Pa. 106; Lee v. Scudder, 31 N. J. Eq. 633; Ballantine v. Proudfoot, 62 Wis. 217, 22 N. W. 392. (88) Chap. 4] TESTAMENTABY CAPACITY. 54 that a man who has displayed judgment, skill and fore- sight in the management of a large business, whose mental ability has never been questioned, may be wholly incompetent to make a will on account of insane delusions in regard to the disposition of his property. 27 Eccentricities, either in belief or conduct, which can- not be considered as sufficient of themselves to prove insanity, do not vitiate a will. A person of that char- acter has power to change his conduct or opinion, while an insane person has not the ability to do so. Hobbies, marked peculiarities of habit, thought and conduct, and moral delinquencies may result from a person's surroundings, ignorance, or lack of opportunity, and are consistent with mental capacity. 28 A careful distinction should be drawn between delu- sions and prejudice. An undue and unjust prejudice which has some reason for its existence is not sufficient to invalidate a will. 29 Such prejudice, based on no facts whatever, and without any apparent reason for its existence, is a delusion. 30 27 American Bible Society v. Price, 115 111. 623, 5 N. E. 126; American Seaman's Friend Society v. Hopper, 33 N. Y. 619; Denson v. Beasley, 35 Tex. 191. 28 Winn v. Grier, 217 Mo. 420, 117 S. W. 48; Bennett v. Hibbert, 88 Iowa, 154, 55 N. W. 93; Lee v. Lee, 4 McCord (S. C.), 183; Archambault v. Blanchard, 198 Mo. 384. 95 S. W. 834. 29 In re Clapham's Estate, 73 Neb. 492, 103 N. W. 61; Stevens v. Myers, 62 Or. 351, 121 Pac. 434, 126 Pac. 29; Skinner's Will, 40 Or. 571, 67 Pac. 951; Potter v. Jones, 20 Or. 239, 25 Pac. 769; Clausenius v. Clausenius, 179 111. 545, 53 N. E. 1006. so Bean v. Bean, 144 Mich. 599, 108 N. W. 369; Fulton v. Freeland, 219 Mo. 494, 118 S. W. 12. (89) 55,56 PROBATE AND ADMINISTRATION. [Chap. 4 55. Will executed during lucid interval. When insanity affecting all the mental faculties has been proved to exist, it is generally presumed to have continued until evidence is introduced to the contrary. 31 The medical profession has known it to be a fact that in many of apparently the worst cases of insanity, the result of certain diseases of the brain, the patient has lucid intervals when his mind is capable of compre- hending his property and understanding the nature and character of the testamentary act. A will which shows on its face no evidence of mental derangement, rational in its terms and provisions, evincing a knowl- edge of testator's property and of those who would naturally be the objects of his bounty, and prepared according to the directions of the testator, will be upheld. 32 56. Drunkenness and use of drugs. A person while under the influence of intoxicating liquors or narcotics to such an extent as to be incapable of knowing what he is doing cannot make a valid will. The use of intoxicating liquors to excess will not de- prive one of testamentary capacity unless such in- temperance be long continued, impairing the mind, 31 State v. Reddick, 7 Kan. 143; Carpenter v. Carpenter, 8 Bush (Ky.), 283. 32 Crowninshield T. Crowninshield, 2 Gray (Mass.), 524; Little v. Little, 13 Gray (Mass.), 264; Chandler v. Barrett, 21 La. Ann. 58; Bitner v. Bitner, 65 Pa. 347; In re Johnson's Estate, 57 Cal. 529; Clarke (Cartwight) v. Cartwight, 1 Phill. 90. In the latter case the testatrix was violently insane and had to be kept under close restraint. During a lucid interval she wrote out her will, which was so rational in its terms and displayed such an accurate knowledge of the charac- ter of her estate and just disposition of it, that the will was allowed. (90) Chap. 4] TESTAMEXTABY CAPACITY. 57 destroying its faculties, and producing a permanent derangement. 33 The rule in regard to the drug habit is the same. 34 57. Lawful influence. The very nature of a will requires its execution to have been a free, voluntary act, consequently any fraudulent trick or device practiced upon the testator in the execution of his will, or an influence exerted upon him which prevents him from exercising a free and untrammeled discretion, invalidates his will. 35 Not all influence exerted upon a testator in the making of his will is undue or unlawful, provided such influence does not subvert the free agency of the testator. In- fluence obtained by appeals to one's judgment, sympa- thies, discretion, better nature, his sense of charity and religious principles is legitimate unless it has become so persistent as to entirely destroy his powers of dis- cretion. 36 Lawful influence, which may be defined as that which arises from legitimate family and social relations, cannot but exert a powerful influence over the mind of the testator, ar;d show itself in the terms of his will. Such influences often produce great 33 Howe v. Richards, 112 Iowa, 220, 83 N. W. 911; Lang's Estate, 65 Cal. 19 2 Pac. 491; Pierce v. Pierce, 38 Mich. 418. 34 In re Gilham, 64 N. J. Eq. 715, 52 Atl. 690; Miller v. Oestrich, 157 Pa. 264, 27 Atl. 742. 35 Children's Aid Soc. v. Loveridge, 70 N. Y. 387; McMahon v. Ryan, 20 Pa. 329; Rollwagen v. Rollwagen, 63 N. Y. 519; Clyde v. Anderson, 49 Mo. 37. 36 Schofield v. Walker, 58 Mich. 96, 24 N. W. 624; Wise v. Foote. 81 Ky. 10; Bundy v. McKnight, 48 Ind. 502; Sunderland v. Hood. 84 Mo. 293; Monroe v. Barclay. 17 Ohio St. 302; Orr v. Pennington, 93 Va. 268, 24 S. E. 928; Mullon v. Walker, 69 Iowa, 92, 28 N. W. 452. (91) 58 PROBATE AND ADMINISTRATION. [Chap. 4 irregularities in the disposition of property, and work apparent hardships, but the law cannot criticise and measure their actual effect, and therefore allows them. 37 Neither advice, argument or persuasion will avoid a will made freely from conviction, though it may con- clusively appear that it would never have been made were not such means adopted to bring about its execu- tion, as where a will was obtained, by the arguments of a clergyman, disinheriting a person's immediate family, and giving the entire estate to a deserving char- itable institution, it appearing that neither the clergy- man nor any member of his family profited thereby. 38 58. Lawful influence Concluded. A wife may legitimately use her influence to cause her husband to make a will in her favor, unless such influence is so exerted as to secure advantages to her- self, to the injury of others, and practically substitute her will for his. The confidential relation of husband and wife does not per se raise a suspicion of undue influence; but a will obtained through the influence of one living in unlawful relations with another is in- valid, even though the degree of influence is not as great as that of a husband over a wife, or of a wife over a husband. 39 In the Kessinger case, the court say that: "We are of opinion that * * an influ- 37 Dean v. Negley, 41 Pa. 312; Latham v. Udell, 38 Mich. 238; Pierce v. Pierce, 38 Mich. 412. 38 Maynard v. Vinton, 59 Mich. 139, 26 N. W. 401; McCullock v. Campbell, 49 Neb. 367, 5 N. W. 590. 39 Dean v. Negley, 41 Pa. 313; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39; Kessinger v. Kessinger, 37 Ind. 341; Waters v. Eeed (Mich.), 88 N. W. 394. (92) Chap. 4] TESTAMENTARY CAPACITY. 58 ence, when exercised by a wife, might be lawful and legitimate, but which, if exercised by a person occupy- ing merely an adulterous relation, might be undue and illegitimate. This must be so from the very nature of civilized human society." The two classes of influ- ence are often distinguished by the means of which they are obtained. That which is obtained by honest intercession and persuasion, arguments addressed to the understanding, appeals to one's better nature, is always lawful, 40 "that which is obtained by flattery, importunity, superiority of will, mind or character, or by any art soever that human thought, ingenuity or cunning can employ, which would give dominion over the will of the testator to such an extent as to destroy free agency, or constrain him to do, against his will, what he is unable to refuse, is undue." 41 40 i Jarman, Wills, 37. Schofield v. Walker, 58 Mich. 106, 14 N. W. 624. (93) CHAPTER V. REVOCATION OF WILLS. 59. Definition. 60. How Wills Eevoked Statutory Provisions. 61. Eevocation of Will by Destroying It. 62. Eevocation by Executing New Will. 63. Implied Revocations. 64. Changes in the Estate. 65. Death of Devisee or Legatee. 66. Revocation by Marriage. 67. Revocation by Birth of Issue. 68. Eevocation by Divorce. 69. Eevivor of Wills. 59. Definitions. The revocation of a will is the annulling or repealing of it, thereby depriving it entirely of any power or effect. The one peculiarity which distinguishes it from other legal instruments is that the testator is not precluded from making any other disposition of his property, either by sale, gift or subsequent will. A man may make as many wills and codicils, provided he is of sound mind, as he wishes, but no contract or agreement making a will previously executed irrevo- cable can be enforced. 1 60. Statutory provisions for revocation of wills. No will or any part thereof can be revoked unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, cr by some person in his presence and by his express direc- tion, or by some other will or codicil in writing, signed, l Mandelebam v. McDonnell, 29 Mich. 78. (94) Chap. 5] REVOCATION OF WILLS. 61 attested and subscribed in the same manner provided by law for the execution of wills, and by such changes in the circumstances and conditions of the testator as constitute an implied revocation. 2 Revocation by changes in the family relations in Oregon are mostly governed by statute. 3 61. Revocation of will by destroying it. In order to revoke a will by destroying it there must be a manual act of destruction, either burning, tear- ing, canceling or obliterating of the will itself by the testator or under his direction, practically putting it out of existence. If the destruction is not complete, some necessary or material portion of it, such as the signature of the testator or witnesses, or the names of the devisees or legatees, must be completely obliter- ated or destroyed. Throwing a will into a waste basket or leaving it with worthless papers is not suffi- cient. 4 Cutting out the names of only a part of the beneficiaries or of the executor only is not a total revo- cation. 5 Canceling by drawing lines through a material part but leaving it so it can still be read, animo revocandi, works a revocation. 6 If the will consists of several pages fastened together, a tearing out of one, without 2 Rev. Stats., c. 17, 31, [1295]; L. O. L., 803. 3 Sections 65, 66, 67, post. 4 Hoit v. Hoit, 63 N. H. 475, 3 Atl. 504; Fellows v. Allen, 60 N. U. 439. 5 In re Brown, 1 B. Mon. (Ky.) 56, 35 Am. Dec. 174; Wells v. Wells, 4 T. B. Mon. (Ky.) 152, 16 Am. Dec. 150. 6 Townsend v. Howard, 86 Me. 285, 29 Atl. 1077; Mclntyre v. Melntyre, 120 Ga. 67, 47 S. E. 501. (95) 61 PBOBATE AND ADMINISTRATION. [Chap. 5 destroying it, will not revoke the will. 7 The intent of the testator is a most important element to be consid- ered in determining whether the tearing, canceling or obliterating was done by him for the purpose of de- stroying the will, but of itself is not sufficient. It must be accompanied by some manual act. 8 If he is prevented from destroying the will by force and violence, it remains valid unless supplanted by a new one. 9 If he directs another party to destroy the will, but by reason of fraud practiced upon him it is preserved, it is revoked unless he subsequently ascer- tains the facts and apparently acquiesces in its pres- ervation. 10 Under the Oregon statute the consent of the testator to the destruction of his will by another party and the fact of such destruction must be proved by two wit- nesses. 11 The fact that a will known to have been in the pos- session of the testator cannot be found raises a pre- sumption that he destroyed it animo revocandi, 12 but evidence of his condition, surrounding circumstances, and of declarations Toy him are admissible to show a contrary intention. 13 7 Woodruff v. Hundley, 127 Ala. 640, 29 South. 98. 8 In re Frothingham, 75 N. J. Eq. 205, 71 Atl. 695; McNagle v. Parker, 75 N. H. 139, 71 Atl. 637. Kent v. Mahaffy, 10 Ohio St. 204; Runkle v. Gates, 11 Ind. 95; Andrew v. Motley, 12 Com. B., N. S., 514, 524. 10 Graham v. Burch, 53 Minn. 17, 55 N. W. 64. " L. O. L., 803. 12 In re Miller's Will, 49 Or. 456, 90 Pac. 1002. 13 In re Miller's Will, supra; Steel v. Price, 5 B. Mon. (Ky.) 53. (96) Chap. 5] BEVOCATIOX or WILLS. G2, 63 62. Revocation by executing new will. Unless a former will has been revoked by destroying it, it is not entirely revoked by a later one, unless such later will contains a revocation clause, or its provisions be entirely inconsistent with those of the older instru- ment. 14 If the two instruments are only partially con- flicting, the later revokes the former only in so far as the two are inconsistent. 15 Both are entitled to pro- bate. 16 If it disposes of the entire estate in an entirely different manner than the former will, it works a com- plete revocation of the older instrument, though it contains no revocation clause, and the older will is still in existence. 17 It therefore follows that not only must the execution of the later will be proved, but it must also be shown that it contained a revocation clause or was entirely inconsistent with the older will. 18 63. Implied revocations. Implied revocations are those that arise by opera- tions or implication of law upon the happening of cer- tain events. The statutes do not specify or designate 14 Brant v. Wilson, 8 Cow. (N. Y.) 56; Lane v. Hill, 68 N. H. 275, 44 Atl. 393. 15 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 501. 16 Marston v. Marston, 17 N. H. 503; Nelson v. McGiffert, 3 Barb. Ch. (N. Y.) 170. 17 Kern v. Kern, 154 Ind. 29, 55 N. E. 1004; Schillinger v. Bawek, 135 Iowa, 131, 112 N. W. 210. 18 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 501; 73 Neb. 193, 205, 206, 102 N. W. 482, 106 N. W. 769; 89 Neb. 455, 127 N. W. 904, 121 N. W. 1135; Hayes v. Nicholas 72 Tex. 481, 10 S. W. 588; Stevens v. Hope, 52 Mich. 65, 17 N. W. 698; Pickens v. Davis, 134 Mass. 252; Wallis v. Wallis, 114 Mass. 510; Lane v. Hill, 68 N. H. 175, 49 Atl. 493; In re Cunningham, 38 Minn. 169, 36 N. W. 269. 7 Pro. Ad. (97) 64 PROBATE AND ADMINISTRATION. [Chap. 5 all the subsequent changes in the condition and circum- stances of the testator that will produce a revocation of his will; but it is for the court and not a jury 1 ' 1 to determine, from the facts of each particular case, under the rules and forms of law, whether the testator intended the will to stand, notwithstanding the changes in his conditions and circumstances. The doctrine of revocation by implication is based upon a presumed alteration of intention arising from the changed condi- tions and circumstances of the testator, or on the pre- sumption that the will would have been different had it been executed under the altered conditions and circum- stances. An entire revocation by implication of law extends to but few cases. Changes in circumstances and family relations often work a partial revocation, and the will in other respects stands as it was written. 20 They are of two kinds: First, those arising from changes in the estate of the testator; second, those arising from a change in his family or domestic rela- tions. 64. Changes in the estate. A will which disposes of all of testator's estate by specific bequests and devises is entirely revoked by an absolute sale of such property, for there is nothing left for the legatees or devisees to receive. 21 A sale of a 19 Dickinson v. Aldrich, 79 Neb. 198, 112 N. W. 293. 20 Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303; 4 Kent, Com., 521; Greenleaf, Ev., 684. 21 In re Sprague's Estate, 125 Mich. 357, 84 N. W. 293; Hawes v. Humphrey, 9 Pick. (Mass.) 360; Adams v. Winne, 7 Paige (N. Y.), 97; Bowen v. Johnson, 6 Ind. 110; Collup v. Smith, 89 Va. 258, 15 S. E. 584. (98) Chap. 5] EE VOCATION OF WILLS. 64 part of the property devised or bequeathed is a revoca- tion pro tan-to only. 22 Such sale, in order to work an entire or partial revocation, must be absolute. If any interest or equity remains, it passes to the legatees or devisees. The beneficiaries take subject to the bond, covenant or agreement for conveyance, 23 or if the prop- erty has been encumbered by a mortgage subsequent to the execution of the will, subject to such mortgage. 24 The same rule applies to a deed of trust containing a power of revocation, which is subsequently exercised and the deed revoked. 25 It has been held that a deed of gift of property, without consideration, to the devisee under the will, will not revoke the will unless the contents of the deed itself show such intention. 26 If the will contains a residuary clause, the proceeds of the sale of the specified property, if still belonging to the testator, pass as a part of the residuary estate, as a general rule. 27 Any change in the testator's estate, such as a general increase or decrease in the value of the same, conver- sion of realty into personalty, or of personalty into realty, never operates to wholly set aside a will, since the testator, by permitting it to remain uncanceled, in effect reaffirms it from day to day as long as he has 22 Brown v. Thorndike, 15 Pick. (Mass.) 388; Terry v. Edminster, 9 Pick. (Mass.) 355; Fellows v. Allen, 60 N. H. 439; Warren v. Taylor, 56 Iowa, 182, 9 N. W. 128; Forney's Estate, 161 Pa. 209, 28 Atl. 1086. 23 Watson v. McClench, 57 Or. 457, 110 Pac. 484; L. O. L., 7323. 24 Kyger v. Kiley, 2 Neb. 28; Hurley v. Estes, 6 Neb. 391; Union Mutual Life Ins. Co. v. Lovitt, 10 Neb. 301, 4 N. W. 986. 25 Morey v. Sohier, 63 X. H. 507, 3 Atl. 636. 26 Aubert's Appeal, 119 Pa. 48. 12 Atl. 810. 27 Doe d. Cholmondley v. Maxey, 12 East, 589; Ballard T. Carter, 6 Pick. (Mass.) 112; Holt v. Holt, 63 N. H. 475, 3 Atl. 604. (99) 65 PROBATE AND ADMINISTRATION. [Cliap. 5 testamentary capacity; 28 nor can a revocation be im- plied from the acquisition by the testator of property not disposed of by the instrument. 29 Revocation of a will by parting with the property devised or be- queathed is, as a general rule, absolute, and a subse- quent acquisition of the property, it has been held, does not revive or republish it. It depends, however, on the terms of the instrument itself. 30 A bond, covenant or agreement made for a valuable consideration by a testator to convey any property de- vised or bequeathed does not revoke the devise or be- quest. The property passes subject to the provisions of such bond, covenant or agreement which the holder thereof may enforce by specific performance, 31 nor is a charge or encumbrance on either real or personal estate for the purpose of securing the payment of money or the performance of an agreement, the prop- erty passing subject to the same. 32 65. Death of devisee or legatee. The death of a devisee or legatee who is a child or other relation of the testator before his death does not revoke the gift unless the deceased left no issue, or other provisions of the will govern. The gift passes to the issue or descendants of the devisee or legatee, and the will remains in full force and effect. 33 28 Hoit v. Hoit, 63 N. H. 475, 3 Atl. 604. 29 Baldwin v. Spriggs, 65 Md. 373, 5 Atl. 385. 30 Runkle v. Gates, 11 Ind. 95. 31 L. O. L., 7323. 32 L. O. L., 7324. 33 Kev. Stats., c. 17, 5 50, [1314]; L. O. L., 7327; Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303. (100) Chap. 5] BEVOCATIOX OF WILLS. 66 66. Revocation by marriage. Marriage revokes a will to the extent that it excludes the surviving spouse of his or her statutory share, should the survivor elect to take under the statute, in- stead of under the will. 34 Whether the marriage of a man entirely revokes his will is an open question in Nebraska. At common law marriage and birth of issue were necessary to effect a revocation. 35 The weight of authority appears to be that when a widow can inherit property from her husband, or succeeds to the same by virtue of the marital relation, marriage effects the same changes in his condition and circum- stances as marriage and birth of issue; consequently marriage alone revokes his will. 36 There is consid- erable authority on the other side of the proposition. 37 In many states it is regulated by statute. Under the Oregon statute, the will of a man is re- voked by marriage and birth of issue, 38 and that of a woman by her marriage, as at common law. 39 At common law the will of a feme sole was revoked by her marriage, and a married woman could not, by herself, make a valid will, 40 the rule being based on the right of the husband to the personal property of the 34 Rev. Stats., c. 17, 8, [1272]; Vandever v. Higgins, 59 Neb. 333, 80 N. W. 1043. 35 4 Kent, Com., 13th ed., 527. 3 Scherrer v. Brown, 21 Colo. 481, 42 Pac. 688; Brown v. Scherrer, 5 Colo. App. 255, 38 Pac. 427; Morgan v. Ireland, 1 Idaho, 786; Tyler v. Tyler, 19 111. 151; In re Toepfer, 12 N. M. 372, 78 Pac. 53. 37 Hulet v. Carey, 66 Minn. 327, 69 N. W. 31; Hoy v. Hoy, 93 Miss. 782, 48 South. 903. 38 L. O. L., 7321. 3 L. O. L., 7322. o Forse & Hembling's Case, 4 Coke, 60b. (101) 67, 68 PROBATE AND ADMINISTRATION". [Chap. 5 wife, and her inability to devise real estate, excepting only those cases in which the right to dispose of her separate property was preserved to her by a power of appointment, or an antenuptial agreement. 41 In most states where she has the same testamentary rights as a man, it has Been held that the common-law rule was abrogated, and her will is valid. 42 67. Revocation by birth of issue. Birth of issue, though occurring after the death of the testator, does not entirely revoke a will, 43 but revo- cation may be partial. A posthumous child is entitled to the same share in the estate of the testator which he would receive had such testator died intestate, unless the will shows an intention to disinherit him, 44 and a child omitted in the distribution made by the will is entitled to a like share, unless such omission was intentional. 45 Under the Oregon statute, such child takes the same share as if the decedent were intestate, 46 unless he has received an equal proportion in his lifetime. 47 68. Revocation by divorce. The granting of a decree of divorce, and consequent settlement of property rights of the parties, does not Waterman, Wills, 129; Brandish v. Gibbs, 3 Johns. Ch. (N. Y.) 523; Cutter v. Butler, 25 N. H. 343; Miller v. Phillips, 9 R. I. 143. 42 Ward's Will, 70 Wis. 251, 35 N. W. 731; In re Hunt, 81 Me. 275, 17 Atl. 68; In re Tuller's Will, 79 111. 99; Roane v. Hollingshead, 70 Md. 369, 25 Atl. 307. 43 Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 506. 44 Rev. Stats., c. 17, 47, [1311]. 45 Rev. Stats., c. 17, 48, [1312]. Sections 440, 441, post. 46 L. O. L., 7325. 47 L. O. L., 7326. (102) Chap. 5] BEVOCATION OF WILLS. 69 revoke the will of either former husband or wife, 48 but a settlement of property rights in anticipation of divorce, followed by a decree, revokes, by implication, a will by which the woman was given property which she received on the settlement. 49 69. Reviver of wills. A will which has been revoked is a nullity. It may be revived by an instrument expressly executed for that purpose and with the same formalities as a will, or by a codicil, except so far as its terms are changed by that instrument. 50 Whether the destruction of a later will has the effect of reviving an earlier will still in existence depends, in Nebraska, on the facts and circumstances of each case. The doctrine of Lord Mansfield 51 that it was revived by such act of destruction has not been fully approved. Intent alone may revive the former will, though the presumption, if any, is against revivor. The Nebraska rule is to look to the intention of the testator in every case. "Whether the former will is revived, depends upon his intention, which is to be deduced from all the circumstances." 52 In Oregon, the destruction or canceling or revocation of the second will does not revive the first, unless it Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303. Donaldson v. Hall, 106 Minn. 502, 119 N. W. 219. 50 Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422. 51 Harwood v. Goodright, 1 Cowp. 87. 52 Williams v. Miles, 68 Neb. 463, 94 N. W. 705. The weight of au- thority is strongly opposed to the doctrine of revival by intention, which is practically the meaning of the last cited case, both in cases where the destroyed will contained a revocation clause and where it revoked the older instrument by implication only. (103) 69 PROBATE AND ADMINISTRATION. [Chap. 5 appears by the terms of such revocation that it was the intention of the testator to revive and give effect to the first will, or unless he shall duly republish such first will. 53 If the later will is refused probate for any reason, it is considered as never having had an existence, and the earlier will, if not destroyed or otherwise revoked, is valid and entitled to probate. 54 53 L. O. L., 7328. R4 Lyon v. Dada, 127 Mich. 495, 86 N. W. 946; Laughton v. Atkins, 1 Pick. (Mass.) 542; Kudy v. Ulrich, 69 Pa. 177; Eeid v. Borland, 14 Mass. 208. (104) CHAPTER VI. LOST WILLS. 70. Presumption from Failure to Find Will. 71. Jurisdiction of County Court Over Lost Wills. 72. Evidence Necessary to Establish Lost or Destroyed Will. 70. Presumption from failure to find will. The loss or fraudulent destruction of a will did not affect its validity at common law. It could be estab- lished in a court of general equity jurisdiction. 1 When it is known to have been in the possession of the tes- tator and cannot be found after his death, the law presumes that he destroyed it animo revocandi, 2 and though having no force as a will, it may be necessary to prove its former existence on account of its effect upon an earlier will. If it was last known to be in the possession of an- other, there is no presumption that it was revoked by the testator, 3 and if its execution and contents can be proved, it may be admitted to probate. 4 The presumption of the revocation of a will on ac- count of failure to find it is prima facie only, and if its loss can be fairly accounted for by reason of other causes than the act of the decedent, it also may be probated. 5 1 Martin v. Laking, 1 Hagg. Ecc. 244; Cowper v. Cowper, 2 P. Wins. 720. 2 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 751; 73 Neb. 193, 102 N. W. 582, 105 N. W. 181, 106 N. W. 769; 87 Neb. 455, 127 N. W. 904; In re Miller's Will, 49 Or. 456, 90 Pac. 1002. 3 Snyder v. Burke, 84 Ala. 503, 4 South. 225; Lane v. Hill, 68 N. H. 275, 44 Atl. 393. 4 Sugden v. St. Leonards, 1 Prob. Div. 154. 5 Gavitt v. Moulton, 119 Wis. 35, 96 N. W. 395; Southworth y. Adams, 11 Biss. 256, Fed. Cas. No. 13,194. (105) 71, 72 PROBATE AND ADMINISTRATION". [Chap. 6 71. Jurisdiction of county court over lost wills. The county court of the county in which decedent was a resident at the time of his death has jurisdiction to establish and admit to probate his lost or fraudu- lently destroyed will. 6 Jurisdiction to establish the will was formerly vested, at common law, in courts possessing general equity powers, but the exclusive jurisdiction over wills given the county court by the constitution vests it with full power both to establish and to admit to probate a will which has been lost or destroyed by accident or fraud. It may be done on the hearing for its probate, the petition, notice and hearing being the same as in other cases. 7 If the will has been destroyed by the tes- tator animo revocandi, it may be proved and its con- tents determined in an application for the probate of a former will, or in an action for revocation of probate of the same, inasmuch as the later will annuls the former one to the extent that its provisions are at vari- ance with those of the former instrument. If it con- tains a revocation clause, such annulment is complete. 8 72. Evidence necessary to establish lost or de- stroyed will. In order to prove a lost or fraudulently destroyed will, it is incumbent on the proponent, or the party who sets it up as a defense to the probate of a former will, or as a ground for the revocation of the probate thereof, to show what became of the original instrument, whose 6 Williams v. Miles, 63 Neb. 859, 89 N. W. 451; L. O. L., 1139. ^ Williams v. Miles, 63 Neb. 859, 89 N. W. 451. 8 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 15.1; 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 789. (106) Chap. 6] LOST WILLS. 72 custody it was last known to be in, account for its non- production, and prove its execution and contents. 9 Evidence of its execution and contents must be clear, positive and convincing. 10 Its execution may be proved by the testimony of the subscribing witnesses and draftsman, and declarations of the testator, 11 and its contents by a copy of the original draft properly iden- tified, 12 by the testimony of witnesses who knew, or might be presumed to have known, the contents of the will from their own inspection of it, 13 and by declara- tions of the testator. 14 Such declarations are not suffi- cient, standing alone, to establish the contents, but tend to prove the existence of the instrument and cor- roborate more direct evidence of what it contained. 15 A person who merely heard the will read cannot tes- tify as to what it contained. 16 Heirs or next of kin are competent to testify in regard to personal trans- actions or conversations with the testator about the will and its contents. 17 A part of its contents, for instance, a revocation clause, may be proved even though the balance of the instrument cannot be determined. 18 Strong v. Potts, 94 Neb. 742, 144 N. W. 789. 10 Williams v. Miles, 68 Neb. 493, 94 N. W. 795; 73 Neb. 193, 105 N. W. 482; 87 Neb. 455, 127 N. W. 904; Clark v. Turner, 50 Neb. 290, 69 N. W. 843. 11 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151; In re Miller's Will, 59 Or. 456, 90 Pac. 1002; McKenna v. McMichael, 189 Pa. 440, 42 Atl. 14; McNeeley v. Pearson (Tenn. Ch.), 42 S. W. 165. 12 Ewing v. Mclntyre, 141 Mich. 506, 104 N. W. 787. 13 Chisolm's Heirs v. Ben, 7 B. Mon. (Ky.) 408. 14 Williams v. Miles, 68 Neb. 473, 94 N. W. 705. 15 Clark v. Turner, 50 Neb. 290, 69 N. W. 843. 16 Clark v. Turner, 50 Neb. 290, 69 N. W. 843. 17 Williams v. Miles, 68 Neb. 463. 94 N. W. 705. 18 Sugden v. St. Leonards, 1 Prob. Div. 154; Davis v. Sigourney, 8 Met. (Mass.) 487. (107) CHAPTER VII. PROCEEDINGS TO COMPEL PRODUCTION OF WILL IN COURT. 73. Deposit of Will in County Court. 74. Duties of Other Person to Deliver Will. 75. Proceedings to Bring a Will into Court. 76. Liability for Failure to Deliver Will. 73. Deposit of will in county court. After a will has been duly executed, it may be re- tained by the testator in his possession, delivered to any person, or deposited in the county court, that court being especially authorized to receive and preserve wills of testators residing within the county. Any per- son desiring to avail himself of the privilege of having his will kept in the county court must inclose the same in a sealed wrapper, indorse thereon his name and place of residence, and the date when and the person by whom it is delivered to the court. The county judge must give him a certificate of deposit thereof, and should keep a record of all wills delivered into court for safekeeping. He is not obliged to keep and pre- serve wills of nonresidents of the county. 1 The fact of a will being so deposited gives it no more binding force than if it were retained in the possession of the testator. He may revoke it by another instru- ment executed in the same manner, without withdraw- ing it from the court. During the lifetime of the testator, a county judge has no authority or right to deliver a will so deposited i Bev. Stats., c. 17, 32, [1296]. (108) Chap. 7] PRODUCTION OF WILL IN COUKT. 73 to any other person than the testator, except upon a written order, duly proved by the oath of a subscribing witness. 2 Whenever the county judge learns of the death of a party whose will has been deposited in his court for safekeeping, it is his duty to publicly open the envelope containing the will and give notice to the person named therein as executor, or if none be named, to the persons interested. 3 Form No. 15. INDORSEMENT OF WRAPPER CONTAINING WILL. The last will of A. B., of the city of , county, Nebraska, sealed by said A. B., and delivered by him (C. D. for said A. B.) to the county judge of said county for safekeeping this day of , 19 . (Signed) A. B. Form No. 16. CERTIFICATE OF DEPOSIT OF WILL. Neb., , 19. Received of A. B., of , Nebraska (C. D. for A. B., of .Nebraska), for safekeeping, sealed wrapper purporting to contain last will of said A. B. (Signed) J. K., County Judge. Form No. 17. ORDER FOR DELIVERY OF WILL. To the Hon. J. K., County Judge of County, Nebraska: You are hereby requested to deliver to the bearer, C. D., the instru- ment executed by me as and for my last will and testament, now deposited in your court. (Signed) A. B. Witness: (Signed) C. D. 2 Rev. Stats., c. 17, 33, [1297]. 3 Rev. Stats., c. 17, 34, [1298]. (109) 74, 75 PEOBATE AND ADMINISTRATION. [Chap. 7 State of Nebraska, County, as. C. D., of lawful age, being first duly sworn, on oath says that he is the same person whose name is subscribed to the foregoing order as a witness thereto, that he is acquainted with said A. B., and that said order was signed by said A. B. in his presence. (Signed) C. D. Subscribed in my presence and sworn to before me this day of , 19. (Signed) J. K, County Judge. 74. Duties of other persons to deliver will into court. Every person other than the county judge having custody of any will is required, within thirty days after he has knowledge of the death of the testator, to deliver the same into the county court having jurisdiction of the case, or to the person named in the will as execu- tor, 4 and any executor, within thirty days after his testator's death, or within thirty days after he has knowledge that he is named executor, if he obtains such knowledge after the death of the testator, must also, unless the will has been otherwise delivered, file the same in the county court. 5 75. Proceedings to bring a will into court. If the person having the will in his possession refuses to file the will, or produce it in court, the executor, heir or other person believing himself to be beneficially in- terested in the estate may file a petition for subpoena to produce the will. On the filing of the petition the court issues a sum- mons which is in the nature of a subpoena duces tecum, 4 Rev. Stats., c. 17, 35, [1299]. Rev. Stats., c. 17, 36, [1300]; L. O. L., 1138. (HO) Chap. 7] PRODUCTION OF WILL ix COURT. 75 ordering the party alleged to be unlawfully detaining the will in his possession to produce it in court. The only defense a party has to a proceeding of this kind is that the will is not in his possession or under his control. He has no excuse for failing to deliver it, except that circumstances make it impossible for him to do so. He cannot set up as a defense that the will has been revoked by implication, or is not properly executed, or is void for any reason. These are matters to come before the court on objections to probate. If the party charged with having the will in his possession fails to appear, the county judge may issue an attachment or warrant against him for contempt. If, then, it appears on the return of the attachment or warrant with the party in custody that he has the will in his possession or control, and he refuses to turn it over to the court, an order of commitment for contempt may issue forthwith. 6 Form No. 18. PETITION FOR THE DELIVERY OP A WILL INTO COURT. To the County Court of , County, Nebraska: Your petitioner, C. D., respectfully represents unto the court that on or about the day of , 19 , one A. B., a resident of , in said county, died, having previously executed, in manner and form prescribed by law, his last will and testament; that on or about the day of , 19 , he delivered said will to E. F., of said city of . for safekeeping; that on the day of , 19 , said E. F. received notice of the death of said A. B., and it thereupon became his duty to deliver said will into said court; that more than thirty days have elapsed since said E. F. was informed of the death of said A. B., and he has neglected and refused, and still neglects and refuses, to deliver said will into court. Your petitioner is a son of said A. B., and has good reason to believe that he is named as executor in said will. Rv. Stats., c. 17, J 38, [1302]; L. O. L., 1140.' (HI) PROBATE AND ADMINISTRATION. [Chap. 7 Your petitioner therefore prays that a subpoena issue out of and under the seal of this court commanding said E. F. to bring said will into court. (Signed) C. D. [Add verification, Form No. 5.] Form No. 19. SUMMONS TO PRODUCE WILL IN COURT. The State of Nebraska, County. To the Sheriff or Any Constable of Said County: You are hereby commanded to summon E. F. to appear before the county court of said county on the day of , 19 (forth- with), and bring with him and produce at the time and place an instru- ment deposited with him by A. B., late of said county, deceased, and purporting to be the last will and testament of said A. B. Dated this day of , 19 . (Seal) (Signed) J. K., County Judge. 76. Liability for failure to deliver will. Any person, having custody of the will of another, who, after the death of the testator, without reasonable cause, neglects to deliver the same to the county court having jurisdiction, after he has been duly notified by the court for that purpose, may be committed to the jail of the county by warrant issued by such court, and there kept in close confinement until he shall deliver the will as directed, and shall also be liable in damages. 7 In addition to being imprisoned in the county jail for contempt, a person who unjustly refuses to deliver up a will is guilty of a misdemeanor, and liable in an action for damages to each and every person who may have sustained a loss thereby. 8 7 Rev. Stats., c. 17. 37, 38, [1301], [1302]. 8 Rev. Stats., c. 17, 38, [1301]; L. O. L., 1139. (112) Chap. 7] PEODUCTION OF WILL IN COURT. 76 Form No. 20. ORDER OF COMMITMENT FOR CONTEMPT. In the County Court of County, Nebraska. In the Matter of Proceedings against A. B., for Contempt of Court. In this cause, it appearing to the court that, on the day of -, 19 , C. D. filed his petition herein, the object and prayer of which were to require E. F. to produce and deliver into court the instrument purporting to be the last will and testament of said A. B.; that on the day of , 19 , a summons duces tecum was issued commanding him, said E. F., to be and appear before the county court of said county on the day of , 19 , and produce and deliver into court said will; that personal service of said sum- mons has been had on said E. F.; that on said day of , 19 , said E. F. appeared in said court, and refused to deliver said will, and gave no reasonable excuse, or reason for his failure to so deliver it. Upon consideration whereof, the court finds that said E. F. has pos- session of said will, and has neglected and refused to deliver the will of said A. B. into court for more than thirty days after he had been informed of the death of said A. B., and still neglects and refuses to deliver said will into court. It is therefore ordered and adjudged that said E. F. be committed to the county jail of said county, and there be kept in close confine- ment until he complies with the order of this court, and delivers said will into court, and that he pay the costs of this proceeding, taxed at Dated this day of , 19 . (Signed) J. K., County Judge. Form No. 21. WARRANT FOR CONTEMPT. The State of Nebraska, County. To the Sheriff of Said County: You are hereby commanded to forthwith arrest E. F., and bring him before the county court of said county to show cause why he should not be punished for contempt of this court for his refusal to deliver to this court the will of A. B., late of said county, deceased, after being duly notified to produce the same as required by law. 8 Pro. Ad. 76 PROBATE AND ADMINISTRATION. [Chap. 7 Given under my hand, and the seal of the court affixed thereto, this day of , 19. (Seal) (Signed) J. K., County Judge. Form No. 22. COMMITMENT FOE CONTEMPT. The State of Nebraska, County. To the Keeper of the Jail of Said County: Whereas the following is a true copy of an order duly made and entered by the county court of said county on the day of , 19 : [Here copy order in full.] You are therefore commanded to receive said E. F. into your custody in said jail, and him safely keep in close confinement until he comply with the order of this court, and produce and deliver into court an instrument purporting to be the last will and testament of A. B., late of said county, deceased, and pay the costs herein, taxed at $ , or be duly discharged according to law. Given under my hand, and the seal of the court affixed thereto, this day of , 19. (Seal) (Signed) J. K., County Judge. (114) ' CHAPTER VIII. PROBATE OF WILLS. 5 77. Definition of the Term "Probate" as Applied to Wills. 78. Statute of Limitations. 79. Petition for Probate of a Will. 80. Notice of Hearing. 81. Facts Necessary to be Proved on Probate of Will. 82. One Witness Only Required When Will not Contested. 83. Testamentary Character of Instrument Proposed as a Will. 84. Contestants of Wills. 85. Evidence of Mental Capacity. 86. Expert Evidence. 87. Undue Influence Definition. 88. Conditions Constituting Undue Influence. 89. Undue Influence and Mental Capacity. 90. Unjust Provisions Evidence of Undue Influence. 91. Undue Influence of Person Holding Special Relation of Trust. 92. Undue Influence of Draftsman of Will. 93. Execution of Will Obtained by Fraud. 94. Evidence of Undue Influence and Fraud. 95. Will of Person Under Guardianship. 96. Declarations of Testator. 97. Fraud and Undue Influence By Whom Shown. 98. Effect of Will Obtained by Fraud. 99. Invalid Bequest or Devise. 100. Omitting Reference to Children. 101. Probate of Foreign Wills. 102. Probate of Nuncupative Wills. 103. Probate of Wills Executed Outside the State by a Resident Thereof. 104. Costs in Will Contests. 105. Reducing Testimony on Probate of Wills to Writing. 106. Order Admitting Will to Probate. 107. Certificate of Probate of Will. 77. Probate of wills Definition. Probate of a will is the proof before an officer author- ized by law that an instrument offered to be proved or (115) 77 PROBATE AND ADMINISTRATION. [Chap. 8 recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be. 1 In the case of a domestic will, or one offered for original probate in this state, it is proving the same to have been signed by the testator and attested by him in the pres- ence of two witnesses, who, at his request, have signed their names thereto as witnesses, and that at the time of the execution thereof he was of sound mind. 2 In the case of a foreign will it is proving it to have been duly probated according to the laws of the state or country where it was originally propounded. 3 Until probated in this state, either a foreign or domestic will is a nullity. 4 At common law there were two methods of probating wills: common form, which consisted in presenting the instrument to the officer, and proving it by ex part? evidence, usually an affidavit, without notice to any party, 6 and in solemn form, in which notice was given and a full hearing had ; and any will probated in com- mon form could be, on application, thereafter probated in solemn form. 6 In Nebraska, probate of wills is regulated by statute and is analogous to the solemn form; notice must be given and, a formal hearing had. 1 Bouvier's Law Diet. 2 Section 41 et seq., supra. 3 Eev. Stats., c. 17, 43, [1307]. 4 Pettit v. Black, 13 Neb. 142, 12 N. W. S41 ; Koberts v. Flannagan,. 21 Neb. 509, 32 N. W. 563; Jones v. Dove, 6 Or. 188; Stevens v. Myers, 62 Or. 392, 126 Pac. 29, 121 Pac. 434. 5 Hubbard v. Hubbard, 7 Or. 42; Luper v. Werts, -19 Or. 122, 23- Pac. 850; Waters v. Stickney, 12 Allen (Mass.), 1. Noyes v. Parker, 4 N. H. 403; Brown v. Anderson, 13 Ga. 171. (116) Chap. 8] PROBATE OF WILLS. 78 In Oregon, wills are probated in common form, but if their validity is attacked, they must be re-probated by original proof the same as if no probate had been had, after notice. 7 Probate in common form does not dispense with proof of the will. The burden of proof is on the proponent, and he must establish the same facts, though ex parte, as in the case of probate in solemn form. 8 The county court of the county in which decedent resided at the time of his death, or that in which he left assets either real or personal, if a nonresident of the state, has exclusive original jurisdiction. 9 Under the Oregon practice, the county court of the county in which the deceased actually dwelt at the time of his death, or in which he died seised of real estate, or if he did not dwell in the state, a county within which there are assets at the time the application is made, has such jurisdiction. 10 78. Statute of limitations not a bar to probate. As the probate of a will is not an action, or an adver- sary proceeding, but strictly a proceeding in rem, no statute of limitation bars an original application for its probate. It matters not how long a time has elapsed since the death of the testator; it is the duty of the court to admit it to probate on proof of its validity, 11 7 L. O. L., 1143; Hubbard v. Hubbard, 7 Or. 42. 8 Clark v. Ellis, 9 Or. 128; In re Mendenhall's Will, 43 Or. 542, 72 Pac. 318, 73 Pac. 1033; In re Pickett's Will, 49 Or. 127, 89 Pac. 377. Brown v. Webster, 87 Xeb. 788. 10 L. O. L., 1141; Holmes v. Oregon & Cal. Ry. Co., 9 Fed. 229. 11 Shumway v. Holbrook, 1 Pick. (Mass.) 115; Waters v. Stickney, 12 Allen (Mass.), 1; Haddock v. Boston & M. B. Co., 146 Mass. 155, 15 N. E. 456. (117) 79 PROBATE AND ADMINISTRATION. [Chap. 8 and it is no defense that the estate has been settled by an administrator. 12 An unexplained delay in presenting it for probate is looked upon with suspicion, especially where it is alleged that the will is lost, and some good reason therefor should be shown. 13 79. Petition for probate of will. It is the duty of any person on being notified that he is named as executor in a will, or when such fact comes to his knowledge, to take steps toward probating it. 14 The law does not demand that he do this at his own expense, but ordinarily gives him the right to reimbursement from the estate for his costs, expenses and attorney fees. 15 He should either proceed to have the will probated or renounce the trust. 18 The statutes do not, in express terms, require the filing of a petition for its probate, but from an early date to the present the courts have treated it as juris- dictional. 17 If the executor neglect or refuse to take any action, any person who takes a beneficial interest under the 12 Rev. Stats., c. 17, 87, [1351] ; L. O. L., 1158. 13 Strong v. Potts, 94 Neb. 742, 144 N. W. 789. 14 Zimmer v. Saier, 158 Mich. 170, 119 N. W. 435; Converse v. Starr, 23 Ohio St. 491; Stark v. Parker, 58 N. H. 581. 15 Clark v. Turner, 50 Neb. 290, 69 N. W. 843 ; In re Hentges' Estate, 86 Neb. 75, 124 N. W. 929. 16 Clark v. Turner, 50 Neb. 290, 69 N. W. 843. 17 Loosemore v. Smith, 12 Neb. 345, 11 N. W. 493; Kirk v. Bowling, 20 Neb. 260, 29 N. W. 982; Seebrook v. Fedawa, 30 Neb. 424, 46 N. W. 650; Kolterman v. Chilvers, 82 Neb. 216, 117 N. W. 405; Strong v. Potts, 94 Neb. 742, 144 N. W. 789. (118) Chap. 8] PROBATE OF WILLS. 79 will may file the petition. 18 It should allege the domi- cile of the testator, the date of his death, that he left a will, and give the names and residences, so far as known, of his next of kin and beneficiaries. 19 The statute does not require the party named as executor to take any further steps than the preliminary proceeding for the probate of the will. In the case of a contest, the beneficiaries, as the parties who will be benefited, ought to assume the burden of the case. The nominee cannot be assured that the court will allow him more than court costs. 20 He has no rights in the matter until letters issue. 21 If he turns the case over to the beneficiaries, leaving them to bear the burden of the contest, the parties who will receive the benefits are the ones who pay the expenses. 22 Under the Oregon practice, the filing of a petition is necessary to give the court jurisdiction. It may be filed by an executor, devisee, or legatee named in the will, or by any other person interested in the estate, at any time after the death of the testator, whether the will be in his possession or not or is lost or destroyed, or beyond jurisdiction, or is a nuncupative will. 23 It should state the date of the death of decedent, the county in which he was an inhabitant at the time of his death, the existence of an estate together with the loca- tion and estimated value of the same, the names, ages and residences, so far as known, of his heirs, and also 18 Stebbins v. Lathrop, 4 Pick. (Mass.) 33; Keniston v. Adams, 80 Me. 290, 14 Atl. 203. 19 Hathaway's Appeal, 46 Mich. 327, 9 N. W. 435. 20 Section 104, post. 21 Schoenberger's Exr. v. Institution, etc., 28 Pa. 465. 22 In re Mullenshclader's Estate, 137 Wis. 32, 118 N. W. 209; Mc- Cormirk v. Elsea's Estate, 107 Va. 472, 59 S. E. 411. 23 L. O. L., 1139. (119) 80 PEOBATE AND ADMINISTRATION. [Chap. 8 set up the execution of the will, 24 and should be veri- fied. 25 The petition is therefore substantially the same as in Nebraska. Form No. 23. PETITION FOR PROBATE OF WILL. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that A. B., late of said county, departed this life at his residence in said county on the day of , 19 , leaving a last will and testament, in which your petitioner is named as executor, which will he now offers for probate, and that said will relates to both real and personal estate. Your petitioner further shows that said A. B was at the time of his death a resident of , in said county, and that he left surviving him a widow, C. B., who now resides at - , in said county, and children as follows: [Give name, age, and residence of each child as far as known; if not known, so state. If he left no children, give names, ages, if minors, and residences, as far as known, of his heirs at law.] Your petitioner therefore prays that the court will appoint a time and place for hearing said will, and that notice in due form may be issued and given to all persons interested in said estate, requiring them to appear and attend fhe probate of said will, and for such other proceedings as may be necessary and proper in the premises to admit said will to probate, and for letters testamentary. (Signed) C. D. [Add verification, Form No. 5.] 80. Notice of hearing. Whenever any will shall have been delivered into, or deposited in, any probate court having jurisdiction of the same, it is the duty of the court to fix a time and 24 Moore v. Willamette Trans. Co., 7 Or. 359; Holmes v. Oregon & C. Ry. Co., 5 -Fed. 232; Sappingfield v. Sappingfield, 67 Or. 156, 135 Pac. 333. 25 L. O. L., 82. (120) Chap. 8] PROBATE OF WILLS. 80 place for hearing, when all persons interested may appear and contest its probate. 26 Hearing is usually held about three weeks after the petition is filed, but may be set for an earlier date. The method of service rests in the discretion of the court irrespective of the residence of the parties. It may be by personal service upon all parties interested, or by publication in such newspaper, printed in this state as the court may direct, for three successive weeks previous to the time appointed. The notice must ap- pear in three successive publications of the paper des- ignated. It is not necessary for the last publication to be twenty-one days from the first. The practice gen- erally prevailing is to give notice by publication, and thus avoid the necessity of the court passing upon the question, without having the evidence before it, of who are interested in the estate. 27 The proceeding is in rem, and personal notice is not necessary to give juris- diction. 28 Form No. 24. ORDER FOR HEARING. [Title of Matter and Court.] Now, on this day of , 19 , C. D. having filed his petition, under oath, for the probate of an instrument purporting to be the last will and testament of A. B., deceased, and for the issue of letters testamentary to him, said petitioner, it is ordered that said petition be set for hearing on the day of , 19 , at the hour of A. M. of said day, that notice thereof be given all persons interested by publication thereof for three successive weeks in the , a legal newspaper of said county, by personal service on E. F., 26 Rev. Stats., c. 17, 39, [1303]. 27 In re Seiker's Estate, 89 Neb. 216, 131 N. W. 204; Alexander v. Alexander, 26 Neb. 75, 41 N. W. 1065. 28 In re Miller's Estate, 69 Neb. 441, 95 N. W. 1010. (121) 81 PROBATE AND ADMINISTRATION. [Chap. 8 and by sending a true copy thereof to G. H., by registered mail ad- dressed to , his last known postoffice address, within ten days of the date set for said hearing. (Signed) J. K., County Judge. Form No. 25. NOTICE OF HEARING. In the County Court of County, Nebraska. In the Matter of the Estate of A. B., Deceased. Notice is hereby given that on the day of , 19 , at the county court room in the city of , said county, at the hour of A. M. of said day, the following matter will be heard and con- sidered, to wit, the petition of C. D. for the probate of a certain written instrument now on file in said court, and purporting to be the last will and testament of A. B., deceased, for the grant of letters testamentary thereon, to said petitioner. Dated , 19. (Seal) J. K., County Judge. 81. Facts necessary to be proved on probate of will. To entitle a will executed within this state to pro- bate, it must be shown that all the requirements of the statutes in regard thereto have been fully complied with. The rights of the heirs at law to take the prop- erty according to the laws of distribution and descent can only be affected by a strict compliance with the provisions of the laws which bar such right. The pro- ponent must establish the following facts: First, that the testator was of full age, and of sound and disposing mind; second, that the will is in writing, signed by the testator or by some one for him in his presence; third, that it was attested and subscribed by two com- petent witnesses in the actual presence of the testator, (122) Chap. 8] PROBATE OF WILLS. 81 and signed by him in their presence, or, if not signed by him in their presence, that he informed them that he had signed it. 29 The general presumption of law that every person is considered of sound mind until the contrary is shown does not apply in Nebraska in a proceeding for the probate of a will. It must affirmatively appear that the deceased was of "sound mind" when he executed the instrument, and such testimony is equally as essen- tial when all parties assent to its probate as when it is contested. 30 In Oregon, the usual presumption is the rule, 31 but if there is evidence introduced attacking the mental capacity of the testator, the burden of proof is on the proponent. 32 If he has been adjudged insane, the presumption is that such condition continues. 33 The signature of the testator must be proved, 34 and unless the testimony shows that he either signed the will in the actual presence of the witnesses or acknowl- edged to them that he had signed it, 35 and that they knew the paper was intended as a will and learned such 29 Seebrock v. Fedawa, 30 Xeb. 424, 46 N. W. 650; Crowninshield v. Crowninshield, 2 Gray (Mass.), 527; Aikin v. Weckerly, 19 Mich. 482; Kempsey v. McGinniss, 21 Mich. 123; Williams v. Bobinson, 42 Vt. 658. 30 Stebrock v. Fedawa, 30 Xeb. 424, 46 X. W. 650. 31 Greenwood v. Cline, 7 Or. 17. 32 Chrisman v. Chrisman, 16 Or. 127, 18 Pac. 6. 33 Buford v. Gruver, 223 Mo. 231, 122 S. W. 717; Gates v. Cole, 137 Iowa, 613, 115 N. W. 236; Kirsher v. Kirsher, 124 Iowa, 337, 94 X. W. 846. 34 Wendel v. Fuerst (Or.), 136 Pac. 2. 35 Mendenhall's Will, 43 Or. 542, 73 Pac. 1033. (123) 82 PEOBATE AND ADMINISTRATION. [Chap. 8 fact from the testator, either directly or by implication or assent, it should be refused probate. 36 The same rules govern the aclmissibility of evidence as though the case were being tried on appeal in the district court. The witnesses must either be examined orally or their depositions taken on due notice. Affi- davits of witnesses are inadmissible, as they are not testimony. 36 * 82. One witness only required when will not con- tested. If no person shall appear to contest the will at the time and place appointed for that purpose, the court may, in its discretion, grant probate thereof on the tes- timony of one of the subscribing witnesses only, if such witness shall testify that such will was executed in all particulars as required by the statute, and that the testator was of sound mind at the time of the execution thereof. 37 If none of the subscribing witnesses reside in this state at the time of the proving of the will, the court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will, and, as evidence of the exe- 36 McCoy v. Conrad, 64 Neb. 150, 89 N. W. 665; In re Davidson's Estate, 70 Neb. 584, 97 N. W. 797; In re Powers' Estate, 79 Neb. 680, 113 N. W. 198. Cases cited in 44, supra. 36 Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803, 77 N. W. 342. Affidavits, even though prepared by filling in printed blanks with names and dates, and necessarily based principally on hearsay, were sufficient to probate a will in "common form," for the reason that such probate was not binding on the interested parties, and could be set aside at any time and the proponent required to prove the will by competent evidence. 37 Rev. Stats., c. 17, 40, [1304]. (124) Chap. 8] PROBATE OF WILES. 82 cution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses. 38 If the witnesses were competent at the time of the execu- tion of the will, their subsequent incompetency, from whatever cause, will not prevent the probate and allowance of the will if it be otherwise satisfactorily proved. 39 In cases of this kind, the appearance of the will itself may be strong evidence of its validity. If it appears to have been properly signed, the attestation clause purporting to show that all legal requirements have been complied with, and nothing irregular or suspicious on the face of it, the law raises a presump- tion that it was properly executed. 40 The same pre- sumption has been applied where, the attestation clause being regular, the subscribing witnesses, while admit- ting their signatures, through lapse of time or de- fective memory are unable to testify to any other material fact in regard to the execution of the instru- ment, the law supplying the defect of proof on this question only, unless there be affirmative evidence that ' the law has not been complied with. 41 Probate of a will in common form, as provided in Oregon, is a strictly ex parte proceeding. No notice of any kind is required. The party who is entitled to petition for its probate, if he has the will in his pos- 38 Rev. Stats., c. 17, 41, [1305], 39 Rev. Stats., c. 17, 26, [1290]. 40 Isaac v. Haklerman, 76 Neb. 823, 107 N. W. 1016; Barnes r. Barnes, 66 Me. 286; Abbott v. Abbott, 41 Mich. 540, 2 N. W. 810; In re Sullivan's Will, 114 Mich. 189, 72 N. W. 136. 41 In re Peterson's Estate, 76 Neb. 411, 109 N. W. 506; Skinner's Will, 40 Or. 579, 62 Pac. 523, 67 Pac. 951 ; McCurdy v. Neall, 42 N. J. Eq. 333, 7 Atl. 566; Allaire v. Allaire, 37 N. J. L. 312; Ex parte Brock, 37 P. C. 348. 16 S. E. 38; Welch v. Welch, 9 Rich. (S. C.) 133; Barnes v. Barnes, 66 Me. 286. (125) 83 PBOBATE AND ADMINISTRATION. [Chap. 8 session, may file it with such petition, and if the wit- nesses are present, the court may proceed to take their testimony and probate the will. 42 The usual practice is to take the testimony of the two witnesses in the form of affidavits, sometimes called the "formal proof." 43 Oral testimony may be taken to supplement such proof. If the evidence clearly establishes the allegations of the petition, the will should be probated. Probate of a will in common form, though fre- quently, on account of the use of printed forms of proof, resulting in the probate of an instrument which was never legally executed, is of the same effect as probate after a contest, until a petition is filed within the statutory time to contest the probate or the valid- ity of the will, or until set aside after that time by an action in equity. 83. Testamentary character of instrument proposed as a will. In a proceeding for the probate of a will the court has no authority to construe it only to the extent of determining whether the paper is a will or deed. 44 The common-law rule is that no particular set terms are necessary for a will. If it is executed in compli- ance with the statute, and appears from its contents to have been intended as an instrument making a dis- position of his property, to take effect at his death, it is a will. 45 The test for determining its character is, does it convey a present right or interest, absolute or contin- 42 Malone v. Cornelius, 34 Or. 196, 55 Pac. 536. 43 See Mendenhall's Will, 40 Or. 547, 73 Pac. 1033; Hubbard T. Hubbard, 7 Or. 42. 44 Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959; Cox r. Cox, 101 Mo. 168, 13 S. W. 1055. 45 Boss v. Ewer, 3 Atk. 960. (126) Chap. 8] PBOBATE OF WILLS. 84 gent? If by its terms any right or interest passes at once, though subject to a contingency over which the party executing it has no control, it is a deed, 46 but if the right or interest does not pass by its execution and delivery, it is a will. 47 It is not necessary that the entire instrument be of a testamentary character. If any part or portion of it becomes operative only on the death of the party who executed it, it should be pro- bated. 48 84. Contestants of wills. A will may be contested by any person interested in the estate. Such persons include not only heirs or next of kin, but also a creditor and a judgment creditor of an heir of one seised of realty at the time of his death, provided the heir is not a devisee, 49 legatee or per- son named as executor under a prior will, still in existence, or any person who would take an interest in the estate under the statute or under a prior will still in existence. 50 If an infant is disinherited, it is proper for the mother or any near relative to file a contest in his behalf. 51 When a contest has been insti- tuted by a party who would otherwise take a vested 46 Jacksob v. Jackson (Or.), 135 Pac. 200. 47 Culy v. Upham, 135 Mich. 131, 97 N. W. 405; Thomas v. Williams, 105 Minn. 88, 117 N. W. 155; Beebe v. McKinzie, 19 Or. 296, 24 Pac. 236; Deckenbach v. Deckenbach, 65 Or. 165, 137 Pac. 724. 48 Palmer v. Bradley, 142 Fed. 193; Shaw v. Camp, 163 111. 144, 43 X. E. 211. 49 In re Langevin's Will, 45 Minn. 429, 47 N. W. 1133; Murry v. Hennesey, 48 Neb. 608, 67 N. W. 470; Colt v. DuBois, 7 Neb. 398; Christiansen v. Talmage (Or.), 138 Pac. 453. 50 In re Hunt's Will, 122 Wis. 460, 100 N. W. 874. 61 Everson v. Hum, 89 Neb. 716, 131 N. W. 1130. (127) 84 PROBATE AND ADMINISTRATION. [Chap. 8 interest, upon his death his personal representative may be substituted. 52 Heirs who have made an agreement, for a valuable consideration, with their ancestor not to contest his will, are precluded from filing a contest unless the in- terests of other parties may be affected thereby. Such agreement does not relieve the proponent from estab- lishing the necessary facts, but merely bars the parties from taking any action in the proceeding. 53 Naming an heir as executor does not prevent him from contest- ing. 54 A stipulation entered into between all the heirs and legatees and devisees under a will that the testator was incapable of executing a valid will is insufficient to defeat its probate. 55 There are no statutory provisions regulating the con- test of wills in county courts. The usual practice is to file objections on or before the day set for the hearing, specifically setting out the grounds of the contest. No reply is necessary. An adjournment may be had to such time as the court may determine or the parties agree upon to enable them to obtain their evidence. 52 In re Wiltsey's Will, 122 Iowa, 423, 98 N. W. 294. 53 Grochowski v. Grochowski, 77 Neb. 506, 109 N. W. 742. 54 In re Estate of Berry, 154 Iowa, 301, 130 N. W. 867. 55 In re Dardis' Will, 135 Wis. 457, 115 N. W. 332, in which the court held the rule to be that if the evidence showed the testator to be of sound mind, any stipulation or agreement was inadmissible to prove him otherwise. (128) Chap. 8] PROBATE OF WILLS. 84 Form No. 26. OBJECTIONS TO THE PROBATE OF A WILU [Title of Cause and Court.] Comes now C. B., a son of A. B., and objects to the probate of the instrument purporting to be the last will and testament of said A. B. for the following reasons: First. Said instrument is not executed as required by law. Second. Said instrument is not properly attested. Third. Said A. B., at the time alleged in said instrument, was not possessed of sufficient mental capacity to make a will, by reason of old age [insanity, idiocy, long-continued use of intoxicating liquors to excess]. Fourth. Said instrument was executed by said A. B. by reason of improper and undue influence exerted upon him by B. H., who is a devisee thereunder, and said instrument is not the will of said A. B., but of said B. H. Fifth. Said instrument has been revoked by implication of law [state what changes in the family or circumstances of testator it is claimed have revoked the will]. Contestant therefore prays that said instrument may be set aside, and that an administrator of said estate may be appointed to take charge thereof. Dated this day of , 19. (Signed) C. B. Under the Oregon practice, a person desiring to contest the probate of a will or its validity may at any time within one year after its probate in common form file a petition for that purpose in the court in which it was probated. Citation thereupon issues to the execu- tor, or administrator with the will annexed, and a hearing had for the probate in solemn form. A party entitled to contest who is laboring under a legal dis- ability may file such petition within one year after the removal of such disability. 56 The result of filing such petition is to suspend the administration, except so far as is necessary to conserve the estate, until the final order of the county court in the matter. M L. O. L., 1143, 1135. 8 Pro. Ad. (129) 85 PROBATE AND ADMINISTRATION. [Chap. 8 The petition should set out the various objections to the will, pointing out the particular matters on which defendant relies for defeating its probate. Its allegations should be broad enough and specific enough to call in question the validity of the will and the suffi- ciency of the proof as to its execution. 67 It may admit necessary facts and formalities regarding its execu- tion, and as to such admissions evidence on the part of the proponent is unnecessary. 58 The burden of proof is on the proponent, and it is his duty to establish the will by original proof in the same manner as though this were the first proceeding or action to prove it. 59 85. Evidence of mental capacity. While it is always incumbent on the proponent in a proceeding for the probate of a will, whether contested or not, to prove that the testator was of sound mind at the time of its execution, he is only required in his opening to introduce sufficient testimony to make a prima facie case on this particular branch of his case. After the contestant has introduced evidence attack- ing testator's sanity or mental ability or capacity, he can then go as fully into the facts as could a plaintiff on his opening, and is not limited to rebutting testi- mony. 60 The contestant must establish his defense to the prima facie case on his opening, and after the pro- ponent has closed, is limited to rebutting testimony. 57 In re Mendenhall's Will, 43 Or. 547, 73 Pac. 1033. 58 Hubbard v. Hubbard, 7 Or. 42; Luper v. Werts, 19 Or. 42, 23 Pac. 850; In re Mendenhall's Will, 43 Or. 547, 73 Pac. 1033. 59 Hubbard v. Hubbard, 7 Or. 42; Pickett's Will, 49 Or. 140, 89 Pac. 377; Simpson v. Durbin, 68 Or. 518, 136 Pac. 47. 60 Powers v. Peters, 79 Neb. 680, 113 N. W. 198; Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650; Kerr v. Lundsford, 31 W. Va. 659, 8 S. E. 493; Perkins v. Perkins, 39 N. H. 163. (130) Chap. 8] PROBATE OF WILLS. 85 The proponent is entitled to open and close the case under the general rule of law and provision of the code that a party who would be defeated were there no evi- dence introduced shall first produce his evidence, and is entitled to open and close the argument. 61 The issue of testamentary capacity, including insanity and men- tal ability, being a broad one, a greater latitude is permitted in the introduction of testimony than on the trial of many other issues. Such weaknesses and delusions as preclude testa- mentary capacity are the offsprings of a deficient or diseased mind, and manifest themselves in a person's appearance, conduct and demeanor. Evidence of ab- surdities of speech or conduct, eccentricities of dress, chimerical or impracticable theories, lapses of memory, erroneous ideas in regard to the condition of one's property, though none of them standing by themselves may be sufficient to show that the testator lacked men- tal capacity, are admissible in evidence for the purpose of showing his state of mind, and because when con- sidered with the will itself and all the circumstances and conditions connected with it and the family rela- tions and circumstances of such testator, they tend to prove that his mental condition was such that he did not knowingly and understandingly dispose of his property. 62 61 Brooks v. Butcher, 22 Neb. 644, 36 N. W. 128. 62 Morris v. Morton's Exrs. (Ky.), 20 S. W. 287; Lowder v. Lowder, 58 Ind. 538; Hathorn v. King, 8 Mass. 371; Kerr v. Lundsford, 31 W. Va. 659, 8 S. E. 493; Haines v. Hayden, 95 Mich. 332, 54 N. W. 911; Halley v. Webster, 21 Me. 461; Lane v. Moore, 151 Mass. 87, 23 N. E. 828; Frazer v. Jennison, 42 Mich. 220, 3 N. W. 882; Smith v. Smith, 48 X. J. Eq. 566, 25 Atl. 11; American Bible Society v. Price, 115 111. 623, 5 N. E. 126. (131) 86 PBOBATE AND ADMINISTRATION. [Chap. 8 Where delusions are shown to exist, the proponent may show that they have an apparent cause, namely, an external fact, for their existence, and so do not de- prive the party of testamentary capacity. 63 In will cases in which the mental ability is questioned the courts will generally permit a review of transac- tions, conduct, habits and manner of life of a testator which contestants allege make him incompetent to make a valid will for years previous to the execution of the instrument. 64 Declarations, admissions and the general conduct, manner and appearance of the tes- tator after the execution of the instrument are admis- sible for the purpose of showing his mental capacity, but must be confined to a short period to be fixed by the court according to the circumstances of the party. 65 86. Expert evidence. The testimony of experts on mental diseases those who have made a study of the subject, and are able by reason of experience to detect symptoms which a less experienced eye would overlook is of much value. Such witnesses can distinguish between the symptoms indicative of the natural physical decline incident to advanced age, and which are consistent with testa- mentary capacity, and those of senile dementia, which is recognized as a disease of the mind, and which are 63 Skinner's Will, 40 Or. 671, 62 Pac. 523, 67 Pac. 951; Wade v. Northrup (Or.), 140 Pae. 454; Fulton v. Freeland, 219 Mo. 494, 118 S. W. 12. 64 Isaac v. Halderman, 76 Neb. 283, 107 N. W. 1016; 84 Neb. 251, 120 N. W. 116; In re Frederick's Estate, 83 Neb. 818, 119 N. W. 667; In re Winch's Estate, 84 Neb. 251, 120 N. W. 116. 65 in re Winch's Estate, 84 Neb. 251, 120 N. W. 116. (132) Chap. 8] PROBATE OF WILLS. 86 inconsistent with such capacity. 66 Testimony of this character will not prevail over established facts. Posi- tive evidence of actual facts showing a knowledge and understanding of a testator's affairs and of his rela- tives and dependents, though medical experts agreed that he could not at the time of the execution of the will have had mental power sufficient to transact a business affair requiring a continuous exercise of the judgment and reasoning faculties, will admit it to probate. 67 Nonexperts, provided they have observed the person in question, frequently, and for a considerable period, may be permitted to state whether in their opinion he was sane, after first detailing the facts on which they base their opinions. 68 Subscribing witnesses to a will are competent to testify to his mental capacity 69 without qualifying as experts, or other foundation testimony than that of their being such witnesses. 70 The opinion which the witness, whether expert or nonexpert, may give is as to the degree of intelligence actually possessed by the testator, and not as to the direct matter in issue as to whether he had testamen- ee Kerr v. Lundsford, 31 W. Va. 659, 8 S. E. 493; Kempsey v. Mc- Ginnis, 21 Mich. 123; Garrus v. Davis, 234 HI. 811, 84 N. E. 924; White v. McPherson, 183 Mass. 533, 67 N. E. 643. 67 Pickett's Will, 49 Or. 127, 89 Pac. 377. 65 Isaac v. Halderman, 76 Neb. 823, 107 N. W. 1016; Mollering v. Kinneburg, 78 N-eb. 758, 111 N. W. 788; Schlenker v. State, 9 Neb. 241, 1 N. W. 857; Pfluegger v. State, 46 Neb. 493, 64 N. W. 1094. 69 Parsons v. Parsons, 66 Iowa, 754, 21 X. W. 570; In re D' Avignon, 12 Colo. App. 489, 55 Pac. 936. 70 Titlow v. Titlow, 54 Pa. 216, 95 Am. Dec. 691. (133) 87 PKOBATE AND ADMINISTRATION. [Chap. 8 tary capacity. 71 The following questions regarding mental ability in will cases have been approved by a long line of Michigan authorities, proper foundation having been laid therefor: "Was the testator, in your opinion, at the time, etc., capable of planning and executing such a paper as is here offered as his will?" "Was he in a mental and physical condition to trans- act business requiring an exercise of the judgment, the reasoning faculties, and a consecutive continuation of thought?" 72 87. Undue influence Definition. Undue influence may be defined as such influence as destroys the free agency of the testator, prevents the exercise of that discretion he naturally possesses, and substitutes another person's will for his own. 73 Where such influence is once shown to' exist, and the mind of one person has acquired such a power over another's mind as to be practically substituted for it, a gift by will, by the weaker to the stronger, is presumptively void, and the burden of upholding the fairness and validity of it rests upon the party benefited thereby. 74 The Nebraska supreme court lays down a very strin- gent rule on the question of undue influence. It holds that "influence, to vitiate a will, must amount to force and coercion, destroying the free agency of the tes- 71 Cheney v. Cheney, 78 Neb. 274, 110 N. W. 731. 72 Page v. Beach, 134 Mich. 51, 95 N. W. 981. 73 Johnson v. Armstrong, 97 Ala. 731, 12 South. 72; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39. 74 Garvin's Admr. v. Williams, 44 Mo. 465; Gay v. Gillilan, 92 Mo. 264, 5 S. W. 7; Harvey v. Sullens, 46 Mo. 147; Cudney v. Cuduey, 68 N. Y. 152; Marx v. McGlynn, 88 N. Y. 357. (134) Chap. 8] PBOBATE OF WILLS. 88 tator, and there must be proof that the will was ob- tained by this coercion, and it must be shown that the circumstances of its execution are inconsistent with any other hypothesis but undue influence, which can- not be presumed, but must be proved, and in connec- tion with the will, and not with other things. ' ' 75 The court, in Latham v. Schaal, followed the Michigan case of Maynard v. Vinton, 76 a case which has been ex- pressly overruled by the Michigan supreme court in Bush v. Delano, 77 as laying down a rule of law obvi- ously incorrect. The Missouri supreme court, in Gay v. Gillilan, 78 held that that portion of the above requir- ing it to be shown that the circumstances attending the execution of the will "were inconsistent with any other hypothesis than undue influence" required more than a preponderance of evidence to establish the con- testant 's case, and therefore stated an incorrect prin- ciple of law. 88. Conditions constituting undue influence. It is absolutely impossible to lay down a rule defin- ing just what combination of facts and circumstances attending the execution of a will establish undue in- fluence, for the mental and physical organizations of no two persons are alike. Different minds are actuated by different motives and desires. Circumstances and surroundings, treatment by relatives and those likely to be the objects of one's bounty, threats and im- 75 Latham v. Schaal, 25 Neb. 535, 41 N. W. 354; McClary v. Stull, 44 Neb. 175, 62 N. W. 501; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39. 7 59 Mich. 139, 26 N. W. 401. 77 113 Mich. 321, 71 N. W. 628. 78 92 Mo. 264, 5 S. W. 7. (135) 88 PBOBATE AND ADMINISTRATION. [Chap. 8 portunities may not have the slightest effect upon the testamentary capacity of one person, or entirely destroy that freedom of volition and ability to volun- tarily make a disposition of one's property and estate without the existence of which no instrument can be sustained as a will. Every case of undue influence, therefore, must stand or fall on its own merits, and the term is more of a relative than an absolute one. 79 Pressure of whatever character, whether acting on the fears or hopes, if so exerted as to overpower the voli- tion, without convincing the judgment, is a species of influence and restraint under which no valid will can be made. Importunity or threats such as the testator has not the strength or courage to resist, moral com- mand asserted and yielded to for the sake of peace and quiet, or of escaping from distresses of mind and social discomfort, all these, if carried to a degree in which the testator's judgment, discretion, or wishes are overborne, constitute undue influence, though no force is used or threatened. 80 In the absence of fraud, there must be such a degree of urgent solicitation that, under the circumstances, and considering the condi- tion of testator's mind and body, he was too weak to resist it, and acted under constraint and fear, desire for peace, or some motive other than affection or im- portant sense of duty, contrary to his real intention. 81 In order to invalidate a will, it must have been an active vital force at the time the instrument was exe- 79 Boyd v. Boyd, 66 Pa. 293; Moore's Exrs. v. Blauvelt, 15 N. J. Eq. 367. 80 Hall v. Hall, 1 Prob. Div. 481; Darley v. Barley, 3 Bradf. Sur. (N. Y.) 508; Small v. Small, 4 Greenl. (Me.) 220; Boyse v. Ross- borough, 6 H. L. Gas. 6. 81 Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39. (136) Chap. 8] PROBATE OF WILLS. 89 cuted, though it may be proved to have existed at a previous time. 82 Fraudulent intent is not an essential element of un- due influence, although almost invariably accompany- ing it. Undue influence may be established by any competent testimony showing that the volition of the testator was overpowered, without his judgment being convinced. A person may therefore exert such a power over the mind of another, overruling his discretion with only the best and most disinterested of motives, as to render his will executed while under such influences void. 83 89. Undue influence and mental capacity. Undue influence is generally exercised upon those people whose mental capacity and vigor has been im- paired by age, disease or dissipation, and upon those unfortunates who are victims of monomania or par- tial insanity, and its effect is frequently to produce monomania or insane delusions in the mind of the testator in regard to his family or estate. 84 In all cases where it is alleged to have been the moving cause of the execution of the will, the mental capacity of the testator should be carefully considered, for the one usually involves the other. It is often difficult to draw the line between the two issues. The acts done by a person of sound mind are presumed to be of his own volition, though he is, of course, influenced more or 82 Pooler v. Christman, 145 111. 405, 34 N. E. 57. 83 Stewart v. Elliott, 2 Mackey (D. C.), 307. 84 In re Paisley's Estate, 91 Neb. 139, 135 N. W. 435; Purdy v. Howe, 134 111. 298, 28 N. E. 643; Haines v. Hayden, 95 Mich. 324, 54 N. W. 912. (137) 90 PROBATE AND ADMINISTRATION. [Chap. 8 less by the opinions of his friends and of the public generally, and by surrounding circumstances and con- ditions. The fact that a person has, by any means whatsoever, overcome his volition without convincing his judgment, may be justly considered as evincing a lack of mental capacity. It has been held, in cases where it is alleged that the pretended will is the result of delusions fostered by another, and therefore void, the issue is, not strictly speaking, the sanity of the testator, but undue influ- ence, and an instruction defining undue influence was proper. 85 A person of enfeebled mental vigor has less strength with which to resist the importunities, threats or coercion of a person of strong mind who works adroitly and shrewdly to influence him in making a disposition of his property. 86 Undue influence being a defense, the contestant must establish it by a preponderance of the evidence. 87 90. Unjust provisions evidence of undue influence. The terms of a will often present strong evidence why it should not be treated as a valid instrument. While a testator has a right to dispose of his property by his will as he wishes, subject to certain restric- tions, 88 and is under no obligation to his children, 89 the 85 McLary v. Stull, 44 Neb. 175, 62 N. W. 501; Thompson v. Hawks, 14 Fed. 902; Mann. Med. Jur. Insan. 165. 86 In re Paisley's Estate, 91 Neb. 139, 135 N. W. 435; Cadwallader v. West, 48 Mo. 483; Dye v. Young, 55 Iowa, 433, 7 N. W. 678. 87 Webber v. Sullivan, 58 Iowa, 260; Baldwin v. Parker, 99 Mass. 79; Hardy v. Merrill, 56 N. H. 227; Bankin v. Eankin, 61 Mo. 295. 88 Section 27, supra. 89 In re Goldthorpe's Estate, 115 Iowa, 430, 88 N. W. 944. (138) Chap. 8] PROBATE OF WILLS. 90 law presumes that he will not entirely overlook those of his own family. A will unjust in its provisions, and inconsistent with the duties of the testator with reference to his property and his family, standing by itself, and without the light of other testimony, is evidence of undue influ- ence, on the theory that it shows the mental condition of the testator at the time it was executed. 90 These unjust and inequitable provisions do not, as a general rule, raise a conclusive presumption of undue influence or want of testamentary capacity. They are considered as important circumstances in connection with other facts bearing on the testator's mind, and an element tending to establish it. 91 The inequality or inequity of the provisions need not appear on the face of the will, but may be shown by evidence of the relationship of alleged testator to the contestant, and his financial conditions and circumstances. 92 The un- just and inequitable provisions of a will executed by a testator of advanced age, of weak mental and physi- cal condition, when an opportunity for the exercise of undue influence was shown, would invalidate a will, a less degree of proof being required than where the 90 In re Paisley's Estate, 91 Neb. 134, 135 N. W. 435; In re Fred- erick's Estate, 83 Neb. 318, 119 N. W. 667; Latham v. Schaal, 25 Neb. 540, 41 N. W. 354; Knox v. Knox, 95 Ala. 495, 11 South. 125; Crandall's Appeal, 63 Conn. 365, 28 Atl. 531; Hammond v. Dike, 42 Minn. 273, 44 N. W. 61; Lynch v. Clements, 24 N. J. Eq. 431; Henrich v. Saier, 124 Mich. 86, 82 N. W. 879. 91 In re Hess' Will, 48 Minn. 504, 51 N. W. 614; Maddox v. Mad- dox, 114 Mo. 35, 21 S. W. 499; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717. 92 Sim v. Russell, 90 Iowa, 656, 57 N. W. 601; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717. (139) 90 PROBATE AND ADMINISTRATION. [Chap. 8 testator is of strong mental and physical vigor. 93 In some instances, unjust and inequitable provisions will, of themselves, raise a strong presumption of undue influence. Gross inequalities in the provisions of the instrument, where no reasons for it are suggested, either in the will or otherwise, may be more than evi- dence only tending to show the existence of undue in- fluence, they may be so rank as to change the burden of proof, and require an explanation on the part of those who support the will to establish that it was the free and unbiased expression of a rational and clearly disposing mind. 94 It has been held that a will made by a person in his last illness, his mental capacity being enfeebled by age and disease, containing provisions wholly at variance with his former expressed intentions, giving his prop- erty to comparative strangers, who have no claims upon his bounty, is prima facie invalid, the law pre- suming undue influence from his surroundings, and putting upon the beneficiary the burden of showing affirmatively that he did not exercise his power over the testator to Kis own advantage, and to the disadvan- tage of those having an equal or superior claim upon the testator's bounty. 95 93 Wilson's Appeal, 99 Pa. 545; Clark v. Stansbury, 49 Md. d46; Eollwagen v. Eollwagen, 63 N. Y. 504. 94 Farrell v. Farrell, 1 Duv. (Ky.) 203; Higgins v. Carlton, 28 Md. 115; Eastis v. Montgomery, 93 Ala. 293, 9 South. 311; Moore's Exrs. v. Blauvelt, 15 N. J. Eq. 367; Sears v. Shafer, 6 N. Y. 268. 5 Dale v. Dale, 38 N, J. Eq. 274; Carroll v. House, 48 N. J. Eq. 269, 22 Atl. 191. (140) Chap. 8] PROBATE OF WILLS. 91 91. Undue influence of person holding special rela- tion of trust. The courts always view with suspicion any apparent attempt of any person to use the trust or confidence another reposes in him for his own personal aggran- dizement; therefore, a will in favor of one occupying a fiduciary or trust relation to the testator, and par- tially or wholly excluding the natural objects of his bounty, such as a will in favor of one's attorney, or spiritual or medical adviser, is viewed by the courts with suspicion, and, in connection with other facts, raises a presumption of invalidity, though, standing by itself, it is not conclusive. In New York it has been held that, where a will was offered for probate which devised practically all testator's property to his spir- itual adviser, proof of the execution of the will was not sufficient to entitle it to probate, evidence should be introduced to show that the testator acted volun- tarily and without persuasion. 96 Courts do not gen- erally carry the rule so far as in the Marx Case. In order to establish undue influence, they require evi- dence of other facts and circumstances which show a domination of one will over that of another, overcom- ing the volition, without convincing the judgment. 97 The larger the gift in proportion to the residue of the estate, the stronger the presumption of the use of improper means. If it be shown that the person hold- ing the position of trust has exercised a strong influ- ence over the testator in the transaction of his ordinary 6 Marx v. McGlynn", 88 N. Y. 357. 97 Waddington v. Buzby, 45 N. J. Eq. 173, 16 Atl. 690; In re Brom- ley's Estate, 113 Mich. 53, 71. N. W. 523; Post v. Mason, 91 N. Y. 539; Adair v. Adair, 30 Ga. 102. (141) 91 PBOBATE AND ADMINISTRATION. [Chap. 8 business, and that circumstances indicate an intention on his part to dominate and control the will of the testator generally, it would establish such a corrobo- rating circumstance as would justify a court or jury in finding the will to be in effect the product of another mind than that of the testator. 98 In all cases of this nature a less degree of proof is necessary to set aside the will, where it appears that the testator was by nature of a weak mind, or, by reason of disease or old age, did not possess his former mental and physical vigor; " and if a codicil or a new will is prepared by a confidential adviser, cutting down legacies and mak- ing extensive changes which inure to the benefit of such adviser, and to the injury of the legatees in a former will, executed while the testator was in good health and possessed of a strong mind, these facts have been held to raise such a presumption of wrongful in- fluence as to lay upon the proponent the burden of showing affirmatively that the testator's mind was free from undue influence, and that he was not controlled by his adviser. 100 The same rule also applies when one or more of the children or heirs of the testator are the recipients of his bounty, to the exclusion of the others. The books are full of cases in which the courts have set aside wills for the reason that a favorite son or daughter or other relative has abused the trust reposed in him, and by crafty insinuations and devices, and 98 Horah v. Knox, 87 N. C. 483; Seiter v. Straub, 1 Dem. Sur. (N. Y.) 264; Wilson v. Moran, 3 Bradf. Sur. (N. Y.) 180. 99 Eckert v. Flowry, 43 Pa. 46; In re Paisley's Estate, 91 Neb. 139, 135 N. W. 435. 100 Delafield v. Parish, 25 N. Y. 35; Yardley v. Cuthbertson, 108 Pa. 395. Chap. 8] PROBATE OF WILLS. 92,93 sometimes even by force, obtained the execution of a will to his own liking. 92. Undue influence of draftsman of a will. The fact that the person who drafted the will is the principal beneficiary may or may not raise a presump- tion of undue influence. It depends on whether he is or not a person who, on account of relationship or other- wise would most likely be the recipient of the testator's bounty. 101 Thus, a will drafted by a son for his father, which devised the greater portion of the estate to the son, raises per se no presumption of undue influence. A will drafted by a person not related to the testator, and to whom he is under no obligation, as, for in- stance, his attorney, giving him all or nearly all of his estate, does raise such a presumption, but not a con- clusive one. 102 Where the person, not an heir, who drafts the will or assists in procuring its provisions from the testator also occupies a relation of especial confidence toward him, the fact that be is especially benefited by the terms of the instrument, to the injury of the heirs, casts upon him the burden of showing that he has acted fairly. 103 93. Execution of will obtained by fraud. Fraud, of course, vitiates a will, as it does all other instruments. If the signature of the testator was ob- tained by any fraudulent trick or device, as by reading 101 Stirling v. Stirling, 64 Md. 138, 21 Atl. 273; King v. Holmes, 84 Me. 219, 24 Atl. 819; Appeal of Richmond, 59 Conn. 226, 22 Atl. 82. 102 In re Bromley's Estate, 113 Mich. 53, 71 N. W. 523. 103 Chandler v. Jost, 96 Ala. 596, 11 South. 636; Dale v. Dale, 38 N. J. Eq. 274; Carroll v. House, 48 N. J. Eq. 269, 22 Atl. 191. (143) 93 PEOBATE AND ADMINISTRATION. [Chap. 8 it incorrectly, or by misrepresenting its conditions, or by substituting another instrument in the place of the one the testator supposed he was signing, the will should be set aside. 104 Circumvention by means of fraud is considered in the same light as restraint by force, and will have the same effect as restraint in setting aside a will. 105 If no question is raised as to the testator's possessing a sound mind, the presump- tion arising from a regular execution of his will is that he was acquainted with its contents, and no evidence upon that fact need be adduced on the opening, or, where there is no contest. A contestant seeking to im- peach the will on this ground must show conclusively that the testator was imposed upon; 106 but if the will was executed while he was in extremis, and was not read to him or explained to him afterward, the pro- ponent must show affirmatively that the testator had a knowledge of the contents of the instrument. 107 Such knowledge may be established by evidence that the pro- visions of the will are in accord with the instructions given by the testator to the draftsman, or by any other circumstances going to show the same. 108 Where it appears that the will was signed by the testator without being read to or by him, but on the assurance that it expressed his desires, the fact that its provisions are different from the instructions given by him to the draftsman is sufficient to set it aside; 104 Potter's Appeal, 33 Mich. 106, 18 N. W. 575. 105 Miller v. Miller, 3 Serg. & E. (Pa.) 267. 106 Pettes v. Bingham, 10 N. H. 514; Day v. Day, 3 N. J. Eq. 549, 551. 107 Blume v. Hartman, 115 Pa. 32, 8 Atl. 219. 108 Day v. Day, 3 N. J. Eq. 549; In re Eeed's Will, 20 N. Y. Supp. 91. (144) Chap. 8] PKOBATE OF WILLS. 94 and this is true, although no wrongful or fraudulent intent is shown on the part of any person interested, but only a misunderstanding of the facts. 109 94. Evidence of undue influence and fraud. Undue influence and fraud usually go hand in hand, and are seldom capable of direct proof. Both must be proved; they can never be presumed. They are almost invariably exercised secretly, in a clandestine manner, and are established by facts and circum- stances, taken together, and from the natural infer- ences which are drawn from the general character of the transactions, and will satisfy an ordinary, unpreju- diced mind that they existed. 110 It is a difficult matter to draw the line on the admis- sibility of evidence in cases where undue influence is set out by a contestant, for the reason that a combina- tion of facts and circumstances which might have had an important influence over the mind of one person would in no wise affect another. The court must de- termine in each particular case, and from the general nature of the evidence, whether facts and circum- stances sought to be introduced throw any light on the transaction, or are wholly irrelevant. 111 To set aside an instrument executed as will on the ground that the mind of the testator was so completely 109 Waite v. Frisbie, 45 Minn. 361, 47 N. W. 1069. no Ross v. Miner, 67 Mich. 410, 35 N. W. 60; Porter v. Throop, 47 Mich. 313, 11 N. W. 174; Howe v. Howe, 99 Mass. 88; Armstrong v. Armstrong, 63 Wis. 162, 23 N. W. 407; In re Humphrey, 26 N. J. Eq. 513; Clapp v. Fullerton, 34 N. Y. 197; Rivard v. Rivard, 109 Mich. Ill, 66 N. W. 686. in Heath v. Page, 63 Pa. 108; Zerbe v. Miller, 16 Pa. 488; Boylston v. Carver, 11 Mass. 515. 10 Pro. Ad. 94 PBOBATE AND ADMINISTRATION. [Chap. 8 under the control of another as to deprive him of his volition without convincing his judgment, two ele- ments must be established: First, the actual existence of the influence or deception; second, that such influ- ence or deception was effective in producing the act alleged, overcoming the volition of the party so far as this particular act is concerned. 112 These elements are established by evidence of tes- tator's general character, habits, business and domes- tic relations, physical and mental condition, surround- ings and circumstances, both previous to the execution of the will and for a short period thereafter. 113 In all cases where the testamentary capacity of the testator is attacked or undue influence is alleged as a moving cause for the will, the proponent should pro- duce the evidence of all the subscribing witnesses, if living, competent and within the jurisdiction of the court. 114 The rule forbidding a party to impeach his own witnesses does not apply in such cases, and a will may be sustained though the subscribing witnesses swear that he is incompetent. 115 112 Shailer v. Bumstead, 99 Mass. 112. H3 In re Winch's Estate, 84 Neb. 251, 112 N. W. 116; In re Paisley's Estate, 91 Neb. 139, 135 N. W. 435; McCoy v. Conrad, 64 Neb. 105, 89 N. W. 665; Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372; Latham v. Schaal, 25 Neb. 535, 41 N. W. 354; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717; Bever v. Spaiigler, 93 Iowa, 603, 61 N. W. 1080; In re Goldthorp's Estate, 94 Iowa, 336, 62 N. W. 845; In re Morgan's Will, 110 Wis. 7, 85 N. W. 644; Betts v. Betts, 113 Iowa, 111, 84 N. W. 975. 114 Jackson v. Vickery, 1 Wend. (N. Y.) 414; Severance v. Carr, 42 N. H. 65. H5 Brown v. Buckley, 14 N. J. Eq. 294; Howell v. Taylor, 50 N. J. Eq. 428, 26 Atl. 656; Whitman v. Morey, 63 N. H. 448, 2 Atl. 899. (146) Chap. 8] PROBATE OP WILLS. 95,96 95. Will of person under guardianship. Though it is an established rule that the fact that a person has been adjudged incompetent does not pre- vent his making a valid will, 116 such record, if made previous to the date of the will, is prima facie evidence of testamentary incapacity, 117 but may be rebutted by showing that the will was executed during a lucid interval, 118 or by evidence showing testamentary capa- city. 11 * In Re Cowdery, 120 it was held that the ap- pointment of a guardian of a person lacking mental capacity to care for his property was not even prima facie evidence of want of testamentary capacity. The appointment of a guardian or commitment to an insane asylum some time after the will was executed is immaterial. 121 96. Declarations of testator. Statements or declarations of the testator previous to the date of the will, in regard to his proposed dis- position of his estate and his family relations, are admissible for the purpose of showing testamentary capacity, and whether the disposition of the property as made by the will was the result of undue influence. 122 116 Sections 50, 53, supra. H7 Lewis v. Jones, 50 Barb. (N. Y.) 645. us Section 55, supra. 119 In re Ayer's Estate, 84 Neb. 16, 120 N. W. 491; King v. Gilson, 191 Mo. 307, 90 S. W. 367; Draper's Estate, 215 Pa. 314, 64 Atl. 520. 120 77 Vt. 359, 60 Atl. 341. 121 Entwistle v. Meikle, 180 HI. 9, 54 N. E. 217; Schmidt's Succes- sion, 125 La. 1065, 52 South. 160. 122 Beaubien v. Cicotte, 12 Mich. 459; Harring v. Allen, 25 Mich. 508; Bush v. Delano, 113 Mich. 321, 71 N. W. 628; Mooney v. Olson, 22 Kan. 69; In re Will of Hollingsworth, 58 Iowa, 527, 12 N. W. 509; (147) 97 PROBATE AND ADMINISTRATION. [Chap. 8 Those made after the will was executed to the effect that he was controlled by others, or that the will was not exactly as he wished, or that he finally yielded to persuasion, are admissible for the purpose of show- ing the force and extent of the influence exerted upon him and whether or not it was such as to overcome his volition without convincing his judgment. 123 Letters and diaries of the testator both before and after the date of the will are admitted not as evidence of the facts therein contained but for the purpose of showing the condition of testator's mind and the in- fluences that operated upon it, 124 and former wills of the testator are also admissible. 125 The length of time which may be covered by such statements and admissions depends upon the condi- tions of the particular case. 126 97. Fraud and undue influence By whom shown. The provision of the Civil Code restricting the tes- timony of a party when the opposing party is the representative of a decedent does not apply to heirs and next of kin in will contests. They may testify In re Goldthorp's Estate, 94 Iowa, 336, 62 N. W. 846, 99 N. W. 944; Kerrigan v. Leonard (N. J.), 8 Atl. 503. 123 Rusling v. Rusling, 36 N. J. Eq. 603; Stephenson v. Stephenson, 62 Iowa, 163, 10 N. W. 456; Parsons v. Parsons, 66 Iowa, 754, 21 N. W. 570; Potter v. Baldwin, 133 Mass. 427; Nelson v. McClanahan, 55 Cal. 308. 124 Marx v. McGlynn, 88 N. Y. 357; In re Blakoley's Will, 48 Wis. 494, 4 N. W. 337. 125 Whitman v. Morey, 63 N. H. 448, 2 Atl. 889. 126 Haines v. Hayden, 95 Mich. 332, 54 N. W. 914; Porter v. Troop, 47 Mich. 313, 11 N. W. 174. (148) Chap. 8] PROBATE OF WILLS. 97 to transactions and conversations with the testator. 127 But a party not an heir, though a legatee or devisee, cannot testify as to such conversations or transaction, but becomes a competent witness when they occurred in his presence between decedent and a third party and he took no part therein. 128 Declarations by a devisee or legatee that he had exercised a strong influence over the testator are admissible as declarations against interest. 129 State- ments made by such party previous to the death of testator that he was incapable of making a valid will are conclusions of law and inadmissible. 130 An attorney who drafted a will and gave advice con- cerning it, 131 and any person who becomes a witness to a will at testator's request, are always competent to testify to all the facts, circumstances and surround- ings attending its execution, as well as on the question of testamentary capacity. 132 A devisee or legatee is a competent witness as to the appearance, habits and manner of life of the tes- 127 McCoy v. Conrad, 64 Neb. 150, 89 N. W. 655 j Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151. 128 Powers v. Peters, 79 Neb. 680, 113 N. W. 198. 129 Carlton v. Patterson, 29 N. H. 596; Carpenter v. Hatch, 64 N. H. 573; Atkinson v. Sanger, 1 Pick. (Mass.) 192. 130 Eenaud v. Pageot, 102 Mich. 568, 61 N. W. 3; O'Connor v. Madi- son, 98 Mich. 183, 57 N. W. 105. 131 In re Downing's Will, 118 Wis. 581, 95 N. W. 876. 132 In re Will of Coleman, 11 N. Y. 229, 19 N. E. 73; Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726; Scott v. Harris, 113 111. 454; Pence v. Waugh, 135 Ind. 143, 44 N. E. 863; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 71. (149) 98,99 PKOBATE AND ADMINISTRATION. [Chap. 8 tator when such knowledge is obtained from observa- tion, rather than personal transactions. 133 98. Effect of will obtained by fraud or undue in- fluence. A will obtained by fraud or undue influence is void at its inception. Subsequent acknowledgments of it, either verbal or written, do not make it valid. Evi- dence of such statements are admissible for the pur- pose of showing its execution, but to convey real or personal property, it must be re-executed and re- acknowledged, in effect made a new will. 134 99. Invalid bequest or devise. It is no objection to the probate of a will contain- ing one or more valid bequests that a particular bequest or devise is invalid on the ground that the beneficiary thereof is incapable of taking or holding the property thereby sought to be disposed of. The will in such case should be proved for the purpose of giving effect to the valid bequests, 135 or to the clause revoking all former wills, if it contain such clause. 13 * 133 Denning v. Butcher, 91 Iowa, 425, 59 N. W. 71; Smith v. James, 72 Iowa, 516, 34 N. W. 309; Sankey v. Cook, 82 Iowa, 125, 47 N. W. 1077. 134 Chaddock v. Haley, 81 Tex. 617, 17 S. W. 233; Haines v. Hayden, 95 Mich. 832, 54 N. W. 911. 135 McClary v. Stull, 44 Neb. 175, 62 N. W. 501; Sumner v. Crane, 155 Mass. 483, 29 N. E. 1151; Farmer v. Sprague, 57 Wis. 324, 15 N. W. 382; In re Merriam, 136 N. Y. 58, 32 N. E. 621; Dudley v. Gates, 124 Mich. 440, 83 N. W. 97. 136 Powell, Devises, 116; Dudley v. Gates, 124 Mich. 440, 83 N. W. 97. (150) Chap. 8] PROBATE OP WILLS. 100,101 A county court is not empowered to construe wills when they are presented for probate. 137 Their con- struction is a matter of after consideration, after it has been determined that they were executed by com- petent testators in the manner required by law. 100. Omitting reference to children. The fact that a testator makes no provision for some of his children in his will, and even neglects to name them, affords no ground for refusing probate of the will; neither does the birth of a posthumous child, for whom the will makes no provision. 138 The latter is given the same share in the property of his parent which he would have received had the parent died in- testate, and, if the former can establish that his name was omitted by mistake or inadvertence, he is entitled to the same right. 139 Of course, the failure of a parent to mention his child's name in his will may be pre- sumptive evidence of undue influence or of incapacity, requiring but little other evidence to make the instru- ment void. In Oregon, both take the same share they would if decedent had died intestate. 139 * 101. Probate of foreign wills. Any will which has been duly probated and allowed in any of the United States, or in any foreign country or state, according to the laws of such state or country, 137 In re John's Will, 30 Or. 494, 47 Pac. 341, 50 Pac. 226; Byrne v. Hume, 84 Mich. 185, 47 N. W. 679. 138 Mclntire v. Mclntire, 64 N. H. 609, 15 Atl. 218. 139 Rev. Stats., c. 17, 47, 48, [1311], [1312]. I3a L. O. L., $ 7325. (151) 101 PROBATE AND ADMINISTRATION. [Chap. 8 may be allowed, filed, and recorded in the county court of any county in which the testator may have real or personal estate on which the same may operate. 14( An authenticated copy of the will and probate thereof, to- gether with a petition for the probate of the same, may be filed in the county court by the executor or other person interested in the estate. The court thereupon appoints a time and place of hearing and notice thereof is given in the same manner as in cases of wills executed in the state by a resident thereof. 141 The petition should allege that the decedent died seised or possessed of property within the county in which it is filed, should show the interest of the peti- tioner in the estate, and have attached to the same an authenticated copy of the will and probate thereof. The foreign statute need not be alleged. 142 The proof and allowance of the will, duly authenticated, will be presumed to be in accordance with the laws of the foreign state, and if the court finds that the instru- ment ought to be allowed as the last will and testa- ment of the deceased, the copy shall be filed and recorded, and the will have the same force and effect as if it had been originally proved and allowed in the same court. 143 Decrees of foreign courts admitting wills to probate without the authenticated copy of the foreign probate of the same being filed, and which 140 Eev. Stats., c. 17, 43, [1307]. i Eev. Stats., c. 17, 44, [1308] ; Fremont, E. & M. V. E. Co. v. Setright, 34 Neb. 253, 51 N. W. 833. 142 Martin v. Martin, 70 Neb. 207, 97 N. W. 289; Koopman v. Car- roll, 50 Neb. 284, 70 N. W. 395. 143 Eev. Stats., c. 17, 46, [1310] ; Martin v. Martin, 70 Neb. 207, 97 N. W. 289; F. E. & M. V. E. Co. v. Setright, 34 Neb. 253, 51 N. W. 883. (152)' Chap. 8] PROBATE OF WILLS. 101 were made previous to March 5, 1885, are made legal and valid by chapter 48, Session Laws of 1885. In Oregon, a foreign will conveying either real or personal estate, if previously regularly admitted to probate in the state where executed, need not be pro- bated in Oregon. Copies of the same with the probate thereof, certified by the clerk of the court in which such will was probated, with the seal of the court affixed thereto, if there be a seal, together with a cer- tificate of the chief judge or presiding magistrate that the certificate is in due form and made by the clerk or other person having legal custody of the record, shall be recorded in the same manner as wills executed and proved in Oregon, and admitted in evidence in the same manner and with like effect. Where such will has been filed or recorded in any other state or territory of the United States or foreign country without probate thereof, and probate is not required by the law of the place where the same is filed or recorded, a certified copy of the will may be filed in the county court of competent jurisdiction in Oregon, and the testimony of the subscribing witnesses taken upon deposition issued as in other cases for taking testimony of witnesses outside the jurisdiction of the court. In such cases the court shall designate the commission before whom the testimony shall be taken, and if it shall appear that the will was executed according to the laws of the state of Oregon, and that the testator was competent to execute the same, such certified copy of the will and testimony of the wit- nesses shall be recorded in the same manner and with like effect as wills executed and proven in Oregon. 144 Any such will may be contested and annulled within the same time and in the same manner as wills executed and proven in Oregon. 145 4 L. O. L., 7333. 145 L. 0. L., 7334. (153) 102 PROBATE AND ADMINISTRATION. [Chap. 8 Form No. 27. PETITION FOB PROBATE OF FOREIGN WILL. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto said court that A. B., late of the county of and state of , departed this life at the city of , in said county and state last aforesaid, leav- ing a last will and testament, which said will relates to both real and personal property, and a portion of said real estate, to wit, [describe real estate], is located in said county, Nebraska; that on the day of , 19 , said will was admitted to probate in the court of the said county of , and state of , a copy of which said will and the probate thereof, duly authenticated, is hereto attached marked "Ex. A," and made a part of this petition; that your petitioner is interested in said will as a devisee [legatee, executor thereof] ; and that said decedent left him surviving [state names of widow and heirs as in original petition for probate]. Your petitioner therefore prays that said court will appoint a time and place for hearing on said will, that notice in due form issue and be given to all persons interested in said estate to appear and attend the probate of said will, and for such other proceedings necessary to admit the same to probate, and that letters of administration, with the will annexed, issue to said petitioner. Dated this day of , 19 . C. D. [Add verification, Form No. 5.] 102. Probate of nuncupative wills. Nuncupative wills must be probated the same as other wills. They are creatures of the statutes, and not favored by the law. If possible, all the witnesses to them should testify on the hearing in regard to the condition of the testator and the circumstances sur- rounding the speaking of the testamentary words. 146 Special opportunities exist for the exercise of fraud and undue influence on account of the weak physical condition of the testator, and, though the burden of 146 Godfrey T. Smith, 73 Neb. 756. (154) Chap. 8] PROBATE OF WILLS. 103 proof is the same as in other will hearings, slight cir- cumstances showing that the volition of the testator was overcome would place the burden of proof on the proponent. 103. Probate of wills executed outside the state by a resident thereof. The Michigan supreme court in an early case 147 con- strued their probate statute, which the Nebraska ter- ritorial legislature adopted about ten years later, as permitting any instrument executed without the state by a resident thereof, which at common law was a last will and testament, to be admitted to probate in that state. Therefore, under a strict application of the rule of construction of statutes adopted from another state, an instrument, testamentary in character, signed by the testator, attested or unattested by witnesses, if executed outside the state by a resident of this state, may be probated. The Michigan case appears to be contrary to the great weight of authority that at common law a will, in order to be effectual to convey personal property, must be executed according to the law of testator's domicile, at the time of his death, 148 and to pass the title to real estate, according to the law of the juris- diction where it is situated. 149 147 In re High. 2 Doug. (Mich.) 517. 148 Wood v. Wood, 5 Paige (N. Y.), 596. 149 Matter of Stewart, 11 Paige (N. Y.), 398. The will declared ntitled to probate was a holographic instrument unwitnessed and unattested, and not executed in compliance with any law of the state of Michigan. The case is a bad precedent, and if the question is clearly raised in this state it will probably be not followed. (155) 104 PKOBATE AND ADMINISTRATION. [Chap. 8 104. Costs in will contests. Costs in will contests are awarded in the discretion of the court. 150 Under this rule a person nominated as executor is ordinarily entitled to reasonable attorney fees incurred in procuring its probate, 151 and in cases where the will was not sustained the award of costs, including attor- ney fees, should depend largely on the nature and character of the objections. 152 Such rule, however, it has been held, will not war- rant the court, solely on the ground of good faith, in awarding such costs and fees to an unsuccessful con- testant. 153 A successful contestant is entitled to costs, and the court might be justified in awarding him his reasonable attorney fees. Such fees paid by a legatee or devisee in securing the probate of a will are not a proper charge against the estate, whether the will was proved or not. 154 Attorney fees which are properly chargeable in a will contest are a part of the costs of administration, and may be allowed on the final account. 155 150 Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 418; In re Clapham's Estate, 73 Neb. 492, 103 N. W. 61. 151 In re Hentges' Estate, 86 Neb. 75, 124 N. W. 929; In re Bow- man's Estate, 133 Wis. 494, 113 N. W. 956. 152 Page v. Williamson, 87 L. T., N. S., 146; Lassiter v. Travis, 98 Tenn. 330, 39 S. W. 226; Dodd v. Anderson, 197 N. Y. 466, 90 N. E. 1137; In re Blair, 59 N. Y. Supp. 1090; Gardner v. Moss, 123 Ky. 334, 96 S. W. 461. 153 Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 418; overruling Mathis v. Putnam, 32 Neb. 191, 49 N. W. 182, and Seebrock v. Fedawa, 33 Neb. 413, 50 N. W. 270. 154 Atkinson v. Mays, 57 Neb. 137, 77 N. W. 343; St. James' Orphan Asylum v. McDonald, 76 Neb. 630, 107 N. W. 979, 110 N. W. 626. 155 Clark v. Turner, 50 Neb. 290, 69 N. W. 843. (156) Chap. 8] PROBATE OF WILLS. 105,106 105. Reducing testimony to writing. There is nothing in the statute requiring the testi- mony taken on the hearing for the probate of a will to be reduced to writing and filed, or filed and recorded. In some counties this practice, which is probably a survival of the old common-law "proof of will in common form," prevails, though wills could never be proved in common form in this state. It is entirely unnecessary. 106. Order admitting will to probate. If the court finds that the allegations of the peti- tion are sustained and that the instrument is the last will and testament of the testator, an order should be made and entered admitting it to probate. Though jurisdictional, the courts adopt a very liberal view as to what it should contain. A recital that it appeared from the testimony that the instrument was the last will and testament of the testator, that he was com- petent, setting out a copy of the will and directing that it be admitted to probate, has been held sufficient in a collateral proceeding. 156 It need not be signed by the judge. 157 If probate is refused, an order for that purpose should be entered. If no appeal be taken within thirty days from the date of the order, it is conclusive, and if the record shows that the petition is in proper form, presented to a court having jurisdiction, and that all the statutory steps have been complied with, it cannot 156 Kirk v. Bowling, 20 Neb. 260, 29 N. W. 931. 157 Beer v. Plant, 1 Xeb. Unof. 372, 96 N. W. 348. (157) 106 PROBATE AND ADMINISTRATION. [Chap. 8 be attacked in a collateral proceeding, 158 even though proceedings to contest it are pending at the time. 159 Form No. 28. ORDER ADMITTING WILL TO PROBATE AND FOR LETTERS TESTAMENTARY. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing on the petition of C. D. for the probate of the will of A. B., deceased, and for the issue of letters testamentary thereon to him, the said C. D. C. D. appeared in person and by J. F. R., his attorney [state appearances by other parties, if any]. It appearing to the court from the proof on file that notice of the pendency of this petition has been given to all parties interested in said estate as by order of said court heretofore made and entered;* whereupon E. F. and G. H., subscribing witnesses to said instrument, were sworn and testified [if but one witness is called so state; give names of all witnesses called]. On consideration whereof the court finds that said A. B. died , 19 ; that he was immediately preceding his death a resident of said county;* that said will was duly executed as required by law, that said A. B. at the time of making said will was of sound mind and memory, not under any restraint or undue influence, and in all re- spects competent to devise real and personal estate; that said will has been duly proven, and should be allowed as and for the last will and testament of said A. B. It is therefore considered by the court that said last will and testa- ment was duly executed, that the same is genuine and valid, and that said last will and testament be admitted to probate,* and established as a will and testament of real and personal estate; and it is further ordered that letters testamentary issue thereon to said C. D. upon his giving bond in the sum of $ , and taking the oath required by law. (Signed) J. K., County Judge. 158 Loosemore v. Smith, 12 Neb. 345, 11 N. W. 493; Kirk v. Bowling, 20 Neb. 260, 29 N. W. 931; Byron Reed Co. v. Klabunde, 76 Neb. 801, 108 N. W. 133; Kolterman v. Chilvers, 82 Neb. 216, 117 N. W. 405. 159 Brown v. Burdick, 25 Ohio, 260. (158) Chap. 8] PBOBATE OP WILLS. 106 Form No. 28a Oregon. ORDER ADMITTING WILL TO PROBATE. [Title of Cause and Court.] At a session of said court held at the county court room in said county on the day of , 19 , Present, the Honorable J. K., County Judge. It appearing from the petition, duly verified, of C. D. on file therein that one A. B. departed this life on the day of , 19 , that he was immediately preceding his death an inhabitant of said count}-, that he left an estate therein consisting of real estate of the estimated value of $ and personal property of the estimated value of $ , and the following heirs at law: C. B., of lawful age, residence, etc.; whereupon E. F. and G. H., subscribing witnesses to said instrument, were sworn and testified. Said testimony was reduced to writing and filed in said court. [Balance as in Form No. 28.] Form No. 29. ORDER ADMITTING FOREIGN WILL TO PROBATE. [Follow Form No. 28 to *, then:] Whereupon C. D. was sworn and testified. It appearing to the court from a copy of said will and the probate thereof, duly authenticated by the of the court of , state of , that said will has been duly admitted to pro- bate in said court of said , state of , that said A. B. died seised of real estate in said county, Nebraska, and that said instrument ought to be allowed as the last will and testa- ment of the said A. B.: It is therefore considered by the court that said authenticated copy of said will of said A. B. be allowed and admitted to probate within the court and given the same force and effect as if originally pro- bated in said county court of said county; and it is further ordered that letters testamentary issue to said C. D. upon his giving bond in the sum of $ , and taking the oath required by law. (Signed) J. K., County Judge. (159) 107 PBOBATE AND ADMINISTRATION. [Chap. 8 Form No. 30. ORDER REFUSING PROBATE OF WILL. [Follow Form No. 28 to *, then:] On consideration whereof the court finds that said instrument is not the last will and testament of said A. B. It is therefore considered and adjudged by the court that said in- strument be refused probate, and it is further ordered that the costs of this proceeding, taxed at $ , be a charge against the estate of said A. B. (Signed) J. K., County Judge. 107. Certificate of probate of will. If the court admits the will to probate, a certificate of such fact is required to be indorsed thereon or an- nexed thereto, signed by the county judge and attested by the seal of the court. 160 The certificate is not a part of the probate, but simply evidence that the will has been probated, and, when so certified, a transcript thereof is entitled to record in the office of the register of deeds, and is competent evidence in all courts. 163 In the latter case it was held that where the judge neglected to attach his certificate, a certified copy of the records and files of the court could be used to show that the will had been actually probated. Form No. 31. CERTIFICATE OF PROBATE OF WILL. State of Nebraska, County, ss. I, J. K., judge of the county court of said county, do hereby certify that the foregoing instrument was filed in this office on the 160 Rev. Stats., c. 17, 59, [1323]. 161 Rev. Stats., c. 17, 60, [1324]; Roberts v. Flannagan, 21 Neb. 509, 32 N. W. 563; Kolterman v. Chilvers, 82 Neb. 216, 117 N. W. 405. (160): Chap. 8] PROBATE OF WILLS. 107 day of , 19 , together with the petition for probate of the same; that notice of the pendency of said petition was given by publication of the same for three weeks in the , a newspaper printed and published in said county; that on the day of , 19 , the execution of said will was duly proven, and also that the said testator, at the time of its execution, was of full age and of sound mind; that an order of said court was thereupon entered admitting said instrument to probate as and for the last will and tes- tament of said A. B., and that letters testamentary thereupon issued to C. D., the executor therein named. In witness whereof I have hereunto set my hand and affixed the seal of said court this day of , 19 . (Seal) (Signed) J. K., County Judge. 11 Pro. Ad. (161) CHAPTER IX. REVOCATION OF PROBATE. 8 108. Eevocation of Probate Definition. 109. Grounds for Revoking Probate of Will. 110. Power of County Court to Eevoke Probate of Wills. 111. Procedure for Revoking Probate. 112. Facts Necessary to be Established. 113. Effect of Order of Revocation. 114. Revocation Because Testator is Living. 108. Revocation of probate Definition. Revocation of probate may be defined as the recall- ing or canceling of the probate of the will by a court of competent authority for sufficient cause shown. It is the reopening of the order or decree by which the will was established, thus giving the parties in interest an opportunity to come in and prove the facts which would invalidate the instrument, the same as on an original hearing, unless the ground of revocation is one that of itself precludes the fact of the instrument being a will. 1 109. Grounds for revoking probate of a will. Probate of a will may be revoked for the following causes: 1. Fraud, mistake, collusion or conspiracy; 2 2. Failure to execute the will according to law ; 3 3. Failure to give legal notice; 4 4. Disqualification of the 1 Waters v. Stickney, 12 Allen (Mass.), 1. a Miller r. Miller's Estate, 69 Neb. 441, 95 N. W. 1010; In re Paige, 62 Barb. (N. Y.) 476; Gaines v. Chew, 2 How. (U. S.) 641; Brown v. Mitchel, 75 Tex. 9, 12 S. W. 606. 3 Sowell v. Sowell's Admr., 40 Ala. 243. * O'Dell v. Rogers, 44 Wis. 136; Randolph v. Hughes, 89 N. C. 428. (162) . 9] REVOCATION OF PROBATE. 110 county judge; 5 5. For the reason that the alleged tes- tator is living. 8 110. Power of county court to revoke probate de- crees. The county court has power under the statutes to vacate or modify a final order after the term at which it was entered for mistake, neglect or omission of the clerk or irregularity in obtaining the order, and for fraud practiced by the successful party. 7 Such court also has exclusive original jurisdiction, in the same manner as a court of general equity juris- diction, to revoke the probate of a will for any of the causes mentioned in the above section. 8 The validity of the decree cannot be attacked in any other court, 9 excepting on grounds which would render any decree subject to collateral attack. 10 Under the Oregon practice the statutory provisions for the contest of a will which has been admitted to probate in common form are, to a certain extent, a substitute for the proceedings under the Nebraska practice for revocation of its probate. Such provi- sions do not, however, in all cases, afford a party an adequate remedy. The rule is that whenever a lawful and sufficient cause exists for revoking a decree admit- ting a will to probate, a party injured thereby, who is not estopped by his own acts or guilty of laches, may 6 Sigourney v. Sibley, 21 Pick. (Mass.) 101. Morgan v. Dodge, 44 N. H. 259. 7 Civ. Code, 648, 656. 8 Williams v. Miles, 63 Neb. 859, 89 N. W. 451. 8 Loosemore v. Smith, 12 Neb. 343, 11 N. W. 493. 10 Section 106, supra. (163) 111 PBOBATE AND ADMINISTRATION. [Chap. 9 maintain an action for that purpose, 11 and that where the powers of a probate court are complete and exclu- sive, and not limited by statute, but are as complete over the matters within the jurisdiction conferred on it by the constitution -and the legislature as of a court of general jurisdiction, it has inherent power to vacate such decree. 12 The Oregon county court does not possess general equity powers over matters within its exclusive juris- diction. 13 Power to revoke the probate of a will, in any other manner than by a contest, is nowhere given it by statute, nor does it appear, as far as the records of the supreme court are concerned, that it was a power ever exercised by the probate court previous to the adoption of the constitution. The circuit court has been held to possess jurisdiction of an action to set aside the final account of a representative for fraud, 14 and though the question is not entirely free from doubt, it would seem that the power to vacate the decree ad- mitting a will to probate after the expiration of the time for a contest was in the circuit court. 111. Proceedings for revoking probate. The proceeding under the code for revoking the pro- bate of a will must be commenced within two years from the date of the order, unless the party be an infant or person of unsound mind, and then within two years after the removal of such disability. 15 It is begun by the filing of a verified petition setting out 11 Boyse v. Eossborough, 52 Eng. Ch. 646; Tudor v. James, 53 Ga. 302; Anderson v. Anderson, 112 N. Y. 104, 19 N. E. 427. 12 In re Hause, 32 Minn. 157, 19 N. W. 973; Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814; Protestant Episcopal Church v. Eells, 68 Vt. 497, 35 Atl. 463; Vincent v. Vincent, 70 N. J. Eq. 272, 62 Atl. 700. 13 Section 10, supra. 14 Froebich v. Lane, 45 Or. 13, 76 Pac. 351. W Civ. Code, 655. (164) Chap. 9] REVOCATION OF PROBATE. 111 the entry of the order and the grounds to vacate it, and issue of summons as in other cases. 16 The peti- tion must set out in full the grounds upon which the petitioner relies for defeating the probate of the will ; in the case of fraud in procuring the will, mental in- capacity or undue influence, the facts pertaining to the same must be alleged, and it must also appear that the petitioner had no notice of the proceedings or notice of facts sufficient to put him on inquiry in regard to the death of the testator, his estate, the existence of a will or proceedings for its probate. A petitioner under the code must act as soon as he has sufficient knowledge to put himself on inquiry." The action to set aside the probate of a will is a suit in equity for the purpose of obtaining purely equitable relief. The right to maintain it does not depend on any statute, but on the general principle of granting relief where the common law and the statutes afford no remedy. 18 It may be brought by the heirs of the decedent, or the executor, legatee or devisee under an alleged subsequent will. A person who has with knowledge of fraud or irregularities in the matter of its probate received and retained a beneficial interest under the will then in force is not entitled to bring the action. 19 The executor of the will which has been probated is a necessary defendant, and the devisees and legatees thereunder must be made parties. 20 16 Civ. Code, 655. 17 Miller v. Miller's Estate, 69 Neb. 441, 95 N. W. 1010. 18 Williams v. Miles, 63 Neb. 859, 89 N. W. 451. 19 Hyde v. Baldwin, 7 Pick. (Mass.) 303; Leeks v. Patten, 18 Me. 42; S-mth v. Guild, 34 Me. 448. 20 Williams v. Miles, 63 Neb. 859, 89 X. W. 451. (165) 111 PROBATE AND ADMINISTRATION. [Chap. 9 The petition is in the nature of a bill in equity to set aside a decree, 21 but broader in its scope. If it is claimed that the will has been superseded by another instrument, it is proper to include an application for its probate. 22 Form No. 32. PETITION FOB REVOCATION OF PROBATE OF A WILL. In the County Court of County, Nebraska. B. F., Plaintiff, V. C. D., Executor of the Estate of A. B., Deceased, G. H. and L. M., Defendants. Comes now said plaintiff and for cause of action against said de- fendants avers that one A. B., late a resident of said county, departed this life at the city of , in said county, on the - - day of , 19 ; that on the day of , 19 , one C. D presented to said court an instrument purporting to be the last will and testament of said deceased, and on the same date filed a petition for his appointment as executor of said estate, and the - - day of , 19 , was fixed by said court for the hearing on said petition; that notice of said hearing was given by publication in the , a newspaper printed and published at and within the county aforesaid, the first publication being on the - - day of , 19 , and the last one the day of , 19 , and no personal service of notice of said hearing was had on your petitioner; that on said day of , 19 , a decree was entered by said court admitting said instrument to probate as and for the last will and testament of said A. B., deceased; that said C. D. thereupon gave a bond in due form, which was approved by said court, and letters testamentary were issued to him as executor of the estate of said A. B., and said C. D. is now the duly qualified and acting executor of said estate, and G. H. and L. M. sole beneficiaries under said instrument. 21 Ryno's Exr. v. Ryno's Admr., 27 N. J. Eq. 522 ; Hotchkiss v. Ladd's Estate, 62 Vt. 209 ; Franks v. Chapman, 61 Tex. 576. 22 Williams v. Miles, 63 Neb. 859, 89 N. W. 451. (166) Chap. 9] REVOCATION OF PROBATE. 111 Second. That said A. B. died seised of the following described real estate situated in said county: , and possessed of personal prop- erty therein of the value of, to wit, $ , the exact nature of which is unknown to said plaintiff. Third. That said plaintiff is a brother of said A. B., and his sole heir at law; that he is not a beneficiary under said will, and has re- ceived no beneficial interest thereunder, or any property of any kind or description from said estate. Fourth. That said plaintiff is a resident of the city of and state of , and has resided in said city for the period of seventy years last past, and his place of residence was well known to said C. D. ; that he had no knowledge of the death of said A. B., or of the existence of any last will and testament of said A. B., or of the filing of any petition for the probate of said will, or of the date fixed by the court for the hearing on said will, or of any pro- ceedings whatever in regard to said estate before the day of , 19 , and on said day last aforesaid he received through the mails a copy of said , and which said paper contained a notice of the hearing on the probate of said will. Fifth. That on the day said will purports to have been executed, and for a long time prior thereto, said A. B. was in feeble health; that his eyesight was impaired, so that he was wholly unable to read, and was seventy-nine years of age; that said C. D. had been for more than ten years last past the bookkeeper and confidential agent of said A. B., and was intrusted by him with the management, con- trol, and investment of the property of said A. B., and said A. B. had entire confidence in the honor and integrity of the said C. D.; that on or about the day of , 19 , said A. B., while sick and unable to leave his room, and unable to read on account of impaired eyesight, dictated to said C. D. a memorandum or direction as to what disposition he wished made of his estate, and directed him, said C. D., to deliver said memorandum to one R. J. S., an at- torney, and to employ said attorney for him, said A. B., to draft his will according to said directions; that said R. J. S. did draft an instrument in accordance with the instructions in said memorandum contained, and delivered the same to said C. D.; that said C. D. fraudu- lently and willfully caused to be prepared the instrument probated in this court on the day of , 19 , and did fraudulently obtain the signature of said A. B. to the said instrument probated in this court by falsely and fraudulently representing to him, said A. B., that the instrument so executed and declared by him, said A. B., was the instrument drafted by said attorney, and which said instrument (167) 112 PROBATE AND ADMINISTRATION. [Chap. 9 he, said C. D., had read to said A. B., and that said instrument pro- bated in this court was executed by said A. B. solely by reason of the false and fraudulent representations so made as aforesaid by said C. D., and was not intended by said A. B. as and for his last will and testament, and is not his, said A. B.'s, last will and testament. Sixth. Plaintiff therefore prays that said decree admitting said instrument to probate be opened, that the letters testamentary issued to said C. D. be revoked and annulled, that a hearing be had at a date to be fixed by the court upon the petition for the probate of said instrument filed by said C. D. on the day of , 19 , and that upon said hearing said instrument be adjudged not the last will and testament of said A. B. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] 112. Facts necessary to be established. On the trial of an action to revoke the probate of a will, or on the hearing on the proceeding under the code to revoke the decree, the questions to be deter- mined are, did the plaintiff, or petitioner, know or have such means of knowledge as would put a reason- ably prudent man on inquiry of the existence of the will and of the pendency of proceedings for its pro- bate, in time to have appeared and contested it, 23 or was the decree obtained by fraud or the intentional production of false testimony, 24 and did the plaintiff or petitioner use reasonable diligence in bringing the action or proceeding after he obtained knowledge of the fraud, or of the want of jurisdiction of the court. 25 The burden of proof is on him, but he is not required, as in the case of a contest, to show that the instrument 23 Miller v. Miller's Estate, 69 Neb. 441, 95 N. W. 1010. 24 Miller v. Miller, supra; Secord v. Powers, 61 Neb. 615, 85 N. W. 846. 25 Willms v. Plambeck, 76 Neb. 195, 107 N. W. 248. (168) Chap. 9] REVOCATION OF PEOBATB. 113 is not the last will of the testator. He must show facts sufficient to make out a prima facie cause of contest, prejudicial irregularities which were sufficient grounds for refusing it probate. 26 Form No. 33. DECREE REVOKING PROBATE. [Title of Cause and Court.] This cause came on for hearing on the petition of said plaintiff (of E. F., an heir of said decedent) for the revocation of the decree admitting the will of said decedent A. B. to probate, the answer of said defendant (of C. D., executor), and was submitted to the court. On consideration whereof the court finds that the averments of said petition are sustained, and plaintiff (said petitioner) has prima facie cause for the contest of said will on the ground of fraud of said defendant E. F. It is therefore adjudged and decreed, that the said order, heretofore, to wit, , made and entered, admitting said will to probate, be and the same hereby is revoked and the letters testamentary issued to said C. D. on said date be and the same hereby are revoked and annulled. It is further ordered that a hearing be had on the petition of said defendant C. D. for the probate of said instrument as the will of said A. B. on the day of , 19 . Dated this day of , 19. (Signed) J. K., County Judge. 113. Effect of order of revocation. The effect of an order opening the decree admitting a will to probate is to place the estate in nearly the same condition that it was in before the will was pro- bated, regard being had to the rights and liabilities of innocent third parties, and this is true where but one of the parties interested in the estate other than the administrator appeared in court on the hearing. 26 Willms v. Plambeck, supra. (169) 114 PROBATE AND ADMINISTRATION. [Chap. 9 Probate proceedings cannot be set aside as to one per- son and held good as to another. 27 It terminates the authority of the executor, but all acts previously done by him within the scope of his employment are valid. 28 The hearing on the probate of the will should be held as soon as practicable after it is opened, for during the interim there is no person authorized to attend to the business of the estate. Should a long delay occur on account of taking depositions or other reason, the court would no doubt have authority to appoint a special administrator to collect and preserve the assets of the estate. If the will is set aside on the rehearing, an administrator should, of course, be appointed to com- plete the settlement of the estate, if no decree of dis- tribution has been made. 114. Revocation because testator is living. The application to revoke probate proceedings on account of the alleged testator being still on earth may be made by any person interested in the estate. As he was living when the will was filed, the proceedings of the court are, of course, without jurisdiction, but, there being a judicial determination that he was dead, there should also be another one that he is alive. 27 In re Freud's Estate, 73 Cal. 555, 15 Pac. 135. 28 Gaines v. Hennen, 23 How. (U. S.) 553; Bigelow's Exrs. v. Bigelow'B Admrs., 4 Ohio. 138. (170) CHAPTER X. COLLECTION AND MANAGEMENT OF THE ASSETS OF THE ESTATE BEFORE THE APPOINTMENT OF AN EXECUTOR OR ADMINISTRATOR. 115. Special Administrator When Appointed. 116. Jurisdiction of Court to Issue Letters. 117. Evidence Xotice. 118. Bond of Special Administrator. 119. Powers and Duties of Special Administrator. 120. Accounting by Special Administrator. 121. Discharge of Special Administrator. 115. Special administrator When appointed. In a great many cases, the first step taken in the settlement of the estates of deceased persons is the ap- pointment by the court of someone to take charge of and collect the assets and look after the welfare of the estate until an executor or administrator is appointed. Such an official is termed in Nebraska a "special ad- ministrator." As the statute requires notice to be given of the hearing on the petition for the appoint- ment of a permanent personal representative, from three to four weeks must necessarily elapse before he can enter upon the duties of his trust. When an ap- peal is taken from decision of the court on the probate of a will, the delay may extend over a period of months, and perhaps years. If, in the opinion of the court, the estate comprises property of such a nature as to re- quire immediate care and attention, and it be deemed for the best interests of the legatees, devisees, heirs or next of kin that some special measures be taken to look after and collect the goods, chattels, credits and effects of the deceased, it could appoint a person for that (171) 116 PROBATE AND ADMINISTRATION. [Chap. 10 purpose. 1 The application for the appointment may be made when the petition for the probate of the will or for letters of administration is filed. 116. Jurisdiction of court to issue letters. If the deceased was a resident of Nebraska at the date of his death, the county court of the county in which he at that time resided has exclusive authority to appoint a special administrator. If the decedent was a nonresident of this state, a special administrator may be appointed in any county of the state in which there is property belonging to the estate, and the juris- diction of the special administrator first appointed extends to all the property of the deceased within the state. 2 The appointment is valid, although the will of the decedent was subsequently probated in another county. The application should be by petition in writ- ing, under oath, to the county court. It may be made by a legatee, devisee, heir, creditor or next of kin at any time before the executor or administrator re- ceives his letters. It should set out the right of the petitioner to make the application, state the nature of the estate, and the necessity of the appointment of someone to collect and care for the assets. Form No. 34. PETITION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that he is [state interest of petitioner in the estate] of said A. B., and 1 Rev. Stats., c. 17, 77, [1841]; Keegan's Estate v. Welch, 83 Neb. 166, 119 N. W. 252; L. O. L., 1156. 2 Cadman v. Richards, 13 Neb. 389, 14 N. W. 159. (172) Chap. 10] SPECIAL ADMINISTRATION. 117 as such legatee, [etc.] is interested in said estate; that on the day of , 19 , one E. P. filed his petition in said court for the probate of the instrument purporting to be the last will and testa- ment of said A. B.; that said court thereupon issued an order for the giving of notice of the pendency thereof by causing the same to be published in a newspaper of said county for the period of three weeks, and that by reason thereof the issue of letters testamentary will be delayed for one month [if delay caused by objections to the probate of the will or other cause, so state]; that said A. B. died seised of the following described real estate [describe real estate, give condition thereof, and state reasons why it is necessary some one should be appointed to look after the crops or income therefrom], and personal property consisting of [state nature of personal prop- erty, and the necessity for the appointment of some one to look after it], of the value of about dollars; that on account of the afore- said delay in the issue of letters testamentary [of administration] there is no one to take charge of said estate, and there is cause to believe that a portion of said personal property will be lost or become depreciated in value, and your petitioner and others interested in said estate delayed and defrauded of their just rights and dues unless some one is appointed to take charge of the same. Your petitioner therefore prays that special letters of administra- tion may issue to him upon said estate, giving him authority to collect and care for the same until the issue of letters testamentary [of administration]. (Signed) C. D. [Add verification, Form No. 5.] 117. Evidence Notice. The petition should be supported by competent evi- dence showing the condition of the estate, the amount of the personalty, and the necessity of having someone appointed to take charge of it pending the appoint- ment of an executor or administrator. No notice of its pendency is required by the statute, and none need be given. The appointment rests solely in the discretion (173) 118 PROBATE AND ADMINISTRATION. [Chap. 10 of the court, and there is no appeal from his decision thereon to any higher tribunal. 3 If the delay is not caused by objections to the pro- bate of the will or the appointment of a particular person as administrator, the administration of the estate will be greatly facilitated and the expenses of administration lessened by the appointment of the same person to whom general letters will probably be subsequently issued. Under the Oregon statute the bond of a special ad- ministrator is in the same form as -that of one acting under regular letters. 4 Form No. 35. ORDER FOR APPOINTMENT OF SPECIAL ADMINISTRATOR. [Title of Cause and Court.] On this day of , 19 , this cause came on for hearing upon the petition, duly verified, of C. D., for his appointment as special administrator of the estate of A. B., deceased, and upon the evidence. Upon consideration whereof the court finds that it is necessary that a special administrator should be appointed for the purpose of collecting and taking care of the assets of said estate until an executor is appointed. It is therefore ordered that letters of special administration upon the estate of the said A. B. issue to the said C. D. upon his filing in this court a bond in the penal sum of $ , with sureties to be approved by the court. (Signed) J. K., County Judge. 118. Bond of special administrator. Before entering upon the duties of his office, a spe- cial administrator is required to give a bond in such sum as the court shall direct, conditioned to make a true inventory of the goods, chattels, rights, credits * Keegan's Estate v. Welch, 83 Neb. 166, 119 N. W. 252. 4 L. O. L., 1156. (174) Chap. 10] SPECIAL ADMINISTRATION. 118 and effects of the deceased which may come into his possession or knowledge, and that he will truly account for all the goods, chattels, credits and effects of the deceased which shall be received by him whenever re- quired by the county court, and that he will deliver the same to the executor or administrator of the estate, or to the person who may be legally authorized to receive them. 5 The county judge has the right, which he should not hesitate to exercise, to require all sureties to justify under oath. The statute does not require them to be freeholders of the county, though this is the usual practice. The bond should run to the county judge. It is not necessary that his name appear therein. 6 Form No. 36. BOND OF SPECIAL ADMINISTRATOR. Know all men by these presents, that we, C. D., as principal, and E. F. and G. H., as sureties, are jointly and severally held and firmly bound unto the county judge of county in the penal sum of $ , for which payment well and truly to be made we do hereby bind ourselves, our heirs, executors, administrators, and assigns by these presents. Whereas, on the day of , 19 , an order of said court was entered for the appointment of C. D. as special administrator of the estate of A. B., deceased, upon his filing a bond with sureties to be approved by the court in the penal sum of $ : Now, therefore, the condition of this obligation is such that, if the said C. D. shall make and return a true inventory of all the goods, chattels, rights, credits, and effects of the said A. B., deceased, which shall come into his possession or knowledge, and will truly account for all the goods, chattels, credits, and effects of said deceased re- ceived by him whenever required by said court so to do, and deliver the same to the person or persons who shall afterward be appointed 5 Rev. Stats., c. 17, 80, [1344]. Post, 454. (175) 118 PROBATE AND ADMINISTRATION. [Chap. 10 executor [administrator] of said estate, or such other person as shall be legally authorized to receive the same, then this obligation to be null and void; otherwise to be in full force and effect. Dated this day of , 19 . (Signed) C. D. E. F. G. H. I hereby approve of the foregoing bond both as to form and suffi- ciency of sureties. (Signed) J. K., County Judge. Form No. 37. LETTEES OF SPECIAL ADMINISTRATION. State of Nebraska, County. To C. D., of said County: Whereas, A. B., late of said county, departed this life on the day of , 19 , being at the date of his death a resident of said county, by reason whereof the administration of his estate doth de- volve upon the county court of said county, and it appearing necessary that a special administrator be appointed thereon: Now, therefore, you are hereby appointed special administrator of said estate, with authority only to act in collecting and taking charge of the assets of said estate. You are required, within two weeks, also to make and return to this court a true inventory of all the rights, chattels, goods, credits, and effects of the said estate which may come into your possession or be within your knowledge, to have the sole custody and management of said estate under the direc- tion of this court, to make and render unto this court an account of your doings in regard to said estate whenever required by this court, and to perform such other duties as may be required of you by law and the directions of this court. In testimony whereof I have hereunto set my hand and affixed my official seal this day of , 19 . (Signed) J. K., County Judge. Chap. 10] SPECIAL ADMINISTRATION. 119 Form No. 37a Oregon. LETTERS OF SPECIAL ADMINISTRATION. State of Oregon, County of , ss. To all persons to whom these presents shall come, greeting: Know ye that it appearing to the court aforesaid that A. B. has died leaving an instrument purporting to be a last will and testament, and was at the date of his death seised and possessed of real and per- sonal property within this state, and that by reason of delay in the issue of letters testamentary, the court finds that it is necessary that a special administrator be appointed to take charge of said estate, pending the proceedings for the issue of regular letters, such court has duly appointed C. D. special administrator of the estate of said A. B.; this therefore authorizes said C. D. to take charge of and administer said estate as such special administrator according to law. In testimony whereof, I, E. F., clerk of the county court, have here- unto subscribed my name and affixed the seal of said court this day of , 19. 119. Powers and duties of special administrator. A special administrator is an officer of the court possessing such powers and authority as is conferred on him by the statute. His duties are more like those of an agent or conservator than an administrator. 7 They are to collect the goods, chattels, rights, credits and effects of the deceased, and preserve the same until an administrator is appointed, for which pur- poses he may commence and maintain suits as such administrator, including special proceedings, and sell such perishable and other property as the court may order. 8 His power extends over the real estate of his decedent and he may collect rents and execute a valid lease of the same. 9 1 Long v. Burnett, 13 Iowa, 33. 8 Rev. Stats., c. 17, 78, [1342] ; Kaminer v. Hope, 9 S. C. 258. Keegan's Estate v. Welch, 83 Neb. 166, 119 N. W. 251. 12 Pro. Ad. (177) 119 PBOBATE AND ADMINISTRATION. [Chap. 10 It is his duty to appear, the same as a person acting under regular letters, and defend against all suits pending or claims filed against the estate, and may set up any lawful counterclaim or setoff, 10 but cannot be called on in any other way to pay the debts of the deceased. 11 His powers and duties in Oregon are identical with those of a regular administrator, except that he has nothing to do with the debts and demands against the estate and no power to discharge any obligation of the deceased. 12 If he deems it necessary to sell any of the personal property he should make application therefor by veri- fied petition to the county court in substantially the same manner as an administrator. A sale may be ordered without notice of the application and may be either a private sale or in the usual course of business or at public auction. He should within ten days from the date of his letters file a complete inventory of all the assets collected by him. An appraisement is not necessary. 13 Under the Oregon practice he is governed by the same rules regarding the filing of his inventory and the appraisement as an administrator. 14 10 Cadman v. Richards, 13 Neb. 384, 14 N. W. 159; Sullivan v. Nicoulin, 113 Iowa, 76, 84 N. W. 978. 11 Eev. Stats., c. 17, 79, [1343]. 12 L. O. L., 1156. is Eev. Stats., c. 17, 97, [1361], 14 L. O. L., 1356. (178) Chap. 10] SPECIAL ADMINISTRATION. 119 Form No. 38. PETITION OF SPECIAL ADMINISTRATOR FOR LEAVE TO SELL PERSONALTY. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of special administration upon said estate issued to him out of and under the seal of said court, and that he is now special administrator of said estate; that on the day of , 19 , he filed his inventory of said estate; that, as appears from said inventory, a portion of the assets of said estate consists of [here set out a description of personalty administrator seeks leave to sell, and reasons why the best interests of said estate will be subserved by said sale]. Your petitioner therefore prays that an order may be made by said court granting him permission to sell the following described per- sonalty belonging to said estate [describe property] for the highest market price, and upon such terms as the court may deem advisable. Dated this day of , 19 . (Signed) C. D., Special Administrator. [Add verification, Form No. 5.] Form No. 39. ORDER GRANTING SPECIAL ADMINISTRATOR LEAVE TO SELL PERSONALTY. [Title of Cause and Court.] This cause came on for hearing on this day of , 19 , upon the petition, duly verified, of C. D., special administrator of said esfate, for leave of the court to sell the following described per- sonalty belonging to said estate [describe personalty], and was sub- mitted to the court. The court finds from the evidence that the best interests of said estate will be subserved by said proposed sale. It is therefore ordered that said special administrator be, and he hereby is, authorized and empowered to sell at public auction to the highest bidder for cash or secured notes the above-described per- sonalty, and that he cause notice of the time and place of said sale to be given by posting notices thereof, and by causing the same to be published times in the , a newspaper printed and pub- lished in said county. (Signed) J. K., County Judge. (179) 120 PROBATE AND ADMINISTRATION. [Chap. 10 120. Accounting by special administrator. Upon the issue of letters testamentary or of admin- istration, his authority at once ceases, and he should forthwith deliver to the executor or administrator all the goods, chattels, credits and effects of the deceased which have come into his hands, and surrender to him the control of any suits pending, in which the estate is either plaintiff or defendant. 15 Special administration accounts should be kept sepa- rate from those of the executor or administrator, even though letters subsequently issued to the special ad- ministrator on account of the liability of the sureties on the special administration bond. His account should be a full statement of all the transactions per- taining to the estate, with a list of the property in his hands to be turned over to the executor or adminis- trator. He should charge himself with all moneys re- ceived and other assets collected, and credit himself with expenses necessarily incurred in the prosecution of suits, collection of assets, sales of personalty, fees of the county court, and other legitimate expenses, and with the effects turned over to the executor or admin- istrator. He is entitled to compensation for his ser- vices, to be fixed by the court, usually commissions on the same basis as an executor or administrator. Where he acts in both capacities, he is not entitled to double commissions. The account should be under oath. Notice of the hearing should be given the executor or administrator. 16 The executor or administrator of a 15 Rev. Stats., c. 12, 86, [1345] ; Cadman v. Richards, 13 Neb. 384, 14 N. W. 159. i Reed v. Whipple, 140 Mich. 7, 103 N. W. 548. (180) Chap. 10] SPECIAL ADMINISTRATION. 120 special administrator is the proper party to render the account when such special administrator dies be- fore his duties are completed. 17 Form No. 40. ACCOUNT OF SPECIAL ADMINISTRATOR. [Title of Cause and Court.] C. D., Special Administrator, In Account with Estate of A. B., Deceased. Charges. 19 . To cash received from accounts collected [items].. $ To cash received from notes collected [items] To cash received from sales of property per Order of the county court [items] Total cash received. Disbursements. 19 . By county judge's fees [items] $ By expenses of sales, costs paid and other expenses paid [items] By commissions on $ Total disbursements $ Balance on hand $ I have charged myself with the following described articles of per- sonalty, goods, credits, and effects of said estate [describe same], and turned the same over to E. F., executor of said estate, and hold his receipt therefor. I have in my possession, to be turned over to said E. F., executor, the sum of $ , cash. State of Nebraska, County, ss. C. D., special administrator of the estate of A. B., deceased, being first duly sworn, on oath says that the foregoing is a true statement of his account as special administrator of the estate of A. B., deceased. (Signed) C. D. 17 Reed v. Whipple, supra. (181) 121 PROBATE AND ADMINISTRATION. [Chap. 10 Subscribed in my presence and sworn to before me this day of , 19. (Signed) J. K., County Judge. Form No. 41. ORDER APPROVING ACCOUNT OF SPECIAL ADMINISTRATOR. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the account of C. D., special administrator of said estate. Upon consideration whereof, the court finds said account to be just and correct. It is therefore ordered that said account be allowed, and the said C. D., having filed the receipt of E. F., executor, for the specific articles of personalty remaining in his hands unsold and upon the said C. D. filing in this court the receipt of E. F., executor of said estate, for the amount of money due him as per said account, he be granted his discharge. (Signed) J. K., County Judge. Form No. 42. RECEIPT TO SPECIAL ADMINISTRATOR. Received of C. D., special administrator of the estate of A. B., de- ceased, the sum of dollars, being the amount found by the county court of county, Nebraska, to be due said estate from C. D. on his final account, and the balance of the assets collected by him and belonging to said estate. Dated this day of , 19 . (Signed) E. F., Executor of the Estate of A. B., Deceased. 121. Discharge of special administrator. The appointment of an executor or administrator operates per se as a discharge of the special admin- istrator. 18 It is, however, the usual practice to issue to him a formal discharge upon the filing of the re- ceipt from the personal representative. 18 Cadman v. Richards, 13 Neb. 384, 14 N. W. 159; Malone v. Cor. nelius, 34 Or. 196, 55 Pac. 536. (182) Chap. 10] SPECIAL ADMINISTRATION. 121 Form No. 43. DISCHARGE OF SPECIAL ADMINISTRATOR. [Title of Cause and Court.] Whereas, C. D., special administrator of the estate of A. B., de- ceased, has faithfully performed all the duties required of him by law and the orders of this court in connection therewith, and has duly accounted for all the property of said estate received by him as such administrator, he is hereby discharged from any and all lia- bility connected with the special administration of said estate. Dated this day of , 19. (Signed) J. K., County Judge. (183) CHAPTER XI. LETTERS TESTAMENTARY. 122. Executors Administrators With the Will Annexed. 123. To Whom Letters may Issue. 124. Eight to Act as Executor not Assignable. 125. Joint Executors. 126. Grant of Letters and Bond. 127. Oath of Executor. 128. Bond of Residuary Legatee. 129. Appointment of Administrator With the Will Annexed. 130. Preferences. 131. Procedure. 122. Executors Administrators with the will an- nexed Definitions. An executor is he to whom is intrusted the carrying out of the provisions of a will. His power is founded upon the special confidence of, and actual appointment by the deceased, 1 and confirmed by the issue of letters testamentary out of and under the seal of a court of probate jurisdiction. 2 A testator should designate or appoint his executor, or designate a party to make the appointment. His failure to do so does not invalidate his will. Our stat- ute makes no provision for the appointment of a per- son to administer the estate of a testator unless some- one is named for that purpose in the will, though showing no intention, either expressly or by implica- tion, of abrogating the common-law right of appoint- ment. The court therefore has power to appoint an administrator with the will annexed. 3 1 2 Bl. Com. 494. 2 Holladay v. Holladay, 16 Or. 147, 19 Pac. 81. 3 Brown v. Just, 118 Mich. 678, 77 N. W. 263; Hartnet v. Wandell, 60 N. Y. 346; Woodward v. Darcy, Plowd. 185. (184) Chap. 11] LETTEBS TESTAMENTARY. 123 An administrator with the will annexed is a person appointed by the court to carry out the provisions of the instrument when the person named is dead, refuses to qualify, is a minor or otherwise legally incompe- tent, or when none is named. 4 An administrator de bonis non with the will annexed is a person appointed by the court to complete the administration of the estate when the executor previ- ously appointed shall die, resign or be discharged be- fore the administration is finished. 5 123. To whom letters may issue. The rule laid down by Blackstone is that any person may be appointed executor of a will who is himself capable of making such an instrument. 6 At common law, also, a minor, 7 a married woman 8 and an alien were competent. 9 In the case of a minor, administra- tion with the will annexed was committed to another during minority. Statutes have considerably modified the common- law rule by requiring that the nominee be legally com- petent 10 or qualified, 11 which of course bars those physically or mentally incapable of transacting their business affairs and minors. Courts do not act as 4 Stebbins v. Lathrop, 4 Pick. (Mass.) 33; Leavitt v. Leavitt, 65 N. H. 102, 18 Atl. 920. 5 Chamberlin's Appeal, 70 Conn. 363, 39 Atl. 734. 6 2 Bl. Com. 503. 7 Piggott's Case, 5 Coke, 29a. 8 In re Stewart, 56 Me. 300; English's Exr. v. McNair's Admr., 34 Ala. 40. Co. Litt. 129. 10 Rev. Stats., c. 17, 62, [1326]. 11 L. O. L., 1142. (185) 123 PEOBATE AND ADMINISTRATION. [Chap. 11 strictly in passing on the qualifications of an executor as an administrator, but approve the nomination unless the party is clearly within the statutory prohibition. 12 In Oregon letters cannot issue to a nonresident, but if such nonresident moves into the state and applies for the appointment within thirty days, letters may issue. 13 In this state nonresidence is not a bar, though a cause for removal, but a matter to be considered by the court in determining whether the party is com- petent. 14 Letters may issue to a trust company duly authorized by its charter, and having its principal place of business in the county in which the will is pro- bated; 15 in Oregon, to any authorized trust company. 16 The weight of authority is that if the nominee can give a satisfactory bond, though somewhat lacking in integrity, business experience or even moral character, the wishes of the testator should be complied with and letters granted him. 17 In the case of minors, letters of administration with the will annexed are issued to another party, who per- forms the duties until the minor becomes of age. If two are named, one of whom is a minor, letters issue to the one who is competent and to the minor when his disability is removed. 18 12 Holladay v. Holladay, 16 Or. 147, 19 Pac. 81. 13 L. O. L., 1155. H Hammond v. Wood, 15 E. I. 566, 10 Atl. 623. is Kev. Stats., c. 14, 185, [743]. 16 Laws 1913, p. 722. 17 Berry v. Hamilton, 12 B. Mon. (Ky.) 193; Saxe v. Saxe, 113 Wis. 557, 97 N. W. 187; Li Po Tai's Estate, 108 Cal. 484, 41 Pac. 486. is Rev. Stats., c. 17, 67, [1331]; L. 0. L., 1155. (186) Chap. 11] LETTERS TESTAMENTARY. 124 124. Right to act as executor not assignable. The office of executor is a personal trust, and the person named by the testator must either accept or reject it. He has no authority to assign or transfer the right to any person or corporation, nor in any way by himself confer on another the rights or 'liabilities belonging to him. 19 If he does not wish to accept the position, he should file a formal renunciation in the county court. 20 If he changes his mind, he may re- tract the same at any time before the order for letters of administration with the will annexed is entered by filing a written notice thereof with the court. 21 Form No. 44. RENUNCIATION OF EXECUTOR. I, C. D., named as executor in a certain instrument purporting to be the last will and testament of A. B., late of , do hereby refuse to accept the appointment as executor of said instrument. Dated this day of , 19. , (Signed) C. D. Witness: E. F. Form No. 45. RETRACTION OF RENUNCIATION. I, C. D., named as an executor of an instrument purporting to be the last will of A. B., late of , now on file in the county court of said county, do hereby retract and withdraw my renunciation of the appointment as executor of said instrument filed by me in said court on the day of , 19 . Dated this day of - , 19. (Signed) C. D., Witness: (Signed) E. F. 19 Ellicott v. Ellicott, 38 N. J. Eq. 604; Nelson v. Boynton, 54 Ala. 368. 20 Stebbins v. Lathrop, 4 Pick. (Mass.) 33. 21 Robertson v. McGeoch, 11 Paige Ch. (N. Y.) 640. (187) 125,126 PEOBATE AND ADMINISTRATION. [Chap. 11 125. Joint executors. Where two or more persons are nominated executors and some renounce the trust or refuse to give bond, letters may issue to such as do qualify, 22 and he or they will have the same authority to perform every act and discharge every trust required and allowed by the will, and their acts shall be as valid and effective for every purpose as if all were authorized and act together, 23 and such is the rule irrespective of the statute. 126. Grant of letters and bond. The person named as executor is allowed twenty days from the grant of letters in which to give a bond, which must be in such penal sum as may be fixed by the court, conditioned that he make and return to the county court within three months a true and perfect inventory of all the goods, chattels, rights and credits of the deceased which shall have come into his knowl- edge or possession, or to the possession of any other person for him; and out of the same to pay and dis- charge all debts, legacies and charges chargeable on the same or such dividends thereon as shall be ordered and decreed by the county court; to render a true and just account of his administration to the county court within one year, and at any other time when required by such court, and to perform all orders and decrees of the county court by the executor to be performed in the premises. 24 22 Rev. Stats., c. 17, 66, [1310]. 23 Rev. Stats., c. 17, 72, [1336] ; L. O. L., 1142. 24 Rev. Stats., c. 17, 63, [1327]. (188) Chap. 11] LETTERS TESTAMENTARY. 126 In Oregon the penalty is fixed by the county court at double the estimated value of the personal property plus double the estimated value of the annual rents and profits from the real estate, and is conditioned upon the faithful performance of the duties of his trust according to law. 25 When two or more executors are appointed, they execute a joint or separate bond, each with sureties, at fheir option. 26 A good many wills contain the direction that "no bond" or "no other bond than his personal obliga- tion" be given by the executor. In such cases it has been held within the discretion of the court to accept such obligation or require a regular bond. 27 The usual practice is to require a regular bond. In Oregon, where a testator expressly declares that no bonds shall be required of his executor, he may qualify by taking the official oath, but the court may at any time require a bond as in other cases. Qualifying without giving a bond does not release him from any civil or criminal liability. 28 A state or county officer required by law to give a bond should not become a surety, nor should an at- torney practicing within the district, 29 but should an attorney become a surety and the bond be approved, he cannot escape liability on the ground that he is made incompetent by the statute. 30 A surety com- 25 L. O. L., 1153. 20 Rev. Stats., c. 17, 9 90, [1354]. 27 Felton v. Sowles, 57 Vt. 382. 28 L. O. L., 1153. 29 Rev. Stats., c. 58, 170, [5720]. so Tester v. Crowley, 17 Neb. 209, 22 N. W. 422; Luce r. Foster, 42 Neb. 818, 60 N. W. 1027. (189) 126 PEOBATE AND ADMINISTRATION. [Chap. 11 pany authorized to do business within the state may be accepted. 81 In Oregon, when the penal sum of the bond exceeds two thousand dollars, three or more sureties may be- come severally liable for portions for said sum, if the aggregate for which such sureties become liable shall equal the penal sum required in the undertaking. 32 If the person named as executor shall refuse to ac- cept the trust or neglect for twenty days to give the bond required by law, he forfeits his rights to the trust. 33 No time within which the bond must be given is fixed by the Oregon statute; hence a reasonable time should be allowed by the order, which should not exceed twenty or thirty days. The form of bond required by the Oregon law is exclusive, and there is no provision for a residuary legatee's bond. Form No. 46. BOND OF EXECUTOR. Know all men by these presents, that we, C. D., of the county of -, state of Nebraska, as principal, and E. F., of said county, as surety, are held and firmly bound unto the county judge of county in the penal sum of dollars ($ ), for the payment of which well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Dated this day of - , 19 . Whereas, C. D. has been named in the last will and testament of A. B., deceased, as^ executor, and has accepted said trust: Now, therefore, the condition of this obligation is such that, if the said C. D. shall make and return to the county court of said county, within three months, a true and perfect inventory of all 31 Rev. Stats., c. 58, 198, [5728]; L. O. L., 4678. 32 L. O. L., 1154. 33 Rev. Stats., c. 17, 65, [1329]. (190) Chap. 11] LETTERS TESTAMENTARY. 126 the goods, chattels, rights, credits, and estate of the deceased which shall come to his knowledge or possession, or to the possession of any other person for him; administer according to law and the will of the testator all his goods, chattels, rights, credits, and estate which shall at any time eome to his possession, or to the possession of any other person for him, and out of the same to pay and dis- charge all debts, legacies, and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by the county court; render a just and true account of his administration to the county court within one year, and at any other time when required by said court; and perform all orders and decrees of the county court by said executor to be performed in the premises, then this obligation to be null and void; otherwise to be and remain in full force and effect. (Signed) C. D. E. F. Form No. 46a Oregon. UNDERTAKING OF EXECUTOR. Whereas, on the day of , 19 , the will of A. B. was admitted to probate in the county court of county, Oregon, and an order of said court was thereupon made and entered for the issue of letters testamentary thereon to C. D., who was named therein as executor upon his filing an undertaking in the sum of $ , to be approved by the judge of said county court; Now, therefore, we, said C. D., as principal, and E. F. and G. H., both of said county, as sureties, do hereby undertake to the estate of said A. B., for the use of all persons interested therein in the sum of $ , that said C. D. shall faithfully perform the duties de- volving upon him as such executor according to law. (Signed) C. D. E. F. G. H. Witness: (Signed) L. M. I hereby approve the above undertaking both as to form and suffi- ciency of sureties. J. K., Judge of the County Court. (191) 126 PEOBATE AND ADMINISTRATION. [Chap. 11 The penalty of the bond may be reduced by a deposit, under order of the court, of a portion of the assets with a legally authorized surety company, for safekeeping. An application may be made for such purpose to the court, notice given to the parties interested as the court may direct, and after a hearing the court may order such part of the assets as may be proper depos- ited with such company, and the bond to be given ad- justed to cover only the property remaining in the hands of the representative, thereby reducing the pre- mium, in case a surety bond is given. The property so deposited is held by the trust company under the orders and direction of the court. 34 Form No. 46b Oregon. APPLICATION FOR REDUCTION OF PENALTY OF BOND. [Title of Cause and Court.] Comes now G. B., named as executor in the last will and testa- ment of A. B., which said will was duly admitted to probate in said court on the day of , 19 , and letters testamentary ordered issued to said applicant upon his filing a bond in the sum of $ ; that among the personal assets of said estate are [a cer- tificate of shares of stock in the company, of the value of $ ], [a note of one G. H., secured by mortgage on real estate, of the value of $ ], that said applicant desires to deposit said certificate of shares of stock and said note and mortgage in the , a legally authorized surety company of the state of Oregon, to the end that his bond as such executor may be reduced to the sum of $ . Applicant therefore prays that notice be given the parties inter- ested as the court may direct, and an order of said court be made on the hearing of this application directing said executor to deposit said shares of stock and said note and mortgage with said surety company for safekeeping, and fixing the amount of said bond at the eum of $ . Dated this day of , 19 ( (Signed) C. B. [Add verification.] 34 Laws 1913, p. 726. (192) Chap. 11] LETTERS TESTAMENTABY. 127,128 127. Oath of executor. The usual practice is for the executor to execute and file an oath of office in the county court. None, how- ever, is required by the statute, and an executor can- not escape liability on the ground that none was given. 35 Under the Oregon statute no oath is required when a bond is given. When the executor is relieved from giving bond by the terms of the will, and none is re- quired of him by the court, he may qualify by taking an oath to faithfully fill his trust. 36 Form No. 46c Oregon. OATH OF EXECUTOB. I, C. D., do solemnly swear that I will faithfully fulfill the trust devolving upon me as executor of the estate of A. B. according to law and to the best of roy ability. So help me God. (Signed) C. D. Subscribed and sworn to before me this day of , 19 . (Seal) , Clerk County Court. 128. Bond of residuary legatee. If the executor be a residuary legatee, he may, at his option, in place of the foregoing bond, give a bond in such sum and with such sureties as the court may direct, conditioned only to pay all the debts and lega- cies of the testator, and in such case he shall not be required to return any inventory. 37 The effect of such bond is to pay the entire estate to the legatee, and 35 Leahy v. Haworth, 141 Fed. 850, 73 C. C. A. 84. 3 L. O. L., 1153. 37 Eev. Stats., c. 17, 564, [1328]; Conant v. Stratton, 107 Mass. 474. 13 Pro. Ad. (193) 128 PROBATE AND ADMINISTRATION. [Chap. 11 practically terminate the administration. 38 He be- comes liable for all fees and allowances due from the estate, and all allowances to the widow or minor chil- dren for their support, and all debts of the estate. 39 His liability on the bond for all the debts, fees and allowances of the estate is absolute. 40 At the same time it does not entirely release the assets of the estate from the lien of debts, expenses of administration and legacies. It only releases such real estate and personal property as has passed into the hands of bona fide purchasers. Legatees and cred- itors are not limited to an action on the bond, but assets of the estate in his hands may be subjected to their claims by the same proceedings as in cases where the ordinary executor's bond was given. 41 The advantage accruing to the executor in giving such bond is that it reduces the penal sum to the mini- mum of satisfying claimants and saves him the labor and expense of making an inventory. An executor may incur considerable risk in giving a bond of this character, and should satisfy himself that the condi- tion of the estate will warrant it before doing so. 38 Buell v. Dickey, 9 Neb. 285, 2 N. W. 884; In re Cole's Will, 52 Wis. 591, 9 N. W. 664; Haydock T. Duncan, 40 N. H. 45; Thompson v. Brown, 16 Mass. 172. 39 Buell v. Dickey, 9 Neb. 285, 2 N. W. 884; Stebbins v. Smith, 4 Pick. (Mass.) 97; Colwell v. Alger, 5 Gray (Mass.), 67; Hatheway v. Weeks, 34 Mich. 237; McElroy v. Hatheway, 44 Mich. 399, 6 N. W. 867. 40 Buel v. Dickey, 9 Neb. 285, 2 N. W. 884; Jones v. Richardson, 5 Met. (Mass.) 247. 41 Thompson v. Pope, 77 Neb. 308, 109 N. W. 498; Caulton T. Pope, 83 Neb. 723, 120 N. W. 191. (194) Chap. 11] LETTEBS TESTAMENTARY. 128 Form No. 47. BOND OF RESIDUARY LEGATEE. Know all men by these presents, that we, C. D., of the county of and state of Nebraska, as principal, and E. F. and G. H , of said county, as sureties, are held and firmly bound unto the county judge of county, said state, in the penal sum of dollars ($ ), for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Dated this - day of , 19 . Whereas, C. D. has been named in the last will and testament of A. B., deceased, as executor thereof, and is also the residuary legatee in said will, and has accepted the trust and the conditions of said will: Now, therefore, the condition of his obligation is such that if the above-bonnden C. O. shall administer according to law all the goods, chattels, rights, credits, and effects of the estate of said A. B., de- ceased, which shall come into his possession, or to the possession of any other person for him, and shall pay all the debts and legacies of said A. B., said testator, together with the costs and expenses of administration and allowances to the widow and minor heirs of said deceased, and shall render a just and true account of the payment of said debts, legacies, charges, fees, and allowances to the county court of said county of within one year from this date, then this obligation to be null and void; otherwise to be and remain in full force and effect. (Signed) C. D. E. F. G. H. The foregoing bond approved by me both as to form and sufficiency of sureties this day of , 19 . (Signed) J. K., County Judge. An executor or administrator with the will annexed cannot, after having given a residuary legatee's bond, withdraw it, and give one in the usual form. 42 42 Alger v. Colwell, 2 Gray (Mass.), 404. (195) 128 PBOBATE AND ADMINISTRATION. [Chap. 11 Form No. 48. LETTERS TESTAMENTAEY. State of Nebraska, County of , ss. County Court of said County. In the Matter of the Estate of A. B., Deceased. By J. K., County Judge for said County. To G. D., of said County, Greeting. Whereas, A. B. lately departed this life testate, being at or Immedi- ately previous to his death an inhabitant of the county of , and having while he lived and at the time of his decease estate within the said county of to be administered: And whereas, at a session of said county court, holden at , in said county, on the day of , in the year of our Lord one thousand nine hundred and , the last will and testament of said deceased was duly proved, approved, and allowed, and wherein you are appointed executor thereof, whereby the power of committing administration and full disposition of all and singular, the goods, chattels, rights, credits and estate whereof the said deceased died pos- sessed, in the state of Nebraska, and also the hearing, examining, and allowing the account of such administration doth appertain unto me; and you have given a bond in the premises, which has been duly approved and filed, as required by law in that behalf: Now, therefore, trusting in your care and fidelity, I do by these pres- ents commit unto you the said full power and authority to administer and faithfully dispose of, according to law and the will of said testator, all and singular the goods, chattels, rights, credits, and estate of said deceased, within the state of Nebraska, which shall at any time come to your possession, or to the possession of any other person for you, and to ask, gather, levy, recover and receive all goods, chattels, rights, credits, and estate whatsoever, of said deceased, which to him while he lived and at the time of his death did belong; and to pay and discharge all debts, legacies, and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by said court. Hereby requir- ing you to make and return to said court, within three months, a true and perfect inventory of all the goods, chattels, rights, credits, and real estate of said deceased, which shall come to your possession or knowl- edge, or to the possession of any other person for you, and also to render a just and true account of your administration to said court, within one year, and at any other time when required by said court, and to per- (196) Chap. 11] LETTERS TESTAMENTARY. 129 form all orders and decrees of said court by you to be performed in the premises. In testimony whereof, I have hereunto set my hand and the seal of said county court at , the day of , in the year of our Lord one thousand nine hundred and . (Seal) , County Judge. Form No. 48a Oregon. LETTERS TESTAMENTARY. State of Oregon, County of , ss. To all persons to whom these presents shall come, greeting: Know ye, that the will of A. B., deceased, a copy of which is hereto annexed, has been duly proven in the county court for the county afore- said, and that C. D., who is named as executor therein, has been duly appointed such executor by the court aforesaid; this therefore authorizes the said C. D. to administer the estate of said A. B., deceased, according to law. In witness whereof I, E. F., clerk of said court, have hereunto sub- scribed my name and affixed the seal of said court this day of , 19-. (Seal) (Signed) E. F., Clerk County Court. 129. Appointment of administrator with the will annexed. No person named as executor in any will who shall refuse to accept the trust, or shall neglect to give bond as prescribed for twenty days after the probate of such will, shall intermeddle or act as executor. 43 If the nominee renounces his trust, is a minor, is found incompetent, or fails to give bond, or if no one is designated, the court may commit the administra- tion of the estate with the will annexed to such person as would have been entitled to administration had the 43 Rv. Stats., c. 17, 65, [1329]. (197) 130,131 PKOBATE AND ADMINISTRATION. [Chap. 11 testator died intestate. 44 The records must show the existence of such facts as give the court jurisdiction to make the appointment. 45 The validity of the appoint- ment cannot be questioned collaterally. 46 Such administrator has the same rights, powers and duties as an executor, except that when appointed on account of the minority of the nominee, the coming of age of the minor terminates his trust per se. 47 He may give a general bond or one as residuary legatee. 130. Preferences Right to appointment. Those who are entitled to preference as adminis- trators are entitled to letters of administration with the will annexed. 48 Under this rule, which differs from that of the common law, the surviving spouse is enti- tled to the first preference, then the nearest of kin and then creditors. 49 A residuary legatee is also re- garded as having a right to the appointment on the ground that the costs of administration may be thereby considerably lessened. 50 131. Procedure. Where it is known at the time the will is filed for probate that the appointment of an administrator with the will annexed is necessary, the petition for probate should contain sufficient allegations to give the court 44 Rev. Stats., c. 17, 66, [1330] ; L. 0. L., 1142. 45 Landers v. Stone, 45 Ind. 404; Vick v. City of Vicksburg, 2 How. (Miss.) 209. 46 Peebles v. Watts' Admr., 9 Dana (Ky.), 102, 33 Am. Dec. 531. 47 Rev. Stats., c. 17, 67, 68, [1331], [1332]; L. O. L., 1155. 48 Rev. Stats., c. 17, 66, [1330] ; L. O. L., 1142. 4 Sections 143, 144, post. 50 Mallory's Appeal, 62 Conn, 218, 25 Atl. 109. (198) Chap. 11] LETTERS TESTAMENTARY. 131 jurisdiction to make the appointment. Where objec- tions to the appointment of the nominee on account of incompetency are filed, the objector should add a prayer for the appointment of some designated person or other competent person. If the party to whom letters are ordered neglects to qualify, a petition should be filed by someone inter- ested in the estate for such appointment. No notice or citation is required by the statute. Form No. 49. PETITION FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that A. B., late of said county, departed this life at his residence in said county on the day of , 19 , leaving a last will and testa- ment, in which one L. M. was named as executor; that on the day of , 19 , said L. M. filed in this court his renunciation of said trust [that said L. M. is a minor of the age of years; that said L. M. is insane, and incapable of accepting said trust, or is of un- sound mind], which said will he now offers for probate, and that said will relates to both real and personal estate. [Balance of petition same as form No. 24, except prayer should be for appointment of some designated person as administrator with the will annexed, if the executor named is a minor during his minority.] [For notice of hearing, see Form No. 25.] Form No. 50. ORDER ADMITTING WILL TO PROBATE, AND FOR APPOINT- MENT OF ADMINISTRATOR WITH THE WILL ANNEXED. [Follow Form No. 28 to*, then say that] L. M., who is named as executor in said will, has renounced the trust [is a minor of the age of years; is not a suitable and competent person to administer said estate; is dead], and that E. F. is a suitable and competent person to administer said estate [during the minority of said L. M.], it is there- fore considered by me that the said last will and testament was duly (199) 131 PROBATE AND ADMINISTRATION. [Chap. 11 executed, and the same is genuine and valid, and that the said last will and testament be admitted to probate and established as a will of real and personal estate. It is further ordered that letters of administration with the will annexed issue to said E. F. upon his giving bond and tak- ing the oath required by law, the trust thereby conferred upon said E. F. to terminate with the minority of said executor. (Signed) J. K., County Judge. [For bond of administrator with the will annexed, see Forms Nos. 46, 47, pages 190, 195.] Form No. 51. ORDER FOR APPOINTMENT OF ADMINISTRATOR C. T. A. ON ACCOUNT OF FAILURE OF EXECUTOR NAMED TO GIVE BOND. [Title of Cause and Court.] Now on this day of , 19 , this matter came on for hearing on the petition of C. B. for her appointment as administrator with the will annexed of A. B., on account of the failure of C. D., the executor therein named, to give bond. C. B. appeared in person and by H. C. M., her attorney. G. H. was sworn and testified. It appearing to the court that said C. D. has neglected and refused for twenty days to give bond as executor of said estate, as directed by order of said court heretofore, to wit, , 19 , made and recorded, and that C. B., the widow of said A. B., is a suitable and competent person, it is ordered that letters of administration with the will annexed issue to said C. B. upon her giving bond in the sum of $ and taking the oath of office. (Signed) J. K., County Judge. Form No. 52. LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED. [Title of Cause and Court.] To C. D., of said County, Greeting: Whereas A. B. lately departed this life testate, being at or immedi- ately previous to his death an inhabitant of said county of , and having while he lived and at the time of his decease estate within the said county of to be administered; (200) Chap. 11] LETTERS TESTAMENTARY. 131 And whereas at a session of said court held at the county seat of said county on the day of , 19 , the last will and testament of said A. B. was duly proven and allowed, and wherein E. F. was appointed executor of said estate; And whereas said E. F. has neglected and refused for more than twenty days from said day of , 19 , to execute and file in said court a bond in the sum of dollars, with good and sufficient surety as provided by the order of said court heretofore made and entered. [Balance as in Form No. 48.] (201) CHAPTER XII. DETERMINATION OF HEIRSHIP WITHOUT AD- MINISTRATION. I 132. When Administration may be Dispensed With. 133. Procedure. 134. Hearing Decree. 135. Determining Eight of Succession Without Administration. 136. Petition for Decree Determining Succession. 137. Citation Hearing. 138. Decree Determining Succession, 132. When administration may be dispensed with. Administration of the estate of an intestate which is wholly exempt from payment of his debts may be dispensed with and a decree obtained determining in whom the estate vests, in the case of both residents and nonresidents, by special proceedings. 1 When an estate consists of real property either wholly or par- tially, administration is the usual, proper and most satisfactory method of determining the rights to its succession. In cases where there are no heirs and the property consequently escheats to the state, though there is authority to the effect that administration is unneces- sary, 2 administration should be had for the purpose of paying the debts and determining the fact of there being no heirs. 3 It is also held that estates consisting entirely of personalty left by an infant who died so 1 Kev. Stats., c. 17, 92, [1356]. 2 Smith v. Gentry, 16 Ga. 31. 3 State v. McDonald, 55 Or. 419, 104 Pac. 967; State v. O'Day, 41 Or. 495, 69 Pac. 542. (202)| Chap. 12] HEIRSHIP WITHOUT ADMINISTRATION. 132 young as to be incapable of contracting debts, pass immediately to the parties designated by the statute without administration. 4 When all the heirs are of full age and competent, they may, if they choose, settle the estate by paying the debts and dividing the property among themselves. They are bound by the settlement and there is no cred- itor to complain. 5 There are a number of objections to such a procedure. It transmits no record title to real estate; the holder of a chose in action which he took in the division has no power to enforce it, nor can such holder of a mortgage note execute a valid release, as the title to personalty of a decedent can only be traced through an executor or administrator. 6 In cases where no administrator has been appointed and there are no debts, a court of equity may adjust mutual accounts between the parties and divide the personal property between them. 7 Estates the administration of which may be dis- pensed with, and at the same time a good title trans- mitted to the parties in whom they vest under the statute, include those consisting of a homestead not ex- ceeding two thousand dollars in value and exempt per- sonal property, and lands held by Indians under federal patent free from liability for their debts. * McCleary v. Menke, 109 111. 294; Hargroves v. Thompson, 31 Miss. 211. 5 Taylor v. Phillips, 30 Vt. 241; Brown v. Forsche, 63 Mich. 500, 25 N. W. 1011; Eoberts v. Messinger, 134 Pa. 299; Amis v. Cameron, 54 Ga. 449. Sections 193, 204, post. 7 Eobertson v. Robertson, 120 Ind. 333, 22 N. E. 310; Watson v. Byrd, 53 Miss. 480 ; Marshall v. Grow's Admr., 29 Ala. 278. (203) 133 PROBATE AND ADMINISTRATION. [Chap. 12 No procedure is provided by the Oregon statutes for dispensing with administration and determining heir- ship without the appointment of an administrator. 133. Procedure, Any person may file a verified petition in the county court of the county in which the estate is situated, giv- ing the names, ages and residence of the heirs at law of the deceased, a description of the property, and a showing that the same is wholly exempt from attach- ment, execution or other mesne process, and is not liable for the payment of the debts of the decedent, and praying for an order or decree dispensing with administration and a determination of heirship. The court thereupon enters an order fixing the time and place for hearing on said petition, which must be not later than thirty days from its date, and notice is given to all persons interested by publication of the order for three weeks in a legal newspaper of said county. 8 Form No. 53. PETITION FOB DISPENSING WITH ADMINISTEATION AND DETERMINATION OF HEIRSHIP. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that one, A. B., departed this life in said county on the day of - , 19 ; that he was immediately preceding his death a resident and inhabit- ant of said county; that he left him surviving a widow, C. B., and the following named heirs at law [state names, residences and ages of widow and heirs], that no last will of said decedent has been discovered, and your petitioner verily believes that said A. B. died intestate, that said A. B. died seised of an estate of inheritance in the following described real estate , which said real estate was at the date of his death Rev. Stats., c. 17, 5 92, [1356]. (204) Chap. 12] HEIRSHIP WITHOUT ADMINISTRATION. 134 occupied by himself and family as and for a homestead and is wholly exempt from attachment, execution, or other mesne process and not liable for the debts of said deceased (was held by him under the terms of a patent issued to him by the United States of America by virtue of the terms of which, and of the act of Congress under which the name was granted, said lands were at the date of the death of said A. B., not liable for any debts of said decedent). That the personal estate of said A. B. is not liable for the debts of said estate. Your petitioner therefore prays that an order may be made fixing a time and place for hearing on this petition, that notice thereof be given in the manner provided by law, and that upon said hearing a decree may be entered dispensing with administration of said estate and determining who are the heirs of said A. B. Dated this day of , 19 . (Signed) C. D. [Add verification, Form No. 5.] Form No. 54. ORDER FOR HEARING. [Title of Cause and Court.] To all persons interested in the estate of A. B., deceased: C. D. having filed his petition, under oath, in this court, praying that admin ; stration of the estate of said A. B. be dispensed with and for a decree determining who are the heirs of said A. B.; it is ordered that a hearing be had on said petition at the county courtroom in said county on the day of , 19 , at the hour of A. M., and that notice of the time and place fixed for said hearing be given to all persons interested in said estate by publication of this order for thirty days in the , a newspaper printed and published in said county. Dated this day of , 19 . (Signed) J. K., County Judge. 134. Hearing Decree. The evidence on the hearing must be reduced to writ- ing and filed with the other papers. Any person inter- ested may appear and contest the allegations of the petition, and, if it appears that the assets are liable for the debts, regular administration must be had. If (205) 134 PROBATE AND ADMINISTRATION. [Chap. 12 the allegations are sustained, a finding of fact must be made setting out specifically the name of the dece- dent, date of his death, the fact of his intestacy, the names of all his heirs at law, a correct description of his property and the character thereof, and a decree thereupon entered naming the sole heirs at law and giving their ages and residences, which decree is con- clusive upon the heirs and all persons interested. 9 On applications for dispensing with administration of the estates of Indians, the court should always ap- point a guardian ad litem for the minor heirs on account of the many complicated questions arising over Indian marriages and consequent heirship. Any of the proceedings under the act dispensing with administration may be reviewed or appealed the same as in regular administration. 10 Form No. 55. OBDEE DISPENSING WITH ADMINISTRATION. [Title of Cause and Court.] Now on this day of , 19 , this matter came on for hearing on the petition of C. D. for a decree dispensing with admin- istration of the estate of said A. B. and for determination of heirship, and the evidence which was reduced to writing and now on file in said court was submitted to the court. Upon consideration whereof the court finds that notice of the time and place fixed for the hearing on said petition has been given by publication thereof for thirty days in the , as ordered by the court, that said A. B. died at in said county on the day of , that said A. B. died intestate, that the following named persons are the sole heirs at law of said A. B. [give names, ages, resi- dences and relationships of each heir], that said A. B. died seised of an estate of inheritance in the following described real estate , Eev. Stats., c. 17, 93-95, [1357], [1358], [1359]. 10 Ev. Stats., c. 17, 96, [1360]. (206) Chap. 12] HEIRSHIP WITHOUT ADMINISTRATION. 136 that said real estate was at the date of the death of said A. B. occu- pied by himself and his family as a homestead and does not exceed in value two thousand dollars, that the said A. B. died possessed of personal property consisting of household furniture of the value of not to exceed one hundred dollars, and that both the real and personal estate of said A. B. are not liable for the payment of any of the debts of his said estate and pass to the heirs at law free from all liens and encumbrances save and except such as existed thereon prior to and at the date of the death of said A. B. It is therefore considered and adjudged by me that administration of said estate be dispensed with and said estate be awarded to the following named persons: The sole heirs at law of said A. B., as ten- ants in common; to C. B., a son of said A. B., of the age of years and residing at , Nebraska; the undivided one part thereof, etc. (Signed) J. K., County Judge. 135. Determining right of succession without ad- ministration. A special proceeding is provided by statute for de- termining the right of succession to real estate when the decedent has been dead two years, left no will, and no debts payable to residents of this state, and no county court of this state has acquired jurisdiction of his estate for purposes of administration. It binds no one except heirs and parties who appear, and does not bar administration of the estate in legal form, and though providing for the issue of a citation, does not direct how it shall be served. 11 136. Petition for decree determining succession. The county court of the county in which the dece- dent last resided, or if a nonresident, of the county within which the land, or a part of it, is situated, ac- 11 Rev. Stats., c. 17, 272, 273, [1536], [1537]. (207) 137 PROBATE AND ADMINISTRATION. [Chap. 12 quires jurisdiction by the filing of a petition, which may be made by an heir or person claiming by or through an heir. It must set out the residence of the decedent, date of his death, that he was intestate, that no county court of this state has acquired jurisdiction of his estate, give a particular description of his prop- erty, and the interest of the petitioner, and the interest or share of each heir according to his relationship to the deceased, and pray for a decree determining the right of succession to the property. 12 The statute does not require it to be verified. Form No. 56. PETITION FOB DECEEE DETERMINING SUCCESSION TO EEAL ESTATE. [Title of Cause and Court.] Comes now C. D. and respectfully represents unto the court that heretofore, to wit, , 19 , said A. B. departed this life at ; that he was at the date of his death the owner of the following de- scribed real estate situated in the said county of and state of Nebraska: ; that said A. B. died intestate and that no proceedings have been had in any county in this state for the administration of this estate, and that there are no debts of decedent payable to residents of this state. That said A. B. left him surviving the following named heirs at law: C. D., said petitioner, who is a son of said A. B., and resides at , and E. F. and G. H., sons of said A. B., who reside at , that your petitioner has purchased the interest of said E. F. and G. H. in said real estate and is now the owner in fee of the said property. Your petitioner therefore prays that a decree of said court may be made and entered determining the right of succession to said above- described real estate. (Signed) C. D. 137. Citation Hearing. Upon the presentation of the petition a citation issues to all the heirs. The service appears to be left 12 Rev. Stats., c. 17, 372, [1536]. (208) Chap. 12] HEIRSHIP WITHOUT ADMINISTRATION. 138 to the discretion of the court. The statute does not mention it. 13 It ought to be served personally on all heirs within the state, and on nonresidents by publica- tion for at least thirty days unless service is waived. Some form of service must be had, for it is elementary that a party cannot be deprived of valuable rights without some kind of notice. Any person interested may appear and answer the petition, setting up any valid defense or any right, in- terest or claim in the property. "The allegations of the petition must be established by competent testi- mony before a decree can be entered, although no issue be joined by the answer." 14 138. Decree determining succession. If the facts set out in the petition are established to the satisfaction of the court, a decree is entered speci- fying who are the heirs of the decedent and what are the interests or shares of the parties, respectively, in the property, and declaring the succession accord- ingly. 15 There is no regulation for an appeal from the decree to the district court, and the remedy of a party aggrieved would be clearly by administration proceed- ings, or bill in equity, to establish his interests, en- tirely disregarding the proceeding. Dispensing with administration in the manner above described may be desirable in some cases, but does not clear up a title like a legal administration. 13 Rev. Stats., c. 17, 272, [1537]. n Rev. Stats., c. 17, 273, [1538]. 15 Rev. Stats., c. 17, 275, [1538]. 14 Pro. Ad. (209) CHAPTER XIII. APPOINTMENT OF ADMINISTRATORS. 139. Administration Definitions. 140. When Administrator Appointed Eesident Estates. 141. Who is Capable of Administering an Estate. 142. Who Entitled to the Appointment. 143. Next of Kin. 144. Eight of Creditor to Administer. 145. Administration oJ Estates of Nonresidents. 146. Appointment of Administrator When Assets Consist of Cause of Action for Death of Decedent. 147. Petition for Appointment. 148. Notice of Hearing. 149. Hearing on Petition for Letters. 150. Hearing Selection of Administrator. 151. Order Granting Letters. 152. Bond of Administrator. 153. Oath of Administrator. 154. Letters of Administration cannot be Attacked Collaterally. 139. Administration Definitions. Administration of an estate is the collection and management of its assets, and their application accord- ing to law in payment of debts and in distribution to the parties entitled thereto. 1 Its object and purposes are to pay the debts of the decedent, distribute the personal assets of his estate, determine who the par- ties are who take the real estate and the share to which each is entitled by virtue of heirship or marriage. An administrator is a person appointed by a court of competent jurisdiction to settle and adjust the estate of one dying intestate, or such estates as have no com- 1 Bouvier's Law Diet.; Herndon v. Moore, 18 S. C. 339. (210), Chap. 13] APPOINTMENT OF ADMINISTRATORS. 140 petent executor appointed by the testator. His title rests solely upon the grant of letters. 2 140. When administrator appointed. There is no statute in Nebraska, or common-law rule, limiting the time within which an administrator of an estate may be appointed, except when the appli- cation is made by a creditor, in which case letters must issue within two years from the date of the death of the decedent. 3 In Oregon there is no statutory limitation. There may be special reasons, such as the discovery of personal property, or completing the chain of title to real estate, which would make administration neces- sary after all the claims against the estate were barred by the statute of limitations. 4 The county court of the county of which decedent was a resident at the date of his death, if a resident of this state, has original jurisdiction of the administra- tion of his estate, the rule being the same as in case of the probate of wills, 5 and such jurisdiction is ex- clusive. 6 A man is presumed to be dead and his property sub- ject to administration 7 when he has been absent from his residence and nothing can be heard of him for 2 2 Bl. Com. 503, 505. 3 National Bank of Superior v. Bradshaw, 91 Neb. 714, 136 N. W. 1015. * Todhunter v. Stewart, 39 Ohio St. 181. 5 Rev. Stats., c. 17, 74, [1338]; L. O. L., 1150, 1141. Slate's Estate, 40 Or. 352, 68 Pac. 399. 7 Jochumsen v. Savings Bank, 3 Allen (Mass.), 87; Devlin v. Com- monwealth, 101 Pa. 273. (211) 141 PROBATE AND ADMINISTRATION. [Chap. 13 seven years, 8 and there are cases in which death will be presumed when the circumstances clearly show that the party must have died at the time of his disappear- ance. 9 When the application is made in disappearance cases the petitioner should set out and prove the cir- cumstances connected with his disappearance and the efforts made to locate the party. Absence alone does not raise a conclusive presumption. 10 141. Who is capable of administering an estate. The law shows more care in examining into the qual- ifications of an administrator than of an executor. This is because the court presumes that the testator knew the character and business capacity of the per- son he designated to administer his affairs, and ap- pointed him because he had confidence in him. It is a general rule that all persons who are incapable of being executors are also incapable of being adminis- trators. In all cases, in making the appointment, the suitableness or competency of the person whose ap- pointment is sought should be considered by the court. A minor is incompetent, as is also a person of depraved moral character, an habitual drunkard, a professional gambler, a male or female inmate of a house of prosti- tution, and a person of disreputable character gener- ally. It makes no difference if the heirs and dis- tributees are of the same class of people as the person 8 Thomas v. Thomas, 16 Neb. 555, 20 N. W. 846; Cox v. Ellsworth, 18 Neb. 669, 25 N. W. 460; Mitchell v. Kaufman (Neb.), 145 N. W. 247. Coe v. Knights and Ladies of Security (Neb.), 147 N. \V. 112. 10 Magness v. Modern Woodmen of America, 146 Iowa, 1, 123 N. W. 169. (212) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 141 whose appointment is sought, and the intestate of the same class, the courts will see that the estate is admin- istered by a competent reputable person. 11 A bitter enemy of one or more of the heirs is not a proper per- son to receive the appointment; 12 nor is a person who has heavy claims or demands against the estate, which would tend to conflict with his official duties. 13 In- debtedness to the estate is not of itself sufficient reason to withhold an appointment; but if the person whose appointment is sought was very heavily indebted to the decedent, it would be more satisfactory to all par- ties that some other person, not having any personal interest at stake, should receive the letters. 14 Personal unsuitableness is never overcome by the fact that the applicant is a person of great wealth, of good character and standing, and fully able to give ample security for the performance of the trust. 15 The issue of letters of administration by a county judge to his own son is not void. 16 In Oregon, a nonresident, judicial officers, except jus- tices of the peace, minors, persons of unsound mind, or who have been convicted of a felony or misdemeanor involving moral turpitude, are disqualified. 17 11 Emerson v. Bowers, 14 N. Y. 449; McMahon v. Harrison, 6 N. Y. 443; Plaisance's Estate, Myr. Prob. (Cal.) 117; Coraw v. Mowatt, 2 Edw. Ch. (N. Y.) 57. 12 Pickering v. Pendexter, 46 N. H. 69; Pike's Estate, 45 Wis. 391; Drews' Appeals, 58 N. H. 319; Bridgman v. Bridgman, 30 W. Va. 212, 3 S. E. 580. is Wright v. Wright, 72 Ind. 49; State v. Reinhardt, 31 Mo. 95; Thayer v. Homer, 11 Met. (Mass.) 104. 14 Succession of Chaler, 39 La. Ann. 308, 1 South. 820; Territory v. Valdez, 1 N. M. 539. 15 Stearns v. Fiske, IS Pick. (Mass.) 24. 16 Plowman v. Henderson, 59 Ala. 559. 17 L. 0. L., 1173. (213) 142 PROBATE AND ADMINISTRATION. [Chap. 13 Nonresidence is not, in Nebraska, an absolute dis- qualification, but a matter to be considered by the court, the same as in the case of an executor, in determining the fitness of the appointment, 18 and as between persons between whom the right of preference is equal, the resident should receive the appointment in preference to a nonresident. 19 An alien is capable of holding the appointment, as is also a corporation or a married woman. 20 142. Who entitled to the appointment. "Administration of the estate of a person dying in- testate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be re- spectively entitled to the same in the following order: "First. The widow or next of kin, or both, as the county judge may think proper, or such person as the widow or next of kin may think proper and request to have appointed, if suitable and competent to discharge the trust. "Second. If the widow or next of kin or the person selected by them shall be unsuitable or incompetent, or if the widow or next of kin shall neglect for thirty days after the death of the intestate to apply for ad- ministration or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it. 18 Hammond v. Wood, 15 R. I. 566, 10 Atl. 623. 19 Williams on Executors, 515; Bridgman v. Bridgman, 30 W. Va. 212, 3 S. E. 580; Pickering v. Pendexter, 46 N. H. 69. 20 Guyer's Estate, 65 Pa. 311. (214) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 142 "Third. If there be no such creditor competent and willing to take administration, the same may be committed to such other person or persons as the county judge may think proper." 21 A husband is always entitled to administer the estate of his deceased wife, 22 subject, however, to the usual rule of competency. 23 His right is defeated by divorce or agreement made during her lifetime. 24 A widow is usually given preference over the next of kin though she ranks with them, 25 and some courts have favored her so strongly as to hold that her illiter- acy or poverty should not deprive her of such right if she was otherwise a suitable person. 26 Any party entitled to the appointment may nomi- nate a trust company empowered by its articles of incorporation to act as administrator of an estate within the county where it has its principal office. 27 In Oregon such company may act anywhere in the state. 28 If the widow or next of kin fail to make their ap- plication for thirty days, they lose their right of preference. 29 21 Rev. Stats., c. 17, 75, [1339]; L. O. L., 1150. 22 Ozmun v. Galbraith, 131 Mich. 577, 92 N. W. 101; L. O. L., 1152. In Oregon his application must be made within thirty days, unless a marriage settlement or other testamentary disposition of her property makes it necessary that some other person be appointed. 23 Section 141, supra. 24 2 Bishop, Marriage and Divorce, 5 725. 25 Atkinson v. Heasty, 21 Neb. 663, 33 N. W. 206; O'Brien's Estate, 63 Iowa. 622, 19 N. W. 797. 2 Bowersox's Appeal, 100 Pa. 434. 27 Rev. Stats., c. 14, 195, [743]. 28 Laws 1913, p. 722. 29 Spencer v. Wolf, 49 Neb. 8, 67 N. W. 859; In re Miller, 32 Neb. 480, 49 N. W. 427; L. O. L., 1151. (215) 143, 144 PROBATE AND ADMINISTRATION. [Chap. 13 143. Next of kin. The term "next of kin" means nearest blood rela- tions, and embraces none not included in the statutes of distribution and descent, those who take the estate by inheritance. 30 It includes and is limited to those persons to whom at common law administration of estates could be granted in case of intestacy. 31 An illegitimate child is next of kin of his mother, 32 and of his father, provided the latter has acknowl- edged him in the manner provided by statute. 33 144. Right of creditor to administer. A creditor has no right of preference to be appointed administrator of the estate of his debtor, unless the widow or next of kin neglect to make application within thirty days from the death of decedent. 34 In Oregon, if the widow or next of kin neglect to apply for administration within the thirty days and a creditor apply within ten days thereafter, the county judge may, in his discretion, direct that a citation issue to them if they reside in the county, requiring them to apply for or renounce their right, and if they fail to apply within forty days from the death of the decedent, they are deemed to have renounced their rights. 35 30 Perry v. Scaife, 126 Wis. 405, 105 N. W. 120. See, also, Tables of Next of Kin. 31 2 Bouvier's Law Diet.; Warren v. Englehart, 13 Neb. 284, 13 N. W. 401. 32 Rev. Stats., c. 10, [1274]; L. O. L., 7351. 33 Rev. Stats., c. 17, 9, [1273]; In re Pico's Estate, 56 Cal. 413. Sections 437, 438, post. 34 Atkinson v. Hasty, 21 Neb. 663, 33 N. W. 206. 35 L. O. L., 1151; Ramp v. McDaniel, 12 Or. 115, 6 Pac. 456; Cusick v. Hammer, 25 Or. 473, 36 Pac. 525. (216) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 145 He must be a party who at the date of the death of the decedent was the owner of a bona fide demand then due or becoming due thereafter. He acquires no rights by purchasing a claim against the estate. 36 The question as to who is a principal creditor is for the court to determine. 37 145. Administration of estates of nonresidents. If a nonresident of this state die leaving an estate to be administered in this state, administration thereof shall be granted by the county court of any county in which there shall be an estate to be administered, and the administration first legally granted shall extend to all the assets of the estate within this state, and shall exclude the jurisdiction of the county court of every other county. 38 The statute has fixed no limita- tion upon the size of the estate to be administered, and the courts have no right to do so. Jurisdiction is not determined by the value of the estate. 39 In the Brad- ley case, the estate consisted of a pocketbook contain- ing four dollars in money, a suit of clothes worn by the intestate at the time of his death, an account against a party for twenty-five dollars, and a claim against the Missouri Pacific Railway Company for injuries which caused his death. In Horton v. Trom- 38 Lentz v. Pilert, 60 Md. 296; Wilkinson v. Conarty, 65 Mich. 614, 32 N. W. 841. 37 Atkinson v. Hasty, 21 Neb. 663, 33 N. W. 206; Cusick v. Hammer, 25 Or. 472, 36 Pac. 525. 38 Comp. Stats., c. 23, 177; Spencer v. Wolfe, 49 Neb. 8, 67 N. W. 858; Missouri Pac. Ey. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283. 39 Missouri Pac. By. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283; Ctty of Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106; Union Pac. Ey. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501. (217) 146 PROBATE AND ADMINISTBATION. [Chap. 13 peter the assets consisted of two dollars and twenty- five cents in cash, and a cause of action for injuries which resulted in death. The removal of the prop- erty to another state before the hearing on the appli- cation for appointment does not deprive the court of jurisdiction. If the personalty was in the county at the time of his death, it vested in the administrator, when appointed, by relation from the death of the in- testate, and the fact that it was removed to another state is immaterial. 40 Administration may be granted of the estate of either a resident or nonresident whose sole assets are real estate. 41 The right of preference, when de- manded, should be allowed the same as in cases of residents, and the procedure is the same. 146. Appointment of administrator when assets consist of a cause of action for death of intestate. When the death of the intestate was caused by the wrongful act, neglect or default of another party, and a cause of action would accrue therefor under the statutes, 42 this cause of action, of itself, is such an asset as gives a county court jurisdiction to appoint an administrator to prosecute the same. 43 Any other rule might prevent the enforcement of the provisions of said act, and the fact that the chapter gives such right 40 Bradley v. Missouri Pac. Ey. Co., 51 Neb. 653, 71 N. W. 282. 41 Moore's Estate v. Moore, 33 Neb. 509, 50 N. W. 443. 42 Section 203, post. 43 Missouri Pac. By. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401; Missouri Pac. Ey. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283; Pindlay v. Chicago & G. T. B. Co., 106 Mich. 700, 64 N. W. 732; Hutchins v. St. Paul, M. & M. Ey. Co., 44 Minn. 5, 46 N. W. 79. (218) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 147 of action to the personal representative, a::d to him alone, implies the right to appoint, if necessary, an administrator to enforce it and administer the pro- ceeds in accordance with the statute. Although the intestate may have received the injuries which caused his death, and death itself occurred in another state, such facts would not deprive the county courts of this state of jurisdiction to issue letters of administration. 44 147. Petition for appointment. The application for appointment of an administra- tor must be by petition to the county court. It may be filed by anyone interested in the estate, such as an heir, the surviving spouse or a creditor. 45 A county to which the decedent died indebted for taxes is not a lawful petitioner. 46 The petition is necessary to give the court jurisdiction. 47 It must allege the death of the decedent and his residence at the time thereof; 48 that he left an estate to be administered, 49 or if a non- resident of the state that he died seised of real estate or possessed of personal property within the county in which application was made. 50 It should set up the names of the widow and next of kin and the ages of 44 Missouri Pac. Ry. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401. 45 Shipman v. Butterfield, 47 Mich. 487, 11 N". W. 283. 46 Boaid of Commrs. Dawes Co. v. Furay, 5 Neb. Unof. 507, 99 N. W. 271. 47 Rev. Stats., c. 17, 91, [1355]; L. O. L., 1157; In re Burk's Estate, 66 Or. 286, 134 Pac. 12. 48 Spencer v. Wolfe, 49 Neb. 8, 67 N. W. 858; Moore's Estate v. Moore, 33 Neb. 509, 50 N. W. 443; Moore v. Willamette C. Co., 7 Or. 359. 49 Larson v. Union Pacific R. R. Co., 70 Neb. 261, 97 N. W. 313. M Spencer v. Wolfe, 49 Neb. 8, 67 N. W. 858. (219) 147 PROBATE AND ADMINISTRATION. [Chap. 13 those, if any, who are minors. A particular descrip- tion of the property is not necessary. 51 When it is filed more than thirty days after the date of the death of the intestate, it need not allege that the widow and next of kin are unsuitable or incompe- tent to discharge the trust, or that they have failed to petition for letters. 52 If filed more than two years after such death, and the appointment of "some other suitable person as the court might think proper" is prayed for, it should allege that there are no creditors competent or willing to accept the trust. 53 It should be verified by the petitioner, but failure to do so does not deprive the court of jurisdiction. 54 In Oregon verification is necessary. 55 Form No. 57. PETITION FOE LETTERS OF ADMINISTRATION. [Title of Cause and Court.] Your petitioner, C. B., widow of said A. B., late of said county, de- ceased, respectfully represents unto the court that said A. B. departed this life at his residence in said county on the day of , 19 ; that he was, immediately preceding his death, a resident and inhabitant of said county, and was possessed of real and personal estate in said county of about the value of dollars ($ ). Your petitioner further shows that no last will and testament of said A. B. has been discovered, nor is your petitioner aware of the existence of any such instrument, and your petitioner believes that said A. B. died intestate; that said A. B. left, him surviving, a widow, your peti- tioner, who now resides at , and children as follows: [Give names and ages of all the children. If deceased left no widow or chil- 51 Spencer v. Wolfe, supra. 52 In re Miller, 32 Neb. 489, 49 N. W. 427. 53 Atkinson v. Hasty, 21 Neb. 663, 33 N. W. 206. 54 In re Miller, 32 Neb. 480, 49 N. W. 427. 55 L. O. L., 82. (220) Chap. 13] APPOINTMENT OF ADMINISTRATOBS. 148 dren surviving, give names, ages, if minors, and residences, as far as known, of his heirs at law. If not known, so state.] Yo -.r petitioner therefore prays that letters of administration may be granted to her upon the goods, chattels, rights, and credits of said deceased. Dated this day of , 19 . (Signed) C. B. [Add verification, Form No. 5.] 148. Notice of hearing. Upon the filing of a petition containing the required jurisdictional allegations, it is the duty of the court to fix a time and place for hearing and give notice thereof. 56 Service of the notice is made on all per- sons interested the same as on petition for the pro- bate of wills, by publication in some newspaper of the county designated by the court on the request of the petitioner, or by personal service, as the court may direct. 57 The usual practice is for the court to make a formal order fixing the time and place for hearing, and directing how service shall be made. The order may constitute the notice and be served as directed, or notice prepared and served according to such order. If the order is defective, but the proof of publica- tion shows that the notice was actually published as the law provides, the service is good. 58 56 Larson v. Union Pacific R. R. Co., 70 Neb. 261, 97 N. W. 313. 57 R ev . Stats., c. 17, 91, [1355]. 58 Brusha v. Hawke, 87 Neb. 254, 126 N. W. 1079. (221) 149 PROBATE AND ADMINISTRATION. [Chap. 13 Form No. 58. NOTICE OF HEAEING ON PETITION FOR LETTERS OF ADMIN- ISTRATION. [Title of Cause and Court.] To all persons interested in said estate: Notice is hereby given that at the county courtroom in the city of , said county, on the day of , 19 , at the hour of A. M., the following matter will be heard and considered: The peti- tion of C. D. for letters of administration upon the estate of A. B., deceased. Dated this day of , 19 . (Signed) J. K., County Judge. 149. Hearing on petition for letters. The hearing should be held on the date given in the notice, unless for good reason a continuance is granted. Where the application is neither heard nor postponed, the court treats it as abandoned. The proceedings must be commenced again, the same as though no peti- tion had been filed or notice given. In a case in which, two years after the date set for the hearing, a new application was filed, which was defective in sub- stance, and was acted upon by the court at once, with- out any notice being given, the whole proceeding was treated as an absolute nullity, entirely worthless for administration, and the appointment as subject to col- lateral attack in an action brought by the adminis- trator. 69 The burden of proof on the hearing is on the peti- tioner, 60 and the following facts must be established by competent testimony: First. The death of the decedent intestate. 59 Elgutter v. Missouri Pac. Ry. Co., 53 Neb. 748, 74 N. W. 255. o Weeks v. Sego, 9 Ga. 199. (222) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 150 Second. That at the date of his death he was a resident of the county, and left an estate to be admin- istered; or that he was a nonresident, and left an estate within the county. The value of the estate is immaterial. 61 Third. That the party whose appointment is sought is competent, whether entitled to preference or not. 62 Any person having any interest in the estate may appear and contest any of the material allegations of the petition, may object to the appointment of the proposed administrator for any sufficient reason, and set up his own right to the same. Such persons are limited to the widow, next of kin and creditors. A debtor has no authority or right to object to the ap- pointment of any person as administrator of his creditor. 63 Heirs who appear on the hearing waive any right to afterward raise the question of insuffi- cient notice. 64 150. Hearing Selection of administrator. The rule governing the appointment of an adminis- trator is that the right to administer upon an estate should as far as possible follow the right of property therein, thereby keeping its avails in the control of those entitled to share in them under the laws of dis- tribution and descent. 65 At the same time the court is not compelled to issue letters to any of the next of i Bradley v. Missouri Pae. Ry. Co., 51 Neb. 653, 71 N. W. 282. 62 Larson v. Union Pacific R. R. Co., 70 Neb. 261, 97 N. W. 313. 63 Bradley v. Missouri Pac. Ry. Co., 51 Neb. 653, 71 N. W. 282; Chicago, B. & Q. Ry. Co. v. Gould, 64 Iowa, 343, 20 N. W. 464. 64 Spencer v. Wolfe, 49 Neb. 8, 67 N. W. 858. 65 Goods of Gill, 1 Hagg. Ecc. 341; Leverett v. Dismukes, 10 Ga. 98; Hall v. Thayer, 105 Mass. 219. (223) 150 PROBATE AND ADMINISTRATION. [Chap. 13 kin or their nominees. If he does not find them com- petent he may appoint an outside party. 66 A common-law widow is entitled to letters, but if her right is questioned, she must prove her marriage and competency. She cannot testify to conversations between herself and the decedent constituting a verbal contract of marriage, 67 the opposing parties being rep- resentatives of the estate within the terms of the code. 68 In the case of a contest between two parties of the same degree of kinship to the decedent, the court may solve the problem by appointing the two as coadminis- trators, 69 and as between an heir and a nominee of an heir not related to the decedent by appointing the nominee. 70 The court should be governed by sound discretion rather than abstract rules of law in appoint- ing an administrator. His action in making the selec- tion is not subject to review when he acted within his jurisdiction, unless it clearly appears that the right has been abused. Under the Oregon practice notice to interested par- ties is not required. The court acquires jurisdiction by the filing of a verified petition, and if it appears therefrom that the estate is one which is subject to administration in the county and that the applicant is entitled to letters, it is the duty of the court to fix the amount of the bond and order the issue of letters. There is no time fixed by the statute within which the 66 Spencer v. Wolfe, 49 Neb. 8, 67 N. W. 858; Brown v. Harmon, 76 Neb. 28, 106 N. W. 1003, 107 N. W. 1004. 7 Sorenson v. Sorenson, 56 Neb. 729, 77 N. W. 68. 68 Kroh v. Heins, 48 Neb. 691, 67 N. W. 771. 69 Taylor v. Delancey, 2 Caines Gas. (N. Y.) 143. 70 Brown v. Harmon, 76 Neb. 28, 106 N. W. 1003, 107 N. W. 1004. (224) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 151 bond must be filed, and as in the case of letters testa- mentary, a reasonable time should be allowed for that purpose. This power should not be used to reward his friends and relations or to advance his social and political position, but exercised solely for the good of the estate, and so used as will most conduce to the highest good of those interested therein. Other things being equal, a person of good business capacity is preferred, and in all cases one of known integrity should be selected. 71 151. Order granting letters. The appointment of an administrator should be pre- ceded by a finding of fact, and based thereon, 72 but if it appears that a proper petition was filed, and due service of the notice of the same had, in fact, that the court had jurisdiction, an appointment of an ad- ministrator without a proper finding to support it is, at most, merely erroneous, and not void. 73 Form No. 59. OBDEE FOE APPOINTMENT OF ADMINISTBATOR. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing on the petition of C. B. for his appointment as administrator of the estate of A. B., deceased, and it appearing to the court from the records and files that notice of said hearing has been given to all per- 71 Atkinson v. Hasty, 21 Neb. 663, 33 N. W. 206; Brown v. Harmon, 76 Neb. 28, 106 N. W. 1003, 107 N. W. 1004; Lareon v. Union Pacific E. E. Co., 7 Neb. 261, 97 N. W. 313. In re Miller, 32 Neb. 480, 49 N. W. 427. 73 Doty v. Sumner, 12 Neb. 378, 11 N. W. 464; Lewis v. Watrus, 7 Neb. 477; Hansen v. Bergquist, 9 Neb. 278, 2 N. W. 858; In re Miller, 32 Neb. 480, 49 N. W. 427. 15 Pro. Ad. (225) 152 PROBATE AND ADMINISTRATION. [Chap. 13 sons interested in said estate by publication thereof for three weeks in the , a newspaper published in said county, as ordered by said court, C. B. and G. H. were sworn and testified. Upon considera- tion whereof, the court finds that A. B. departed this life intestate on the day of , 19 ; that he was, at the date of hia death, a resident of said county, and that he left an estate consisting of personalty of the estimated value of $ ;* that said C. B. is a son and next of kin of said A. B., and is entitled to be appointed administrator of said estate. It is therefore ordered that letters of administration upon said es- tate issue to said C. B. upon his giving bond in the sum of $ . and taking the oath required by law. (Signed) J. K., County Judge. If there is a widow, and she has waived her right of preference, insert at * that C. D., widow of said A. B., has waived her preference as administratrix, and requested the court to appoint her son, C. B., as administrator. If there are other sons, any one of whom is entitled to the appointment, the order should show that they consented to the appointment, and the same is true of other next of kin of the same degree. 152. Bond of administrator. An administrator must give a bond, before entering upon the discharge of his duties, in such sum as the county judge may direct, with surety or sureties as he may approve, with the same conditions therein as is required in the case of an executor, and with such variations only as may be necessary to make it appli- cable to the case of an administrator. 74 The amount of the bond is fixed by the court. It should be large enough to protect the estate from loss, and should never be less than the estimated value of the assets of the estate, including income from the realty, that may be at any time in the hands of the administrator. 75 In 74 Eev. Stats., c. 17, 76, [1340]; L. O. L., 1153. 75 Normand's Admr. v. Grognard, 17 N. J. Eq. 425. (226) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 152 fixing the amount, the value of the realty need not be taken into consideration, as the administrator cannot dispose of it, but the income from it should be. 78 Form No. 60. ADMINISTRATOR'S BOND. Know all men by these presents, that we, A. B., as principal, and -. as suret , are held and firmly bound unto the county judge of county, Nebraska, in the penal sum of dollars, for the payment of which well and truly to be made we jointly and severally bind ourselves. Dated this day of , 19 . Whereas. has been named in the last will and testament of , deceased, as executor, and has accepted said trust: Now, the condition of this obligation is such that, if the said shall make and return to the county court of said county, within three months, a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him; to administer according to law all the goods, chattels, rights, credits, and estate which shall at any time come to his possession, or to the possession of any other person for him, and out of the same to pay and discharge all debts and charges, or such dividends thereon as shall be ordered dnd decreed by the county judge; to render a true and just account of his administration to the county judge within one year, and at any other time when required by said court; and to per- form all o.ders and decrees of the county court by said administrator to be performed in the premises, then this obligation to be null and void; otherwise to be and remain in full force and effect. A. B, Principal. Surety. When two or more persons are appointed, a joint bond with sureties or separate bonds may be given. 77 76 Ellis v. Witty, 63 Miss. 117. 77 Rev. Stats., c. 17, 90, [1354]. (227) 153 PKOBATE AND ADMINISTBATION. [Chap. 13 The bond must strictly comply with the terms of the statute. 78 Under the Oregon practice the amount of the bond is fixed by the same rule as that of an executor, and its amount can be reduced by application to the county court and a deposit of assets with a surety company in the same way. 79 It is in the same form as the bond of an executor. 80 153. Oath of administrator. The uniform practice in Nebraska is to require of the administrator an oath of office before entering upon his duties. It has been held, however, by the federal court that a failure to take and file the usual oath did not deprive him of power to discharge the duties of his office. 81 Form No. 61. OATH OF ADMINISTRATOR. State of Nebraska, County of , ss. I do solemnly swear that I will well and truly administer all and singular the goods, chattels, rights, credits and effects of A. B., de- ceased, and pay all just claims and charges against his estate, so far as said goods, chattels and effects shall extend, and law charge me, and that I will do and perform all other acts required of me by law to the best of my knowledge and ability. So help me God. C. D. Subscribed and sworn to before me this day of , 19 . (Signed) J. K., County Judge. 78 Tidball v. Young, 56 Neb. 261, 78 N. W. 507. 78 L. O. L., 1153; Laws 1913, p. 726. so See 46a. 81 Leahy v. Haworth, 141 Fed. 850. (228) Chap. 13] APPOINTMENT OF ADMINISTRATORS. 153 Form No. 62. LETTERS OF ADMINISTRATION. State of Nebraska, County of , ss. The people of the state of Nebraska to C. D., of said county, greeting: Whereas, A. B., lately departed this life intestate, being at or im- mediately previous to his death an inhabitant of the county of , in the state of Nebraska, and having, while he lived, and at the time of his decease, estate within the county of to be administered, by means whereof the ordering and granting administration of all and singular the goods, chattels, rights, credits, and estate whereof the said deceased died possessed in the state of Nebraska, and also the auditing, allowing and final discharging the account thereof, doth appertain unto said county court for said county of ; and being desirous that the goods, chattels, rights, credits and estate of said intestate may be well and faithfully administered, applied and disposed of, do grant unto you, the said C. D., full power, by these presents, to administer and faithfully dispose of, according to law, all and singular the goods, chattels, rights, credits, and estate of said deceased, within the state of Nebraska, which shall at any time come to your possession, or to the possession of any other person for you, and to ask, gather, levy, recover and receive all the goods, chattels, rights, credits and estate whatsoever of said deceased, which to him, while he lived, and at the time of his death did belong, and to pay and discharge all debts and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by said county court. Hereby requiring you to make and return to said court, within three months, a true and perfect inventory of all the goods, chattels, rights, credits, and real estate of said deceased, which shall come to your possession or knowledge, or to the possession of any other person for you, and also to render a just and true account of your admin- istration to said court, within one year, and at any other time when required by said court, and to perform all orders and decrees of said court by you to be performed in the premises. And do by these presents, depute, constitute and appoint you, the said C. D., admin- istrator of all and singular the goods, chattels, rights, credits, and estate of the said A. B., deceased. In testimony whereof, I have hereunto set my hand and have caused the seal of said county court to be hereunto affixed, at the city of , Nebraska, this day of , 19 . (Seal) (Signed) J. K., County Judge. (229) 154 PBOBATE AND ADMINISTRATION. [Chap. 13 Form No. 62a Oregon. LETTERS OF ADMINISTRATION. State of Oregon, County of , ss. To all persons to whom these presents shall come, greeting: Know ye, that it appearing to the court aforesaid, that A. B. has died intestate, leaving at the time of his death property in this state, such court has duly appointed C. D. administrator of the estate of said A. B. ; this therefore authorizes the said C. D. to administer the estate of said A. B., deceased, according to law. In testimony whereof I, E. F., clerk of the county court, have here- unto subscribed my name and affixed the seal of said court this day of , 19. (Signed) E. F., Clerk County Court. 154. Letters of administration cannot be attacked collaterally. If the petition for appointment alleges the necessary facts to confer jurisdiction, and the order for appoint- ment shows that the statutory notice has been given, the order is not subject to collateral attack, and can only be set aside on appeal. 82 Courts have held that, where the order or finding of the county judge recites that due service of notice of the hearing has been had upon the parties interested, the proceedings there- under cannot be collaterally attacked, even though it appear from the records that sufficient notice has not been given. 83 The court is presumed to have acted 82 Moore's Estate v. Moore, 33 Neb. 509, 50 N. W. 443; Missouri Pac. Ry. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401; Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683; Larson v. Union Pac. R. R. Co., 70 Neb. 261, 97 N. W. 313. 83 Shawhan v. Loffer, 24 Iowa, 217; Pursley v. Hayes, 22 Iowa, 11; Tharp v. Brenneman, 41 Iowa, 251. (230), Chap. 13] APPOINTMENT OF ADMINISTRATORS. 154 on sufficient evidence. 84 If the petition insufficiently state the material facts, and there is not entire omis- sion to state them, the appointment would still not be subject to collateral attack. 85 So strictly is this rule adhered to, that in Roderigas v. East River Savings Institution, 86 the court held that an administratrix could not recover from a bank money deposited there by her intestate, but which had been paid by the bank to a person who had been appointed administrator of his estate while he was still alive, the first appoint- ment having been made on a petition and evidence showing that he had been abtfeM for more than seven years. ^\ * their face tha/the never had jurisdiction to make the appoint run be held void, even {hough attacked collated The appointment of a person out of the order oi preference before the right of the widow or next of kin has expired is erroneous and not void. They are the only parties who can take advantage of it. 88 84 Moore's Estate v. Moore, 33 Neb. 848, 40 N. W. 401; Johnson v. Johnson's Estate, 66 Mich. 525, 33 N. W. 413. 85 Hyde v. Redding, 74 Cal. 493, 16 Pac. 380; Chase v. Boss, 30 Wis. 267. 86 63 N. Y. 460. 87 Elgutter v. Missouri Pac. Ey. Co., 53 Neb. 748, 74 N. W. 255. 88 Bamp v. McDaniel, 12 Or. 108, 6 Pac. 456. (231) CHAPTER XIV. 155. Ending of Authority Pending Administration. 156. Removal of Revocation of Letters. 157. Personal Representative cannot be Removed Except for Cause. 158. Removal on Account of Nonresidence. 159. Removal for Failure to Observe Statutory Requirements. 160. Removal for Mismanagement. 161. Removal for Incapability and Unsuitableness. 162. Removal of Administrator by Subsequent Probate of Will. 163. Removal of Executrix or Administratrix by Marriage. 164. Removal on Account of Insufficiency of Bond. 165. Proceedings to Remove Personal Representative. 166. Who may File Petition. 167. Hearing on Charges. 168. Order of Removal. 155. Ending of authority pending administration. The authority of an executor or administrator over the estate of the decedent may he ended before the administration is finished, by the acceptance of his resignation, 1 by revocation of the probate of the will 2 or of letters of administration, 3 and by his removal for cause. 4 It was formerly held that an executor who had once qualified and entered upon the discharge of his duties could not voluntarily resign his trust. 5 The rule now is that his resignation and its acceptance by the court 1 Trumble v. Williams, 18 Neb. 148, 24 N. W. 716. 2 Section 113, supra. 3 Moore v. Moore's Estate, 33 Neb. 509, 50 N. W. 443. * Section 158 et seq. 5 Washington v. Blunt, 43 N. C. 253; Webb v. Keller, 35 La. Ann. 55, 1 South. 423. (232), Chap. 14] GROUNDS FOB REMOVAL. 156 from whence the letters issued is in effect his removal for apparently sufficient cause. 6 Under the Oregon practice, before making his ap- plication, he must publish a notice of his intention to apply therefor in some newspaper in general circula- tion in the county, for the period of four weeks prior thereto, and it is further made to appear that he is not in default in any matter connected with the duties of his trust. He is also required to pay the cost of the proceeding, and if his application is allowed, shall surrender his letters, and his powers cease. 7 A com- pliance with the terms of this statute is necessary. 8 The executor or administrator should file an account of his administration, and the same should be allowed before the resignation is accepted. 156. Removal by revocation of letters. Revocation of the probate of a will revokes, per se, the letters testamentary issued thereon. 9 Letters of administration may be revoked for lack of jurisdic- tion or for fraud. If the records show that the court failed to acquire jurisdiction by reason of a defective petition, or other cause, they are void, and the court which granted them has power to revoke the apparent authority of the administrator. 10 Where they were obtained by fraud or collusion, the right of the parties interested to have them annulled and the administrator removed is generally recog- Trumble v. Williams, 18 Neb. 148, 24 N. W. 718. 7 L. O. L., 1176. 8 Eamp v. McDaniel, 12 Or. 108, 6 Pac. 456. > Section 113, supra. 10 Moore v. Moore'a Estate, 33 Neb. 509, 50 N. W. 443. (233) 157 PROBATE AND ADMINISTRATION. [Chap. 14 nized. n If on account of lapse of time such revoca- tion cannot be made at the term at which they were granted, it would seem that the general original juris- diction given the county court by the constitution over administration of estate would give it jurisdiction over a petition to revoke administration. 12 Revocation is an attack on the right of the executor or administrator to administer the estate. Proceedings for removal admit that right but would end it for good and suffi- cient cause. 157. Personal representative cannot be removed except for cause. When the court has regularly issued letters testa- mentary or of administration, it cannot remove the appointee except for the causes recognized by the statute as sufficient, and in the manner therein pre- scribed. 13 The power of removal is vested by statute in the court under the seal of which the officer receives his appointment and to which he is accountable. If an executor or administrator shall reside out of this state, or shall neglect after due notice by the county judge to render his account and settle the estate according to law, or perform any decree of such court, or shall abscond or become insane, or otherwise unsuit- able or incapable to discharge the trust, the court may, by an order therefor, remove him. 14 It is a power of great importance, and should not be arbitrarily or 11 Wernse v. Hall, 101 111. 423; McCabe T. Lewis, 76 Mo. 298. 12 See Williams v. Miles, 63 Neb. 859, 89 N. W. 451. 13 In re People's Estate, 38 S. C. 41, 16 S. E. 286. 14 Her. Stats., c. 17, 84, [1248]. (234) Chap. 14] GROUNDS roR REMOVAL. 158, 159 capriciously exercised, but only when the best inter- ests of the estate demand it. 15 Conviction of a felony, or of a misdemeanor involv- ing moral turpitude or unfaithfulness or neglect of his trust, and becoming a nonresident, are grounds for removal in Oregon. 16 On account of there being no available opportunity for a party to object to the ap- pointment of an executor or administrator in Oregon, applications for their removal are necessarily more frequent than in Nebraska. 158. Removal on account of nonresidence. The nonresidence of an executor or administrator, in order to furnish sufficient cause for his removal, must be permanent. He must have actually removed his residence or domicile from the state. Absence from the state alone is not sufficient. 17 Removal from the state does not, eo instanti, remove him from his office; an adjudication of the court is necessary. 18 If letters were issued to a person who was on the date of their issue a nonresident, his continued residence with- out the state is not a ground for his removal. 1 ' 159. Removal for failure to observe statutory re- quirements. A strict compliance with all the statutory provisions defining his duties is required of an executor or admin- istrator, and he may be removed from office for failure 15 Dalyrmple v. Gamble, 66 Md. 298, 8 Atl. 468. 16 L. O. L., 1159, 1160. 17 Griffith v. Frazier, 8 Cranch (U. S.), 25; Succession of Me- Donough, 7 La. Ann. 472. 18 Yarborough v. Ward, 34 Ark. 204; State v. Eucker, 59 Mo. 17; Hardaway v. Parham, 27 Miss. 103. 19 Wiley v. Brainerd, 11 Vt. 107. (235) 160 PROBATE AND ADMINISTRATION. [Chap. 14 to perform any of them; as where he qualified and did nothing else; 20 for failure to make and file an inven- tory within the time required by law, no sufficient cause being shown for such neglect, and no effort made to do so; 21 for failure to make and file his annual or final account after being cited by the court to do so, there "being money in his hands belonging to the es- tate; 22 for paying creditors of an inferior class before those of a superior class, the assets being insufficient to pay all in full; 23 and for failure to make a final settlement and distribution of the estate. 24 160. Removal for mismanagement. The usual remedy for mismanagement, neglect or unfaithfulness to the duties of the trust by which a loss results to the estate is by an action on the bond after the final account has been heard and allowed. The law affords a more summary procedure by mak- ing such acts a cause for removal. Mismanagement of an estate consists of such acts or neglects as indi- cate a willful disregard of the duties and responsi- bilities of the office and which either have resulted or probably will result in a loss to those interested in the estate. 25 26 Luich v. Medin, 3 Nev. 93; Marsh v. People, 15 111. 384. 21 McFadden v. Boss, 93 Ind. 134; In re Holladay's Estate, 18 Or. 164, 22 Pac. 750; Mills v. Mills, 22 Or. 210, 29 Pae. 444; In re Barnes' Estate, 36 Or. 202, 69 Pac. 464; In re Mark's Estate, 66 Or. 244, 133 Pac. 778. 22 Evans v. Buchanan, 15 Ind. 438; Taylor v. Biddle, 71 N. C. 1; Armstrong v. Stowe, 77 N. C. 360; Succession of Head, 28 La. Ann. 800. 23 Foltz v. Allen, 17 111. 487. 24 Hussey v. Coffin, 1 Allen (Mnss.), 354. 25 In re Partridge's Estate, 31 Or. 307, 51 Pac. 82. (236) Chap. 14] GROUNDS FOB REMOVAL. 160 Acts of this character consist, among others, of a failure to obey a lawful order or decree of the court which has jurisdiction to make the same; 26 in making false reports to the court, 27 of a general neglect of his duties, 28 of mingling the funds of the estate with those of his own and not keeping a strict and accurate account of his dealings with the estate, and of the busi- ness affairs of the estate generally; 29 in loaning money belonging to the estate when there were claims against the estate allowed and unpaid, the money so loaned not being repaid; 30 of having transferred to himself, in behalf of the estate, stock of a corporation, and then selling the same without leave of the court, certifi- cates being taken in his own name; 31 of refusing to defend against claims, although notified that the de- mands made were unjust and not a proper charge against the estate, and colluding and conspiring with the claimants to enforce such claims, to the detriment of the estate; 32 of failure to reduce to possession as- sets of the estate transferred by deceased in fraud of his creditors, when the creditors have given him a sufficient bond of indemnity; 33 of intentionally omit- ting items of assets with which he should have been charged rendering a false account of sales, turning Mills' Estate, 40 Or. 428, 67 Pac. 107; Aldridge v. McClelland, 31 X. J. Eq. 237. 27 In re Mills' Estate, 40 Or. 428, 67 Pac. 107. 28 I n re Holliday's Estate, 18 Or. 168, 22 Pac. 750; In re Mark'g Estate, 66 Or. 344, 133 Pac. 777. 28 Hake v. Stott's Exrs., 5 Colo. 140. 30 State v. Johnson, 7 Blackf. (Ind.) 529. 1 Levering v. Levering, 64 Md. 399, 2 Atl. 1. 32 Cox v. Chalk, 57 Md. 569. 33 Andrews v. Tucker, 7 Pick. (Mass.) 250. (237) 161 PROBATE AND ADMINISTRATION. [Chap. 14 over assets of the estate to a third party, with an evi- dent intent of having him sell the same; of committing waste, and in fact in any serious misapplication of the funds of the estate, where it appears that the parties interested therein have been injured thereby. 34 A personal representative cannot be removed for errors of judgment which may have resulted disas- trously to the estate, it appearing that he acted in good faith and without wrongful intent; nor for mis- take and error in his accounts which are not inten- tional; 35 nor for failure to attempt the collection of doubtful claims; 36 nor for delay caused by litigation, it appearing that he has acted in good faith. 37 161. Removal for incapability or unsuitableness. The term ''incapable" as used in reference to the qualifications of an executor or administrator means a lack of sufficient knowledge, education or experience, or of physical and mental ability to attend to the busi- ness of the estate. 38 The term "unsuitable" does not necessarily imply a lack of either character, ability or experience, but is such a condition arising from the circumstances of the estate, and conditions existing between the par- ties, as prevent him from acting impartially in the interests of all. Such conditions may arise from in- 34 Gray v. Gray, 39 N. J. Eq. 332; Edwards v. Cobb, 95 N. C. 4; Succession of Decuir, 23 La. Ann. 166. 35 McFadden v. Council, 11 N. C. 105; Succession of Sparrow, 39 La. Ann. 696. 36 In re Stow, Myr. Prob. (Cal.) 97. 87 Andrews v. Carr, 2 E. I. 117. 38 Etnerson v. Bowers, 14 Barb. (N. Y.) 658* (238) Chap. 14] GEOUNDS FOB REMOVAL. 162,163 debtedness to the estate, an interest in claims or being at enmity with the heirs, devisees or legatees. 39 An executor or administrator who is alleged to be the fraudulent grantee of his decedent would be clearly unsuitable, should it be necessary to bring an action to set aside the transfer. 40 162. Removal by subsequent probate of will. The subsequent probate of the will of a decedent acts per se as a removal, or perhaps, more properly speaking, a revocation of the letters of the executor or administrator. The order admitting the will to probate does not immediately deprive him of all power over the assets of the estate. Until letters testamen- tary or of administration with the will annexed issue, he has charge of the estate as before. 41 This matter is governed by statute in Oregon, which provides that if the will be subsequently proven, the letters of administration shall be revoked, and that revocation of the probate of a will has the same effect on letters testamentary or of administration with the will annexed. 42 163. Removal of executrix or administratrix by marriage. The marriage of a feme sole executrix or adminis- tratrix is a ground which requires the revocation of 39 Melberg's Appeal, 86 Pa. 129; Kimball's Appeal, 45 Wis. 391; Thayer v. Hosmer, 11 Met. (Mass.) 104; Gray v. Gray, 39 N. J. Eq. 332. 40 Marks v. Coats, 37 Of. 611, 62 Pac. 488; In re Manser's Estate, 60 Or. 244, 118 Pac. 1024; In re Mark's Estate, 66 Or. 256, 133 Pac. 777. State v. Kucker, 59 Mo. 19; Elwell v. Universalist Church, 62 Tex< 220; Dwight v. Simon, 4 La. Ann. 490. 42 L. O. L., 1158. (239) 164 PROBATE AND ADMINISTRATION. [Chap. 14 her letters. Her husband cannot act for her. 43 Until her successor is appointed and qualified she is entitled to the possession of the estate. Application to the court for her removal should be made as in other cases. 44 In Oregon marriage is not by express statute made a ground for removal as in Nebraska, and the proviso in section 1173, L. 0. L., that nothing in that act or any other act or law of the state of Oregon should be held to disqualify a married woman from acting as executrix or administratrix, would seem to indicate that she could not be removed should she marry after the receipt of letters. 164. Removal on account of insufficiency of bond. The county court also has authority to remove a personal representative if his bond shall become in- sufficient, and he neglect, when called upon, to give a new one. If it shall appear to the court, by the appli- cation under oath of any party interested in the bond of an executor or administrator, appointed by the court, that there is a reasonable doubt as to the sol- vency or sufficiency of the sureties upon any such bond, such court shall cause such executor or administrator to show cause why he shall not execute a new bond in the premises, with sureties to be approved by the court as provided by law. 45 Such insufficiency may arise from the death or insolvency of a surety, 46 or by the finding of property belonging to the estate after the 43 Eev. Stats., c. 17, 69, [1333]. 44 Teschemacher v. Thompson, 18 Cal. 11; Buckley v. Buckley, 16 Nev. 180. 45 Eev. Stats., c. 16, 81, [1208]; L. O. L., 1161, 1162. 46 Eenfro v. White, 23 Ark. 195; State v. Stroop, 22 Ark. 328. (240) Chap. 14] GROUNDS FOB REMOVAL. 164 inventor}* is made. 47 "If upon the hearing of any such matter the court shall require a new bond with sure- ties, and such executor or administrator shall fail to comply with the order of the court, he shall be removed from his said trust, * * * an( j another executor or administrator appointed in his place. 8 His failure to file the bond within the time fixed by the court operates as a removal from the trust without further action. 49 Under the Oregon practice, if a new bond is required by the court, an order is entered directing the repre- sentative to file a new security within five days or within such further time as the court may direct. The approval of the new undertaking discharges the sure- ties on the original undertaking from any liability on account of their principal arising from his acts or omissions subsequent thereto. 50 If an executor has qualified without giving bond, any person interested in the estate who has grounds to believe that the estate has been or will be fraudu- lently administered or mismanaged may make appli- cation to the county court for an order requiring the executor to give the statutory undertaking. 51 The application should be by verified petition and the executor be given an opportunity to be heard. A fail- ure to comply with the order would be a good ground for revoking his letters and removing him. 47 Calhoun v. McKnight, 36 La. Ann. 414. 48 Rev. Stats., c. 16, 82, [1209]. 49 Levy v. Tiley, 4 Or. 393. M L. O. L., 1162. 61 L. O. L., 1153; Bellinger v. Thompson, 26 Or. 340, 37 Pac. 714. 16 Pro. Ad. (241) 165 PROBATE AND ADMINISTRATION. [Chap. 14 165. Application for removal of personal repre- sentative. Proceedings to remove an executor or administrator are commenced by the filing of a verified petition set- ting up the reasons why removal is sought, and the issue of a citation thereon. 52 The application may be made by any person interested in the estate, devisee, legatee, heir or creditor, 53 the assignee of a legatee, 54 or the guardian of a minor heir, 55 a party who has per- formed services for the estate, his claim for which has been allowed. 56 When filed by a creditor, it must show that his claim has been allowed, and that he has been or will be injured by the maladministration of the estate. 57 A surety on the administration bond has such an interest in the estate as to give him power to bring the action. 58 A party entitled to administer and has never waived his right is the only party entitled to petition to remove the administrator on the ground that letters should have been issued to him. 59 The right of a debtor of the estate to petition for removal has been denied by every court except one 52 Rev. Stats., c. 17, 84, [1348]; L. O. L., 1159. 53 Hake v. Stott's Exrs., 5 Colo. 140; Brown v. Ventress, 24 La. Ann. 187; White v. Spaulding, 50 Mich. 22, 14 N. W. 684. 54 Yeaw v. Searle, 2 R. I. 164. 55 Yearkes v. Broom, 10 La. Ann. 94. 56 In re Mills' Estate, 40 Or. 428, 67 Pac. 107. 57 Knight v. Hamaker, 33 Or. 154, 54 Pac. 277, 659; In re Mills' Estate, 40 Or. 428, 67 Pac. 107; In re Patten's Estate, 18 D. C. S92. 58 Allen v. Sanders, 34 N. J. Eq. 203. 59 Estate of Wooten, 56 Cal. 322; Mullanphy v. St. Louis Co., 6 Mo. 553; Garrison v. Cox, 95 N. C. 353; Pace v. Openheim, 12 Ind. 533. (242) Chap. 14] GROUNDS FOR REMOVAL. 166 that has ever passed upon it, on the ground that he has no interest in the estate. 60 166. Procedure for removal. On the filing of a proper petition a citation issues to the executor or administrator. 61 Under the Oregon practice, the general supervision over administration of estates given the county court by the statute, 62 gives the court power of its own mo- tion, whenever it shall appear that the interests of the estate require it, to issue a notice of his own motion directing the executor or administrator to appear and show cause why he should not be removed, and the court may remove him without such notice where it appears on a hearing on his account that he has been guilty of misconduct such as would demand his re- moval. 63 No notice to the representative is required when the cause alleged is his removal from the estate. 64 Personal service of the notice or citation should be had, but where the cause set up is nonresidence and the party is without the state, service by publication is the only kind available. The notice should set out the reasons why removal is sought. There is no statutory provision for the filing of an answer or forming an issue to be decided by the court. It has been held that the same rule of 60 Missouri Pac. K. E. Co. v. Bradley, 51 Neb. 565, 71 N. W. 283; Missouri Pacific K. Co. v. Jay's Estate, 53 Neb. 747, 74 N. W. 259; White v. Spaulding, 50 Mich. 22, 14 N. W. 684; C. B. & Q. By. Co. v. Gould, 64 Iowa, 343, 20 N. W. 464; Penniman v. French, 2 Mass. 140. si Rev. Stats., c. 17, 84, [1348]. 62 L. O. L., 1159, 1165. 63 In re Partridge's Estate, 31 Or. 306, 51 Pac. 82. 64 Moore v. Willamette Trans. Co., 7 Or. 386. (243) 166 PROBATE AND ADMINISTRATION. [Chap. 14 laches applies to this as other judicial proceedings, and that the petition should be filed within a reasonable time after the facts have come to the knowledge of the petitioner. 65 Form No. 63. PETITION TO REMOVE EXECUTOR OR ADMINISTRATOR. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto said court that he is a son and an heir at law of said A. B.; that C. D. is the adminis- trator of said estate under letters issued out of and under the seal of said court. Second. That said C. D. has been guilty of gross maladministra- tion of said estate, and of willful negligence in administering the affairs thereof, in this, that the said C. D., administrator as afore- said, on, to wit, the day of , 19 , paid out from the assets of said estate to one L. M., he, the said L. M., not being an heir or legatee of said estate, the sum of five hundred dollars ($500), which sum said C. D. paid to said L. M. as aforesaid in settlement of his, said C. D.'s individual debt; that said C. D., administrator, has failed to keep the house and other buildings situated upon the following described real estate [describe real estate], he having pos- session of said real estate as such administrator, in a tenantable state of repair, as required by law, and that, by reason of such failure, said buildings have been vacant for the space of , and said estate has sustained damages in the sum of dollars. Third. That said C. D. has neglected and refused, and still neglects and refuses, to reduce to possession a certain claim of said estate against the B. & M. R. Co., the amount of which is unknown to your petitioner, but which claim can, with due diligence, be enforced by suit. Fourth. That said C. D. has, since his appointment as aforesaid, become an habitual drunkard. Your petitioner therefore prays that order may issue to the said C. D., administrator, commanding him to appear and show cause, at a time and place to be therein specified, why the letters of admin- istration on the estate of A. B., deceased, granted to him on the 65 Hanifan v. Needles, 108 111. 403; Schroeder v. Superior Court, 70 Cal. 343, 11 Pac. 651; Murray v. Oliver, 3 B. Mon. (Ky.) 11. (244) Chap. 14] GROUNDS FOR REMOVAL. 167 day of , 19 , by said court, should not be annulled, and that letters of administration de bonis non upon said estate be granted to some suitable and competent person, to be determined upon by the court. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] 167. Hearing on the charges. An executor or administrator is entitled to be heard in defense of the charges preferred against him. 6 * By entering an appearance he waives technical objec- tions, and if the case proceeds to hearing on the merits cannot afterward attack the sufficiency of the petition. 67 Where he personally appeared on the hearing at which letters were granted, he cannot attack the regularity of the proceedings, unless they were absolutely void, and the action should be dismissed. 68 The burden of proof is on the petitioner, and he must establish one or more of the statutory causes to the satisfaction of the court. 69 Where the cause is such a one as cannot well be contested, like the marriage of a feme sole, the proceedings may be less formal, 70 and if gross jurisdictional irregularities appear on the face of the records, the court may set aside the letters of its own motion. 71 5 In re Partridge's Estate, 31 Or. 297, 51 Pac. 82; Hanifan v. Needles, 108 HI. 403. 67 In re Barnes' Estate, 36 Or. 278, 59 Pac. 464. 68 Morgan v. Dodge, 44 N. H. 262. 69 Gregg v. Wilson, 24 Ind. 227. 70 Wiley v. Brainerd, 11 Vt. 107. "i Watson v. Glover, 77 Ala. 323; Broughton v. Bardley, 34 Ala. 694. (245) 167 PROBATE AND ADMINISTRATION. [Chap. 14 Form No. 64. ORDER TO PERSONAL REPRESENTATIVE TO SHOW CAUSE WHY HE SHOULD NOT BE REMOVED. [Title of Cause and Court.] To.C. D., Administrator of said Estate: You are hereby commanded to appear before the county court of said county on the day of , 19 , at the hour of 9 A. M. of said day, and show cause why you should not be removed from your office as administrator of said estate for the following reasons as set out in the petition of E. F. therefor: [State substance of charges.] Dated this day of , 19 . (Seal) (Signed) J. K., County Judge. Form No. 65. ORDER REMOVING PERSONAL REPRESENTATIVE. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing on the petition of E. F. for the removal of C. D. as admin- istrator of said estate for malfeasance in office, the answer of said C. D. and the evidence, and was submitted to the court. Upon con- sideration whereof the court finds: [State findings of court in sub- stance.] It is therefore ordered and decreed by said court that said C. D. be removed from his trust as such administrator. Dated this day of , 19 . (Signed) J. K., County Judge. Form No. 66. APPLICATION FOR ADDITIONAL SECURITY UPON EX- ECUTOR'S, ADMINISTRATOR'S OR GUARDIAN'S BOND. [Title of Cause aad Court.] Your petitioner, L. M., respectfully represents unto said court that on the day of , 19 , an order of said court was en- tered appointing one C. D. administrator of the estate of said A. B., deceased; that on the day of , 19 , said C. D. executed a bond as such administrator in the penal sum of dollars (246), Chap. 14] GROUNDS FOB REMOVAL. ($ ), with E. F. and G. H. as sureties, which bond was, on the day of , 19 , duly approved as to form and sufficiency of sureties by said court, and filed therein, and thereupon letters of administration upon said estate issued under seal of said court to said C. D.; and that said C. D. is now, and ever since said day of , 19 , has been, the duly qualified and acting administrator of the said estate of A. B., deceased; that said E. F., bondsman as aforesaid, is insolvent, and on the day of , 19 , filed his voluntary petition in bankruptcy in the district court of the United States for the district of Nebraska, division; that said administrator's bond of said C. D. is therefore impaired, and does not afford adequate security to those interested in said estate of said A. B. Third. That your petitioner is a son of said A. B., and therefore entitled to a distributive share of said estate. Fourth. Your petitioner therefore prays that an order to show cause may issue out of and under the seal of this court to the said C. D., commanding him to show cause why an order of said court should not be entered requiring him to execute a new bond in the premises with good and sufficient surety, to be approved by the court, and that, in default of his complying with such order and executing such bond, he be removed from said trust, and that some suitable person, to be designated by the court, be appointed administrator of the estate of said A. B. Dated this day of , 19 . (Signed) L. M. [Add verification, Form No. 5.] Form No. 67. ORDER TO SHOW CAUSE WHY NEW BOND SHOULD NOT BE GIVEN. [Title of Cause and Court.] To C. D., Administrator of the Estate of A. B., Deceased: You are hereby cited to show cause on the day of , 19 } a t 9 o'clock A. M., at the county courtroom in said county, why an order of said court should not be entered requiring you to execute a new bond in the premises, with sufficient surety, to be approved by this court, as provided by law. Dated this day of , 19 . (Seal) (Signed) J. K., County Judge. (247) 167 PEOBATE AND ADMINISTRATION. [Chap. 14 Form No. 68. ORDER REQUIRING NEW BOND. [Title of Cause and Court.] Now on this day of , 19 , this matter came on for hearing on the application, under oath of E. F., praying that C. D., administrator of said estate, be required to give an additional bond with surety to be approved by the court, and the evidence, and was submitted to the court. Upon consideration whereof the court finds that personal service of the order to show cause heretofore issued in said matter was made on said C. D. on the day of , 19 ; that G. H., one of the sureties on said bond, is a bankrupt, and that the security of said bond is impaired. It is therefore ordered that said C. D., adminis- trator, file an additional bond in the sum of $ , with surety to be approved by this court within ten days from and including this date, and that in default thereof he be removed from his trust as such administrator. (Signed) J. K., County Judge. Form No. 69. ORDER REMOVING EXECUTOR OR ADMINISTRATOR FOR FAILURE TO STRENGTHEN BOND. [Title of Cause and Court.] Whereas, on the day of , 19 , an order of this court was duly made an,d entered requiring C. D., administrator of said estate, within ten days from the date thereof, to file a new bond as such administrator, and more than ten days have elapsed since the date thereof, and said C. D. has neglected and refused to file a new bond as required by said order: The court doth hereby order and decree that the letters of ad- ministration heretofore, on the day of , 19 , issued to said C. D., be and the same hereby are revoked and annulled, and the said C. D. removed from his trust as administrator. Dated this day of , 19 . (Signed) J. K., County Judge. (248) Chap. 14J GKOUNDS FOB REMOVAL. 168 Form No. 70. ORDER TO FORMER EXECUTOR OR ADMINISTRATOR TO RENDER AN ACCOUNT. [Title of Cause and Court.] To C. D., Late Administrator of Said Estate: You are hereby ordered to forthwith deliver to E. F., administrator de bonis non of said estate, all the goods, chattels, credits, and effects thereof in your possession. You are further ordered to render an account of your transaction in regard to said estate within ten days from date. Dated this day of > 19 . (Seal) (Signed) J. K., County Judge. 168. Order of removal. The decree or order removing an executor or admin- istrator is a final one, and an appeal lies therefrom to the district court. 72 It should recite all the facts necessary to give the court jurisdiction. Its regular- ity will not be presumed. 73 When entered the court should appoint an administrator de bonis non, and issue a citation to the former representative to turn over to him all the goods, chattels, credits and effects of the estate in his possession, and file his account. 74 If he fail to comply with such order, he may be pro- ceeded against for contempt. 76 The rule usually prevails that when the authority of an executor or administrator is revoked, or he is removed for cause, all acts done by him within the scope of his authority, and in good faith on his part, 72 Pope v. McEndree, 75 Neb. 550, 106 N. W. 659. 73 Scott v. Crews, 72 Mo. 261. 74 Rev. Stats., c. 17, 85, [1349]; L. O. L., 1164; Rutenic v. Ha- maker, 40 Or. 453, 67 Pac. 200. 76 Tome's Appeal, 50 Pa. 285; Biddison v. Story, 57 Md. 96. (249) 168 PROBATE AND ADMINISTRATION. [Chap. 14 and on the part of those dealing with him, remain valid and in full force, 76 except that if he is removed for the reason that the court was without jurisdiction in making the appointment, he should be treated as an executor de son tort. 77 An order requiring an additional bond is also treated as appealable. While the appeal is pending the representative is without authority unless he gives security. The appeal does not suspend the order. 78 76 Allen v. Dundas, 3 Term Eep. 125. 77 Bigelow's Exr. v. Bigelow's Admr., 4 Ohio, 138; Kittredge v. Folsoin, 8 N. H. 98; Tidball v. Young, 58 Neb. 261, 78 N. W. 507. 78 Bills v. Scott, 49 Tex. 430; Knight v, Hamaker, 33 Or. 154, 54 Pac. 277, 659, - (250) CHAPTER XV. APPOINTMENT OF ADMINISTRATOR DE BONIS NON. 169. Definition When Appointed. 170. Jurisdiction Petition. 171. Notice Hearing. 169. Definition When appointed. An administrator de bonis non is a person appointed by the county court in the place of a former executor or administrator whose authority has terminated be- fore the administration of the estate has been com- pleted. 1 In every case he has the same rights, powers and duties- as were granted by the court to his prede- cessor, besides such additional powers as are neces- sary in order to obtain possession of the assets of the estate in the hands of such predecessor or his agents. 2 At common law the right to administer passed to the executor of an executor, 3 but that right did not pass to an administrator of either an executor or administrator. 4 Whenever a vacancy occurs by reason of the death, acceptance of the resignation, or removal of an execu- tor or administrator, 5 before his final account is filed, 6 1 Prusa v. Everett, 78 Neb. 250, 113 N. W. 571; Ellyson v. Lord, 124 Iowa, 125, 99 N. W. 582. 2 Prusa v. Everett, 78 Neb. 250, 113 N. W. 571; Rutenic v. Ha- maker, 40 Or. 444, 67 Pac. 196; Knight v. Hamaker, 33 Or. 154, 54 Pac. 277, 659. 3 2 Bl. Com. 506. 4 Crafton v. Beal, 1 Ga. 322. 5 Rev. Stats., c. 17, 71, 85, [1335], [1349] ; L. O. L., 1163. Jam agin v. Frank, 59 Miss. 393; Herren's Estate, 40 Or. 96, 67 Pac. 194. (251) 170 PROBATE AND ADMINISTRATION. [Chap. 15 or after the discharge of the personal representative it appears that there are unadministered assets of the estate, whether the same were known to the executor or administrator or not, 7 an administrator de bonis non should be appointed. If the final account is contested on the ground that there is property of the estate not accounted for, and the personal representative dies before a hearing on it has been had, such administrator should be appointed. 170. Jurisdiction Petition. The court which issued the original letters testa- mentary or of administration has exclusive authority to appoint an administrator de bonis non. 8 'No person has any preferential right to the appointment. 9 In Oregon, administration is granted to those next entitled, if they are competent and qualified to act. 10 When a personal representative is removed for cause, no other application than that contained in the peti- tion for removal is necessary. In all other cases a formal application must be made. There is no time fixed by the statute within which it must be made, but lapse of time raises a presumption that the estate has been fully administered. 11 7 Owen v. Ward's Estate, 127 Mich. 693, 87 N. W. 70; Wilcoxon v. Reese, 63 Md. 542. 8 Byerly v. Donlin, 72 Mo. 270; Beasley v. Howard, 117 Ala. 499, 22 South. 989. Rev. Stats., c. 17, 73, 85, [1337], [1349]; Russell v. Hoar, 3 Met. (Mass.) 187. 10 L. O. L., 1163. 11 Bancroft T. Andrews, 6 Cush. (Mass.) 493; In re Holmes, 33 Me. 577. (252) Chap. 15] ADMINISTBATION DE BONIS NON. 171 The necessary allegations of the petition are that some act or duty remains to be performed by an execu- tor or administrator, or that there are unadministered assets. 12 171. Notice Hearing. The proceedings for the appointment of an admin- istrator de bonis non, when begun after death or dis- charge of the executor or administrator, are substan- tially the same as on an original application for letters. Notice must be issued and served on the parties inter- ested as the court may direct. On the hearing it must be shown by competent testimony that something re- mains to be done to settle the estate either some action must be brought before distribution can be had, a showing that there is property actually belonging to the estate never reduced to possession by the repre- sentative, or that there are assets which he has re- ceived and not accounted for. 13 The order is a final one and subject to appeal. 14 The appointee qualifies by giving a bond in the same manner as an executor or administrator. Under the Oregon practice notice is not required. 12 Owen v. Ward's Estate, 127 Mich. 693, 87 N. W. 70; Hinton T. Eland's Admr., 81 Va. 588; San Roman v. Watson, 54 Tex. 254. 13 Chamberlin's Appeal, 70 Conn. 363, 39 Atl. 734; Ratcliff v. McGee, 165 Mo. 461, 65 S. W. 713. i* Cases cited under 171. (253) 171 PROBATE AND ADMINISTRATION. [Chap. 15 Form No. 71. PETITION FOR APPOINTMENT OF ADMINISTRATOR DE BONIS NON ON ACCOUNT OF DEATH, RESIGNATION OR REMOVAL OF EXECUTOR OR ADMINISTRATOR. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , G. H. was duly appointed admin- istrator of the estate of said A. B., and thereupon executed his bond in manner provided by law, and entered upon the duties of said office; that en the day of , 19 , said G. H. resigned [died; was removed from said office by an order of said court, duly made and entered] ; that said estate is not entirely administered upon; that there is now due said estate credits estimated to be worth the sum dollars, and there are claims reported by the com- missioners to be due from said estate of the amount of dollars ($ ) ; that your petitioner is a nephew and heir at law of said A. B. [said estate is indebted to your petitioner in the sum of dollars ($ ) for goods, wares, and merchandise sold and delivered to said A. B. in his lifetime]. Wherefore, your petitioner prays that letters of administration may be granted to him upon the goods, chattels, rights, credits, and effects of said A. B. not already administered upon. Dated this day of - , 19 . (Signed) C. D. [Add verification, Form No. 5.] Form No. 72. PETITION FOR APPOINTMENT OF ADMINISTRATOR DE BONIS NON AFTER DISCHARGE OF ADMINISTRATOR. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , one E. F., was duly appointed ad- ministrator of said estate by letters of administration issued out of and under the seal of said court, and thereupon entered upon the duties of his said office; that on the day of , 19 , the final report of said E. F. was allowed, and on the same date an order was entered discharging him as such administrator; that said estate has not been entirely administered; that said A. B. was at the date of his death the owner of an undivided half interest in a herd of cattle, the exact number of cattle is unknown to your petitioner, (254) Chap. 15] ADMINISTRATION DE BONIS NON. 171 but he alleges that they numbered at least 500 head, branded M; that the interest of said estate in said cattle was not included by said E. F. in his inventory or in any account, and said assets have not been administered upon. [Continue as in previous form.] Form No. 73. ORDER FOB APPOINTMENT OF ADMINISTRATOR DE BONIS NON. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on to be heard upon the petition of C. D. for his appointment as adminis- trator of the estate of A. B., late of said county, deceased, not already administered upon, and it appearing to the court that due notice of this proceeding has been given to all persons interested in said estate [if notice has been given by publication, say: By publication thereof for three weeks in the , a newspaper printed, published, and circulated in said county, as appears by the files in this proceeding], whereupon C. D. was sworn and testified; on consideration whereof, and of the records and files in this proceeding, the court finds that there are assets of said estate not administered upon of the probable value of $ . It is therefore ordered that letters of administration of the goods and estate of the said A. B. not already administered upon issue to said C. D. upon his giving bond in the sum of $ , and taking the Oath required by law. Form No. 74. LETTERS OF ADMINISTRATION DE BONIS NON. State of Nebraska, County, ss. To C. D., of said County: Whereas, on the day of , 19 , letters of administra- tion upon the estate of A. B., deceased, were issued out of and under the seal of the county court of said county to E. F.; and whereas, on the day of , 19 , said E. F. was discharged as such administrator, was removed from said trust [or the resignation of said E. F. was accepted], and there yet remain goods, credits, and effects of said A. B. not administered upon, by reason whereof the granting of administration of the estate of the said A. B. not already administered upon doth devolve upon the county court of county, Nebraska: Now, therefore [balance as in Form No. 62]. (255) CHAPTER XVI. INVENTORY AND APPRAISEMENT. $ 172. First Duty of Personal Representative. 173. What Property must be Inventoried. 174. Personalty Generally. 175. Emblements. 176. Fixtures. 177. Personal Property not in Possession of Representative. 178. Property the Title to Which is Questioned. 179. Real Estate. 180. What Need not be Inventoried. 181. Failure of Executor or Administrator to File Inventory. 182. Appointment of Appraisers. 183. Duties of Appraisers. 184. Inventory of Administrator De Bonis Non. 185. Inventory not Conclusive. 172. First duty of personal representative. The first duty of a personal representative is to make and file a complete inventory of all the assets of the estate. It should be filed within three months from the date of letters, include all the goods, chattels, credits and effects of the deceased which have come into his possession or knowledge, and be verified by his oath. A residuary legatee who has given bond as such is not required to file an inventory. 1 Under the Oregon practice, it should be filed within thirty days from the date of the letters, but the repre- sentative may obtain further time by leave of the court, if necessary. 2 1 Rev. Stats., c. 17, 97, [1361]. 2 L. O. L., 1177; In re Manser's Estate, 60 Or. 240, 118 Pac. 1024; Wells v. Applegate, 10 Or. 520. (256) Chap. 16] INVENTORY AND APPRAISEMENT. 173 Property is generally inventoried under three heads: Real estate, negotiable instruments and accounts, and other property. Household furniture, personal be- longings, wearing apparel and ornaments of the de- ceased, and such property as passes absolutely to the widow and children and are not subject to debts, should be listed as a separate group. 3 It should be definite and specific, give an accurate and full description of all real estate, and fully enumer- ate all the items which make up the personal prop- erty. 4 The Oregon statute provides that if no money has come into the possession of the representative he shall so state, and that the statement of the debts due the deceased shall contain the written evidence thereof, and the security therefor, if any exist, specifying the name of each debtor, the date of each written evidence of debt, and the security therefor, the sum originally payable, the indorsements thereon, if any, and their dates and the sum appearing then to be due thereon. 5 173. What property must be inventoried. All the assets of the estate must be included in the inventory. The term "assets" as used in the statute is given its broadest meaning, as including all the property of the decedent of every description, that is, in any manner liable for his debts, the charges and expenses of the administration of his estate, and the allowances for the support of his family, wherever the same may be situated, 6 except in cases where he is an * Eev. Stats., c. 17, 100, [1364]. 4 Van Meter v. Jones, 3 N. J. Eq. 520. L. O. L., 1178; In re Holladay's Estate, 18 Or. 179, 22 Pac. 750. Schultz v. Pulver, 11 Wend. (N. Y.) 361; Sherman v. Page, 85 N. Y. 123. 17 Pro. Ad. (257) 174 PEOBATB AND ADMINISTRATION. [Chap. 16 ancillary administrator, when the assets in other states should not be included. 7 Cash on hand, notes, bonds, bank certificates of de- posit, book accounts, stocks of merchandise, farming implements, 8 a legacy due decedent in his lifetime, but unpaid at his decease, or a distributive share of an estate which has not come into his possession, 9 all rights or causes of action which accrued to the dece- dent under an express or implied contract, as for work and labor, 10 fees or salary as an employee of a corpora- tion, either private or municipal, 11 a claim against the federal government for property taken, or damages for any action, or for money to the government by the terms of a treaty with a foreign power, to be distrib- uted by it as indemnity, and rights of action for torts which accrued to the decedent in his lifetime, and which, by statute or common law, survive, all pass to the personal representative, and therefore must be inventoried. An annuity granted to a party with words of inheritance, as to A. B. and his heirs, passes directly to such heirs, and the personal representative has nothing to do with it. 12 174. Personalty generally. A contingent or executory interest in personalty, provided it is of such a nature as to be of value to the I Section 267, post. 8 2 Williams, Executors, 703; Bullock's Admr. v. Eogers, 16 Vt. 294, 9 Lappin v. Mumford, 14 Kan. 9. 10 Loring v. Cunningham, 9 Gush. (Mass.) 87. II Manning v. Leighton, 65 Vt. 84, 26 Atl. 258; Thurston v. Doane, 47 Me. 79; Foster v. Fifield, 20 Pick. (Mass.) 67. 12 Co. Litt 2a; Turner v. Turner, 2 Amb. 782. (258), Chap. 16] INVENTORY AND APPRAISEMENT. 174 estate, or any valuable incorporeal right of that nature, 13 a partnership interest, or any right or share in any business enterprise, 14 and personalty which has accrued by increase, such as the offspring or produce of livestock, accruing after the death of decedent, or the wool sheared from a flock of sheep, 15 should be included under this head. The stock of a railroad, realty, or other corporation, the property of which con- sists principally of realty, is a personal asset, 16 and therefore it and any dividend declared upon the same during the lifetime of the decedent, but not collected by him, or dividends accruing after his death, together with state, county, municipal and school bonds and public securities of every description, should be in- cluded. 17 The goodwill of a business constitutes such a tangible asset as may be of much value to an estate, and is properly included. 18 An estate for years is personalty, though for ninety-nine years, and renew- able forever; 19 and so is a contract for the payment of royalties for coal to be mined. 20 The indebtedness of the executor to the estate is an asset and must be included in the inventory, 21 as is 13 Ladd v. Wiggin, 35 N. H. 421; Dunn v. Sargent, 101 Mass. 336 j Clapp v. Inhabitants of Stoughton, 10 Pick. (Mass.) 468. 14 Schenkl v. Dana, 118 Mass. 236. 15 In re Merchant, 39 N. J. Eq. 506. IB Weyer v. Second Xat. Bank, 57 Ind. 198. 17 1 Schouler, Pers. Prop., 616 et seq. 13 Howe v. Scaring, 19 How. Pr. (N. Y.) 14, citing Hitchcock v. Cohen. 6 Ad. & E. 438. 18 Mulloy v. Kyle, 26 Neb. 313, 41 N. W. 1117; Taylor v. Taylor, 47 Md. 295; Thornton v. Mehring, 117 111. 55, 25 N. E. 938; Co. Litt. 46b. 20 In re Hancock's Estate, 7 Kulp (Pa.), 36. 21 Section 217, post; L. O. L., 1182. (259) 175,176 PROBATE AND ADMINISTRATION. [Chap. 16 also a debt due from an heir or legatee, unless it ap- pears from the will that it was the intention of the testator to release the same. 22 In Oregon it must always be included in the inven- tory. 23 175. Emblements. Natural products of the soil which do not need to be sown or planted, but renew themselves from year to year, like grass, growing timber or cultivated fruits, are in all cases a part of the real estate, and consequently should not be inventoried. 24 Those pro- ducts which must be sown or planted not produced spontaneously like small grain, corn, vegetables and cane, come under a different rule, though always rec- ognized as chattels, and pass to the devisee unless they are expressly reserved or excepted by the will or a contrary intention appears therein. 25 When so ex- cepted, in intestate estates, 26 and in all cases when severed from the real estate, 27 they must be accounted for by the personal representative. 176. Fixtures. The law in regard to inventorying fixtures is that as between heir or devisee and executor or administrator, the rule as to severance obtains with the utmost rigor 22 Springer's Appeal, 29 Pa. 208. 23 L. O. L., 1183. 24 Fetrow's Exr. v. Fetrow, 50 Pa. 253; Kain v. Fisher, 6 N. Y. 597. 25 Anderson v. Bogaard, 83 Neb. 8, 118 N. W. 1108; Caulton v. Pope, 83 Neb. 723, 120 N. W. 191. 28 Penhallow v. Dwight, 7 Mass. 34; Humphrey v. Merritt, 51 Ind. 197. 27 Edwards v. Earners' Exrs., 17 Pa. 597. (260) Chap. 16] INVENTOBY AND APPRAISEMENT. 177 in favor of the inheritance, and against the right to disannex therefrom, and consider as a personal chattel anything which has been affixed thereto. 28 It has been considerably relaxed in favor of what is known as ''trade fixtures" placed on the realty by a tenant of the decedent during his term, and he has been per- mitted to remove them before his rights under the lease expired, but not afterward; 29 but such improve- ments cannot be removed if such removal will injure the premises, or put them in a worse plight than they were before. 30 Steam engines, boilers and mill ma- chinery of all kinds which are so annexed to the free- hold as to become a permanent part thereof, no matter by whom put in, unless the right to remove them is expressly given, go with the land. 31 177. Personal property not in possession of repre- sentative. An executor is required to account for all assets of the estate wherever situated, and should inventory all property which appears to belong to the estate whether in his possession or not. 32 A special summary pro- 28 Walmsey v. Milne, 7 Com. B., N. S., 115. 2 \Yeathersby v. Sleeper, 42 Miss. 732; Dingley v. Buffum, 57 Me. 381; Tre'adway v. Sharon, 7 Nev. 37; Wilgus v. Gettings, 21 Iowa, 177; Free v. Stuart, 39 Neb. 220, 57 N. W. 991. 30 Whiting v. Brastow, 4 Pick. (Mass.) 310; Lanphere v. Lowe, 3 Neh. 131; Friedlander v. Ryder, 30 Neb. 783, 47 N. W. 83. 31 Coiliss v. McLagin, 29 Me. 115; Sweetzer v. Jones, 35 Vt. 317; Baker v. Davis, 19 N. H. 325; Prescott v. Wells, 3 Nev. 82; Hill v. Hill, 43 Pa. 531; Alford Carriage Mfg. Co. v. Gleason, 36 Conn. 86; Richardson v. Borden, 42 Miss. 71; Theurer v. Nautre, 23 La. Ann. 749. 32 Palmer v. Palmer, 55 Mich. 293, 21 N. W. 352; Tuttle v. Robin- eon, 33 N. H. 104. (261) 178 PROBATE AND ADMINISTRATION. [Chap. 16 ceeding is provided by statute for finding out where property is. 33 The law requires him to use due diligence in trying to locate the assets of his decedent, as well as in trying to collect them after he has found them. What con- stitutes such diligence must necessarily depend upon the facts and circumstances connected with each estate and the means at his disposal. If he is guilty of cul- pable negligence, and it appears that by reasonable exertion he could have learned of the existence of such assets, and the estate thereby be benefited, he would be liable therefor. 34 He should not exhaust the estate by an aimless search, but exert the same diligence and discretion a man would use in his own business. 178. Property the title to which is questioned. Though the executor or administrator has no power to pass on the right of his decedent to property, there are cases where he should inventory assets claimed by another and thus require him to obtain possession of the same by judicial process. Property found among the effects of a decedent and over which he has exer- cised acts of ownership are presumed to be his though claimed by another. 35 Bonds or other securities standing in the name of another party, found among his papers, which were purchased with his money and from which he received the income belong to his estate. 38 33 Section 197 et seq., post. 34 Ruggles v. Sherman, 14 Johns. (N. Y.) 446; Palmer v. Palmer, 55 Mich. 293, 21 N. W. 352. 35 Bourne v. Stevenson, 58 Me. 504; Waterhouse v. Bourke, 14 La. Ann. 358. 36 Cummings' Estate, 153 Pa. 397, 25 Atl. 1125. (262) Chap. 16] INVENTORY AND APPRAISEMENT. 179 Under the old rule property purchased by a wife during coverture was not deemed her separate prop- erty unless there was affirmative proof that it was paid for from her separate estate and therefore was not a part of her estate. 37 As the Nebraska statutes give her the same control over her separate property the husband has over his, it necessarily follows that there is no such presumption here. It is the same as in other cases, except that when the rights of creditors are involved, transactions between husband and wife will be closely scrutinized. If there appears to be some doubt about the owner- ship of any personal property, the representative may note it in the inventory. 179. Real estate. Every tract of real estate the title to which was in the decedent at the date of his death should be in- cluded, also every tract in which he had an equitable interest, 38 such as an interest by virtue of a tax title, 39 as a vendee in a contract and bond for title, 40 in public lands by virtue of the public land laws, 41 in a mining claim, 42 or a contract for the purchase of state school land. 43 The interest which a man has in a federal homestead on his death before patent issues passes to 37 In re Brown's Estate, 65 Vt. 331, 26 Atl. 638. 38 Bolton v. Ohio Nat. Bank, 55 Ohio St. 290, 33 N. E. 115. 3 Rice's Lessee v. White, 8 Ohio St. 216. 40 Solt v. Anderson, 67 Neb. 103, 93 N. W. 205; Myrick's Heirs r. Boyd, 3 Hayw. (Tenn.) 179. 41 Bond's Lessee v. Swearingen, 1 Ohio St. 395. 42 Keeler v. Trueman, 15 Colo. 143. Grandjean v. Beyl, 78 Neb. 349, 110 N. W. 1109. (263) 180 PEOBATE AND ADMINISTRATION. [Chap. 16 his widow or heirs, and the executor or administrator has nothing to do with it. 43a If he has reason to believe any property, real or per- sonal, has been fraudulently transferred by the dece- dent, it should also be included. 44 Land sold under a contract should be inventoried, the fee passing to the heirs or devisees subject to the rights of the vendee therein. 45 If the land is mort- gaged the amount of the encumbrance should be noted. 180. What need not be inventoried. A life insurance policy payable to the widow or any other person passes immediately to such person, with- out the intervention of a personal representative. He has no authority over it unless it is payable to the estate, in which event it should be inventoried. 46 A claim against an insurance company for loss or damages to buildings by fire, if occurring after the death of the decedent, the title to the buildings having vested in the heirs or legatees, though they have not the right of immediate possession, should not be enu- merated as personal assets, but included in the receipts from the realty. 47 If the fire occurred prior to the death of the decedent, a different rule applies, and it should be inventoried. <3a Walker v. Ehresman, 79 Neb. 775, 113 N. W. 218. 44 Marks v. Coats, 37 Or. 611, 62 Pac. 488; Andrews v. Tucker, 7 Pick. (Mass.) 770; In re Mills' Estate, 22 Or. 210, 29 Pac. 443. 45 Moore v. Burrows, 34 Barb. (N. Y.) 173; Teneick v. Flagg, 29 N. J. L. 25. 4 Douglass v. Parker, 84 Me. 522, 24 Atl. 956. 47 Wyman v. Wyman, 26 N. Y. 253; Harrison v. Harrison's Admr., 4 Leigh (Va.), 371. (264) Chap. 16] INVENTORY AND APPRAISEMENT. 180 Damages recovered in an action of ejectment, com- ing from the realty, would naturally be included in the rents and profits therefrom, and not in the inven- tory, and any damages obtained from injuries to the freehold would follow the same rule. 48 Damages for lands taken under the right of eminent domain, if awarded by the judgment of a court or commission be- fore the death of the owner, are personal assets which the executor or administrator should include in his in- ventory. If the land is taken after his death, they should be accounted for as income accruing from the realty. 49 Unpaid rent of realty accruing and due before the death of the decedent should be accounted for as per- sonal assets, but that accruing thereafter, as income from the realty. 50 A claim for damages for causing the death of the decedent through negligence need not be inventoried. 51 Form No. 75. INVENTORY AND APPRAISEMENT. In the County Court of County, Nebraska. In the Matter of the Estate of A. B., Deceased. The following is a true inventory of the real estate and of all the goods, chattels, credits, and effects of A. B., deceased, which have come into my possession or knowledge: Dundas v. Carson, 27 Neb. 634, 43 N. W. 399; Ford v. Livingston, 70 Hun, 178, 24 N. Y. Supp. 412. Goodwin v.. Milton, 25 N. H. 458; Neal v. Knox & Lincoln B. Co., 61 Me. 298. 50 Leatherwood v. Sullivan, 81 Ala. 458. 61 Chicago, B. & Q. R. Co. v. Healy, 76 Neb. 783, 111 N. W. 598. (265) 180 PEOBATB AND ADMINISTRATION. [Chap. 16 REAL ESTATE. Des. of Lands Sec. Twp. Range Acres Value BILLS AND NOTES. Item | From Whom Due | When Due | Int. | Amount [Value Account Note John Doe Wm. Jones Dec. 1, '00 Jan. '03 8% 7% $ 100.00 1,000.00 $ 108.00 1,000.00 GOODS, CHATTELS, ETC. Description Value State of Nebraska, County, ss. I, C. D., executor of the last will and testament of A. B., deceased, do solemnly swear that the above is a true inventory of all the estate, real and personal, of said deceased, so far as the same has come into my knowledge or possession. (Signed) C. D. Subscribed in my presence and sworn to before me this day Of : , 19. (Signed) J. K., County Judge. Form No. 76. PETITION TO COMPEL AN EXECUTOR OR ADMINISTRATOR TO RETURN AN INVENTORY [Title of Cause and Court.] Your petitioner, G. H., respectfully represents unto the court that he is one of the next of kin of said A. B., deceased [is a legatee named in the will of said A. B., deceased]; that letters of administration upon the estate of said deceased [letters testamentary upon the will] were duly issued out of and under the seal of said court on the day of , 19 , to one C. D., and that said C. D. now ia the ad- (266) Chap. 16] INVENTORY AND APPRAISEMENT. 181 ministrator of said estate [executor], and that, notwithstanding that more than days have elapsed since the issue of said letters, said C. D. has neglected, and still neglects, to file an inventory of the personal estate of the said deceased in the county court, as he is required by law to do. Wherefore your petitioner prays that a citation may issue to the said C. D., executor as aforesaid, commanding him to appear before this court and file an inventory both of the estate to be allowed the widow of said A. B., and a general inventory as required by law, and for such other and further relief as may be just and equitable. Dated this day of , 19 . (Signed) G. H. [Add verification, Form No. 5.] Form No. 77. CITATION TO ADMINISTRATOR TO RETURN AN INVENTORY. State of Nebraska, County, ss. To C. D., Administrator of the Estate of A. B., Deceased: You are hereby cited to appear before the county court of county, Nebraska, at the county courtroom therein, on the day of , 19 , at 9 o'clock A. M. of said day, then and there to return an inventory of the goods, chattels, credits, and effects of the said A. B., deceased, according to law, or to show cause why an attachment should not issue against you. Dated this day of , 19 . (Seal) (Signed) J. K., County Judge. 181. Failure of executor or administrator to file inventory. The failure of an executor or administrator to file an inventory within the time required is a sufficient cause for his removal in the discretion of the court. 52 Before proceeding to this extreme remedy the usual practice is for a citation to be issued on the petition 62 Section 159, supra. (267) 182 PBOBATE AND ADMINISTRATION. [Chap. 10 of a party interested in the estate directing him to show cause why he has not filed the same. A delay of six months, no efforts being made toward settling the estate, would justify a party in at once petitioning for his removal instead of directing him to file it. 53 182. Appointment of appraisers. All the assets of the estate, both real and personal, are required by the statutes to be appraised, under oath, by two or more competent persons who are ap- pointed by the court. 54 The usual practice in Nebraska is when letters issue for the court, on motion of the attorney for the estate, to make what is termed a " gen- eral order, ' ' appointing the appraisers, fixing the time allowed the representative to settle the estate, the dates for hearings on claims, and directing the publication of the notice to creditors in such paper as may be des- ignated by the executor or administrator. 55 In Oregon three appraisers are appointed, but when any part of the property is situated in another county than that in which administration is granted, the ap- praisers thereof may be appointed by the judge or court of either county. An oath is required the same as in Nebraska. 50 Such appointment is usually made on motion, but if made in such other county, a petition may properly be filed, which should show the neces- sary jurisdictional facts. 53 In re Barnes' Estate, 38 Or. 279, 59 Pac. 464; In re Bolander's Estate, 38 Or. 493, 63 Pac. 689; Marks v. Coats, 37 Or. 610, 62 Pac. 488. 54 Rev. Stats., c. 17, 98, [1362]. 55 Rev. Stats., c. 17, 98, [1362]. 56 L. O. L., 1179, 1180. (268) Chap. 16] INVENTORY AND APPRAISEMENT. 182 Form No. 77a Oregon. PETITION FOB APPOINTMENT OF APPRAISERS. In the County Court of County, Oregon. In the Matter of the Estate of A. B., Deceased. To the County Court of County, Oregon: Comes now O. D., administrator of said estate, and shows unto the court that the estate of said A. B. is seised and possessed of property in said county of , an inventory of which said property so situ- ated in said county of is presented herewith, and that no part of said property has been appraised by appraisers appointed by the said county court of said county. Petitioner prays that appraisers of said estate be appointed in said county as provided by law. (Signed) C. D. [Add verification.] Form No. 78. GENERAL ORDER. State of Nebraska, County of , ss. At a session of the county court, held at the county courtroom, in and for said county, in , on the day of , A. D. 19. Present the Honorable J. K., County Judge. In the Matter of the Estate of A. B., Deceased. Whereas, letters have this day been granted to as of the estate of A. B., deceased: Ordered, that six months be allowed for creditors to present their claims against said estate for adjustment and allowance, and one year be allowed said to settle up said estate from the day of , A. D. 19. And it is further ordered, that E. F. and G. H., disinterested per- sons of said county, Nebraska, be appointed appraisers of the estate of said deceased. And it is further ordered, that notice be given to the creditors of said estate to appear before me at the county courtroom, in said county, on .the day of , 19 , and on the day of , 19 , at o'clock M., each day, by publication in the , a newspaper printed in said county, four weeks successively (269) 183 PROBATE AND ADMINISTRATION. [Chap. 16 prior to the day of , 19 , and by posting up notices to said creditors in four public places in said county on or before , 19 , for the purpose of presenting their claims for adjustment; and Ordered further, that all claims against said estate not presented on or before , 19 , shall be and remain forever barred. (Seal) (Signed) J. K., County Judge. [Posting notices to creditors is not required, and is unnecessary, though a usual practice.] Form No. 79. APPOINTMENT OF APPRAISERS. State of Nebraska, County, ss. To C. D. and E. F., of Said County: You are hereby appointed to appraise on oath the estate and effects of A. B., late of said county, deceased, which may be in said county, and when you have performed that service you are required to deliver this order and your doings in pursuance thereof to executor [administrator] of said deceased. Given under my hand this day of , 19 . (Signed) J. K., County Judge. Form No. 80. OATH OF APPRAISERS. I do solemnly swear that I will well and truly appraise each item of the estate and effects of A. B., deceased, included in the inventory thereof, at its true value in money, and deliver the same, duly veri- fied, together with my appointment, to L. M., executor [administrator] of said estate. So help me God. (Signed) C. D. 183. Duties of appraisers. The appraisers should set down opposite each item, in distinct figures, the value of the same in money, and deliver the same when certified to the executor or administrator. 67 In fixing these values, they should 67 Rey. Stats., c. 17, 99, [1363]. (270) Chap. 16] INVENTOBY AND APPBAISEMENT. 183 be governed by a sound discretion. The valuation which they should place upon the property is not what it would sell for at forced sale, but its fair and reason- able market value. Bonds, corporate stocks, and other investment securities should be appraised at what they are quoted on the market or stock exchange, whether above or below par. Debts or choses in action should be appraised at that sum which in the judgment of the appraiser may be realized in an action at law. 58 Accrued interest up to the date of the inventory should be estimated, when practicable. 59 When any of the property is encumbered by mortgage, the amount of the mortgage lien, as near as the same can be esti- mated, may be deducted from the value of the prop- erty so mortgaged, and the balance put down as the interest of the estate in the property. If any of the debts due the estate are secured by chattel or real estate mortgage, this fact should be considered in making the appraisement, and the estate given the additional benefit which would accrue by reason of such security. Such security or collateral vests in the executor or administrator to the extent of the lien or interest he may have in them by reason of the debt they were given to secure. 60 The appraiser's certificate should be indorsed upon the inventory. W L. O. L., 1181. Pease v. Walker, 20 Wis. 803; Storer v. Blake, 31 Me. 289. W Sain v. Bailey, 97 N. C. 566. (271) i 184, 185 PROBATE AND ADMINISTRATION. [Chap. 16 Form No. 81. CERTIFICATE OF APPRAISERS. We, C. D. and E. F., appraisers appointed by the county court of county, Nebraska, having first taken the oath required by law, do hereby certify that we have appraised the personal estate and effects in the foregoing inventory contained, and have set opposite to each item therein, distinctly in figures, the value of the same in money. (Signed) C. D. E. F. 184. Inventory of administrator de bonis non. An administrator de bonis non should make and file his inventory in the same manner as an original rep- resentative. It must include all assets collected by the predecessor and not converted into money, and also the amount due from such predecessor. 61 Where an accounting has previously been had and it appeared that he was indebted in excess of his bond, his sole surety who was appointed his successor must charge himself with the full amount of the penalty of the bond. 62 185. Inventory not conclusive. The inventory is the basis of the administration account. It is not conclusive or binding on either the representative or other parties interested in the estate, l Rev. Stats., c. 17, 86, 257, [1350], [1521]; Gatch v. Simpson, 40 Or. 96, 66 Pac. 688; Davis v. Clark, 58 Kan. 54, 49 Pac. 665. For :he method of ascertaining the amount due, see 428, post. 62 Jacobs v. Morrow, 21 Neb. 233, 31 N. W. 739; Brown v. Jacobs' Estate, 24 Neb. 714, 40 N. W. 137. (272) Chap. 16] INVENTOBY AND APPRAISEMENT. 185 but merely prima facie evidence of the amount and value of the real and personal estate it enumerates. 63 If after filing the inventory the executor or admin- istrator learns of property not included, it is his duty to make an inventory thereof and cause the same to be appraised in the same manner as that in the first in- ventory. 64 63 Fletcher v. Fletcher, 80 Neb. 156, 119 N. W. 232; Morrill v. Foster, 33 N. H. 379; Conover's Exrs. v. Conover, 1 N. J. Eq. 403; Lynch v. Divan, 66 Wis. 490, 29 N. W. 213; McBabb v. Wixom, 7 Nev. 163. M L. O. L., 1184; In re Conaer's Estate, 40 Or. 142, 66 Pae. 607. 18 Pro. Ad. (273) CHAPTER XVII. ALLOWANCES FOR THE SUPPORT OF THE FAMILY. 186. Allowances of Specific Articles. 187. Persons Entitled to Allowance. 188. Nature and Object of the Allowance. 189. How Allowance Barred. 190. Amount of Allowance. 191. Payment of Allowance. 192. Allowance How Obtained. 186. Allowances of specific property. The exempt property and other property of the value of two hundred dollars, which together with the house- hold furniture and personal belongings pass to the surviving spouse and children of a decedent whether he was testate or intestate, 1 are in the nature of pro- visions for the support of the family, in addition to other appropriations allowed by a decree of the county court, and must be obtained by application in the same manner. While their right to this property is abso- lute, actual possession by them is necessary, and failure to apply for them waives the right to their possession. 2 Permitting the family to retain such property is the usual practice, but in all cases, at some stage in the proceedings, an order should be made formally assigning it to them. In Oregon wearing apparel, household furniture and exempt property only pass to the widow and minor children. 3 1 Section 443, post. 2 In re Bayer's Estate, 95 Neb. 488, 115 N. W. 1030. 8 L. O. L., 5 1233. (274) Chap. 17] ALLOWANCES FOB SUPPORT OF FAMILY. 187 187. Persons entitled to an allowance. The county court has power to grant to the widow and minor children, constituting the family of the de- cedent, suitable and necessary allowances for their support pending administration, except where such allowance to a widow is barred by her own act, 4 and the surviving husband of an intestate is entitled to an allowance for his support the same as a widow. There is no statute or rule of the common law imposing on the estate of a testatrix the duty of supporting a sur- viving husband. The allowance ceases after the shares of a testator's estate are assigned to the devisees and legatees, and with the assignment of the personal estate of an intestate, or in one year if the estate is not settled within that period. 5 A like allowance to the widow and minor children, according to their circumstances and condition in life, where the property is sufficient to pay the same, to- gether with the debts and administration charges, is given them by the Oregon statute. 6 Children under fourteen years of age who are with- out parents, when the last surviving parent died intes- tate, are entitled to their support from the estate of the last survivor which their father or mother would have inherited, if living, until they attain the age of fourteen. 7 Minor children are entitled to an allowance for their support from their father's estate, though 4 Section 189, post. 6 Eev. Stats., c. 17, 3, 51, [1267], [1316]. L. O. L., 1235. T Eev. Stats., c. 17, 3, [1267]. (275) 188 PROBATE AND ADMINISTRATION. [Chap. 17 their mother may have an estate of her own, the mother having charge of procuring and disbursing the same. 8 188. Nature and object of allowance. The right of the widow to her support for a limited time after the death of her husband is of common-law origin, as is also the right of the minor children. The purpose of the statute which, except so far as the sur- viving husband is concerned, is declaratory of the common law, is to provide means of support pending administration. 9 In Nebraska it does not depend upon the solvency of the estate, nor does it appear to be absolute, but depends largely on the discretion of the court. 10 In Oregon it is treated as an absolute right only when the estate is solvent, unless barred by some act of the widow. 11 If the widow is possessed of an estate in her own right and a regular income sufficient for her support in accordance with her previous circumstances and conditions, a court would be justified in declining to grant it. 12 8 Thompson v. Thompson's Admr., 51 Ala. 493; Walla v. Walla, 41 Miss. 657. Newans v. Newans, 79 Iowa, 32, 44 N. W. 213. 10 Bonacum v. Manning, 85 Neb. 60, 122 N. W. 711, in which an insane widow confined in a state asylum for the insane and conse- quently supported by the state was held not entitled to an allowance on application of her guardian. 11 In re Dekum's Estate, 28 Or. 99, 41 Pac. 159. 12 Kersey v. Bailey, 52 Me. 198; Hollenbeck v. Pixley, 3 Gray (Mass.), 521. (276) Chap. 17] ALLOWANCES FOB SUPPORT OF FAMILY. 189 189. How allowance barred. The right of a surviving husband or wife to an allow- ance for support may be barred by an antenuptial agreement, provided there are no minors, issue of the marriage, surviving, 13 and by express contract exe- cuted after marriage. 14 The right of the widow is barred by her election to accept the provisions of the will of her husband which are given her in lieu of all allowances and appropriations the law would give her. She may elect to take under the statute, but when she has once decided to take under the terms of the will, she cannot ask for an allowance when such terms ex- pressly bar her of that right. 15 It has been held that an unexplained delay until after the expiration of the time for which the allowance could be granted, and until after a partial distribution of the estate has been made, would operate as an estoppel. 16 It is not barred by a release of her distributive share in her husband's estate, unless by express intention. 17 The question whether a widow is barred of her allow- ance by willful misconduct and a violation of the com- mon rules of morality and propriety is one on which there is a diversity of opinion. It is held in North Carolina that such conduct is an absolute bar. 18 In Massachusetts, the court considers such misconduct an element to be taken into consideration in fixing the amount, or in changing it after it has once been fixed, 13 Reiger v. Schaible, 81 Neb. 58, 116 N. W. 953. n S; eo'lel's Appeal, 107 Pa. 18. 15 Godman v. Converse, 43 Xeb. 463, 61 N. W. 756. 13 Miller v. Miller, 82 111. 463. 17 Pulling v. Durfee, 35 Mich. 34, 48 N. W. 48. 18 Cook v. Sexton, 79 N. C. 305. (277) 190 PROBATE AND ADMINISTRATION. [Chap. 17 and if, under all the circumstances surrounding the case, it seems that the ends of justice will be best sub- served by granting such an allowance, or fixing the amount at a lower rate than originally determined, the court has authority to do so. 19 The right of minor children to support cannot be waived by any act of the surviving parent. 20 Aban- donment of the wife by the husband, whether with or without cause, does not work a forfeiture, and in no way affects her absolute interests in his property. 21 The allowance for the support of the widow alone abates with her death. 22 If she have minor children, the issue of the decedent, her death will not abate the payment of the allowance. It would go to her per- sonal representatives for the benefit of the minor chil- dren. The court would have the right to reduce the amount or change the directions of its payment upon a proper cause shown. 23 190. Amount of allowance. The amount of the allowance rests peculiarly within the discretion of the court, depending upon the size of the estate, the conditions and surroundings of the family, the individual property possessed by them, not, however, including their share in the estate, and 19 Slack v. Slack, 123 Mass. 443. 20 Godman v. Converse, 43 Neb. 463, 61 N. W. 756. 21 Clark v. Clement, 71 N. H. 5, 51 Atl. 256; Welch v. Welch, 181 Mass. 37, 62 N. E. 982; Sammona v. Higbie's Estate, 103 Minn. 448, 115 N. W. 265. 22 Tarbox v. Fisher, 50 Me. 236; Simpson v. Cureton, 97 N. C. 112, 2 S. E. 668. 23 Borah's Admr. v. Dorah's Exr., 4 Ohio St. 92; Bane v. Wick, 14 Ohio St. 505. (278) Chap. 17] ALLOWANCES FOB SUPPORT OP FAMILY. 191 the manner and style of living of people of their social rank and station, 24 it not being in any manner depend- ent upon the final share of either widow or children, and is not a charge against such final share. 25 The county judge should not lose sight of the fact, in de- ciding what is a proper amount, that it is not the pur- pose of the law to furnish the family with funds to use in business ventures, for that would defeat the will and the statutes of distribution, but enough to support them properly. The amount fixed is not con- sidered a permanent one, and the court has authority, upon cause being shown by any person interested in the estate, to modify the allowance as the circum- stances of the parties and condition of the estate may require, 26 upon notice given in such manner as the court may require, but such order is not retroactive, applying only to future amounts. 27 If the estate is insolvent the allowance should be very moderate, sufficient only for actual necessities of the family. 28 191. Payment of allowance. The allowance for the support of the family of a decedent pending administration ranks as a debt of the estate, but with preference over all claims of gen- 24 Freeman v. Washtenaw Probate Judge, 79 Mich. 390, 44 N. W. 856. 25 Woodbury v. Woodbury, 58 X. H. 44; Foster v. Foster, 36 N. H. 437; Hollenbeck v. Pixley, 3 Gray (Mass.), 521. 2 James' Estate v. O'Neil, 70 Neb. 132, 97 N. W. 22; Fletcher v. Fletcher, 83 Neb. 156, 119 N. W. 232. 27 Baker v. Baker, 51 Wis. 538, 8 N. W. 289. 28 Brazer v. Dean, 15 Mass. 183; Johnson v. Corbett, 11 Paige (Is. Y.), 265. (279) 192 PROBATE AND ADMINISTRATION. [Chap. 17 eral creditors, 29 and is payable only from such assets as are liable for such claims, 30 but is of course subor- dinate to demands secured by specific liens. 31 It should be paid from the personal estate and income from real estate; if decedent left a will, from assets designated for that purpose, if a designation is made, 32 and if the personal estate is insufficient, it is a charge upon the realty of both testate and intestate estates. 33 192. Allowance How obtained. The right of a surviving spouse or minor children to an allowance from a decedent's estate is not a vested one. Until there is a judicial determination awarding the same, the amount is contingent, and no right can vest until such amount is determined. 34 Unless the applicant applies before the final order of distribution is made, all claim thereto is waived. The application should therefore be by sworn petition to the county court. It may be filed at any time before distribution, and should be before any part of the assets of the estate are assigned or disposed of to the heirs or lega- tees, 35 but the court cannot well act until the inventory is filed or he has some knowledge of the amount of the indebtedness of the estate. A citation may then issue and service had as the court may direct. The court acquires jurisdiction by 29 Rev. Stats., c. 17, 3, [1167], [1493]. so Hadsall v. Hadsall, 82 Neb. 587, 118 N. W. 331. 31 In re Estate of Dennis, 67 Iowa, 110, 24 N. W. 746. 32 Comp. Stats., c. 23, 153. 33 Fletcher v. Fletcher, 83 Neb. 156, 119 N. W. 232. 34 Zunkel v. Colson, 109 Iowa, 695, 81 N. W. 175. 35 Estate of Henry, 65 Mich. 551, 27 N. W. 351. (280) Chap. 17] ALLOWANCES FOB SUPPORT OF FAMILY. 192 the filing of the petition, and service of the same is not necessary. 36 If there appears to be an intention to contest the application, a time should be set for a hearing and notice given ; but where the amount asked for appears a reasonable one, considering the value of the estate and the standing and circumstances of 'the parties, especially where the executor or administrator consents, it may be entered at once. If the assets are ample, the right of the court to make the allowance to the widow, it is held in Oregon, cannot be controverted. 37 About the only defenses available on appeal are that the petitioner is not the widow, or that she is barred by an antenuptial agreement or by taking under the terms of the will when its provisions were in lieu of such allowance. The amount rests so largely in the discretion of the court that it will be rarely disturbed. 38 The usual practice is to apply at the same time for an order setting out the specific property to which she is entitled, and for an order to be made covering both matters. Where no allowance had been granted her previous to her husband's death, which occurred be- fore administration was completed, though proceed- so Fletcher v. Fletcher, 83 Neb. 156, 119 N. W. 232; Carlin T. Sewall, 86 Neb. 367, 125 N. W. 606. 37 In re Dekum's Estate, 28 Or. 99, 41 Pac. 159. 38 Piper v. Piper, 34 N. H. 563; Freeman v. Washtenaw Probate Judge, 79 Mich. 3&0, 44 N. W. 856. In Re Dekum's Estate, supra, it was held that where a widow made an agreement for a valuable considera- tion to receive monthly payments for her support in lieu of dower, and subsequently obtained an order for an allowance from the court, the order not containing that provision, her refusal to receipt as for dower would not justify the executor in declining to make the payments. (281) 192 PROBATE AND ADMINISTRATION. [Chap. 17 ings were pending, the right to such allowance does not pass to her estate. 39 The application for an allowance to minor children for their support should be by their guardian. Service of citation is had in the same manner as in the case of a widow. Form No. 82. PETITION OF WIDOW FOB ALLOWANCE AND ASSIGNMENT OP PERSONAL PEOPERTY. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that she is the widow of A. B., deceased, and is thirty-five years of age; that the said A. B. died leaving the following named minor children dependent upon said estate for their support [give names and ages of all the children under age], who, together with your petitioner, constitute one family; that your petitioner has no personal estate or income from personal estate [if possessed of property, give amount, character, and income therefrom], and has not sufficient means to support said family; that the value of the estate of the said A. B. is estimated at about the sum of dollars ($ ), of which dollars is personal property, and the balance real estate; that the rents of said real estate are about the sum of dollars per annum; that the debts against said estate, so far as they can be ascertained by your petitioner, are about the sum of dollars ($ ), and the net value of said estate is about the sum of dollars ($ ) ; that your petitioner has selected articles of apparel and ornament and the household furniture of the deceased and prop- erty not exceeding in value the sum of dollars ($ ), and other personal property not exceeding in value the sum of dollars ($ ), to all of which she is entitled by law. A list of the articles so selected, together with the valuation thereof as fixed by the appraisers of said estate, is hereto attached, marked "Ex. A," and made a part hereof. Your petitioner therefore prays that due notice of the pendency of this petition may be given to all parties interested in said estate, 39 In re Bayer's Estate (Neb.), 145 N. W. 1029; Ex parts Dunn, 63 N. C. 137. (282) Chap. 17] ALLOWANCES FOB SUPPORT OF FAMILY. and that the court may fix a day for the hearing on the same, and that, on the hearing, the court will assign your petitioner the house- hold furniture and other personal property selected as aforesaid, and make an allowance of dollars per month for the support of your petitioner and her said family, the children of said A. B. Dated this day of , 19. (Signed) C. D. [Add verification, Form No. 5.] Form No. 83. PETITION FOB ALLOWANCE FOR SUPPORT OF MINOR CHIL- DREN. [Title of Cause and Court.] Your petitioner, G. H., respectfully represents unto the court that on the day of , 19 , letters of guardianship were issued to him out of and under the seal of said court upon the estates of C. B. and F. B., minors; that said C. B. is of the age of five years, and F. B. of the age of three years; that said minors are children of said A. B. and M. B.; that said M. B. was the widow of said A. B.; that said M. B. departed this life on the day of , 19 ; that the said C. B. and the said F. B. are possessed of no estate of either real or personal property except their interest as heirs [devisees, legatees] in the estate of said A. B., and have no means which can be used for their support except their interest as aforesaid; that said estate is of the estimated value of dollars ($ ) after all debts against the same have been paid. [If large amount of debts have been allowed, state amount of same, amount of personal estate, amount of real estate, probable income therefrom.] Your petitioner therefore prays that a time may be fixed for the hearing of this petition, and notice thereof be given to the adminis- trator of said estate of said A. B., deceased, and upon the hearing thereof the court will award to your petitioner the sum of dol- lars per month for the support and maintenance of said C. B., and until he shall arrive at the age of years and the sum of dollars per month for the support of said F. B. until she shall arrive at the age of years. Dated this day of , 19 . (Signed) G. H. [Add verification, Form No. 5.] (283) 192 PEOBATE AND ADMINISTRATION. [Chap. 17 Form No. 84. NOTICE OF APPLICATION FOR ALLOWANCE AND ASSIGN- MENT OF PERSONAL PROPERTY. State of Nebraska, County, ss. To All Persons Interested in the Estate of A. B., Deceased: You are hereby notified that on the day of - , 19 , C. D., widow of A. B., deceased, filed her petition in the county court of county, Nebraska, praying for an allowance from said es- tate for the support of herself and the minor children, constituting the family of said deceased, and for the assignment to her of per- sonal property of which she is given an absolute right by the terms of the statute, and that said petition will be heard at the county court room in said county on the day of , 19 , at 9 o'clock A. M. It ig further ordered that notice of the pendency of this petition be given all persons interested in said estate by . Dated this day of , 19. (Signed) J. K., County Judge. Form No. 86. ORDER GRANTING ALLOWANCE AND ASSIGNING PERSONAL PROPERTY TO WIDOW. [Title of Cause and Court.] And now, on this day of , 19 , this cause came on for hearing upon the petition of C. D., widow of said A. B., for an allowance for the support of herself and C. B. and E. B., minor chil- dren of said A. B., pending the settlement of said estate, and for the assignment to her of the personal property which is given her abso- lutely by the terms of the statute. The court finds that notice of the pendency of said petition and of said hearing have been given by [state how notice given], and, it satisfactorily appearing that such allowance is necessary [if executor or administrator appears and con- sents to the allowance, so state], it is therefore ordered that the sum of dollars, payable , be allowed for the support of said C. B., E. B., and C. D. during the time limited for the settling of said estate, or until the further order of the court; and it is further ordered that the articles of wearing apparel and ornament and household furni- ture of the deceased, together with the other personal property to which C. D., as widow of said A. B., is absolutely entitled by law as per schedule "A," attached to her said petition, copy of which is hereto attached and made a part hereof, be assigned and set apart to her. (Signed) J. K., (284) County Judge. CHAPTER XVIII. COLLECTION OF ASSETS. 5 193. Eight of Executor or Administrator to Possession of Personal Property. 194. Right to Assets Before Grant of Letters. 195. Executor De Son Tort. 196. Limitation on Authority of Executor or Administrator Over Ass. ts. 197. Proceedings to Require Disclosure of Assets. 198. Examination Nature of Proceedings. 199. Possession of Real Estate. 200. Recovery of Real Estate by Heir or Devisee. 201. Survival of Causes of Action. 202. Revivor of Actions on Death of Plaintiff. 203. Actions for Causing Death of Decedent. 204. Mortgages. 205. Suits How Brought. 206. Degree of Diligence Required of Executor or Administrator in Reducing Assets to Possession. 207. Special Proceedings to Recover Personalty. 208. Compromising Debts With Leave of the Court. 209. Right to Compromise Debts Without Leave of the Court. 210. Right to Submit Claim to Arbitration. 211. Right to Adjust or Compromise Real Estate Contracts. 212. Actions to Recover Assets Transferred in Fraud of Creditors. 213. Suit by Creditor. 214. Indemnity Bond. 215. Nature of the Action. 216. Right of Heir or Legatee to Collect Assets. 217. Debt of Executor or Administrator to the Estate. 193. Right of executor or administrator to posses- sion of personal property. When a man dies, the ownership of his personal property, but not the right to its immediate possession, passes to his heirs or legatees, subject with some ex- ceptions to the payment of his debts and certain (285) 194 PROBATE AND ADMINISTRATION. [Chap. 18 charges against the estate. Their title is traced through the executor or administrator, and it is only the residue of the estate remaining after the payment of such debts and charges which passes to them. The grant of letters testamentary or of administra- tion gives to the recipient, as a trustee or representa- tive of all parties interested therein, an immediate right to the possession of all of the personal property. 1 There is one apparent exception to this rule. Where a party has an equitable title to the property, either under a valid contract of bailment 2 or an executory contract for its purchase, 3 or a contract to bequeath the same, 4 the representative is not always entitled to take it into his custody. In the first case he is en- titled to the property after the charges against it have been satisfied, in the case of a contract to purchase he may enforce the lien, if he has one, for the balance of the purchase price due thereon, 5 and in the latter case he is only entitled to possession if it is needed for the purpose of paying the debts. 6 194. Right to assets before grant of letters. If a special administrator has been appointed, the right to the possession of the assets is vested in him 1 Casto v. Murray, 49 Or. 57, 81 Pac. 388; In re Roach's Estate, 50 Or. 179, 92 Pac. 118; Hillman v. Young, 64 Or. 79, 127 Pac. 795; Thorsen v. Hooker, 57 Or. 578, 109 Pac. 388; L. O. L., 1185; Beecher v. Buckingham, 18 Conn. 110; Valentine v. Jackson, 9 Wend. (N. Y.) 302; Lawrence v. Wright, 23 Pick. (Mass.) 128; Gilkey v. Hamilton, 22 Mich. 253. 2 L. O. L., 1185. 3 Howes v. Whipple, 41 Ga. 322. 4 Koslowski v. Newman, 74 Neb. 704, 105 N. W. 295; McKinnon v. McKinnon, 56 Fed. 409. 5 Howes v. Whipple, 41 Ga. 322. Koslowski T. Newman, 74 Neb. 704, 105 N. W. 295. (286) Chap. 18] COLLECTION OF ASSETS. 195 before the issue of regular letters. 7 If no such ap- pointment has been made, during the time between the death of the decedent and the issue of letters testa- mentary or of administration, the title to the effects remains in abeyance, and then vests in the personal representative in trust, in his official capacity, as of the date of the death of the decedent, and he is entitled to the possession of such assets and the management of such property for the purposes of such trust. 8 When no special administrator has been appointed, the near relatives or friends of a deceased person gen- erally take charge of his estate immediately after his death, and whoever thus comes into the possession of any such personal property, or the rents or profits of the real estate, or assumes control over the same, is re- sponsible therefor to the personal representative as soon as letters issue to him, and should at once place him in possession. Any other rule would place the personal property of a decedent "beyond reach," be- fore administration was granted, and where no one could be found who had it or was responsible for its value. 9 195. Executor de son tort. Any person, not an executor or administrator, who intermeddles with the goods of a decedent, either on the pretense that he is an executor or administrator or otherwise, is termed an "executor de son tort," and 7 Chapter X, supra. 8 Palmer's Appeal, 1 Doug. (Mich.) 422; Wales v. Newbould, 9 Mich. 83; Morton v. Preston, 18 Mich. 60; Parks v. Norris, 101 Mieh. 71, 59 N. W. 428. Cullen v. O'Hara, 4 Mich. 132; Parks v. Norris, 101 Mich. 71, 59 N. W. 428. (287) 195 PBOBATE AND ADMINISTRATION. [Chap. 18 is subject to all the liabilities, but entitled to none of the privileges, of a personal representative. 10 It in- cludes any person, whether acting for himself or as agent for another known to him to be without author- ity or right, who takes possession of the personal prop- erty of a decedent and converts it into money without administration, though, if an agent or attorney, he accounted for it to the person for whom he acted. 11 He is liable to the lawful representative, or a creditor, either in an action at law for conversion, 12 or in equity for an accounting, 13 for all the assets of the estate he received, except such as were used in payment of funeral expenses, 14 of such demands as he affirmatively shows were just claims against the estate, 15 and such payments for the use and benefit of distributees as would have been made in due course of administra- tion. 16 The liability of an executor de son tort sur- vives against his estate. 17 The common-law doctrine of the liability of an executor de son tort has been changed by statute in Oregon, which provides that no person is liable to an action as executor of his own wrong for having taken, received or interfered with the property of a deceased person; but is responsible to the executors or admin- istrators of such deceased person, for the value of all property taken or received, and for all injury caused 10 Jahns v. Nolting, 29 Cal. 507. 11 Stevenson v. Valentine, 27 Neb. 338, 43 N. W. 107. 12 Stevenson v. Valentine, 27 Neb. 338, 43 N. W. 107. 13 Simmons v. Simmons' Admr., 33 Gratt. (Va.) 451; Cheney T. Gleason, 125 Mass. 166; Craig v. Jennings, 31 Ohio St. 84. 14 Lenderink v. Sawyer, 92 Neb. 587, 138 N. W. 744. 15 Crispin v. Winkleman, 57 Iowa, 523, 10 N. W. 919-. 18 Brown v. Walter, 58 Ala. 310. 17 Stevenson v. Valentine, 27 Neb. 338, 43 N. W. 107. (288) Chap. 18] COLLECTION OF ASSETS. 196 by his interference with the estate. 18 For conversion of such assets he can be held liable for double dam- ages. 19 Under the above statutes no action will lie for the recovery of such assets except at the suit of the law- fully appointed executor or administrator. A cred- itor cannot, as at common law, maintain the action, but must apply for and receive letters of administration. 20 The lawful representative may either bring an action for double damages for conversion, or for injury caused by the unlawful interference with the estate, and in the action for conversion must set up that it is brought under section 1190. 21 In the action for conversion the executor de son tort, who was acting as administrator under a void appoint- ment, cannot set up as a defense debts of the estate which he has paid, 22 nor is he entitled to credit, though an heir of the estate, for costs and fees paid in the course of his void administration, or attorney fees, or any commission for his services. The only expen- ditures for which he can be credited are such as strictly and solely pertained to the conservation of the estate, and such charges, including attorney fees and for his own time, are a proper counterclaim. 23 196. Limitations on authority of executor or ad- ministrator over assets. The surviving spouse and the children of the de- cedent should be given possession of such articles of personal property as pass to them absolutely, subject 18 L. O. L., 384. l L. O. L., 1190. 20 Rutherford v. Thompson, 14 Or. 239, 12 Pac. 382. 21 Springer v. Jenkins, 47 Or. 598, 84 Pac. 479. 22 Oh Chow v. Brockaway, 21 Or. 448, 12 Pac. 382. 23 Slate v. Henkle, 45 Or. 434, 78 Pac. 325. 19 Pro. Ad. (289) 196 PROBATE AND ADMINISTRATION. [Chap. 18 later to confirmation by the court. 24 It is also proper for the personal representative to permit an heir or legatee to retain possession of such personal property as growing crops, livestock, farm implements and the like, such party being held responsible to the repre- sentative therefor and obliged to turn them over if necessary. Though entitled to possession, he has no right to enter upon the premises of another in peaceable pos- session of assets of the estate, and remove the same therefrom by force, especially where the person in pos- session is an heir or legatee or claims title thereto. He should, in case of a refusal to deliver property when its possession is necessary, bring special proceedings provided by law or an action in law or equity, as the case may demand. 25 In the absence of creditors, the right of an equitable owner of real estate, who is in possession at the death of decedent, to retain such possession pending ad- ministration is superior to that of an executor or administrator. 26 A debt due from a legatee or heir is a part of the assets of the estate the same as though owing by a third party, but need not be collected unless needed for payment of the debts and expenses. It should be inventoried. The discharge or bequest in a will of any claim against a person named as executor therein, or against any other person, is invalid as against the 24 Section 443, post. 25 Waldo v. Waldo, 52 Mich. 94, 17 N. W. 710; Bailey v. Wright, 39 Mich. 96; Daniels v. Brown, 34 N. H. 454. 26 Emery v. Darling, 50 Ohio St. 160, 33 N. E. 715; Tilson v. Hollo- way, 90 Neb. 48, 134 N. W. 252; Koslowski v. Newman, 74 Neb. 704, 105 N. W. 295. (290) Chap. 18] COLLECTION OF ASSETS. 197 creditors of the deceased. For all purposes of admin- istration it is treated as a specific legacy for that amount. 27 197. Proceedings to require disclosure of assets. If any person is suspected to have concealed, em- bezzled, carried away or disposed of any money, goods or chattels of the deceased, or of having in his pos- session or knowledge any deeds, conveyances, books, contracts, or other writings which contain evidence, or tend to disclose the right, title, interest or claim of the deceased to any real or personal estate, or any claim or demand, or any last will and testament of the deceased, he may be cited by the county judge to appear and make disclosure of the matter of such complaint. 28 The proceedings may be commenced by the petition of an heir, legatee, creditor or party interested in the estate, or by the personal representative, and may be brought before regular letters issue. Form No. 86. PETITION FOR DISCLOSURE OF PROPERTY OF A DECEDENT. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of administration on the estate of said A. B., deceased, were issued to him out of and under the seal of said court, and that he now is, and ever since said date has been, the administrator of said estate; [that he is an heir, legatee, or devisee of said estate, or that said estate is indebted to him in the sum of dollars for , and that on the day of 27 L. 0. L., 1183. 28 Rev. Stats., c. 17, 103, [1367]; Perrin v. Calhoun Co. Cir. Ct., 49 Mich. 342, 13 N. W. 767; L. O. L., 1186. (291) 197 PROBATE AND ADMINISTRATION. [Chap. 18 : , 19 , letters of administration on the estate of A. B., deceased, were issued to E. F. out of and under the seal of said court, and that said E. F. is now, and ever since said date last aforesaid has been, the administrator of said estate] ; that at the time of the death of said A. B., he, said A. B., was possessed, as your petitioner verily be'ieves, of the following personal property: [Describe the property which the party is supposed to have in his possession, as nearly as possible]; that soon after the death of said A. B., one G. H., of said county, obtained possession of said above-described goods, chat- tels, and effects, and has concealed or disposed of them, and refuses to deliver them to the administrator of said estate; that, said G. H. has in his control and within his knowledge certain writings and books of account, the exact nature of which is unknown to your peti- tioner, the property of said estate, which tend to disclose the right, title, and interest of said estate in certain real and personal property, and that said G. H. has concealed or disposed of the same, and refuses to deliver them to said administrator. Your petitioner therefore prays that a citation may issue to the said G. H. commanding him to appear before the court at a time and place to be therein specified, and a true disclosure make under oath of all the moneys, chattels, goods, credits, effects, books of account, bonds, contracts, and papers of every description of the said A. B., deceasrd, which are within his knowledge or control, or which at any time since the death of the said A. B. have been within his knowledge or possession, and for such other and further relief as may be just and equitable. Dated this day of , 19 . (Signed) C. D. [Add verification, Form No. 5.] Form No. 87. CITATION. [Title of Cause and Court.] State of Nebraska, County, ss. To G. H.: You are hereby commanded to appear before the county court at the county court room in said county on the day of - , 19 , at 9 o'clock A. M. of said day, and true answers make under oath to all interrogatories that may be put to you concerning the moneys, chattels, goods, credits and effects, books of account, deeds, bonds, (292) Chap. 18] COLLECTION OF ASSETS. 198 contracts, and papers of every description belonging to the estate of A. B., deceased, which are within your knowledge, possession, or con- trol, or which may have been within your knowledge, possession, or control at any time since the death O f said A. B. In witness whereof I have hereunto caused the seal of said court to be affixed this day of , 19 . (Seal) (Signed) J. K., County Judge. 198. Examination Nature of proceedings. The party so cited is required to appear and submit to an examination touching the matter set out in the petition. The answers must be reduced to writing, signed by the party examined and filed in court. Should the party cited refuse to appear and answer the interrogatories, he may be committed to jail, there to remain until he complies with the order. 29 Under the Oregon practice, the proceedings may be had either before the court or judge in which the administration is pending, or in the county where the person resides or may be found. In the latter case a certified copy of the written interrogatories, if any, and the examination or other proceeding thereon or connected therewith, shall be filed with the clerk of the county court where administration is granted. 30 The proceeding is special and statutory. The power of the court is limited to compelling a discovery. It is without jurisdiction to determine the ownership or right to the possession of the property, and can make no order or decree based on the disclosure. 31 29 Rev. Stats., e. 17, 104, [1369]. so L. O. L., 1187, 1188. 31 Gardner v. Gilihan, 20 Or. 601, '27 Pac. 320; Dray v. Bloch, 29 Or. 353, 45 Pac. 772; Harrington v. Jones, 53 Or. 239, 99 Pac. 935; Hillman v. Young, 64 Or. 79, 127 Pac. 798; Snddington v. Hewitt, 70 Wis. 240, 35 N. W. 552; Ives' Appeal, 28 Conn. 416. (293) 199 PROBATE AND ADMINISTRATION. [Chap 18 Form No. 88. OATH OF PERSON CITED TO DISCLOSE. You do solemnly swear that you will true answers make to all inter- rogatories that may be put to you touching the moneys, chattels, goods, credits, effects, books of account, deeds, bonds, contracts, and papers of every description belonging to the estate of A. B., late of county, Nebraska, deceased, within your knowledge, possession, or control at any time since the death of said A. B. So help you God. Form No. 89. CAPTION FOR INTERROGATORIES. [Title of Cause and Court.] Testimony of G. H., taken pursuant to citation hereto attached: Now, on this day of , 19 , came G. H., and, being by the judge of said court first duly sworn to true answers make to all interrogatories which may be put to him touching the moneys, chattels, goods, credits, effects, books of account, deeds, bonds, con- tracts, and papers of every description belonging to the estate of said A. B., deceased, which are within his knowledge, possession, or con- trol, or which may have been within his knowledge, possession, or control at any time since the death of said A. B., testified as follows: Ques. . Ans. . [The forms for order to show cause, warrant and commitment are substantially as in contempt proceedings for failure to produce will in court. See Forms Nos. 20, 21 and 22.] 199. Possession of real estate. At common law the executor or administrator had -cothing to do with the real estate; it passed directly rto the heir or devisee, subject, however, to debts. By , statute he is given the right to the possession of all the real estate, except the homestead, with full power vio collect the rents, issues and profits therefrom until ;the estate has been settled and the property ordered delivered to the heirs or devisees. 32 There are two 32 Rev. Stats., c. 17, 102, [1366]; L. O. L., 1185. (294) Chap. 18] COLLECTION OF ASSETS. 199 recognized exceptions to the statutory rule. The per- sonal representative has nothing to do with lands held by the decedent under the federal land laws where final proof has not been made or patent issued. In that case the heirs take by appointment and not by inheritance. 33 When the executor is a residuary legatee and has given bond as such, the devisee is en- titled to the immediate possession of the land devised to him, and the executor is estopped from contending that its possession is necessary for paying or securing creditors. 34 The right to possession attaches to all lands to which the decedent had a right to possession at the time of his death, whether such right was based on a legal or equitable title, 35 and should be exercised at any time when it appears that the income or the land itself may be needed for the payment of the debts. 36 His letters give him prima facie power to take possession, excepting of course where the land is held under a valid lease from the decedent, 37 without an affirmative showing that it is necessary for the proper adminis- tration of the estate, 38 and he can maintain an action of ejectment for that purpose 39 even against an heir 33 Walker v. Ehresman, 79 Neb. 775, 113 N. W. 218. 84 Caulton v. Pope, 83 Neb. 723, 120 N. W. 101. 35 Zeuske r. Zeuske, 62 Or. 51, 124 Pac. 205. 36 Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1932; Humphreys r. Taylor, 5 Or. 261. 87 See L. O. L., 1185. M Kern v. Cooper, 91 Minn. 121, 97 N. W. 648. 3 Tilson v. Holoway, 90 Neb. 481, 134 N. W. 232; Dundas v. Car- son, 27 Neb. 634, 43 N. W. 339; Kline v. Moulton, 11 Mich. 370; McBaes v. McDonald, 57 Ala. 423. (295) 200 PROBATE AND ADMINISTRATION. [Chap. 18 or devisee. 40 The statutes affect only the right to pos- session, the title to the fee passing to the heirs or devisees in the same manner as at common law. 41 Under the Oregon practice, where the administrator has taken possession of land as a part of the estate of his intestate, he may maintain an action under the statute to determine adverse or conflicting claims or interests. 42 200. Recovery of real estate by heir or devisee. Unless the executor or administrator takes posses- sion of real estate, the right of the heir or devisee therein remains unimpaired as at common law. 13 If it is in possession of parties claiming adversely, the heir may, pending administration, bring ejectment against all such persons, save and except the adminis- trator and all persons claiming by, through or under him. 44 A devisee also has the same rights. 45 An executor or administrator has been held a proper plaintiff in an action for trespass on real estate in a case where the injury occurred previous to the death of the owner. 46 If the cause of action accrued pend- ing administration, the heir or devisee is the party in- jured, though there may be cases where the amount of 40 Miller v. Hoberg, 22 Minn. 249. 41 Clark v. Bundy, 29 Or. 190, 44 Pac. 282; De Bowe v. Wallenberg, 52 Or. 432, 92 Pac. 536, 97 Pac. 717. 42 Ladd v. Mills, 44 Or. 224, 75 Pac. 141. 43 Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935; Johnson v. Colby, 52 Neb. 327, 72 N. W. 313; Jones v. Billstein, 28 Wis. 221. 44 Lewon v. Heath, 53 Neb. 707, 74 N. W. 274; Jetter v. Lyon, 70 Neb. 429, 97 N. W. 596; Streeter v. Patton, 7 Mich. 341. 45 Beer v. Plant, 1 Neb. Unof. 372, 96 N. W. 348; Lantry v. Wolff, 49 Neb. 374, 68 N. W. 494. 4 Kernochan v. New York El. R. Co., 128 N. Y. 559, 29 N. E. 65. (296) Chap. 18] COLLECTION OF ASSETS. 201,202 the recovery is required to pay the debts when the personal representative could bring it. 201. Survival of causes of action. Causes of action which survive the death of the owner are assets. They are actions founded upon a debt, contract, covenant or agreement to perform a legal duty, 47 replevin, 48 for the enforcement of a vendor's lien 49 and for mesne profits, for injury to per- sonal or real estate and for relief on the ground of deceit or fraud. 50 Under the Oregon statutes, all causes of action, whether arising on contract or otherwise, survive the death of the party, excepting only the one for causing his death, which is provided for by special act, and the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death against his personal representatives. 51 202. Revivor of actions on death of plaintiff. All actions brought by a plaintiff and pending at his death survive, and may be revived by his executor or administrator, except those brought to obtain some official or personal right or position. 52 He may pro- cure an order of substitution and prosecute them in 47 Snow v. Snow, 49 Me. 159; Young v. Wells, 33 Mo. 106; Hazle- ton v. Bogardus, 8 Wash. 102, 35 Pac. 602. 48 Pitts v. Hale, 3 Mass. 321. 49 Kobinson v. Appleton, 124 111. 276, 15 N. E. 761. 50 Code Civ. Proc., 463. 51 L. O. L., 379. 62 Code Civ. Proc., 463, 4G4. (297), 203 PROBATE AND ADMINISTRATION. [Chap. 18 his representative capacity, 53 and may prosecute a writ of error without being substituted. 54 In Oregon no action abates by the death of the plain- tiff if it is one which survives his death. The court may at any time within one year on motion allow it to be continued by the executor or administrator. 55 It is not necessary that the order be made within the year. It is sufficient if the application or motion is filed within that period. 56 The suit is suspended during the time between the death of the party and the entry of the order, and that time is not included in the time limited for taking an appeal. 57 An action which de- termines both property and personal rights after a decree and an appeal therefrom only abates as far as the part determining personal rights is concerned, and may be prosecuted as far as such property interests is concerned. 58 203. Action for causing death of decedent. At common law an action would not lie against a party whose willful or negligent act caused the death of another. 59 By statute, when the death of a party is caused by the wrongful act or neglect of another, the executor or administrator may maintain an action against such other party in the event the deceased could have done so had he lived, though the death be 53 Civ. Code, 465; Hendrix v. Eieman, 6 Neb. 521. 54 Webster v. City of Hastings, 56 Neb. 245, 76 N. W. 565; Ritchie v. Seeley, 36 Neb. 164, 102 N. W. 256; Long v. Thompson, 34 Or. 362, 55 Pac. 978. 55 L. O. L., 38, 39. 56 Barker v. Ladd, 3 Saw. 44; Dick v. Kendall, 6 Or. 166. *7 McBride v. Northern Pac. E. Co., 19 Or. 65, 23 Pac. 814. 58 Nickerson v. Nickerson, 34 Or, 3, 54 Pac. 277. 59 Sedgwick, Damages, 644. (298) Chap. 18] COLLECTION OF ASSETS. 203 caused under such circumstances as amount to a felony. 60 Such action must be brought in the names of such representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such person, and shall be distributed to them in the pro- portion provided by law in relation to the distribution of property left by persons dying intestate. The creditors of the estate have no interest in it. 61 The administrator is the only party who can bring the action, and it is his duty, 62 when decedent left sur- viving him a widow or next of kin who have sustained a serious pecuniary loss, to do so. 63 The amount of the recovery is for the jury. It is not limited by statute and is in theory a fair and just compensation for the pecuniary injury resulting from such death to the widow and next of kin. In Oregon the amount of the recovery is limited to seven thousand five hundred dollars. 64 It is brought by the representative in the interest of all interested in the estate, creditors as well as next of kin. 65 60 Rev. Stats., c. 17, 164, [1428]; L. O. L., 380. 61 Eev. Stats., c. 17, 165, [1429]; Wilson v. Bumstead, 12 Neb. I, 10 N. W. 411. 62 C. B. & Q. Ry. Co. v. Healey, 76 Neb. 783, 111 N. W. 598. 63 Anderson v. Chicago B. & Q. Ry. Co., 35 Neb. 95, 52 N. W. 840; Orgall v. Chicago B. & Q. Ry. Co., 46 Neb. 4, 64 N. W. 450; Chicago B. & Q. Ry. Co. v. Oyster, 58 Neb. 1, 78 N. W. 359; City "of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50. 4 L. O. L., 380. 65 Carlson v. Oregon Short Line R. Co., 21 Or. 459, 28 Pac. 497; Olston v. Oregon Water Power Co., 52 Or. 346, 96 Pac. 1095, 97 Pac. 538; Perham v. Portland Electric Co., 33 Or. 458, 53 Pac. 14. (299) 204 PROBATE AND ADMINISTRATION. [Chap. 18 Such claim for damages constitutes of itself a suffi- cient asset to give the court jurisdiction to appoint an administrator, 66 and when the acts which caused the death of the deceased occurred in one state the statutes of which give a right of action to the representatives, representatives appointed and acting in another state may bring the action there. 67 204. Mortgages. The interest of an estate in realty conveyed to the deceased during his lifetime by mortgage, together with the debt secured thereby, are considered as per- sonal assets in the hands of the executor or adminis- trator, and he may foreclose the same, or have any other remedy for the collection of such debt which the deceased would have had if living, or may continue any proceedings which may have been commenced by the deceased for such purpose. 68 A foreign executor has the same rights. In case of a redemption of the mortgage, or the sale of the mortgaged premises by virtue of a power of sale therein contained or other- wise, the personal representative has power to re- ceive the money and give all necessary releases and receipts. 69 In order to protect the interests of the estate he may bid in the mortgaged property on the sale, 70 or any 66 Missouri Pac. R. R. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401. 146, supra. 67 Missouri Pac. E. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401; Dennick v. Railroad Co., 103 U. S. 11; Leonard v. Steam Nav. Co., 84 N. Y. 48; Morris v. Chicago R. I. & P. Co., 65 Iowa, 727, 23 N. W. 143. 8 Rev. Stats., c. 17, 107, [1371]; Kyger v. Riley, 2 Neb. 26. 69 Rev. Stats., c. 17, 107, [1371]. 70 Rev. Stats., c. 17, 108, [1372]. (300) Chap. 18] COLLECTION OF ASSETS. 205 real estate at an execution sale on a judgment in favor of the estate. 71 He may take the deed in his own name. 72 He is seised of all lands so bid in by him for the same persons, whether creditors or next of kin or others, who would have been entitled to the money had the land been bid in by other persons. It is held sub- ject to the same rights and liabilities as personal assets. 73 205. Suits, how brought. An action by an executor or administrator on behalf of the estate should be brought in his representative capacity. A distinction is often made between actions accruing before the death of the decedent and those accruing pending the administration. As to the former, the rule was that they must be brought by the executor or administrator in his representative capacity; the latter could be brought by him in his own name or as a personal representative. 74 As the personal representative of a decedent is obliged to render an account of all assets collected by him for the estate, and as all actions in this state must be brought by the real party in interest, he should bring suit in his representative capacity. 75 Actions for the recovery of specific articles of property may be either in replevin, or trover for their conversion. 76 71 Wilson v. Miller, 30 Md. 82. 72 Fifield v. Sperry, 20 N. H. 333. 73 Eev. Stats., c. 17, 109, [1373]; Williams v. Towl, 65 Mich. 204, 31 N. W. 835. 74 Buckland v. Gallup, 40 Hun (N. Y.), 61; Knox v. Bigelow, 15 Wis. 415; Laycock v. Oleson, 60 111. 30. 75 Civ. Code, 23. 7 Ham v. Henderson, 50 Cal. 367; Manwell v. Briggs, 17 Vt. 176; Kent v. Bothwell, 152 Mass. 341, 25 N. E. 721, 9 L. B. A. 258. (301) 206 PROBATE AND ADMINISTRATION. [Chap. 18 The personal representative should set up in his peti- tion the time and place of the death of the decedent, the issue of letters of administration, either special or general, as the case may be, or the probate of the will and the issue of letters testamentary, and that the plaintiff now is the duly qualified executor or adminis- trator of said estate. 77 In Oregon he may sue either in his representative or individual capacity, only on such actions as occurred after the death of the decedent. 78 206. Degree of diligence required of an executor or administrator in reducing assets to possession. In performing the duty of collecting the assets of the estate of a decedent, the personal representative should be governed by the same degree of prudence that men usually exert in the management of their own business enterprises. As no two cases are precisely alike, it is impossible to lay down any rule applicable to all of them. His duty in this regard depends in a great measure upon the condition of the estate, and the means and facilities within his control. Small as- sets should not be jeopardized in an aimless search after personalty, or in doubtful litigation for any prop- erty, either real or personal, which is held adversely, and it is proper for the persons seeking to have such property recovered to indemnify the personal repre- 77 Central Branch U. P. R. Co. v. Andrews, 37 Kan. 162, 14 Pac. 509; Judab v. Fredericks, 57 Cal. 389; Ealphs v. Hensler, 97 Cal. 296, 32 Pac. 243. 78 Barrell v. Kern, 44 Or. 502, 56 Pac. 809; Sears v. Daly, 43 Or. 346, 73 Pac. 5. (302) Chap. 18] COLLECTION OP ASSETS. 207 sentative against loss in such cases. 79 The duty also depends upon the solvency or insolvency of the debtor and the character of the claim. A personal repre- sentative would not be justified in using the assets of the estate in pursuing claims against debtors of doubt- ful solvency, and he would not be chargeable with cul- pable negligence should he not collect them, or even make much of an effort to do so. 80 At the same time, he is bound to try to collect a debt from a solvent debtor, and, if such debt is lost by his neglect, he is liable. 81 207. Special proceedings to recover personalty. No person, whether he be legatee, next of kin, heir, or creditor, is, as against a personal representative, entitled to the possession of the personalty pending administration; and where a residuary legatee, sole heir, or other person is permitted by the executor or administrator to retain in his possession and use the property of an estate pending administration, he will be considered as holding it as trustee for the repre- sentative, and required to deliver it up to him at any time when called upon, 82 and he cannot protect him- self by transferring it to any other person. 83 7 Andrews v. Tucker, 7 Pick. (Mass.) 250; Sanborn v. Goodhue, 28 N. H. 48. 80 Cooke v. Cooke, 29 Md. 538; Patterson v. Wadsworth, 89 N. C. 407; Anderson v. Piercy, 20 W. Va. 282. 81 Schulz v. Pulver, 3 Paige (N. Y.), 182; Holcomb v. Holcomb's Exrs., 11 N. J. Eq. 281. 82 Bev. Stats., c. 17, 105, [1369]; L. O. L., 1189; Carlisle v. Burley, 3 Me. 250; Eisenbise v. Eisenbise, 4 Watts (Pa.), 134; Albright v. Cobb, 30 Mich. 358. 83 Cullen v. O'Hara, 4 Mich. 132; Parks v. Norris, 101 Mich. 71, 59 N. W. 428. (303) 207 PROBATE AND ADMINISTRATION. [Chap. 18 On filing of a complaint under oath of a personal representative, the county court may cite any person who may have been permitted by the executor or ad- ministrator to retain any of the personalty of the estate in his possession to appear before the court and render a full account under oath of all the money, goods, chat- tels, bonds, accounts, records, or all other papers that have come into his possession for such administrator or executor, and his proceedings thereon, and, if he refuse to appear and account for the property, the court may proceed against him for contempt. 84 Form No. 90. PETITION FOR ACCOUNTING FOR PERSONALTY. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters testamentary upon said estate were issued to him out of and under the seal of said court, and that he is now, and ever since said date has been, the lawful executor of said estate; that your petitioner has intrusted to one G. H., of said county, who is an heir of said estate, certain personal property belong- ing to said estate, as follows: Twenty head of cattle, four head of horses [describe property in full]; that on the day of , 19 , he demanded of said G. H. the property above described, and possession thereof was refused; that possession of said above-described property by your petitioner is necessary to enable him to pay the debts and complete the settlement of said estate. Your petitioner therefore prays that a citation may issue out of this court to the said G. H., commanding him to appear before this court, at a time and place to be designated by said court, and a true account make under oath of all the property, moneys, goods, chat- tels, bonds, accounts, or other papers belonging to said estate which have come into his possession in trust for your petitioner, and of 84 Rev. Stats., c. 17, 105, [1369]; L. O. L., 1189.' (304) Chap. 18] COLLECTION OF ASSETS. 208 h : s proceedings thereon, and for such other and further relief as may be just and equitable. Dated, etc. (Signed) C. D. [Add verification, Form No. 5.] [For forms for citation and caption to interrogatories, see Nos. 87, 88, 89. For forms for contempt proceedings, see Xos. 20, 21, 22.] 208. Compromising debts with leave of the court. If a debtor is unable to pay his debt to the estate in full, the county judge may permit the executor or ad- ministrator to compromise with him and give him a discharge upon receiving a fair and just dividend of his effects. 84 " The words "unable to pay his debt to the estate" clearly mean that the debtor is insolvent, and thus only partially limit the common-law rule per- mitting compromise of debts, 85 leaving the right to compromise an unliquidated demand for damages as at common law. 86 Under the Oregon statute, if such compounding is procured or induced by the fraudulent representations or conduct of such debtor, such payment shall only operate to discharge a like amount of the debt. 87 Application should be by petition duly verified, and evidence adduced showing the condition of the debtor's affairs. 84. Eev. Stats., c. 17, 106, [1370]; L. O. L., 1294. 85 See 209, post. 6 Olston v. Oregon W. & P. R. Co., 52 Or. 346, 96 Pac. 1095, 97 Par. 538. 87 L. O. L., 1294. 20 Pro. Ad. (305) 208 PROBATE AND ADMINISTRATION. [Chap. 18 Form No. 91. PETITION TO COMPKOMISE -DEBT. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of administration issued to him out of and under the seal of said court, and that he now is the duly appointed administrator of said estate; that one G. H. is indebted to said estate upon a past due promissory note in the sum of $1,000, upon which there is no security; that said G. H. is insolvent and has not sufficient property exempt from execution with which to satisfy said debt in full; that said G. H. now offers to pay for his release and discharge from his said obligation the sum of $750 cash in hand, which offer, in the opinion of your petitioner, is the best settlement that can be obtained, and should be accepted. Your petitioner therefore prays that an order may be made by the court authorizing and empowering him to compromise said claim or demand against the said G. H. upon the payment by said G. H. of the sum of $750. Dated this day of , 19 . (Signed) C. D. [Add verification, Form No. 5.] Form No. 92. ORDER PERMITTING COMPROMISE OF DEBT. [Title of Cause and Court.] Now, on this day of , this cause came on for hearing upon the petition of C. D., administrator of said estate, for permis- sion to compromise a debt due said estate from one G. H., and the court, after hearing the evidence, finds that the said G. H. is insolvent, that he is indebted to said estate upon a promissory note in the sum of $1,000, that said note is unsecured, that said G. H. proposes, with the consent of the court, to pay the sum of $750 in full settlement of said debt, and that said proposed compromise is a just and fair distribution of the effects of said G. H. It is therefore ordered that the said C. D., administrator, accept said sum of $750 in full settlement of his indebtedness to said estate, and upon the payment of said sum he is hereby authorized and directed to deliver to said G. H. a receipt in full of all demands of said estate against him. (Signed) J. K., County Judge. (306) Chap. 18] COLLECTION OP ASSETS. 209 209. Right to compromise debts without leave of the court. At common law it was a generally recognized doc- trine that an executor or administrator had full au- thority to compromise or release any claim or demand belonging to the estate, without first obtaining the permission of the court to do so; 88 and it is now held by a majority of the courts that a statute which pro- vides for compromising debts with leave of the court does not entirely do away with the common-law right of compromising debts due an estate, but is a protec- tion to the executor or administrator. 89 The supreme court of Kansas holds that the statute completely sup- plants the common-law right or power to compromise. 90 In Oregon, the statute which forbids the sale of per- sonal property without leave of the court, unless such power is given by will, takes away the right of an executor or administrator to compromise any other than claims for unliquidated damages, which are re- garded as intangible assets. 91 Should Hie personal representative of a decedent compromise a claim, except for unliquidated damages, against the estate without leave of the court first had and obtained, he is responsible to the estate for any error of judgment or negligent act in regard to the 88 Weyer v. Second Nat. Bank, 57 Ind. 198; Boyd's Sureties v. Oglesby, 23 Gratt. (Va.) 684; Moulton v. Holmes, 57 Cal. 342; Bruner's Appeal, 57 Pa. 52; Wyman'a Appeal, 13 N. H. 18. 89 Moulton v. Holmes, 57 Cal. 342; Wyman's Appeal, 13 N. H. 18; Chadbourn v. Chadbourn, 9 Allen (Mass.), 173; Geigers v. Kaigler, 9 S. C. 426. 80 Aetna Life Ins. Co. v. Swayze, 30 Kan. 118, 1 Pac. 36. i Olston v. W. P. & B. Co., 52 Or. 347, 96 Pac. 1095, 97 Pac. 538. (307) 210 PROBATE AND ADMINISTRATION. [Chap. 18 same, 92 and the burden of proof is upon him to show that it was for the benefit of the estate. Such an agreement to compromise a claim belonging to an es- tate is valid and binding both upon the debtor and personal representative, in the absence of fraud or collusion, and is a sufficient consideration for a con- tract. 93 A compromise which has been obtained by fraud or collusion between the personal representative and the creditor may be set aside by a bill in equity. 94 If permission to compromise has not been obtained from the county court, it must appear that the com- promise was fair, beneficial to the estate, and free from fraud, and that, in making it, the personal representa- tive acted with due diligence, in good faith, and with the same degree of prudence, care and skill that a pru- dent man, with the light then obtainable in regard to the entire situation of the debtor's affairs, would have exercised. 95 In California, the courts draw a distinc- tion between a judgment and other claims. It is there held that a personal representative cannot, of his own authority, release the former for a less amount than its face, and such release so made was treated as void. 96 210. Right to submit claim to arbitration. An executor or administrator has the right to sub- mit a claim or demand which the estate has against 92 Chouteau v. Suydam, 21 N. Y. 184; Davenport v. First Congrega- tional Soc., 33 Wis. 387. 93 Waring v. Lewis, 53 Ala. 631; Long v. Shackleford, 25 Miss. 566; Latta v. Miller, 109 Ind. 302; Cogswell v. Concord & M. E. B., 68 N. H. 192, 44 Atl. 293. 4 Henry County v. Taylor, 36 Iowa, 259. 5 Jacobs v. Jacobs, 99 Mo. 427, 12 S. W. 457; Bailey v. Dil worth, 10 Siredes & M. (Miss.) 404; Underwood v. Sample, 70 Ind 448. Siddall v. Clark, 89 Cal. 321. (308) Chap. 18] COLLECTION OF ASSETS. 211,212 another to arbitration. This right is based upon the fact that he has power to prosecute and defend suits. 97 The award is binding against the personal repre- sentative. 98 Arbitration differs from compromising actions on behalf of the estate, for it is in the nature of a suit, and the award of the arbitrators has, when recorded, the effect of a judgment. 211. Right to adjust or compromise real estate con- tracts. The limited power given an executor, except by the express terms of the will, or of an administrator, over real estate, does not, as a general rule, authorize him to waive or release a contract for the same. 99 In the case of executory contracts, however, where the title has not passed, he has the same rights and is entitled to the same remedies as his decedent. He may rescind or declare a forfeiture. 100 He has no in- herent power to obtain a release of a widow's marital interest in lands by paying a cash amount. 101 212. Actions to recover assets transferred in fraud of creditors. A personal representative is not bound to recover personal property transferred by the decedent with 97 Kendall v. Bates, 35 Me. 357; Eaton v. Cole, 10 Me. 137; Weston v. Stuart, 11 Me. 326; Bean v. Farnam, 6 Pick. (Mass.) 269. !"< Wheatley v. Martin's Admr., 6 Leigh (Va.), 62; Bean T. Farnam, 6 Pick. (Mass.) 269. 99 Hunt v. Thorn, 2 Mich. 213. 100 Gillilan v. Oak' s, 1 Neb. Unof. 55, 95 N. W. 511; Howard v. Babco -k, 7 Ohio. pt. 2. p. 73. See 252 et seq., post. 101 Needham v. Bclote, 39 Mich. 487. (309) 212 PROBATE AND ADMINISTRATION. [Chap. 18 intent to defraud his creditors unless the assets of the estate are insufficient to pay the debts and expenses of administration. The law does not concern itself about what disposition a man of sound mind may make of his property while living, unless such disposition is fraudulent as to his creditors, or was obtained from him by fraud. 102 Whenever there shall be a deficiency of assets in the hands of the executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right, title or interest therein, with in- tent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or adminis- trator may, and it shall be his duty to, commence and prosecute to final judgment any proper action or suit at law or in equity for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed, and may also,. for the benefit of the creditors, sue for and recover all the goods, chattels, rights and credits which have been so fraudulently conveyed by the deceased in his. lifetime, whatever may have been the manner of such fraudulent conveyance. 103 Under the Oregon practice, it is the duty of the executor or administrator, when it appears that a transfer has been made by his decedent which he has reasonable ground to believe to be fraudulent, to peti- tion the county court or a judge thereof for leave to commence and prosecute to final decree, the necessary 102 Hoffman v. Tucker, 58 Neb. 457, 78 N. W. 941. 103 Rev. Stats., c. 17, 111, [1375]; L. O. L., 1279. (310) Chap. 18] COLLECTION OP ASSETS. 212 or proper suits or actions to have the conveyance, transfer, judgment or decree or sale declared void and the property affected discharged from the effect thereof. 104 If he neglect or refuse to make the application, or if he is the party to whom it is alleged the fraudulent transfer was made, or appears to be in any way inter- ested in upholding the conveyance, judgment or de- cree, he may be removed from his office, and a repre- sentative appointed who will do his duty. 105 He cannot bring the action of his own motion without an order from the court. 106 If it appears to such court or judge that the assets are insufficient for the payment of the debts, funeral charges and expenses of administration, and that it is probable that the conveyance, transfer or judgment was made, suffered, consented to or procured with in- tent to defraud, it shall make the order directing the prosecution of the suit as to any and all matters alleged in the petition. 107 Form No. 92a Oregon. PETITION FOR ORDER TO BRING ACTION TO SET ASIDE FRAUDULENT CONVEYANCE BY DECEDENT. [Title of Cause and Court.] To the County Judge of said County of and State of Oregon; Comes now C. D., administrator of the estate of said A. B., ancl represents unto the court that heretofore, to wit, , 19 , said A. B. was the owner of the following described real estate situated in the county of and state of Oregon, , which said property was of the value of $ , and of a stock of merchandise situated 104 L. O. L., 1279. 105 Marks v. Coats, 37 Or. 611, 62 Pac. 488. 106 King v. Boyd, 4 Or. 332; Humphreys v. Taylor, 5 Or. 362; Butt* v. Purdy, 63 Or. 169, 125 Pac. 313, 127 Pac. 25; Hillman v. Young, 64 Or. 79, 127 Pac. 793. 107 L. O. L., 1280. (311) 212 PROBATE AND ADMINISTRATION. [Chap. 18 in the building on said lots, and consisting of clothing, men's fur- nishing goods, boots and shoes, of the value of $ ; and on said day and date last aforesaid was indebted to the X. Y. Co., a corpora- tion, for merchardisa sold and delivered to him, the said A. B., on , 19 , in the sum of $ , which said amount was then due and payable; to the L. M. Co., for merchandise sold and delivered to him, said A. B., on , 19 , in the sum of $ , which said amount became due and payable on the day of , 19 ; and was also indebted to the First National Bank of on a promissory note for the sum of $ , which was then due and payable. That on said day of , 19 , said A. B. executed and delivered to one C. B., of , a certain pretended deed to said real estate for the pretended consideration of $ , and a certain pretended bill of sale of said stock of merchandise for the pretended consideration of $ ; that said deed and bill of sale were exe- cuted and delivered by said A. B. to said C. B. for the purpose of hindering, delaying and defrauding the creditors of him, the said A. B., which intent and purpose were then and there well known by said C. B. to be fraudulent and made for the purpose of hindering and de- laying the creditors of said A. B. in the collection of their just de- mands, and that the said A. B. continued in possession of said real estate and in charge of said stock of merchandise after the execution and delivery of said deed and said bill of sale. That said claims above set forth have been presented to said administrator for allow- ance and have been allowed by him as valid and subsisting demands against said estate, and that the costs and expenses of administration of said estate will amount to the sum of about $ , and that all of said amounts are due and unpaid. That the appraised value of the estate of said A. B. which has come into the possession of said administrator, as appears from the inven- tory and appraisement is the sum of $ , and that no other property has come into the possession since the filing of said inventory. Said administrator therefore prays that an order be made and en- tered directing him, said administrator, to commence and prosecute an action, or actions against said C. B. for the setting aside of said deed and till of sale and the recovery of possession of said property therein attempted to be conveyed. (Signed) C. D., Administrator of the Estate of A. B., Deceased. [Add verification.] (312) Chap. 18] COLLECTION OF ASSETS. 212 Notice of the application is not required by the statute. If the allegations are sufficient, it is the duty of the court or the judge thereof to enter the order prayed for. Form No. 92b Oregon. ORDER AUTHORIZING SUIT TO SET ASIDE CONVEYANCES. [Title of Cause and Court.] On reading and filing the petition, duly verified, of C. D., adminis- trator of said estate, praying for an order of the judge of said court, directing him, said administrator, to bring an action against one C. B. to set aside a certain deed to the following described real estate, , and also to set aside a bill of sale to the following described personal property, , as fraudulent and void as to the creditors of him. the said A. B. ; and it appearing therefrom that said estate of said A. B. is insolvent, that said A. B. made said conveyances dur- ing his lifetime, and that there is reasonable ground to believe said conveyances to be fraudulent as to the creditors of him, the said A. B., it is therefore ordered that said C. D., administrator of the estate of said A. B., deceased, be and he hereby is authorized and directed to commence and prosecute any necessary action or actions against said C. B. to recover possession of said real estate and said personal property and set aside as fraudulent as to creditors said deed and said bill of sale. Dated this day of , 19 . (Signed) J. K., Judge of County Court. Such right of action is based upon the theory that the executor or administrator represents all parties interested in the estate, legatees, heirs and credi- tors, holding the property and all rights pertaining thereto for them; and while acting as representative of the former as well as the latter, he has authority to impeach the fraudulent acts of his decedent, being in no manner bound thereby. 108 108 Clark v. Clough, 65 N. H. 43, 23 Atl. 529. (313) 213 PROBATE AND ADMINISTRATION. [Chap. 18 The action being one which cannot be brought unless there are unpaid claims against the estate, and not enough funds with which to pay them, 109 it would seem that the proper time to bring it is after claims have been allowed and the amount of the indebtedness and deficiency of assets thereby determined. 110 It has been held, however, that, where the administrator is satis- fied that there will be a deficiency, he need not wait until all claims have been judicially determined before bringing the action. 111 Suit must be brought within four years from the date when the cause of action accrued. The death of the fraudulent grantee does not toll the statute of limitations. 112 213. Suit by creditor. Where the executor or administrator is the person to whom it is alleged the deceased has fraudulently transferred his property during his lifetime, a creditor is a proper person to bring a suit to set aside the trans- fer, and on a proper showing an injunction will issue to restrain the personal representative from encumber- ing or in any manner disposing of his property. 115 109 Hofmann v. Tucker, 58 Neb. 457, 78 N. W. 941. no Field v. Andrada, 106 Cal. 107, 39 Pac. 323; O'Connor v. Boylan, 19 Mich. 209, 13 N. W. 519; Estes v. Wilcox, 67 N. Y. 264; Fletcher v. Holmes, 40 Me. 364. in Andrew v. Hinderman, 71 Wis. 148, 36 N. W. 624. 112 Lesieur v. Simon, 73 Neb. 645, 103 N. W. 302. US Becker v. Anderson, 6 Neb. 499; Id., 11 Neb. 494, 9 N. W. 640. The petition in the above case was filed to set aside as fraudulent a chattel mortgage, the estate being insolvent. The court held that the mortgaged property constituted a fund for the payment of debts, and the executor could not hold them as mortgagee, the mortgage being fraudulent from its inception. A sweeping injunction was also granted. (314) Chap. 18] COLLECTION OF ASSETS. 214 The same rule would apply where the assets had come into the possession of a third party through fraud or collusion of the personal representative. 114 Independent of the statute, a creditor whose claim has been allowed may bring the action in his own be- half and on behalf of other creditors, such other credi- tors being entitled to share proportionately in the distribution of any personalty or proceeds of real estate so recovered. 115 214. Indemnity bond. The executor or administrator is not bound to sue for the property conveyed to defraud creditors, unless such creditors make application therefor and either pay or give security for the payment of such part of the costs and expenses of suit as the county court shall deem just and equitable. 116 He may bring suit at the request of the creditors and without first being indem- nified as the statute requires. 117 There is no statutory provision requiring a written request to be served on the executor or administrator, but, if the creditor wishes to place himself in the posi- tion where he can enforce his order, a written notice should be served when the bond which the court re- quires is presented to him. The personal representa- tive may then be compelled, by proper proceedings, to bring the suit. 118 H4 McGlave v. Fitzgerald, 67 Neb. 417, 93 N. W. 692. "5 Irwin's Estate, 141 Pa. 278, 21 Atl. 604; Loomis v. Tift, 16 Barb. (X. Y.) 541; Hills v. Sherwood, 48 Cal. 386; Ohm v. Superior Court, So Cal. 545, 26 Pac. 244. no Rev. Stats., c. 17, 112, [1396]. in Chapoton v. Prentis, 144 Mich. 283, 107 N. W. 879. us Ohm v. Superior Court, 85 Cal. 545, 26 Pac. 244. (315) 214 PROBATE AND ADMINISTRATION. [Chap. 18 form No. 93. PETITION FOB ORDER REQUIRING EXECUTOR OR ADMINIS- TRATOR TO BRING SUIT TO SET ASIDE FRAUDULENT CONVEYANCES OF A DECEDENT. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , the commissioners duly appointed to examine and allow claims against said estate allowed a claim against the said estate in favor of your petitioner for the sum of $1,UOO; that the inventory and appraisement of said estate, as ap- pears by the records and files thereof, show that the assets of said estate amount to the sum of $500; that said commissioners have allowed against said estate, from the allowance of which no appeal has been taken, claims aggregating the sum of $10,000; that said A. B. was, at the time of his death, seised of no real estate in his own name; that your petitioner has good reason to believe, and does believe, that the said A. B., during his lifetime, transferred the fol- lowing described property [describe property alleged to have been transferred in fraud of creditors] to one L. M., with the intent on his part to hinder, delay, and defraud the creditors of said A. B. and your petitioner, which intent was then and there well known to said L. M. Your petitioner therefore prays that the court may make an order requiring G. H., administrator of said estate, to bring a suit against L. M. for and in behalf of the said estate, to set aside said transfer as fraudulent and void as to your petitioner and the other creditors of said estate, and that said court may also determine what part and proportion of the expenses of such suit your petitioner and other creditors of said estate be required to pay or secure. Dated this day of , 19. (Signed) C. D. [Add verification, Form No. 5.] Form No. 94. ORDER REQUIRING EXECUTOR OR ADMINISTRATOR TO BRING SUIT TO SET ASIDE FRAUDULENT TRANSFER. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the application of C. D. for an order requiring G. H., administrator of said estate, to bring suit to set aside transfers of realty made by said A. B. in his lifetime, and alleged to have been (316) Chap. 18] COLLECTION OF ASSETS. 214 made with intent to defraud the creditors of him, said A. B.; and it appearing to the court that the assets of the estate, as appears from the inventory and appraisement, are wholly insufficient for the pay- ment of the debts and allowances against said estate, and it further appearing to the court that C. D. is a lawful creditor of said estate, and that there is probable cause for believing that an action could be maintained to set aside the transfer of the following described real estate [describe real estate alleged to have been fraudulently con- veyed] as made by said A. B. with an intent to hinder, delay, and defraud petitioner and the other creditors of said estate, and that said fraudulent intent was well known to the grantee in said conveyances, one L. M.: It is therefore ordered that C. D. or other creditor of said estate pay or secure by proper bond one-half of the expenses and costs of prosecuting a suit to recover said real estate above described, and that said G. H., administrator as aforesaid, on receipt of said security, be and he hereby is authorized and directed to bring such suit as the circumstances of the case may require, to recover for and in behalf of said estate possession of said above-described real estate. (Signed) J. K, County Judge. Form No. 95. BOND TO SECUEE COSTS AND EXPENSES OF SUIT TO SET ASIDE FRAUDULENT CONVEYANCE MADE BY DECEDENT. Know all men by these presents, that we, C. D., as principal, and E. F., as surety, are held and firmly bound unto G. H., administrator of the estate of A. B., deceased, in the penal sum of five hundred dol- lars ($500), for which payment well and truly to be made we do hereby bind ourselves, our heirs, executors, administrators, and assigns jointly and severally by these presents. Whereas, by an order of the county court of county, Nebraska, duly entered by the county judge thereof on the day of , 19 , G. H., administrator of said estate, was author- ized to bring a suit to set aside the transfer of the following de- scribed realty [describe realty alleged to have been fraudulently con- veyed], as made to hinder, delay, and defraud the creditors of said estate, on condition that said creditors give a bond with proper security for the payment of one-half of the costs and expenses of said suit: Now, therefore, the condition of this obligation is such that, if the above-bounden C. D. shall well and truly pay or cause to be paid to (317) 215 PROBATE AND ADMINISTRATION. [Chap. 18 said G. H., administrator, one-half of the costs and expenses of a suit to be commenced by said G. H. to recover the land above described as having been transferred by said A. B. with the intent of him, said A. B., to hinder, delay, and defraud the creditors of said A. B., then these presents shall be null and void; otherwise to be and remain, in full force and effect. Dated this day of , 19 . (Signed) C. D. E. F. Bond and surety approved by me this day of - , 19 (Signed) J. K., County Judge. 215. Nature of the action. Actions either by an executor or administrator under the statute, or by a creditor, to set aside a fraudulent transfer by decedent of his property, are in the nature of creditors' bills or bills to reach assets. The allow- ance of the claims by the court or commissioners, and the deficiency of assets, have the same effect as the entry of a judgment, issue of execution thereon and return thereof unsatisfied. 119 Property to which a widow or heir is absolutely en- titled cannot be reached in such action. 120 In cases where the conveyance was given to secure future sup- port and its conditions have been performed, the executor, administrator or creditor can recover the difference between the value of the support or services and the value of the property. 121 The transfer of property by a decedent during his lifetime with intent to defraud is voidable only in so ii Gardner v. Gardner, 17 R. I. 751, 24 Atl. 785; Steere v. Hoagland, 39 111. 264; Whitney's Heirs v. Kimball, 4 Ind. 546. 120 Pease v. Shirlock, 63 Vt. 622, 22 Atl. 661. 121 Crane v. Stickles, 15 Vt. 252; Verplank v. Sterry, 12 Johns. (N. Y.) 536; Kelsey v. Kelley, 63 Vt. 41, 22 Atl. 597. (318) Chap. 18] COLLECTION OF ASSETS. 216 far as the rights of creditors and the costs and ex- penses of administration are concerned. 122 The judg- ment should direct that the transfer of personal prop- erty be set aside and the property held subject to the general demands against the estate. 123 It should sub- ject the real estate so transferred to the claims allowed, and charges and expenses, or the deficiency, if there is some personal estate which can be applied for that purpose, order their payment within a fixed time, and for sale in default of payment. 124 216. Right of heir or legatee to collect assets. As a general rule, no one but an executor has a right to bring a suit to collect the assets of the estate pending administration, 125 even though he be the sole heir. 126 There are two exceptions recognized by our courts. Heirs or beneficiaries under a will may have a bill in equity against the executor or administrator and the party indebted to the estate to recover assets, provided the debts and expenses of administration are paid and the personal representative refuses to bring suit. 127 An heir or legatee may repudiate a compromise of a pending suit, entered into between the administrator or executor and others having an interest, and the 12:2 Hillman v. Young, 64 Or. 79, 127 Pac. 793. 123 See Becker v. Anderson, 11 Neb. 494, 8 N. W. 640. 124 Chapoton v. Prentis, 144 Mich. 283, 103 N. W. 302. 125 Finnegan v. Finnegan, 125 Ind. 262, 25 N. E. 341; Haynes v. Harris, 33 Iowa, 516; Pritchard v. Norwood, 155 Mass. 539, 30 N. E. 80; Varner v. Johnson, 112 N. C. 570, 17 S. E. 483; Murphy v. Hanra- han, 50 Wis. 485, 7 N. E. 636. 126 Holowell v. Cole, 25 Mich. 345. 127 Prusa v. Everett, 78 Neb. 250, 113 N. W. 571. (319) 217 PROBATE AND ADMINISTRATION. [Chap. 18 debtor, without his consent. He may be substituted as sole plaintiff and prosecute the action for his share. 128 If it appears that no letters of administration have been granted and that there are no debts, it has been held that the heirs may sue to recover property and distribute it among themselves. 129 217. Debt of executor or administrator to estate. It is a well-established rule of law, running back even before the Revolution, that an executor or admin- istrator is considered as having paid the debts due from him to the estate, and as actually having in his possession that much more cash. 130 If the personal representative is insolvent, the courts, in the interests of all concerned, modify this rule somewhat. He should still charge himself with the amount of his debt, but it does not make it actual money. The law does not require impossibilities, and there is no more reason why he should be considered as having paid what he was utterly unable to pay than any other creditor. He is held liable to the estate to the extent 128 Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. 949. In this case the administrator and three heirs, without the consent of the fourth, compromised a suit for five thousand dollars and interest against a solvent defendant for eight hundred dollars, two hundred dollars to each heir. The fourth heir filed objections to the settlement and asked to be substituted as plaintiff and prosecute the action for her one-fourth interest, should the administrator refuse to do so. She was substituted and a judgment for her full share sustained. 129 Cox v. Teazel, 49 Neb. 343, 68 N. W. 483; Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. 949. , 130 Waukford v. Waukford, 1 Salk. 306; Stevens v. Gaylord, 11 Mass. 256; Wheeler v. Emerson, 44 N. H. 182. (320) Chap. 18] COLLECTION OF ASSETS. 217 of his ability to pay the same at any time during administration. 131 It has been held, however, that a judge of probate has no authority to release him from any part of the debts on the mere ground that he is unable to perform it. He has no authority to direct the personal representative to compromise with him- self, nor has he any authority to negotiate and com- promise with the personal representative. 132 It would seem that the only way the indebtedness of an in- solvent executor or administrator to the estate could be adjusted, and the amount which he should pay determined, is by an equity proceeding. 133 131 Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5; Howell v. Anderson, 66 Xeb. 975, 92 N. W. 780; Howell v. Dodge, 140 Mich. 236, 103 N. W. 597; Ewen v. Hitchcock (Iowa), 146 N. W. 1; L. O. L., 1182; In re Mason's Estate, 42 Or. 180, 70 Pae. 507; United Brethren v. Aken, 45 Or. 250, 77 Pac. 748. 132 X 1 orris v. Towle, 54 N. H. 290; Judge of Probate v. Sulloway, 68 N. H. 511, 44 Atl. 720. 133 Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5; Barker v. Irick, 10 N. J. Eq. 269. 21-J-ro.Ad. (321) CHAPTER XIX. MANAGEMENT OF ESTATES. 218. General Powers of Executor or Administrator. 219. Actions Against the Estate. 220. Management of Real Estate. 221. Power of Executor to Sell Real Estate. 222. Sales by Administrator With the Will Annexed. 223. Sales of Personal Property. 224. Executor or Administrator not to be a Purchaser. 225. Caveat Emptor. 226. Right of Creditor, Heir or Legatee to Follow Assets. 227. Assets of Estate Held by Heirs or Legatees. 228. Contribution by Heirs or Devisees for Payment of Debts. 228a. Recovery of Property from Distributees. 228b. Liability of Heirs for Debts. 229. Investment of Assets. 230. Liability of Executor or Administrator on His Own Contracts. 231. Contracts of Decedent. 232. Personal Representative not Authorized to Carry on Decedent's Business. 233. Liability for Carrying on Decedent's Business. 234. Devastavit, Definition. 235. Liability for a Devastavit. 236. Rights in Regard to Negotiable Instruments. 218. General powers of executor or administrator. An executor or administrator is an officer of the court governed by the statutes, and the orders of the court but possessing large discretionary powers. He is not the agent of the heirs, legatees, devisees or credi- tors, though usually himself having an interest in the estate. He has no right to do any act which will bene- fit his interests at the expense of others or to give any preference, except that given by law, to one class above another. His management should be such as (322) Chap. 19] MANAGEMENT OF ESTATES. 219, 220 will conserve the interests of the estate as a whole, and the rights of all parties therein. 1 219. Actions against the estate. He represents the estate in all matters in which it has an interest, and should appear and defend against all actions pending against the decedent which were re- vived by the plaintiffs and actions or proceedings brought against the estate. He is the only proper party to defend, and has the right to control all actions against the estate without interference from the legatees or next of kin, 2 except that an heir or legatee may appear in a suit to protect his own rights where there is collusion between parties representing adverse interests and the legal representative. 3 In all matters depending on his discretion, he should use the same degree of care, prudence and judgment a man of average ability exercises in the transaction of his own private business. 4 220. Management of real estate. Such real estate of his decedent as he is required to take into his possession, 5 lands purchased on execu- tion sale on judgments in favor of the estate, or bid 1 Henry v. Henry, 73 Neb. 746, 103 N. W. 441; Hibner v. Wilson, 83 Neb. 259, 116 N. W. 522; Thorson v. Hooper, 57 Or. 78, 109 Pac. 368; L. O. L., 1165. 2 Sharp r. Citizens' State Bank, 70 Neb. 758, 98 N. W. 50; Buchanan v. Buchanan, 75 N. J. Eq. 274, 71 Atl. 745. 3 Bine v. Bine, 91 Neb. 248, 135 N. W. 1051. < Dundas v. Carson, 25 Neb. 495, 41 N. W. 449; Benjamin v. Bush, 89 Neb. 334, 11S-N. W. 602. 6 Section 199, supra. (323) 220 PROBATE AND ADMINISTRATION. [Chap. 19 in on mortgage foreclosure, should be so managed as to bring in as large an income as their character and condition will permit, and he is accountable for all rents and profits received therefrom, 6 but he is not liable for rents which are uncollectible. 7 He has power to execute a lease of the real estate, but not for a term longer than the close of the adminis- tration, 8 and may recover possession of lands from a tenant by forcible detention proceedings. 9 His authority over the various classes of lands which come into his possession is substantially the same, except that lands taken for debts take the place of the personal assets of the estate which were a lien upon them, and as a general rule should be sold for pay- ment of debts in preference to others. In some juris- dictions they may be sold without leave of the court. 10 He must pay the taxes and assessments whether they became a lien after 11 or before the death of his dece- dent, 12 and keep the buildings insured 13 and in tenant- able repair. 14 Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 832; In re Holderbaum, 82 Iowa, 69, 47 N. W. 898. I In re Moore's Estate, 96 Cal. 522, 31 Pac. 584. See, also, 414, 424, post. 8 Jackson v. O'Rorke, 71 Neb. 418, 98 N. W. 1068. 9 Nicrosi v. Phillips, 91 Ala. 299, 8 South. 561. 10 Stevenson v. Polk, 71 Iowa, 278, 32 N. W. 340; Little v. Lesia, 5 Mich. 119; Thomas v. Le Baron, 10 Met. (Mass.) 403. II Long v. Landman, 118 Mich. 174, 76 N. W. 374. 12 Chandler v. Chandler, 87 Ala. 300, 8 South. 153; Jaffrey v. Smith (N. H.), 80 Atl. 504. 13 Wiggins v. Swett, 6 Met. (Mass.) 194. 14 Eev. Stats., e. 17, 102, [1366] ; L. O. L., 9 1185. (324) Chap. 19] MANAGEMENT OF ESTATES. 221 221. Power of executor to sell real estate. An administrator has no inherent authority to sell the real estate of his decedent, nor has an executor, un- less it has been given by the will. 15 Such power need not be given by express direction, but by implication. A direction to an executor to divide real estate, when the conditions of the same or the number of shares are such as to make a sale imperative, 16 or a provision directing that the estate be disposed of for certain pur- poses, and the proceeds distributed by the executor without explicitly empowering him to make the sale, 17 give him an implied power of sale ; and generally when a testator, in the disposition of his estate, imposes on his executor trusts to be executed or duties to be per- formed which require for their execution or perform- ance a power or right to make a sale, the executor takes such powers and authority as will enable him to exe- cute the trust and perform the duties devolving upon him. 18 Under a general power of sale he may sell any lands of his decedent, including the homestead property or so much thereof as may be necessary, 19 subject, of 15 Lippincott's Exr. v. Lippincott, 19 N. J. Eq. 121. See L. O. L., 1248. 1263. 16 Bonacum v. Manning, 85 Neb. 60, 122 N. W. 711; Chick v. Ives, 2 Xc-b. Unof. 879, 90 N. W. 751. 17 Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031; Franklin v. O-good, 2 Johns. Ch. (N. Y.) 19; Lindley v. O'Reiley, 50 N. J. L. 636, 35 Atl. 379; Kite's Devisees v. Kite's Exr., 93 Ky. 257, 20 S. W. 778; Peter v. Beverly, 10 Pet. (U. S.) 532; Jennings v. Smith, 29 111. 116. 18 Bonacum v. Manning, 85 Neb. 60, 122 N. W. 711; Lindley v. O'Reiley, 50 N. J. L. 636, 15 Atl. 379; Cook v. Cook (N. J. Ch.), 47 Atl. 732. l Willier v. Cummings, 91 Neb. 571, 136 N. W. 559. (325) 221 PROBATE AND ADMINISTRATION. [Chap. 19 course, to homestead rights, 20 or lands bid in on mort- gage foreclosure, or purchased at execution sale on a judgment in favor of the estate. 21 A sale under a general power must be for cash, or cash and note secured by mortgage on the land, for the balance. He cannot take other land in whole or part payment. 22 If the power is limited the sale can be made only under the circumstances and conditions defined in the will. 23 If there are several executors the deed must be executed by all; but in the event of the death of one or more, the power vests in the survivor or survivors. 24 Under the Oregon practice, an executor or adminis- trator with the will annexed may sell real estate of his testator under a power of sale given him by the will without an order of court, but he shall be bound to conduct the sale and make a return thereof in all re- spects as if it were made by order of the court, unless there are special directions in the will concerning the manner and terms of sale, in which case he shall be governed by such directions in all respects. Sales so made in accordance with the provisions of the will, where the property has been sold and transferred in good faith, and the consideration paid therefor, are declared in all respects valid and binding. 25 Such 20 Section 391, post. 21 Battey v. Battey, 94 Neb. 729, 144 N. W. 786; Williams v. Towl, 65 Mich. 204, 31 N. W. 835. 22 Taylor v. Galloway, 1 Ohio St. 232; Ross v. Barr (Ky.), 53 S. W. 658. 23 Arlington State Bank v. Paulsen, 55 Neb. 717, 78 N. W. 303; Feaster v. Ragan, 135 Iowa, 633, 113 N. W. 479. 24 Rev. Stats., c. 17, S 72, [1336]. 25 L. O. L., S 1263. (326) Chap. 19] MANAGEMENT OP ESTATES. 222 sales must therefore, unless the will otherwise directs, be made at public auction and upon notice, 26 except in cases where an order is obtained on application to the county court for a private sale. 27 All executors' and administrators' sales of real es- tate must be reported to the county court and an order of confirmation entered in the same manner as sales under order of the court. 28 The rule does not apply to lands devised to an executor as a trustee with power to sell for payment of debts and express power to sell the residue for other purposes. Title vesting in him, confirmation is not necessary. 29 The sale cannot be made by the trustee while still acting as executor. He cannot perform the duties of trustee until his account as executor is settled, his discharge granted, and he qualifies as such officer. 30 222. Sales by administrator with the will annexed. The general powers given an administrator with the will annexed by the statute give him the right to sell real estate when required by the will for the purposes of distribution and division, in the same manner as an executor, though the latter may be given a broad dis- cretion in regard to the time, place or terms of such sale. 31 Where a sale is not necessary for the purposes of administration, and the terms of the grant clearly 26 L. O. L., 1257. 27 See Sales of Real Estate, post. 28 Northrop v. Marquam, 16 OP. 173, 18 Pac. 449. 29 Brown v. Brown, 7 Or. 285. so in re Roach's Estate, 50 Or. 199, 92 Pac. 118. 31 Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031; Koopman T. Carroll, 50 Neb. 824, 70 N. W. 395; Vernor v. Colville, 54 Mich. 281, 20 N. W. 75; Davis v. Hoover, 112 Ind. 423, 14 N. E. 468; Mott v. Ackerman, 92 N. Y. 539. (327) 222 PROBATE AND ADMINISTRATION. [Chap. 19 indicate a personal confidence or special reliance on the judgment of the executor, it being manifest that the testator intended to leave the question whether the power should be exercised or not wholly dependent on the judgment of the donee, such power is in the nature of a personal trust, and none but the executor can execute it. 32 Such administrator of a foreign will derives his power to sell from the statutes of this state. 33 Form No. 96. EXECUTOR'S DEED EXECUTED PURSUANT TO POWER. Know all men by these presents, that I, C. D., of the county of and state of Nebraska, as executor of the estate of A. B., late of said county, deceased, pursuant to the power conferred upon me as such executor by the will of the said A. B., to sell the real estate of which he, the said A. B., was seised at the time of his death, in consideration of the sum of dollars to me in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey, and confirm unto L. M., of the county aforesaid, the fol- lowing described estate, situated in the county of and state of Nebraska [describe property], together with all the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining. To have and to hold the above-described premises unto the said L. M., and to his heirs, executors, administrators, and assigns, forever. And I do hereby, in my capacity as executor as aforesaid, and pursu- ant to the power so conferred upon me by the will of said A. B. as aforesaid, covenant with the said L. M., his heirs, executors, adminis- trators, and assigns, that I am, by virtue of the power aforesaid, law- fully seised of said above-described premises as such executor as aforesaid, that they are free from all encumbrances, and that I, in my 32 Crouse v. Peterson, 130 Cal. 169, 62 Pac. 473; Drummond v. Jones, 44 N. J. Eq. 53, 13 Atl. 611; Naundorf v. Schuman, 41 N. J. Eq. 14, 2 Atl. 609; Belcher, v. Branah, 11 R. I. 226. 33 Crouse v. Peterson, 130 Cal. 169, 62 Pac. 473. See 267, post. (328) Chap. 19] MANAGEMENT OF ESTATES. 223 capacity as such executor, have lawful authority to sell the same; [and I do hereby, in my official capacity as executor of the said estate of said A. B., covenant and agree to warrant and defend the said premises against the lawful claims of all persons whomsoever]. Signed this day of , 19 . (Signed) C. D. In presence of: E. F. G. H. State of Nebraska, County, ss. On this day of , 19 , before me, B. M., a notary pub- lic in and for county, Nebraska, personally appeared C. D., executor of the estate of A. B., deceased, to me personally known to be the identical person described in, and whose name is affixed as grantor to, the foregoing deed, and acknowledged said instrument to be bis voluntary act and deed as such executor for the purposes therein stated. Witness my hand and official seal this day of , 19 . (Official Seal) (Signed) B. M., Notary Public. Commission expires . 223. Sales of personal property. At common law an executor or administrator took a full title and jus dispondendi of the personal estate. 34 The only statutory restriction on this right is one com- pelling him to sell when all the heirs residing in this state request him so to do. He may obtain an order from the county court for the sale of personalty, excepting only such as passes absolutely to the surviving spouse or children, either at public auction or private sale, as the court may direct; if at public auction, the court must direct how 84 Edney v. Baum, 70 Neb. 159, 97 N. W. 252. (329) 223 PROBATE AND ADMINISTRATION. [Chap. 19 notice shall be given, 35 or he may sell without an order of the court, if he sees fit to do so. 36 This statute is directory and not mandatory. 37 Its object is to protect the personal representative, for if he sells property without an order of the court for less than its appraised value, he is liable for the difference. 38 He has no right to trade personal property for real estate, but if he does so and takes the title in the name of the beneficiaries, the transaction is not void. 39 A purchase of real estate with the assets, unless authorized by the will, is a conversion of them, and the representative will be held a trustee of the credi- tors, heirs or legatees. The remedy in such case is by an action in equity to subject the land so purchased to the payment of the debt, legacy or distributive share, and it may be brought by any party who has an interest in the estate. 40 In Oregon no sale of personal property of an estate is valid, except where a power of sale is given by the 35 Rev. Stats., c. 17, 240, [1504]. 36 Field v. Schieffelin, 7 Johns. Ch. (N. T.) 155; Rayner v. Pear- Ball, 3 Johns. Ch. (N. Y.) 578; Clark v. Blackington, 110 Mass. 369; Hamrick v. Craven, 39 Ind. 241; Ladd v. Wiggin, 35 N. H. 421; Mar- shall Co. v. Hanna, 57 Iowa, 372, 10 N. W. 745; In re Radovich's Estate, 74 Cal. 536, 16 Pac. 321. 37 Edney v. Baum, 70 Neb. 159, 97 N. W. 252; Mead v. Byington, 10 Vt. 116; Sherman v. Willett, 42 N. Y. 146; Flynn v. Chicago & Great Western R. Co. (Iowa), 141 N. W. 401. 38 Rev. Stats., c. 17, 239, [1503]; Williams v. Ely, 13 Wis. 1; Munteith v. Rahn, 14 Wis. 210. 39 Edney v. Baum, 70 Neb. 159, 97 N. W. 252. In this case the grantees in the deed alleged fraud on the part of their grantor. The court held that the executor could affirm the sale and bring an action for damages or could rescind. 40 Blake v. Chambers, 4 Neb. 90; Griawold v. Frink, 22 Ohio St. 79; Baldwin v. Tuttle, 23 Iowa, 67. (330) Chap. 19] MANAGEMENT OF ESTATES. 223 will, without an order from the county court therefor. 41 This statute is not construed as directory. It abro- gates the common-law rule but leaves with him the disposition of choses in action, which he may sell or dispose of by indorsement to another or to a dis- tributee, without an order of the county court, and such transfer passes the title to the extent that the transferee or distributee can maintain an action on them, and the makers cannot defend on the ground of want of authority on the part of the personal repre- sentative to make such transfers, 42 and also permits the sale or transfer of intangible assets, like claims for damages. 43 The court acquires jurisdiction by the filing of a verified petition, and no notice or citation is neces- sary. 44 If the court finds it for the best interests of the estate, he may order the personalty sold at either public auction or private sale. 45 He may order a stock of goods sold in the regular course of business, and the necessary expenses, such as clerk hire, rent, heat, etc., can be adjusted as costs of administration on the final account. 46 Property specifically bequeathed should not be sold so long as any personal assets applicable to the debts remain. 47 41 L. O. L., 1248, 1263. 42 Welder v. Osborn, 20 Or. 310, 25 Pac. 715. 43 Section 268, post. 44 Rev. Stats., c. 17, 240, [1504]; L. O. L., 1248. 45 Rev. Stats., c. 17, 240, [1504], also providing that when the sale is at public auction, the court shall direct how notice be given; L. 0. L., 1250, 1251, requiring public sales to be in the same form as sales on execution. 46 In re Osburn's Estate, 36 Or. 8, 58 Pac. 521. L. 0. L., 1251; Howe v. Kern, 63 Or. 496, 125 Pac. 837. (331) 223 PEOBATE AND ADMINISTRATION. [Chap. 19 Form No. 97. APPLICATION OF EXECUTOR OR ADMINISTRATOR FOR LEAVE TO SELL PERSONALTY. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that he is the duly appointed administrator [executor] of said estate-, that among the assets of said estate, as appears by the inventory thereof, are one hundred head of three year old steers, branded N , now on the range north of in said county; that said steers are in good marketable condition, and are in such condition as to be sold at the highest market price; that the debts allowed against said estate, and the expenses of administration, as appear from the records and files in said proceeding, amount to the sum of $2,000, and that your petitioner has no money in his possession applicable to the payment of the same, and that there are also legacies unpaid of the value of $2,000. Your petitioner therefore prays that said court may order said personalty above described to be sold at private sale [at public auc- tion, and that notice of the time and place of said sale be given in such manner as said court may direct]. (Signed) C. D. [Add verification, Form No. 5.] Form No. 98. ORDER FOR SALE OF PERSONALTY. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the petition of C. D., administrator of said estate, for leave to sell one hundred head of three year old steers, branded N , the personal property of said estate, and was submitted to the court, upon consideration whereof the court finds that the best interests of said estate will be subserved by said sale. It is therefore ordered that said C. D. be and he hereby is author- ized to sell said personalty above described at private sale [at public auction, and that he give notice of the time and place of said sale by causing notice thereof to be posted in conspicuous places in said county, and by publication for two weeks in the , a newspaper printed and published in said county]. (Signed) J. K., County Judge. (332) Chap. 19] MANAGEMENT OF ESTATES. 224-226 224. Executor or administrator not to be a pur- chaser. An executor or administrator should not purchase any personal property of his decedent, either directly or indirectly, through a third party. 48 If the sale is for a full price, and there is an entire absence of fraud, it is binding on the beneficiaries of the estate, who have notice of the same, until set aside in an action for that purpose. 49 If fraud is shown, it is void, except where the parties interested had full knowledge of the same and did not bring the action within the statutory period. Their acquiescence amounts to an approval of the act of the representative. 50 225. Caveat emptor. The maxim caveat emptor applies strictly to all sales of personalty by an executor or administrator in his official capacity. He warrants nothing, and sells whatever interest the decedent may have had in the property. 51 226. Right of creditor, heir or legatee to follow assets. In the absence of fraud, the personal assets of an estate cannot be followed by a creditor, heir or legatee Appeal of Grim, 105 Pa. 375; Clark v. Blackington, 110 Mass. 3C9; Stronach v. Stronach, 20 Wis. 129; Johnson v. Blackman, 11 Conn. 3K 1 ; Cox v. John, 32 Ohio St. 538; Caldwell v. Caldwell, 45 Ohio St. 512. 15 N. E. 297. 49 Shelby v. Creighton, 65 Neb. 485, 91 N. W. 369; Appeal of Grim, 105 Pa. 375. 50 Shelby v. Creighton, 65 Neb. 485, 91 N. W. 369. 51 Bingham v. Maxey, 15 111. 295; Bartholemew v. Warner, 32 Conn. 98. (333) 226 PROBATE AND ADMINISTRATION. [Chap. 19 into the hands of a party to whom they were sold by a personal representative, whether the sale was made by the order of the court or not. 52 As far as the pur- chaser is concerned, his title is completed by sale and delivery, and what price is paid, or what may become of the same, is of no concern to him, 63 except where there is actual fraud or collusion shown which is known to and participated in by the purchaser, 54 as where property is sold at a price far below its market value, or for the purpose of raising money to be used for the personal interests of the executor or administrator. 55 An administrator de boms non can recover the value of them from his predecessor or his predecessor's bondsmen. 56 Any party interested may bring the action to set aside the sale, although the others are satisfied with it; 57 and a sale will be set aside where, by fraudulent devices and collusion between the per- sonal representative and a part of the creditors, the assets of the estate were so manipulated as to shut out one of the creditors entirely. 58 52 Thomas v. Reister, 3 Ind. 369; Speelman v. Culbertson, 15 Ind. 441; Walker v. Craig, 18 111. 116; Lothrop v. Wightman, 41 Pa. 297. 53 Bond v. Zeigler, 1 Ga. 324. 54 Shaw v. Spencer, 100 Mass. 382; Sherburne v. Goodwin, 44 N. H. 271. 55 Rogers v. Zook, 86 Ind. 237; Atcheson v. Scott, 51 Tex. 213; Austin v. Willson's Exrs., 21 Ind. 252; Carter v. Manufacturers' Nat. Bank, 71 Me. 448; Green v. Sargeant, 23 Vt. 466. 56 State r. Fulton, 35 Mo. 323; Cowgill v. Linville, 20 Mo. App. 138; State v. Dulle, 45 Mo. 269. 57 Litchfield v. Cudworth, 15 Pick. (Mass.) 23. 58 Carson v. Fears, 91 Ga. 482, 17 S. E. 342. (334) Chap. 19] MANAGEMENT OF ESTATES. 227 227. Assets of estate held by heirs or legatees. A personal representative should retain in his pos- session and take charge of all the assets of the estate, both real and personal, until ordered by the court to dispose of them for the payment of debts and allow- ances, and distributing them among those entitled thereto; but if a devisee, heir or legatee shall give a bond to the county judge, with such surety or sureties as he may direct, to secure the payment of the just proportion of such heir, devisee or legatee of the debt and expenses of the estate, or such part thereof as remains unpaid, and to indemnify the executor or ad- ministrator against the same, he may receive from the personal representative his proportionate share of the estate. 59 Irrespective of the statute, a personal representative has the right to pay to a legatee or distributee the whole or a part of his share of the estate at any time pending administration, without taking a bond, 60 but by making such payments he becomes personally liable upon his own bonds should he not retain in his hands sufficient assets of the estate to pay the debts and ex- penses of administration. 61 If there are no debts, and the condition of the estate permits it, the settlement of the estate may be greatly facilitated, and the per- sonal representative spared much labor, by making payments to the legatees or distributees whenever the funds in his hands warrant it. Such payments, it has been held, do not take away the right of the personal Rev. Stats., c. 17, 232, [1496]. W Charlton's Appeal, 88 Pa. 476. 1 Edmunds' Admr. v. Scott, 78 Va. 720. (335) 227 PROBATE AND ADMINISTRATION. [Chap. 19 representative to recover from such legatees or dis- tributees the money so paid them, or so much thereof as is needed to pay off the debts, provided, however, such debts were known to the personal representative at the time he made the payments; 62 but the supreme court of Indiana holds that he may compel them to refund in any event. 63 The remedy of the creditor in a case of this kind, therefore, is by an action on the bond of the personal representative, and the remedy of the personal representative is by an action to recover from the legatees or distributees. Under the Oregon practice, the court has power, at any time after the filing of the first annual account, on the application of an heir, devisee or legatee, to enter an order for the delivery to him of possession of real estate and the payment of his legacy or distribu- tive share, or any part of the same. Notice must be given the executor or administrator ten days before the application is made. -If the condition of the estate warrants it, the court may grant the petition or some part of it, upon condition that the applicant file with the clerk within a time in the order specified an under- taking with one or more sufficient sureties, for the benefit of whom it may concern, in a sum double the value of the devise, legacy or distributive share, upon condition that such devisee, legatee or heir pay, when required, his proportion toward satisfying any claims against the estate. 84 The sureties must have the same qualifications as sureties in bail upon arrest, and shall justify in the same manner. The costs of the proceed- ing must be paid by the applicant. 65 62 Musser v. Oliver, 21 Pa. 362; Alexander v. Fisher, 18 Ala. 374; Walker v. Hill, 17 Mass. 380; Montgomery's Appeal, 92 Pa. 202, 37 Am. Bep. 670; Munden v. Bailey, 70 Ala. 63. 63 Smith v. Smith, 76 Ind. 236. 64 L. O. L., 1305, 1306. 5 L. O. L., I 1307. (336) Chap. 19] MANAGEMENT OF ESTATES. 227 Form No. 98a Oregon. PETITION FOE PAYMENT OF LEGACY PENDING ADMINIS- TRATION. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that as appears from the first semi-annual account of C. D., executor of :aid estate, and from the records and files in said proceeding, that said executor has in his possession personal property of said estate con- sisting of cash on hand in the sum of $ , together with notes, secured by mortgages, bonds and other securities, as more fully ap- peais from the inventory of said estate and said account, all of the value of $ ; that all claims and demands that have been pre- sented to said executor have been allowed and ordered paid by said court, amounting to the sum of $ , and to the best of your peti- tioner's knowledge and belief there are no other creditors of said estate than those whose claims have been ordered paid. Your petitioner therefore prays that an order of said court be made and entered directing said executor to pay to him, said E. F., the amount of said legacy upon his filing in said court an undertaking to be approved by the clerk thereof as provided by law. That by the terms of said will of said A. B. your petitioner is given a legacy of $ . Your petitioner therefore prays that an order of said court be made and entered directing said executor to pay to him, said E. F., the amount of said legacy upon his giving an undertaking to be approved by said clerk of said court as provided by law. Dated this - - day of , 19. (Signed) E. F. [Add verification.] Form No. 99. BOND OF HEIR OR LEGATEE ON RECEIPT OF HIS SHARE OF THE ESTATE. Know all men by these presents, that we, E. F., as principal, and G. H. and R. T., as sureties, all of county, Nebraska, are held and firmly bound unto the county judge of said county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executor?, administrators, and assigns by these presents. Dated this day of , 19 . 22 Pro. Ad. 228 PROBATE AND ADMINISTRATION. [Chap. 19 Whereas, E. F. has received from C. D., administrator of the estate of A. B., deceased, the sum of dollars, being the estimated amount of the distributive share of said estate belonging to said E. P. after payment of debts, allowances, and expenses of administration: Now, therefore, the condition of this obligation is such that, if the said E. F. shall well and truly pay or cause to be paid to the said C. D., administrator as aforesaid, his proportionate share of the debts and expenses of administration of said estate, or such part thereof as shall remain unprovided for, to the extent only of the amount of dollars, so received by the said E. F. from the said C. D., administrator as aforesaid, and shall indemnify the said C. D., admin- istrator as aforesaid, to the extent only of the amount of - dol- lars, then these presents shall be null and void; otherwise to remain in full force and effect. (Signed) E. F. G. H. E. T. Approved as to form and sufficiency of security this day of , 19-. (Signed) J. K., County Judge. 228. Contribution by heirs, devisees or legatees to raise money for payment of debts. All devisees or legatees who shall, with the consent of the executor, or otherwise, have possession of the estate given them by the will before the liability of the estate for the payment of debts, allowances, shares of posthumous child or children omitted from the will is determined, shall hold the same subject to said lia- bility, and shall be held to contribute according to their respective liabilities, to the executor or to any devisee or legatee from whom the estate devised to him has been taken for the payment of debts and expenses, and to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted from the will ; and the persons who may, as heirs, have received the estate not disposed of by the will, shall (338) Chap. 19] MANAGEMENT OF ESTATES. 228 be liable to contribute in like manner as the devisees or legatees. 66 If any of the persons liable to con- tribute shall be insolvent and unable to pay their just share, the others shall be severally liable for the loss occasioned by such insolvency, in proportion to and to the extent of the estate they may have received; and if any of the persons so liable to contribute shall die before having paid their share, the claim shall be valid against their estate, in the same manner as if it had been their proper debt. The county court may, by decree for that purpose, settle the amount of the liabilities as above provided, and decree how much and in what manner each person shall contribute, and issue execution, as circumstances may require, and the claimant may also have a remedy in any proper action or complaint in law or equity. 67 A provision substantially like the above, requiring a contribution to make the share owing by an insolvent, has been held not to apply to cases in which one legatee or distributee has received more than his share, at the expense of another distributee. The remedy in such cases is by bill in equity. 68 Form No. 100. PETITION FOB LEGATEE OR DEVISEE TO PAY SHAKE OF INSOLVENT. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents uiito the court that on the day of , 19 , letters testamentary upon said es- tate were issued to him out of and under the seal of said court; that he now is the executor of said estate; that L. M., of the county afore- said, is a devisee under said will of the following described realty 66 Rev. Stats., c. 17, 56, [1320]. 7 Rev. Stats., c. 17, 57, 58, [1321], [1322]. 8 Stephenson v. Axson, 1 Bail. Eq. (S. C.) 274. (339) 228 PROBATE AND ADMINISTRATION. [Chap. 19 [describe realty] ; that at the time of the death of the said A. B., said L. M. was in possession of said realty, and has ever since re- mained in possession thereof; that said L. M. has paid to your peti- tioner the sum of dollars, the reasonable rental value of said premises; that on the day of , 19 , said will, with a certificate of probate attached thereto, was duly recorded in the office of the register of deeds of said county; that on the day of , 19 , your petitioner delivered to B. M., who is legatee thereof urder said will, a certificate for forty shares of stock of the First National Bank of Fremont, Nebraska; that there have been allowed against said estate debts of the amount of four thousand dollars ($4,000), and a dividend of two thousand dollars ($2,000) has been paid thereon; that the time for proving debts against said estate has expired, and that there are no assets in his possession with which to pay the balance of said debts; that neither the said L. M. nor the said B. M. have given your petitioner any bond or security to indem- nify him for the property in their possession as aforesaid; that the pr sent value of the real estate above described in the possession of said L. M. is the sum of four thousand dollars ($4,000), and the pres- ent value of said bank stock is the sum of six thousand dollars ($6,000); that on the day of , 19 , said B. M. made a gen ral assignment of all his property for the benefit of his creditors, and previous thereto had sold and transferred said certificate of shares of stock; that the assets of said B. M. are the sum of - - dollars ($ ), and the debts against said insolvent estate are the sum of dollars ($ ), including petitioner's claim, and that said insolvent estate will pay, as your petitioner is informed and verily be ieves, the sum of fifty cents on the dollar. Your petitioner therefore prays that the said L. M. be required to contribute the sum of seven-tenths of two thousand dollars to your petitioner for the payment of said debts, and that the insolvent es- tate of said B. M. contribute the sum of three-tenths of two thousand dollars therefor, and that a decree may be entered requiring the said L. M. to pay to your petitioner the sum of one thousand four hun- dred dollars ($1,400), and the said B. M., insolvent, the sum of six hundred dollars ($600), and that execution may issue thereon against the said L. M., and for such other and further relief as may be just and equitable. Da^ed this day of , 19 . (Signed) C. D., By F. H. B., His Attorney. [Add verification, Form No. 5.] (340) Chap. 19] MANAGEMENT OF ESTATES. 228 Form No. 101. NOTICE TO LEGATEE OB DEVISEE. State of Nebraska, County, ss. To L. M., and G. H., Assignee of B. M.: Xrtice is hereby given that on the day of , 19 , C. D., executor of the estate of A. B., filed his petition in this court, the object and prayer of which are that a decree may be entered requir- ing you and each of you to contribute, from the assets of the estate of the said A. B. in your possession, to the said C. D., for the payment of the debts of the estate of the said A. B. which now remain dne and unpaid. Said petition will be heard by the county court of said county at the county court room in the city of , said county, on the day of , 19 , at the hour of 9 o'clock A. M. of said day. Dated this day of , 19 (Signed) J. K., County Judge. This notice should be served on the legatees or dev- isees in the same manner as a summons, and ample time given them to prepare for the hearing. Form No. 102. DECREE REQUIRING LEGATEE OR DEVISEE TO CONTRIBUTE FOR THE PAYMENT OF DEBTS AND EXPENSES. [Tit'e of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the petition of C. D., executor of said estate, for a de- cree requirirg L. M., and G. H., assignee of B. M., to contribute from the arsets of said estate in their possession for the payment of the debts of said estate, and the evidence, and was submitted to the court. Said L. M. and G. H., assignees, each appeared in person and by attorney: Whereupon the court finds that due notice of the pendency of said petition was given said L. M. and G. H.; that L. M. is in possession of assets of said estate, consisting of the following real estate [descr'be real estate], of the value of four thousand dollars, and that said G. H., assignee of B. M., is in possession of assets of the estate (341) 228a PROBATE AND ADMINISTRATION. [Chap. 19 consisting of personalty of the value of six thousand dollars; that the said B. M. is insolvent, and that the assets of said insolvent are suffi- cient to pay the creditors thereof, including the indebtedness to said executor, the sum of fifty cents on the dollar; that the debts of the estate of the said A. B. allowed by said court amount to the sum of four thousand dollars, and the sum of two thousand dollars has been paid thereon, and that there are no assets of said estate in the hands of the said C. D. to be applied upon the payment of said debts. It is therefore ordered and decreed that the said L. M. pay to the said C. D. the sum of one thousand four hundred dollars, and that the said G. H., assignee, pay to the said C. D. the sum of six hundred dollars; that, in default of payment by the said L. M., execution issue against him thereon for the sum of one thousand four hundred dollars. It is further ordered, the said G. H., assignee, assenting thereto, that a certified copy of this decree be filed in the case entitled, "In the Matter of the Assignment of B. M.," in this court. (Signed) J. K., County Judge. While the county judge has jurisdiction of this mat- ter, especially conferred upon it by the statute, where there is any contest or any conflicting interest, the rights of all the parties can be better adjusted by a petition in equity in the district court. 228a. Recovery of property from distributees. Under the Oregon practice, when the distributees or legatees have come into the enjoyment of their shares in the personal property before the administration has been completed, and it subsequently appears that the amount of such shares, or a part of them, is necessary for the payment of the debts and expenses of adminis- tration, there is no authority granted the executor or administrator under the statute to bring an action or proceeding for contribution, as in Nebraska. Such right is given the creditor and may be enforced by action in equity against the next of kin or legatees in any court having jurisdiction. (342) Chap. 19] MANAGEMENT OF ESTATES. 228a The action can only be maintained by a creditor whose claim has been allowed by the administrator, referee or county court. 69 In the case of both testate and intestate estates, the next of kin or legatee is liable only for the value of the assets actually received by him, or so much thereof as may be necessary to satisfy the debt, and the action may be brought against all of them jointly, or against one or more of them severally. 70 He is entitled to recover of the next of kin the value of all the assets received by all the defendants in the suit if necessary for the payment of his debt; and the amount of the recovery shall be apportioned among the defendants in proportion to the value of the assets received by each, and no allowance or deduction shall be made from such amount on account of there being other next of kin to whom assets have also been delivered. 71 The liability of legatees is similar except that a plaintiff cannot recover unless he shows: 1. That no assets were delivered by the executor or administrator of the testator to his next of kin; or, 2. That the value of such assets have been recovered by some other creditor; or, 3. That such assets are not sufficient to satisfy his demand, in which case he shall recover only the deficiency. 72 Costs are apportioned, in case a recovery is had, among the several defendants according to the re- spective amount each received, 73 and a decree against several may be satisfied as to any one by the payment or satisfaction of the amount recovered against him, 74 and each defendant is entitled to contribution from 69 The Grange Union v. Burkhart, 8 Or. 51. 70 L. O. L., 485, 488. 71 L. O. L., 486. 72 L. O. L., 488. 73 L. O. L., 489. 74 L. O. L., 490. (343) 228b PROBATE AND ADMINISTRATION. [Chap. 19 those of his class who could have been brought in as defendants. 75 228b. Liability of heirs for debts. Heirs are liable to a suit by a creditor to recover the debt of their ancestor to the extent of the value of the property inherited by them where the personal assets were insufficient to discharge it, or after due proceedings the creditor has been unable to collect the debt from the creditors of the deceased, or from his next of kin or legatees. All heirs must be made par- ties to the suit. 76 An action may be brought in like manner against devisees, and they are held liable where it appears that the personal assets of the real property that descended to his heirs were insufficient to discharge the debt, or that after due proceedings the creditor has been unable to recover the debt, or any part thereof, from the per- sonal representatives of the testator, or from his next of kin, legatees or heirs. The liability is limited to the amount of the deficiency, and may be recovered of the devisees of the testator to the extent of the value of the real property devised to them respectively. 77 The debts for which actions against distributees, legatees, heirs or devisees may be maintained include claims for the payment of money, whether liquidated or otherwise, which survive against a personal repre- sentative without regard to priority or preference. 78 The actions do not affect liability of real estate charged with the payment of debts, or liability of devisees for a debt charged on the devise. 79 75 L. O. L., 487. 76 L. O. L., 491, 492. 77 L. 0. L., 491, 498, 499. 78 L. O. L., 494. 79 L. O. L., 493, 500. (344) Chap. 19] MANAGEMENT OF ESTATES. 229 Judgment is rendered against the heirs or devisees in proportion to the value of the property which de- scended or was devised to them, and has preference against a debt of the defendant in his own right. It may be enforced by execution and levy on the land, or on other property of the defendant in case the land has been aliened, as if it were his own debt. Real property aliened in good faith and for a valuable con- sideration cannot be held for the judgment. 80 There is no occasion for a suit for contribution between heirs or devisees, for their liability is only proportionate. It is rarely necessary to resort to an action under the above law, and only one case brought under it has reached the Oregon supreme court. 229. Investment of assets. One of the most important duties devolving upon a personal representative is the investment and manage- ment of the assets of the estate. A will often contains directions to the executor as to what investments shall be made of the personal assets pending settlement of the estate, and it is his duty to strictly comply with them. An administrator is subject to no regulations or restrictions in this regard except those of the gen- eral law. Usually he has but a comparatively short, time to make investments, and can rarely obtain any better than the rate of interest paid by savings banks on deposits; but there may be instances where assets remain in his possession for two or three years. No personal representative should permit assets to be un- remunerative and uninvested, and, when practicable, should invest such moneys as are likely to remain in his possession for some time, so that they will be 80 L. O. L., 495-497. (345) 229 PROBATE AND ADMINISTRATION. [Chap. 19 adding something to the estate. 81 In making such in- vestments, a personal representative should be guided by the same degree of prudence and diligence which men usually exercise in the management of their own individual business. If possible, moneys should be deposited in such banks as pay interest on deposits, even though it be a low rate. That form of investment which is looked upon with the most favor by the courts is real estate mortgage security on property within this state, where the security is considerably in excess of the amount loaned; and the personal representative should be more particular about the loan being a safe one than the rate of interest being large. 82 The courts make a distinction between the loan of the funds on security and the parting of title to them and the taking of something else therefor. The latter meBiod of investment is not generally considered a proper one for a personal representative to make unless directed by the will or the court. 83 Under certain cir- cumstances, state or municipal bonds might be a desir- able investment for an executor. Investment of the funds in good personal securities, such as promissory notes indorsed by good, reliable parties, is proper, and will not render the representa- tive personally liable should they subsequently prove uncollectible. 84 All deposits of money in banks, all loans made on notes and mortgages, and all bonds or other investment securities purchased, should be held 81 Wood v. Myrick, 17 Minn. 408. 82 Wilson v. Staats, 33 N. J. Eq. 524; Ormiston v. Olcott, 84 N. Y. 339. 83 Horn v. Lockhart, 17 Wall. (U. S.) 570; Tucker v. Tucker, 33 N. J. Eq. 235. 84 Lovell v. Minot, 20 Pick. (Mass.) 119. (346) Chap. 19] MANAGEMENT OF ESTATES. 230 by the executor or administrator in his representative capacity, and under no circumstances should he mingle the assets of the estate with his own. 85 Under the Oregon practice, the executor or adminis- trator may at any time pending administration deposit securities of the estate with a surety company, an order of the court being first obtained therefor, and thereby secure a reduction in the penal amount of his bond, and consequent release from liability. The procedure is the same as in the case of procuring a bond for a reduced amount on the grant of letters. 86 The assets deposited with the surety company are still under con- trol of the county court, to be used for purposes of administration. 87 230. Liability on his own contracts. A personal representative of a decedent cannot make any contract creating any debt, charge or lien against the estate not founded upon a contract or obligation of his decedent. If the contract is based on a new and independent consideration between him and the promisee, he will be bound thereby and not the estate. 88 He is therefore personally liable for the services of those whom he may employ to assist him in any capa- city in attending to his duties, 89 including attorneys, 90 85 Williams v. Williams, 55 Wis. 300, 13 N. W. 274; Perkins' Estate T. Hollister, 59 Vt. 348, 7 Atl. 605; Westover v. Carman, 49 Neb. 604, 68 N. W. 501. 86 See p. 152, supra. 87 Laws 1913, p. 726. 88 Craig v. Anderson, 3 Neb. Unof. 638, 92 N. W. 640; Burleigh v. Palmer, 74 Neb. 122, 103 N. W. 1068; Austin v. Monroe, 47 N. Y. 360; Merchants' Nat, Bank v. Weeks, 53 Vt. 115. 8 Byrne v. Hume, 73 Mich. 392, 41 N. W. 331; Besancon v. Wegner, 16 N. D. 240, 112 N. W. 965. W Rapp's Estate v. Elgutter, 77 Neb. 674, 110 N. W. 661. (347) 231 PROBATE AND ADMINISTRATION. [Chap. 19 bookkeepers, 91 and for needed repairs on buildings when he has taken possession of the real estate. 92 If such charges were for services for the benefit of the estate and were necessary, or were not within the lino of personal duty on the part of the representative, he can be later reimbursed from the estate. There is one exception to the rule that the estate is not bound by contract of an executor or administrator for services. Where he is a nonresident of the state, though letters issued to him in this state, the parties performing the services may bring an equitable action to establish and enforce a lien on the assets for the amounts due them. 93 New York has also held that where the representative is insolvent, judgment on such demands may be entered against the estate. 94 An executor or administrator cannot be held liable on a promise to pay the debt of his decedent unless the contract therefor be in writing and supported by a sufficient consideration. 95 231. Contracts of the decedent. An executor is required to carry out and perform the uncompleted contracts of his decedent except those which required his personal attention. 96 1 Sowles v. Hall, 73 Vt. 53, 50 Atl. 550. 92 Almy v. Newport Probate Court, 18 R. I. 612, 30 Atl. 458; Eice T. Tilton, 14 Wyo. 101, 82 Pac. 577. 3 Gates v. McClenehan, 124 Iowa, 593, 100 N. W. 479; Coopwood r. Wallace, 12 Ala. 790. 94 Satorelli v. Ezagini, 64 Misc. Rep. 115, 118 N. Y. Supp. 46. 95 Davis v. French, 20 Me. 21; Sidle v. Anderson, 45 Pa. 464; Nelson v. Boynton, 3 Met. (Mass.) 396; Simpson v. Patten, 4 Johns. (N. Y.) 422; Jackson v. Bayner, 12 Johns. (N. Y.) 291. 96 Michigan Iron & Land Co. v. Nester, 147 Mich. 599, 111 N. W. 177; Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117. (348) Chap. 19] MANAGEMENT OF ESTATES. 232 Though a building contract is largely of a personal character, it has been held that a personal representa- tive may complete it. 97 As a general rule, if the de- cedent was a contractor ar;d left a number of uncom- pleted works, unless otherwise provided, he should not attempt to finish them, but settle for work already done and materials furnished. 232. Personal representative not authorized to carry on decedent's business. An administrator cannot, neither can an executor, unless specially authorized by will, continue to carry on the trade or business of his decedent. His duty is to close up the estate, close out the business, reduce the assets to money as soon as practicable, and not to use the assets in the business ventures in which the decedent was engaged at the time of his death. 98 At the same time it is not necessary, when decedent left, for instance, a stock of merchandise, that the store be closed at once, and remain so until a purchaser for the entire stock can be found. The executor or ad- ministrator, or a special administrator, should at once obtain leave of the court to sell as in the usual course of retail trade, or such other way as may be deemed best; and for the purpose of winding up the business and rendering the stock more salable, he has a right to purchase goods in such limited quantities as might increase the demand for, and make more salable, the rest of the stock. 99 He would also have authority to 7 Bambrick v. Webster Grove Pres. Church, 53 Mo. App. 225. 88 Lucht v. Eehrens, 28 Ohio St. 231; Succession of Sparrow, 39 La. Ann. 696, 2 South. 501; Stephens v. James, 77 Ga. 139, 3 S. E. 160. w \Nilliams, Executors, 1794. (349) 233 PBOBATE AND ADMINISTRATION. [Chap. 19 bind the estate to the payment of such expenses as may be necessary for the cultivating and harvesting a crop growing at the time of decedent's death. 100 If decedent was a contractor, and left a number of uncompleted contracts at the time of his death, unless otherwise provided in the contract, the personal repre- sentative should settle up for work already performed. A contract of this class depends much upon the per- sonal ability and knowledge of the contractor, and to permit an executor or administrator to carry it out might be a disastrous venture for the estate. 233. Liability for carrying on decedent's business. Should a personal representative, in spite of legal authority, carry on decedent's trade or business, the obligations which he incurs are his own debts, the estate is not holden thereby. 101 He is liable to the estate for the value of the assets so used, and must account for the rental value of the real property should he have used that in the business. If, by the will, he be directed or authorized to carry on decedent's busi- ness, unless otherwise directed, he can only use in the business those assets invested therein at the date of decedent's death. He cannot use other assets for that purpose, and all parties dealing with him do so with the knowledge that he is managing and conducting the business as such executor, and under the provisions 100 Miltenberger v. Elam, 11 La. Ann. 668; Succession of Decuir, 22 La. Ann. 372; Florsheim v. Holt, 32 La. Ann. 133. 101 Succession of Sparrow, 39 La. Ann. 696, 2 South. 501; Hooper v. Hooper's Exrs., 29 W. Va. 276, 1 S. E. 280; Burwell v. Cawood, 2 How. (U. S.) 560; Lucht v. Behrens, 28 Ohio St. 231. (350) Chap. 19] MANAGEMENT OF ESTATES. 234 of the will, 102 and therefore only such portion of the assets of the estate as were invested therein at the time of decedent's death, and the proceeds of sales or income from such assets, are subject to the debts in- curred by him in the business. 103 234. Devastavit Definition. A devastavit may be denned as a wasting of the as- sets of the estate, and consists of any act of omission or mismanagement by which the estate suffers loss, and for which executors and administrators are re- quired to answer out of their own property as far as they had or might have had assets of the estate. 104 It may be caused by direct acts, such as the conversion of the assets, or by negligence, carelessness, and in- attention to the business of the estate. In determin- ing whether a personal representative is to be held liable for a devastavit, the question of good faith is an important element to be considered. If he has acted without default or fraud, with reasonable dili- gence, and with an honest desire to do his duty faith- fully, a mere error of judgment in what was fairly a matter of judgment or opinion would not make him liable merely because subsequent events have shown that he did not pursue the wisest course. 105 He is also 102 First Nat. Bank of Clarion v. Brenneman's Exrs., 114 Pa. 315, 7 Atl. 910. 103 Jones v. Walker, 103 U. S. 444. 104 Bacon's Abr. "Executors," L. 1; Steel v. Holladay, 20 Or. 77, 25 Pac. 69. 105 Schultz v. Pulver, 11 Wend. (N. Y.) 361; Euggles v. Sherman, 14 Johns. (X. Y.) 446; Whitney v. Peddicord, 63 111. 249; Spaulding v. Wakefield's Estate, 53 Vt. 660. (351) 235 PROBATE AND ADMINISTRATION. [Chap. 19 required to exercise such skill, prudence and diligence as men ordinarily bestow upon their own affairs. 106 235. Acts constituting a devastavit. The following acts have been held to constitute a devastavit: Loss occurring by reason of neglect to collect the debts within a reasonable time after the issue of letters; 107 by failure to obey the directions of a will; 108 by the use of the assets in the "prosecution of mercantile, commercial and manufacturing enter- prises of speculative adventures"; 109 by borrowing money, and pledging the property of the estate in payment; 110 by failure to account for the rent of the realty; 111 by failure to pay taxes, there being sufficient assets of the estate in his hands for that purpose; 112 by paying the assets of the estate in satisfaction of his own debts, or to a third party; 113 by a loss of personal property through his carelessness and negligence; 114 by failure to resist unjust and unfounded claims; 115 by mingling the property of the estate with his own, as by depositing the money in a bank in his own name, or 106 Stevens v. Gage, 55 N. H. 175; Rubottom v. Morrow, 24 Ind. 202; Harris v. Parker, 41 Ala. 604. 107 Schultz v. Pulver, 11 Wend. (N. Y.) 363; Shaffer's Appeal, 46 Pa. 131; Sterling v. Wilkinson, 83 Va. 791, 3 S. E. 533; Neff's Appeal, 48 Pa. 501; Bryant v. Kussell, 23 Pick. (Mass.) 508. 108 Weigand's Appeal, 28 Pa. 471. 109 Deobold v. Oppermann, 111 N. Y. 538, 19 N. E. 94; King v. Talbot, 40 N. Y. 86. no Merchants' Nat. Bank v. Weeks, 53 Vt. 115. Hi Dix v. Morris, 66 Mo. 514. 112 In re Herteman's Estate, 73 Cal. 545, 15 Pac. 121. 113 Camp v. Smith, 68 N. C. 537. 114 Tuttle v. Robinson, 33 N. H. 104. 115 Smith v. Cuyler, 78 Ga. 654, 3 S. E. 406. (352) Cliap. 19] MANAGEMENT OF ESTATES. 236 with his own funds; 116 by failing to redeem property when he had money on hand sufficient to do so; 117 by selling the assets on credit, and without security; 118 and by using the assets of the estate in trade. 119 He is not held liable for failure to try to enforce bad or doubtful claims, provided he can show that payment could not have been obtained by proper measures; 120 - nor for loss accruing by reason of the extension of a debt, made with the consent of the distributees; 121 nor is he liable for property lost by robbery, fire or flood, unless his own negligence or bad faith contributed thereto. 122 236. Rights in regard to negotiable instruments. If an executor or administrator takes a note in set- tlement of a claim owing the estate, payable to him in his representative capacity, he may treat it as as- sets of the estate, or he may charge himself with the amount thereof, thereby making himself personally lia- ble, and hold the paper as his own private property. 123 lie Williams v. Williams, 55 Wis. 300; Kobinett's Appeal, 36 Pa. 174; Gilbert's Appeal, 78 Pa. 266; Perkins' Estate v. Hollister, 59 Vt. 348, 7 Atl. 605; Ditmar's Admr. v. Bogle's Distributees, 53 Ala. 169. 117 Steel v. Holladay, 20 Or. 77, 25 Pac. 69. us King v. King, 3 Johns. Ch. (N. Y.) 552; Orcutt v. Orms, 3 Paige 19 . (Signed) J. K., County Judge. Form No. 120. LETTERS OF SPECIAL ADMINISTRATION. State of Nebraska, County, ss. To C. B., Widow of A. B., Late of Said County: Whereas, A. B., late of said county, departed this life intestate, being, at the time of his death, a resident of said county and seised of (382) Chap. 21] MORTGAGING REAL ESTATE. 249 real estate therein, by reason whereof the granting of special letters of administration upon his estate devolves upon the county court of said county: Now, therefore, you are hereby appointed special administratrix of said estate, with authority only to execute and deliver any mortgage and note or notes, which said mortgage may be given to secure, which may be authorized by this court, and also with power and authority to pay the money received on said mortgage in satisfaction of the mortgage now a Hen on said real estate. In testimony whereof, I have hereunto set my hand and affixed my official seal this day of , 19 . (Signed) J. K., County Judge. 249. Mortgage and notes. The executor or administrator should obtain the lowest possible rate of interest on the new mortgage and reduce its amount as much as possible by applying personalty on the old lien. The authority to execute it being one conferred only by statute and the order of the court, 10 the new mortgage should show that it was executed pursuant to the license granted by the county judge. 11 The holder of a void mortgage executed by a personal representative, the proceeds of which have been applied in payment of a valid mortgage, is enti- tled to be subrogated to the rights of such prior mort- gage, 12 but not if the prior mortgage was invalid, or the proceeds applied to other purposes. 13 The accompanying notes should be signed by him as such representative. They are a liability of the estate and not binding on him personally. 14 A purchaser of 10 Lawrcy v. Sterling, 41 Or. 618, 69 Pac. 160. 11 Thomas v. Parker, 97 Cal. 456, 32 Pac. 562. 12 Boevink v. Christianaase, 69 Neb. 256, 95 N. W. 652. 13 Henry v. Henry, 73 Neb. 476, 103 N. W. 441, 100 N. W. 789. 14 Wisconsin Trust Co. v. Chapman, 121 Wis. 479, 99 N. W. 341. (383) 249 PROBATE AND ADMINISTRATION. [Chap. 21 such notes and mortgages takes them with full knowl- edge of the extent and limitations on the powers of the mortgagor and payer, and the rule of caveat emp- tor applies. 16 Form No. 121. MORTGAGE BY PERSONAL REPRESENTATIVE. Know all men by these presents, that I, C. D., of the county of and state of Nebraska, in my capacity as administrator of the estate of A. B., late of said county, pursuant to license granted me by the county court of county, Nebraska, on the day of , 19 , authorizing and empowering me, as such adminis- trator, and for and in behalf of said estate, to execute and deliver a mortgage upon the following described real estate [describe real estate as in petition] for the sum of $ , and also a note or notes which are to be secured by said mortgage, aggregating said sum, said notes to bear interest at the rate of seven per cent per annum, for and in consideration of the sum of $ to me in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and convey unto L. M., of county, Nebraska, the follow- ing described real estate, situated in county, Nebraska, and known and described as follows [describe real estate as in petition], together with all the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining. Provided, always, and these presents are upon this express condi- tion, that whereas, said C. D., in his capacity as administrator as aforesaid, and pursuant to the license granted him by the county court of county, Nebraska, has executed and delivered to the said L. M. a promissory note of even date herewith, payable after date, with interest at the rate of seven per cent per annum, payable annually: Now, therefore, if the said C. D., as administrator as aforesaid, or his successors in trust, shall well and truly pay or cause to be paid said sum of money in said note mentioned, with interest thereon according to the tenor and effect thereof, and shall well and truly keep and perform all the covenants and agreements on the part of said estate to be kept and performed, then these presents shall be null and void; but if the said sum of money, or any part thereof, or any interest thereon, is not paid when the same becomes due, or if 15 Neary v. Neary, 70 Neb. 319, 97 N. W. 302. (384) Chap. 21] MORTGAGING REAL ESTATE. 250 the said mortgagor shall fail to keep and perform all the covenants and agreements on the part of said estate to be kept and performed., then the whole of said sum, together with the interest then accrued, shall immediately become due and payable. Dated this day O f , 19 . (Signed) C. D., Administrator of the Estate of A. B., Deceased. Witnesses: F. G. M. N. State of Nebiaska, County, ss. On this day of , 19 , before me, a notary public in, and for said county, personally came C. D., administrator of the es- tate of A. B., deceased, to me personally known to be the identical person whose name is affixed to the foregoing instrument as mortgagor, and acknowledged the execution of the same to be his voluntary act and deed, as such administrator, for the purposes therein mentioned. Witness my hand and official seal this day of , 19 . (Seal) (Signed) D. J. S., Notary Public. Form No. 122. MORTGAGE NOTE OF EXECUTOR OR ADMINISTRATOR. , Neb., , 19 . after date, for value received, I, C. D., administrator of the estate of A. B., deceased, pursuant to the order of the county court of county, Nebraska, dated , 19 , promise to pay to the order of E. F. dollars ($ ) with interest thereon at per centum per annum, payable annually. Payable at . (Signed) C. D., Administrator of the Estate of A. B., Deceased. 250. Discharge of special administrator. As far as the assets of the estate in his possession are concerned, such special administrator is merely a medium for the transfer of the amount due on the original mortgage to the mortgagee. No other assets 25 Pro. Ad. (385) 250 PROBATE AND ADMINISTRATION. [Chap. 21 of the estate come into his possession, and there is therefore no fund from which the costs of the proceed- ing and his services to the estate can be paid. If the principal of the original mortgage has been reduced, the court would have the right to permit the new mortgage to be executed for a sum large enough to redeem the lands from the lien of such original mort- gage, and pay the expenses of procuring the license, together with a reasonable sum for his services. He should file a report of his doings with the county court, and, upon their approval, he is entitled to his dis- charge. When an executor or administrator executes the mortgage, the account of his receipts and disburse- ments and expenses are properly included in his annual or final account, though he should make and file his report, the same as a special administrator. Form No. 123. REPORT OF EXECUTOR, ADMINISTRATOR, OR GUARDIAN ON MORTGAGING REAL ESTATE. [Title of Cause and Court.] I, C. D., special administrator of said estate, respectfully report that, pursuant to the license granted me on the day of , 19 , by said court for the mortgaging of the following described real estate [describe real estate as in mortgage], 011 the day of , 19 , I executed and delivered to X. Y. a promissory note due years from date, with interest thereon at the rate of six per cent per annum, and also on the same date I, for and on behalf of said estate, executed a mortgage upon the real estate above described to secure the payment of said note, and I received from said X. Y. the sum of dollars ($ ). [I paid to M. N. the sum of dollars ($ ), being the amount due on the mortgage held by him on said real estate. I have also paid the costs of this pro- ceeding, being the sum of dollars ($ ), and now have in my possession the sum of dollars ($ ), which said sum Chap. 21] MORTGAGING REAL ESTATE. 250 I respectfully pray that I may be allowed to retain for my services and expenses in said proceedings.] [I paid said sum to M. N., that being the amount due on the mortgage held by him on said real es- tatp.] That attached hereto, marked "Ex. A." and "Ex. B," are the uote executed by said A. B. in his lifetime to said M. N., and a release of said mortgage, which was given by said A. B. to secure the same. (Signed) C. D., Administrator. Form No. 124. CONFIEMATION OF REPORT. [Title of Cause and Court.] C. D., special administrator of said estate, having filed a report of his doings as such special administrator in the matter of executing a mortgage to X. Y. in renewal of a mortgage which was, at the death of said A. B., a lien on certain of his real estate, it is hereby ordered that the same be and hereby is in all respects confirmed, and said C. D. be allowed the sum of dollars for his services and expenses, and that he be discharged. Dated this day O f , 19. (Signed) J. K., County Judge. (387) CHAPTER XXII. ENFORCEMENT OF DECEDENT'S CONTRACT FOB SALE OF REAL ESTATE. 251. Executor or Administrator has No Inherent Authority to Exe- cute Deed to Real Estate. 252. Enforcement of Decedent's Real Estate Contracts. 253. Petition for Enforcement of Contract to Convey Real Estate. 254. Notice of Hearing. 255. Hearing on the Petition. 256. Costs. 257. Specific Performance of Contracts to Convey Realty. 258. 'Contracts Covering Homesteads. 251. Executor or administrator has no inherent authority to execute a deed to real estate. An administrator of a vendor who had, in his life- time, given a contract or bond for the sale of real estate has no power to execute a deed to the same to the vendee, though all the covenants and agreements on the part of the vendee may have been complied with by him; neither has an executor, unless a power of sale has been given him by the will. 1 An executor or ad- ministrator may deliver a deed which had been exe- cuted by a decedent and deposited in escrow, to be delivered upon the performance of a condition prece- dent, or the happening of a certain event, and an execu- tor may also deliver a deed executed by his testator and directed by the will to be delivered after his death. 2 1 Rearich v. Swinehart, 11 Pa. 233; Adams v. Harris, 47 Miss. 144. 2 Adams v. Harris, 47 Miss. 144. (388) Chap. 22] EEAL ESTATE CONTRACTS. 252 252. Enforcement of decedent's real estate con- tracts. Any contract made by a decedent during his lifetime for either the purchase or sale of real estate survives his death, unless otherwise therein provided, and may be enforced either by or against his heirs, devisees or executors or administrators. There are two methods provided by law for enforcing such contracts. The first is by a special proceeding in the district court, and is limited to contracts in writing. 3 It may be brought by any person claiming to be entitled to the conveyance, 4 by the executor or administrator of such person for the benefit of the parties entitled thereto, 5 or by the executor or administrator himself. 6 The second is by an action for specific performance, which may be brought whether the contract is in writing or oral. 7 It may be brought by the person entitled to the conveyance against the heirs, devisees, executor or administrator, 8 by the heirs or devisees against the vendor, 9 or by the personal representative. 10 In Oregon the executor or administrator may be authorized to execute and deliver a deed to a vendee only in cases where the decedent at the time of his death was a party to a bond for a deed or other en- 3 Eev. Stats., c. 17, 166, 169, 171, [1430], [1433], [1435]. * Rev. Stats., c. 17, 167, [1431]. 5 Eev. Stats., c. 17, 178, [1442]. 6 Rev. Stats., c. 17, 179, [1443]. 7 Chess' Appeal, 4 Pa. 52; Guilford v. Love, 49 Tex. 715; Cory v. Hyde, 49 Cal. 479. 8 Rev. Stats., c. 17, 172, [1436]. Young v. Young, 45 X. J. Eq. 27; House v. Dexter, 9 Mich. 246. 10 Solt v. Anderson, 67 Neb. 103, 93 X. W. 205. (389) 252 PROBATE AND ADMINISTRATION. [Chap. 22 forceable contract requiring him to convey real estate. 11 Jurisdiction to authorize the execution of such deed is vested in the county judge of the county where the estate is being administered. A report or verified petition may be presented to him, showing that all the terms and conditions of the bond or contract have been met so as to entitle the other party thereto to a con- veyance, and if satisfied therewith he shall make an order authorizing and directing the execution and de- livery of the requisite deed to the proper parties. 12 The proceeding is substantially the same as on the application of an executor or administrator under the Nebraska statute to complete such contract when the conditions have been performed by the vendee, except that the issue and service of a citation is not required. The purpose of the special proceeding is to give the executor or administrator authority to complete an executory contract where the vendee has clearly com- plied with his agreements or is ready to do so, and the personal representative is satisfied that it is for the best interest of all concerned that the deed be executed and delivered. It is not a bar to a suit for specific per- formance. The estate has a third remedy. The ex- ecutor or administrator may, in case of default, treat the contract executed by his decedent as a mortgage and foreclose the same, 13 or place the vendee in statu quo and avoid the contract. His election is binding on the estate and cannot be revoked except for fraud. 14 11 L. O. L., 1269. 12 L. O. L., 1270. 13 Hendrix v. Barker, 49 Neb. 369, 68 N. W. 531; Gardels v. Kloke, 36 Neb. 593, 54 N. W. 834. 14 Gillilan v. Oakes, 1 Neb. Unof. 893, 95 N. W. 511; Solt v. Ander- son, 7 Neb. 103, 93 N. W. 205. (390) Chap. 22] BEAL ESTATE CONTRACTS. 253 253. Petition for enforcement of contract to convey real estate. The vendee in a contract in writing executed by the decedent, who claims that he is entitled to a convey- ance pursuant thereto, may file a petition for that pur- pose, setting forth the facts upon which such claim is predicated. 15 If he be not living, any person who would be entitled to the estate under him as heir, devisee or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased person for the benefit of the person so entitled, may commence such proceedings. 16 The executor or administrator of a deceased vendor who desires to complete such contract may file his peti- tion therefor in the district court of the county in which the land or any part thereof is situated, 17 and may include different contracts with different persons and for different tracts of land in one petition. 18 The statute does not state who shall be made parties when the petition is filed by a vendee or his personal representative, but when filed by a representative of a vendor, the heirs at law, devisees or other repre- sentatives of the deceased vendor when not made plain- tiffs must be made defendants. 19 The rule appears to be the same as in cases of specific performance. All parties having an interest in the land as heirs or 15 Rev. Stats., c. 17, 167, [1431]. 16 Rev. Stats., c. 17, 178, [1442]. 17 Rev. Stats., c. 17, 179, [1443]. is Rev. Stats., c. 17, 180, [1444]. M Rev. Stats., c. 17, 179, [1443]. (391) .. 253 PROBATE AND ADMINISTRATION. [Cliap. 22 devisees, or by virtue of the marriage relation^ must be named as parties. 20 . The petition should set out the execution and de- livery of the contract, the substantive parts thereof, with a description of the land, and allege performance by the vendee of all the covenants and agreements on his part to be kept and performed. 21 Form No. 125. PETITION BY VENDEE TO REQUIRE EXECUTOR OR ADMINIS- TRATOR TO EXECUTE DEED. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , one A. B., then a resident of said county, entered into a written contract with your petitioner, by the terms of which said A. B. agreed to sell, and your petitioner to pur- chase of said A. B., the following described real estate, situated in county, Nebraska, to wit: [Describe real estate as in contract.] Your petitioner agreed to pay said A. B. for the said land the sum of dollars, in payments as follows: dollars on the day of , 19 , and dollars on the first day of each and every month thereafter, until said sum of dollars is fully paid with interest on each and all of said payments from date of said contract until paid, at the rate of per cent per annum, payable annually. That said A. B. therein agreed, upon the payment of said principal and interest as provided in said contract, to make to your petitioner, his heirs and assigns, a valid title in fee simple to said land, and for that purpose to execute and deliver to your petitioner, his heirs aud assigns, a good and sufficient warranty deed for th'e same, subject, however, to the taxes of 19 , and subsequent taxes which your peti- tioner agreed to pay, and that said contract further provided that the covenants and conditions thereof should be binding upon the heirs and assigns of the parties thereto. 20 In re Reed, 19 Neb. 397, 27 N. W. 391; Holmes v. Columbia National Bank, 4 Neb. Unof, 893, 97 N. W. 26. 21 Cory v. Hyde, 49 Cal. 470; Peters v. Phillips, 19 Tex. 70; Carter T. Jackson, 56 N. H. 364. (392) Chap. 22] REAL ESTATE CONTRACTS. 253 Second. That on said day of , 19 , your petitioner paid to said A. B. the sum of dollars, and subsequently, on the first day of each and every month thereafter, paid to said A. B. the sum of dollars, with interest thereon at the rate of per cent per annum, payable annually, and there is nothing now due from your petitioner on said contract. Third. That your petitioner has paid all the taxes and assessments levied against said property since said day of , 19 , and performed all the covenants and agreements of said contract on his part to be kept and performed. Fourth. That said A. B. departed this life on the day of , 19 [leaving a last will and testament] [intestate], and that on the day of , 19 , letters testamentary [of adminis- tration] upon the estate of the said A. B. were issued out of and under the seal of the county court of county, Nebraska, to E. F.. and said E. F. is now executor [administrator] of said estate. Filth. That said A. B. left him surviving a widow, C. B., and the following named heirs at law [and devisees] : Sixth. That said A. B. never executed and delivered to your peti- tioner any deed of conveyance to said real estate according to the terms of said contract, nor did said A. B. execute any deed to said property, and deposit the same in escrow, to be delivered to your petitioner upon the performance of the conditions and covenants of said contract. Your petitioner therefore prays that the court may appoint a time and place for the hearing of said petition, and cause notice of the pendency thereof to be given to said parties above named, and that upon said hearing a decree be entered authorizing and directing said E. F., executor [administrator] of the estate of A. B., deceased, to execute for and in behalf of said estate a deed to said real estate, and thereby convey the same to your petitioner free and clear from all conveyances and encumbrances. (Signed) C. D. [Add verification, Form No. 5.] (393) 253 PROBATE AND ADMINISTRATION. [Chap. 22 Form No. 126. PETITION BY EXECUTOR FOR AUTHORITY TO EXECUTE DEED TO LAND SOLD BY DECEDENT ON A CONTRACT. In the District Court of County, Nebraska. C. D., Executor of the Estate of A. B., Deceased, Plaintiff, v. E. F. and G. H., Defendants. Comes now C. D., and alleges that on the day of 19 , A. B., then a resident of said county, entered into a written contract with the defendant, E. F., by the terms of which said A. B. agreed to sell, and said E. F. to buy, the following described real estate, situated in county, Nebraska, to wit: [Describe real es- tate, and set out conditions and covenants in said contract as in Form No. 125.] Second. That on the day of , 19 , said E. F. paid to said A. B. the sum of dollars, and has paid since said date the sum of dollars, said sums so paid as aforesaid being the payments of principal and interest up to the day of - , 19 , and that the final payment of dollars on said contract will become due on the day of , 1& , and that plaintiff, as administrator as aforesaid, is desirous of completing said contract so made by said A. B. in his lifetime. Third. That on the day O f , 19, said A. B. departed this life intestate, and on the day of , 19 , letters of administration out of and under the seal of the county court of said county were issued to said plaintiff as administrator of the estate of A. B., deceased, and said plaintiff is now administrator of said estate. Fourth. That said A. B. never executed and delivered to defend- ant, E. F., a deed of said above-described real estate, nor did said A. B. execute any deed to said real estate, and deposit the same in escrow, to be delivered to said E. F. upon the performance of the conditions and covenants of said contract. Fifth. That said A. B. left, him surviving, a widow and one heir at law, a son, the defendant G. H., who is a minor of the age of years. Plaintiff therefore prays that the court may appoint a time and place for the hearing of said petition, and cause notice of the pendency (394) Chap. 22] REAL ESTATE CONTRACTS. 254 thereof to be given all parties interested therein, and that, upon said hearing, a decree may be entered authorizing and directing said plain- tiff, as administrator of the estate of A. B., deceased, to execute, for and on behalf of said estate, a deed to said real estate upon the pay- ment by said E. F. of the balance so due on said contract, and thereby convey the same to the said E. F. free and clear from all conveyances and encumbrances, as provided by said contract. Dated this day of , 19 . (Signed) C. D., Administrator of the Estate of A. B., Deceased. 254. Notice of hearing. When the petition is presented to the judge of the district court it is his duty to set a time and place for hearing the same, and order notice of the pendency thereof, and of the time and place of hearing, to be pub- lished at least six successive weeks before such hearing in such newspaper or newspapers in this state as he may deem necessary. 22 The notice should be directed to the heirs or devisees by name. 23 Personal service is not required by stat- ute, but ought to be had in addition to service by pub- lication, when practicable. 22 Rev. Stats., c. 17, 168, [1432]; In re Keed, 19 Neb: 397, 27 N. W. 391; Solt v. Anderson, 67 Neb. 103, 86 N. W. 1076. 23 Holmes v. Columbia Nat. Bank, 4 Neb. Unof. 893, 97 N. W. 26, where it was held that an heir, not served with process, except by a general notice by publication addressed to all persons interested in the estate of W. W. Holmes, deceased, was not barred of his interests by the decree. (395) 255 PROBATE AND ADMINISTRATION. [Chap. 22 Form No. 127. NOTICE OF HEAKING. [Title of Cause and Court.] To E. F., G. H. and C. B.: You are hereby notified that, on the day of , 19 , C. D. filed his petition in the district court of - county, Nebraska, the object and prayer of which are to obtain a decree authorizing and directing E. F., executor of said estate, to execute and deliver to him [as trustee for the heirs of G. H., or, as administrator of the estate of G. H., deceased] a deed containing full covenants of war- ranty, to the following described real estate [describe property], in pursuance of the terms of a certain written contract between said A. B. and C. D. [G. H.]. Said petition will be heard at chambers at the courthouse in the city of 7 in said county, on the day of , 19 , at the hour of 9 A. M. It is further ordered that notice of the pendency of this petition, and of the time and place fixed for the hearing thereon, be given by publication for six successive weeks in the , a newspaper published in this state. Dated this day of , 19. (Signed) W. M., District Judge. 255. Hearing on the petition. Upon the return day, at the place fixed for the hear- ing, upon filing the proof of publication, a hearing is had before the judge of the district court, and all per- sons interested in the estate may appear before him and defend against such action, and the court may examine on oath the petitioner, and all others who may be produced before him for that purpose. 24 If, after a full hearing upon such petition and exam- ination of the facts and circumstances of such claim, the judge is satisfied that the land should be deeded *4 Rev. Stats., c. 17, 168, [1432]. (396) Chap. 22] REAL ESTATE CONTRACTS. 256 to the vendee in the contract, or his executor or admin- istrator, he shall thereupon make a decree authorizing and directing the executor or administrator to make and execute a conveyance thereof to the person entitled thereto. 25 When the proceeding is brought by the executor or administrator of the vendor, and there are payments to be made to the estate under the contract, the court may cause the proceeds of such sale to be secured for the benefit of the estate, for which purpose a bond is required. 26 If the judge shall doubt the right of the petitioner to have a specific performance of the contract, he shall dismiss the petition without prejudice to the rights of the petitioner who may at any time thereafter prose- cute an action to enforce it. 27 256. Costs. The statute contains no provision in regard to the costs. The executor or administrator, not having any authority to complete the contract until the permission of the court is first had and obtained, and the vendee not being able, without a decree, to obtain what is justly due him, it would be unjust, where no defense was interposed, to compel him to pay costs which cir- sumstances compelled him to incur in order to obtain his deed. The costs should therefore be paid by the estate. 25 Rev. Stats., c. 17, 169, [1433], 178, [1442]. 26 Rev. Stats., c. 17, 181, [1445]; Solt v. Anderson, 62 Neb. 153. 27 Eev. Stats., c. 17, 171, [1435]. (397) 256 PBOBATE AND ADMINISTRATION. [Chap. 22 Form No. 128. DECREE DIRECTING EXECUTOR OR ADMINISTRATOR TO CONVEY REALTY. [Title of cause and court, as in Form No. 125.] Now, on this day of , 19 , this cause came on for hearing upon the petition of C. D. for a decree authorizing and em- powering E. F., executor of the estate of A. B., deceased, to execute and deliver to him, said C. D., a warranty deed to the following de- scribed realty, pursuant to a contract in writing executed by said A. B. in his lifetime, and delivered to said C. D., and was submitted to the court. Upon consideration whereof, the court finds that due notice of the pendency of said petition, and of the time and place of the hearing thereon, has been given to all parties interested as heretofore ordered by said court; that on the day of , 19 , said A. B. and said C. D. entered into a contract in writing, by the terms of which said A. B. agreed to sell, and C. D. to purchase, the realty above described, and that, upon the performance of the conditions and covenants of said contract on the part of said C. D., to be kept and performed, said A. B. agreed to execute and deliver to said C. D. a deed to the above-described realty, containing full covenants of war- ranty; that the conditions and covenants of said contract which the said G. D. therein agreed to keep and perform have been by him, said C. D., fully kept and performed, and he is entitled to a convey- ance thereof as prayed for. It is therefore ordered and decreed that the said E. F., executor as aforesaid, be and he hereby is directed, for and on behalf of said estate of said A. B., to execute and deliver to said C. D. a warranty deed to said realty within ten days from this date. It is further ordered and decreed that, if said E. F., administrator, shall neglect or refuse to execute and deliver said deed as above described, then a duly certified copy of this decree may be filed in the office of the register of deeds of said county, and, when so filed and recorded, shall operate as a full and complete transfer of the legal title to said premises, in the same manner and to the same extent as though a deed had been executed and delivered to said C. D. by said E. F., executor, according to the directions of this decree. And it is further ordered that the said E. F., executor, pay the costs of this proceeding, taxed at $ . (Signed) W. M., District Judge. (398) Chap. 22] EEAL ESTATE CONTRACTS. 256 Form No. 129. DECREE AUTHORIZING EXECUTOR TO COMPLETE CONVEY- ANCE OF REALTY, AND EXECUTE BOND. {Title of cause and court, as in Form No. 125.] Now, on this day of , 19 , this cause came on for tearing upon the petition of C. D., executor of the estate of A. B., deceased, for permission to complete a certain contract for the sale of the following described real estate [describe realty as in petition], executed and delivered by said A. B. in his lifetime to one E. F., and to execute a deed therefor, and was submitted to the court. Upon consideration whereof, the court finds that due notice of the pendency of said petition, and of the time and place fixed for the tearing thereof, Was given to all persons interested, by publishing "the same in the , a newspaper printed and published in said state, as appears by the proof of publication thereof on file, as ordered l)y said court, that on the day of , 19 , said A. B. executed and delivered to E. F. a certain contract in writing, by the terms of which the said A. B. agreed to sell, and said E. F. to buy, the realty above described, and that upon the performance of the conditions and covenants of said contract on the part of the said E. F., to be kept and performed, said A. B. agreed to execute and deliver to said E. F. a deed to the above-described realty, containing full covenants of warranty; that there is now unpaid on said contract the sum of dollars, which said sum is due and payable, according to the terms of said contract on the day of , 19 , with interest thereon at < per cent, and that said E. F. has fully per- formed all the other covenants and conditions on his part to be kept and performed, and, upon the payment of the said sum of dol- lars, as aforesaid, is entitled to a deed to said realty, as provided in said contract, and said C. D., executor, desires to complete said contract according to the terms thereof. It is therefore ordered and decreed that said C. D., executor of the estate of A. B., deceased, be and he hereby is authorized, for and on "behalf of said estate, to execute and deliver to said E. F. a deed to said realty, as provided in said contract, upon the payment to him by said E. F. of the sum of dollars, with interest thereon at per cent per annum, on the day of , 19 , and upon the approval by the county court of said county of a bond in the penal sum of dollars, to be executed by said C. D., with good and sufficient gurety, to the county judge of said county, conditioned that (399) 256 PROBATE AND ADMINISTRATION. [Chap. 22 said C. D., executor, will well and truly account for all the proceeds .of said sale, and administer the same according to law and the will of the said A. B. (Signed) W. M., District Judge. Form No. 130. BOND ON EXECUTING DEED TO KEALTY. [First part, as in usual form of bond.] Whereas, a decree has been made by the Hon. W. M., judge of the distiict court of county, Nebraska, authorizing C. p., executor of the estate of A. B., deceased, to execute and deliver to E. F. a deed with full covenants of warranty to the following described realty [describe real estate as in petition], upon the payment to him said executor of the sum of dollars: Now, therefore, the condition of this obligation is such that, if the said C. D. shall well and truly account for said sum of dollars, the proceeds of said sale, and administer the same according to law and the will of said A. B., then these presents to be null and void; otherwise to be and remain in full force and effect. (Signed) C. D. L. M. Bond and surety approved by me this day of , 19 . (Signed) W. M., Judge of District Court. . . . Form No. 13L EXECUTOR'S OE ADMINISTRATOR'S DEED ON SALE OF REAL ESTATE PURSUANT TO CONTRACT. Know all men by these presents, that I, C. D., executor of the es- tate of A. B., deceased, by virtue of the authority conferred upon me as such executor by a decree of the Hon. W. M., judge of the district court of county, Nebraska, dated , 19 , and which said decree is in the words and figures following [copy decree], do hereby grant, bargain, sell, and convey unto E. F., of - county, , the following real estate situated in county, Nebraska, and described as follows [describe realty as in petition], together with all the tenements, hereditaments, and appurtenances to the same belong'ng. To have and to hold the above-described premises, with the appurtenances, unto the said E. F. and his heirs and assigns. (400) Chap. 22] EEAL ESTATE CONTRACTS. 257 , And I. C. D., as executor of the estate of said A. B., and for and in beha'f of said estate, do hereby covenant with the aid E. F., his he'rs and assigns, that said estate is lawfully seised of said premises, that they are free from encumbrances, and that said estate has good right and lawful authority to sell the same, and I, C. D., do in my rapacity as executor as aforesaid, and for and in behalf of said es- tate, hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever. Signed this day of > 19 . C. D. In presence of: G. H. L. M. 257. Specific performance of contracts to convey realty. Whenever any person who is bound by contract to convey real estate dies before the conveyance is made, the vendee may prosecute an action for specific per- formance of the same against the heirs, devisees, execu- tor or administrator of the decedent. 28 An adminis- trator, it has been held, may also bring an action for the same purpose. He may compel a vendee to per- form and obtain license to execute the conveyance. 29 The rules governing parties to the action, discretion of the court in awarding performance, and proceedings generally in the action are the same as in ordinary cases for specific performance. The court may require the personal representative to join in the conveyance with such of the heirs or devisees as live in this state. 30 Every conveyance made in pursuance of such decree shall be effectual to pass the estate contracted as fully 28 Rev. Stats., c. 17, 172, [1436]. 28 Solt v. Anderson, 62 Neb. 153, 86 N. W. 1076. 80 Rev. Stats., c. 17, 173, 174, I 143 ?], [1438]. 26 Pro. Ad. (401) 258 PROBATE AND ADMINISTRATION. [Chap. 22 as if the contracting party himself was still living and then executed the same. 31 A copy of the decree, duly certified and recorded in the office of the register of deeds where the land is located, gives the person the right to the possession of the lands and to hold the same according to the same tenure as if they had been conveyed by deed, but does not prevent the court from enforcing such decree by proper process according to the usual course of proceedings. 32 258. Contracts covering homesteads. A contract for the sale of the one hundred and sixty acres or the two lots which make up the family home- stead cannot be enforced unless it is both signed and acknowledged by both husband and wife. 33 If the contract includes the homestead with other tracts of land it is also unenforceable. To specifically enforce such contract would be to substitute the opinion of the court for the agreement of the parties. 34 31 Rev. Stats., c. 17, 175, [1439]. 32 Rev. Stats., c. 17, 176, 177, [1440], [1441]. 33 Solt v. Anderson, 67 Neb. 103, 93 N. W. 205; Id., 63 Neb. 734, 89 N. W. 206; Meisner v. Hill, 92 Neb. 435, 138 N. W. 583. 34 Anderson v. Schertz, 94 Neb. 390, 143 N. W. 238. (402) CHAPTER XXIII. FOREIGN AND ANCILLARY ADMINISTRATION. i 259. Limitation on Powers of Executor or Administrator at Com- mon Law. 260. Powers of Foreign Executor or Administrator Within this State. 261. Limitation on Powers of Foreign Representatives. 262. Eights of Nebraska Administrator in Other States. 263. Jurisdiction of the Court to Appoint Ancillary Administrator. 264. Purposes for Which Appointment Proper. 265. Procedure for Appointment. 266. Hearing Order for Appointment. 267. General Eules Governing Ancillary Administration. 268. General Powers and Duties of Ancillary Administrators. 269. Allowance and Payment of Claim. 270. Accounting by Ancillary Administrators. 271. Disposition of Surplus After Paying Debts. 259. Limitations on powers of executor or admin- istrator at common law. At common law the jurisdiction of an executor or administrator was strictly limited to the confines of the jurisdiction from which he received his appoint- ment. He had no right to any part of the assets of his decedent beyond the limits of his state or country, and was not responsible for them. If he wished to reach property or collect debts belonging to the estate in another jurisdiction, he had to first take out letters of administration therein or procure the appointment of someone else as an ancillary administrator. His rights in this state are therefore entirely statutory. 1 1 Burton v. Williams, 63 Neb. 431, 88 N. W. 765; Godwin v. Jones, 3 Mass. 514; Vickery v. Beier, 16 Mich. 50; Oilman v. Oilman, 54 Me. 453; Moore v. Fields, 42 Pa. 472; Estate of Appel, 66 Cal. 432, 6 Pac. 7; Lines v. Lines, 142 Pa. 149, 21 AtL 849. (403) 260 PROBATE AND ADMINISTRATION. [Chap. 23 260. Powers of foreign executor or administrator within this state. The Nebraska statute, while not entirely doing away with the necessity of ancillary administration, has given a foreign executor or administrator very exten- sive authority over the assets situated within this state. Such rights, however, as such foreign repre- sentative, cease when ancillary letters issue here. He has the right to commence and prosecute any suit or action in any court in this state in his capacity as executor or administrator, in like manner and with like restrictions as a nonresident may be permitted to sue, provided that, in case any executor or adminis- trator shall have been appointed in this state, such person only shall be entitled to prosecute actions or suits within this state in his capacity as such executor or administrator. 2 The plirase "suit or action" in the statute above cited is limited to actions at law or in equity and does not include special proceedings, like mortgaging real estate or sales of lands for payment of debts. 3 The right to maintain suits also gives him the right to receive and receipt for debts and other property of the estate within this state, 4 assign mortgages, 5 become substituted as plaintiff in an action brought by his decedent and pending at the date of his death, 6 and 2 Rev. Stats., c. 17, 162, [1426]; Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683; Cox v. Ytasel, 63 Neb. 431, 68 N. W. 483. 3 McAnnulty v. McClay, 16 Neb. 420, 20 N. W. 266. 4 Mart ; n v. Gage, 147 Mass. 204, 17 N. E. 310; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790. 5 Reynolds v. McMullen, 55 Mich. 5C9, 22 N. W. 41. Hendrix v. Rieinan, 6 Neb. 522. (404) Chap. 23] ANCILLARY ADMINISTRATION". 261 by filing certified copies of his appointment, etc., obtain a license from the district court for the payment of debts or legacies, 7 but he cannot, relying on his foreign appointment alone, procure a license to sell. 8 As far as the collection of personal assets is con- cerned, he has, with the exception of summary pro- ceedings for disclosure of assets, substantially the same powers as a local representative, and for such purpose alone no necessity exists for his appointment. 9 261. Limitations on powers of foreign representa- tives. No action can be maintained against a foreign execu- tor or administrator in this state, 10 and the same rule which forbids his being made a defendant in an orig- inal action would also prevent a suit being revived against him as a defendant. A power of sale given a foreign executor by will is not per se authority to sell the land, if located in this state. 11 The will must be probated and letters issued in this state, but where the rights of third parties have not intervened, a subsequent probate of the will would cure the defect. 12 1 Rev. Stats., c. 17, 214, [1478]. 8 McAnnulty v. McClay, 16 Neb. 420, 20 N. W. 266. Mackcy v. Coxe, 18 How. (U. S.) 104; Wilkins v. Ellett, 9 Wall. (U. S.) 740; Abbott v. Miller, 10 Mo. 141. 10 Burton v. Williams, 63 Neb. 431, 88 N. W. 765; Creighton v. Murphy, 8 Neb. 349, 1 N. W. 138; Vaughan v. Northrop, 15 Pet. (U. S.) 1. U League v. Williamson, 33 Tex. Civ. App. 647, 77 S. W. 435; Green v. Alden, 92 Me. 177, 42 .M 1 . 358. 12 Brown v. Smith, 101 Me. 545, 64 Atl. 915. (405) 262 PROBATE AND ADMINISTRATION. [Chap. 23 There are no statutes in Oregon giving any powers to a foreign executor or administrator; therefore the common law governs and the issue of ancillary letters is necessary to enable the estate to enforce its demands. The personal representative, however, is not barred from bringing actions. He may, by virtue of the domi- ciliary letters, commence a suit, but before trial he must have qualified by procuring letters testamentary or of administration in Oregon. 13 The taking out of letters dates back to the commencement of the suit. 14 262. Rights of Nebraska administrator in other states. Independent of any statute, the home executor or administrator has the right to receive assets in another state and receipt for the same. If no ancillary admin- istrator is appointed, it is his duty to take charge of and collect such foreign assets in so far as the laws of such foreign state permit, 15 and his liability therefor is just the same as for assets received in this state. 16 If he takes out ancillary letters or they are issued to another person, he is only liable in this state for the surplus transmitted to him after administration has been completed in such other state. 17 13 Gray v. Franks, 86 Mich. 382, 49 N. W. 130; Leahy v. Haworth, 141 Fed. 850; Hodges v. Kimball, 91 Fed. 845. n Black v. Henry G. Allen Co., 42 Fed. 618; Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45. 15 Denny v. Faulkner, 22 Kan. 89; Vroom v. Van Horn, 10 Paige Ch. (N. Y.) 49. 10 Section 414, post. 17 Clark v. Blackington, 110 Mass. 372; Jennison v. Hapgood, 10 Pick. (Mass.) 78. (406) Chap. 23] ANCILLARY ADMINISTRATION. 263, 264 263. Jurisdiction of court to appoint ancillary administrator. An ancillary administrator is an administrator with or without the will annexed appointed in a state other than that in which decedent last resided. The power of the county court to grant letters depends upon the existence of assets within the county at the date of decease. They may consist entirely of real estate, 18 or a claim for damages under the statute for causing the death of decedent. 19 If such assets were not in the state at the time of his death, but were brought here afterward, the court should decline to grant let- ters. The appointment of an administrator in the state of decedent's domicile vests such assets in him for the purposes of administration as of the date of his decedent's death, and our statutes give him ample power to recover them. 20 Letters may issue though no representative has yet been appointed in the home state. 21 264. Purposes for which appointment proper. When a person dies testate, leaving an estate con- sisting of realty or personalty, or both, and by the terms of the will the executor is vested with special duties in regard to the same, which powers are to be exercised in this state, or seised of real estate, or when a nonresident dies intestate, seised of real estate in 18 Moore's Estate v. Moore, 33 Neb. 509, 50 N. W. 443. l Missouri Pac. R. R. Co. v. Lewis, 24 Neb. 248, 40 N. W. 401. 20 Martin v. Gage, 147 Mass. 204, 17 N. E. 310; Valentine v. Jack- eon, 9 Wend. (N. Y.) 302; Holcomb v. Phelps, 16 Conn. 127. 21 Morefield v. Harris, 126 N. C. 626, 36 S. E. 125. (407) 265 PROBATE AND ADMINISTRATION. [Chap. 23 this state, ancillary administration is the best method the law provides for completing the chain of title to the real estate and confirming the rights of an execu- tor. Such administration is also proper when on account of the absence from the state of the executor or administrator it appears to be for the best interests of the estate that there be someone on the ground with ample authority to look after the interest of the estate. 22 The usual purpose in securing the appointment of an ancillary administrator is to save money and time for the local creditors, by giving them an opportunity to present their claims and receive payment in this state. Where real estate is involved, it is the only sure method of completing the chain of title. 265. Procedure for appointment. The procedure for the appointment of an ancillary administrator is substantially the same as for the ap- pointment of an administrator or for the issue of letters testamentary. The petition is usually filed by the domiciliary ad- ministrator or someone in his behalf. It may be made by a creditor residing within this state, if not filed until after thirty days from the date of the death of the decedent. A nonresident creditor cannot compel the appointment of such representative, for the ancillary administrator would have no greater powers to convert the assets into money than the executor or domiciliary 22 Mansfield v. McFarland, 202 Pa. 173, 51 Atl. 763; Brown v. Smith, 101 Me. 545, 64 Atl. 515. (408) Chap. 23] ANCILLARY ADMINISTRATION. 265 administrator, and the creditor would gain nothing thereby. 23 A county to whom the decedent was indebted for unpaid personal taxes is not a proper petitioner. 24 The petition may be filed before the home represen- tative has received his letters. 25 When filed within thirty days from decedent's death or when no domiciliary letters have been issued or peti- tioned for, the right of preference is generally recog- nized as in other cases. 26 The home representative is a proper administrator, especially where there is little work to be done. The matter rests largely in the dis- cretion of the court, 27 and if there is much to be done, a resident of the county can give it better attention than a nonresident of the state. The petition should contain substantially the same allegations as for general administration, and in addi- tion should set up the grant of letters in the home state or country, if they have been issued. It may be resisted by the home representative, or heirs or lega- tees, either on the ground of lack of jurisdiction, or that it is not for the best interests of the estate, or objections may be made to the nominee of the peti- tioner. 28 23 In re Williams' Estate, 130 Iowa, 553, 107 N. W. 608; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 791. 24 Commissioners Dawes Co. v. Furay, 5 Neb. Unof. 507, 99 N. W. 271. 25 Burbank v. Payne, 17 La. Ann. 15; Clark v. Clement, 33 N. H. 563. 26 Dalrymple v. Gamble, 66 Md. 298, 8 Atl. 468, 7 Atl. 683. 27 Fletcher's Admr. v. Sanders, 7 Dana (Ky.), 345. 28 Smith v. Sherman, 4 Cush. (Mass.) 408; Martin v. Gage, 147 Mass. 204, 17 N. E. 310. (409) 266 PROBATE AND ADMINISTRATION. [Cliap. 23 Form No. 132. PETITION FOB APPOINTMENT OF ANCILLARY ADMINIS- TRATOR. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , A. B., late of county of and commonwealth of , departed this life at the city of , in said county of , intestate; that said A. B. was, immediately preceding his death, a resident and inhabitant of said county of , and was possessed of real and personal property situated in the said county of and state of Nebraska, of the value of - : dollars; that on the "day of , 19 , your petitioner and G. H. were duly appointed administrators of said estate by the probate court of the said county of and commonwealth of . Your petitioner further shows that no last will and testament of said A. B. has been discovered, nor is your petitioner aware of the existence of any such instrument, and your petitioner believes that said A. B. died intestate; that said A. B. left, him surviving [give names and residence of widow and heirs, and ages of minors so far as known; if not known, so state]. Your petitioner therefore prays that letters of administration upon said estate situated within this state only may be granted to H. C. M., of the city of , in said county of , upon the goods, rights, and chattels of said deceased within this state. Dated this day of , 19. (Signed) C. D. [Add verification, Form No. 5.] 266. Hearing Order for appointment. The notice of hearing, service and hearing, are the same as in case of ordinary administrators, and a like bond should be required. The order for appointment is a final one, and subject to appeal. The domiciliary representative is held to be an interested party and entitled to an appeal, as (410) Chap. 23] ANCILLARY ADMINISTRATION. 267 well as a widow or other beneficiary. 29 He can be removed from office for the same causes and in the same manner as regular administrators or executors. 3 * 267. General rules governing ancillary adminis- tration. The administration granted within this state extends to all the estate of the deceased in this state, and ex- cludes the jurisdiction of the court or probate of every other county. 31 While the personal representative appointed at the county of the late domicile of the decedent is usually spoken of as the principal administrator, and the an- cillary one as his subordinate, yet the authority of the latter is complete and distinct over all the assets of the estate within the confines of this state. The lex domicilii governs the distribution, but the lex loci rei sitae the collection and administration of the person- alty. The ancillary administrator is governed by the laws of this state and the orders and decrees of the court appointing him, in executing his bond, making his inventory and appraisement, reducing the assets of the estate to possession, taking possession of the realty and managing the same, paying creditors, ac- counting for and making final payments of the residue in his hands, and performing all other acts necessary to the due administration of the estate in this state. He can be removed by no other court than that which granted him his letters, and all questions arising in 29 Graves v. Tilton, 63 N. H. 192; Shaw, Appellant, 81 Me. 207, 16 Atl. 662. 30 See 155, supra. 31 Rev. Stats., c. 17, 74, [1338]. (411) 268 PROBATE AND ADMINISTRATION. [Chap. 23 regard to his rights, powers and liabilities must be determined according to the laws of this state, and by the courts thereof. 32 268. General powers and duties of ancillary ad- ministrators. The ancillary administrator should include in his inventory and charge himself with all the local assets of the estate, the right of the executor or home admin- istrator to them terminating as soon as his letters are issued to him. 33 He should take charge for the estate of all litigation of such estate pending herein, 34 includ- ing actions which may have been revived by the home administrator, and may maintain any action or pro- ceeding which could be maintained by any executor or administrator, the situation of the estate so far as such matters are concerned being the same as though his decedent was at the date of his death a resident of this state. 35 His authority excludes the right of the home admin- istrator over all the assets of the estate within this state. He has sole authority to collect the debts due. Notes secured by mortgages on local real estate are within this rule, and he has power to release them. 36 A voluntary payment by a debtor to the home repre- / 32 Hey dock's Appeal, 7 N. H. 496; Hooper v. Olmstead, 6 Pick. (Mass.) 481; Clark v. Clement, 33 N. H. 563; Blackwood v. Reg., 8 App. Gas. 82. 33 Story, Confl. Laws, 514a; Trecothick v. Austin, 4 Mason, 33; Fed. Cas. No. 14,164. 34 Eev. Stats., c. 17, 157, [1421]. 35 Durie v. Blauvelt, 49 N. J. L. 114, 6 Atl. 312; Sloan v. Sloan, 21 Fla. 589. 36 Eeynolds v. McMullen, 55 Mich. 568, 22 N. W. 41. (412) Chap. 23] ANCILLARY ADMINISTRATION. 269 sentative is no defense to an action on the same by him. 37 There is no privity between him and the home per- sonal representative whether the latter be an executor or administrator. 38 A judgment against one in his representative capacity will not affect the other so far as the assets which the other has received are con- cerned, 39 and a judgment in one jurisdiction cannot be made the basis of an action against him in another. 40 The rule is different where the same person is ap- pointed executor by the will in different states, or different executors are appointed in different states in the same will. In such cases a judgment against the executor in one state is prima facie evidence against him in the other, and a judgment against one of the several executors is prima facie judgment against them all. 41 269. Allowance and payment of claims. The weight of authority is, that a foreign as well as a local creditor may present his demand and have same allowed and paid by the ancillary administra- tor, 42 and on account of the lack of privity between the ancillary representatives, its rejection in the home 37 Vaughan v. Barrett, 5 Vt. 333; Furguson v. Morris, 67 Ala. 389; Equitable Life Ins. Soc. v. Vogel, 76 Ala. 441. 38 Creighton v. Murphy, 8 Neb. 349, 1 N. W. 138. 39 Brathwaite v. Harvey, 14 Mont. 208, 36 Pac. 38; Merrill v. New England Life Ins. Co., 103 Mass. 245. 40 Creighton v. Murphy, 8 Neb. 349, 1 N. W. 138; Price v. Mace, 47 Wis. 23, 1 N. W. 336. 41 Creighton v. Murphy, 8 Neb. 349, 1 N. W. 138; Hill v. Tucker, 13 How. (U. S.) 458. 42 State v. Kock Co. Probate Court, 67 Minn. 51, 69 N. W. 609. (413) 269 PROBATE AND ADMINISTRATION. [Chap. 23 state would not prevent its being proved in the other state. 43 The policy of the law is to favor local credi- tors, and a claim filed or action brought under such circumstances looks suspicious. All foreign claims should be very carefully investigated. 44 At the expiration of the proper time, the reduction of assets to possession being completed, the court should make an order for the payment of debts as in other cases. If the estate is solvent, and there are sufficient assets within the state which can be used for that purpose, the local debts should be paid in full from the local assets. 45 If there are not sufficient as- sets to pay the debts in full, they may be paid pro rata, and the creditor would be obliged to prove the bal- ance due in the forum of the home personal repre- sentative. If the estate is insolvent, the law does not permit the creditors in one state to be paid in full, while those in another, simply because of their resi- dence, receive only a small dividend on their demands. The ancillary administrator should distribute the funds of 'the estate in his possession among the credi- tors residing in this state pro rata, having regard to all the assets and the whole aggregate amount of debt here and abroad, and remit the surplus, if any, to the principal administrator. 46 This cannot be done until the amount which can be applied on debts in the home jurisdiction has been ascertained, and the claims filed in that forum allowed. The ancillary administrator 43 Strauss v. Phillips, 189 111. 9, 59 N. E. 560. 44 Morton v. Hatch, 54 Mo. 498; Fellows v. Lewis, 65 Ala. 343. 45 Normand's Admr. v. Grognard, 17 N. J. Eq. 425; Davis v. Estey, 8 Pick. (Mass.) 475. 46 Dawes v. Head, 3 Pick. (Mass.) 128; Davis v. Estey, 8 Pick. (Mass.) 475; Normand's Admr. v. Grognard, 17 N. J. Eq. 425. (414) Chap. 23] ANCILLARY ADMINISTRATION. 269 should obtain from the court which appointed the home administrator certified copies of the records showing the above facts, and from them and the order allowing claims and account showing assets on hand in the probate court of this state the judge can make a decree for payment of debts. The priorities of the different classes of creditors is the same as in ordinary cases of administration. 47 Form No. 133. DECREE FOR PAYMENT OF DEBTS ANCILLARY ADMINIS- TRATIONESTATE INSOLVENT. [Follow Form No. 141 to *, then say:] It appearing from the rec- ords and files of this estate, in the probate court of the county of and commonwealth of , that the assets of said estate in the said state of are the sum of dollars, and that the debts allowed against said estate in said probate court of said county amount to the sum of dollars; that the total assets of said estate in the states of Nebraska and amount to the sum of dollars, and the debts allowed against said estate in said states amount to the sum of dollars, and that said total assets are insufficient to pay said debts in full, and that the expenses of administration in this state and in said state of , amounting to the sum of dollars, have not been in- cluded in the foregoing findings of the amounts of the assets and liabilities of said estate, and are in the hands of the administrators of said estate in and Nebraska: It is therefore ordered and adjudged that said C. D., administrator, from said sum of dollars so in his hands as aforesaid, pay said creditors whose claims have been allowed in this court the sum of cents on the dollar of the amount of their respective claims as of date of their allowance, that being their pro rata share of said assets, having regard to all the assets and the whole aggregate amount of the debt of said estate, both in the state of Nebraska and the state of , and that he remit the balance then remaining in his hands to E. F., executor of said estate, in the county of and commonwealth of . (Signed) J. K., County Judge. *7 Goodall v. Marshall, 11 N. H. 88. (415) 270 PROBATE AND ADMINISTRATION. [Chap. 23 If the assets in this state are insufficient to pay the local debts, or their pro rata share if the estate is in- solvent, the creditors then have a right to payment of such balances from the assets in the home state, and must prove their claims for the same. 48 270. Accounting by ancillary administrator. The accounting by the ancillary administrator is wholly independent of that of the domiciliary repre- sentative. If the same person represents the estate in both jurisdictions, he must keep entirely separate and distinct accounts, the same as though he had charge of two different estates. He cannot use assets from the ancillary jurisdiction in payment of costs, debts and expenses incurred in the home jurisdiction until the ancillary administration has been completed. 49 When he represents the estate in both jurisdictions, he is not chargeable in the ancillary jurisdiction with assets of the estate which he collected in a third state, being accountable only for what he received in this state. 50 He is entitled to attorney fees, costs and ex- penses incurred in good faith the same as in other cases. 51 He is accountable for all his acts as such adminis- trator to the court which granted him his letters and none other. The home administrator may file objec- tions to the account, but when allowed in the ancillary 48 Kamsay v. Kamsay, 196 111. 179, 63 N. E. 618. 49 Aspden v. Nixon, 4 How. (U. S.) 467; Jennison v. Hapgood, 10 Pick. (Mass.) 77. 50 Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1032. 51 Benjamin v. Bush, 89 Neb. 334, 131 N. W. 602. (416) Chap. 23] ANCILLARY ADMINISTRATION. 271 forum it is final and cannot be reviewed except in case of lack of jurisdiction. 52 271. Disposition of surplus after paying debts. Ancillary administrators, and domiciliary adminis- trators or executors in the home state, are so com- pletely independent of each other that the assets of the estate received by one in his jurisdiction cannot be sued for, nor their transfer compelled by the other. Ancillary assets can only be disposed of pursuant to the decree of the court from which the letters issued. 53 A decree of the court for that purpose should be obtained as soon as possible. In the case of testate estates it is the duty of the administrator with the will annexed to dispose of the same according to such will, as far as such will may operate upon it, and the residue as is provided by law in cases of estates in this state belonging to persons inhabitant of any other state or country. Specific and demonstrative legacies would therefore be paid by the local representative, and the balance transmitted to the domiciliary representative. 54 In the case of intestate estates there is some differ- ence of authority as to by whom the surplus is to be divided. It is elementary that it is distributed among the heirs according to the laws of decedent's domicile. The question is, Who is the proper party to make the 52 Baldwin's Appeal, 81 Pa. 441; Clark v. Blaekington, 110 Mass. 369. 53 Taylor v. Barron, 35 N. H. 484; Hill v. Tucker, 13 How. (U. S.) 458; McGraw v. Irwin, 87 Pa. 139; McCord v. Thompson, 92 Ind. 565; Dawes v. Boylston, 9 Mass. 337. M Bev. Stats., c. 17, 46, [1310]. 27 Pro. Ad. (417) 271 PROBATE AND ADMINISTRATION". [Chap. 23 distribution? Some courts hold that the court which granted the letters has power to determine who such parties are and their shares and order payment to them, 55 while others, on account of the rule that the personal property of an intestate, wherever the same may be situated, is regarded as having no other loca- tion than that of his domicile, hold that such residue should be transmitted to the domiciliary representa- tive; 56 others that it is a matter within the discretion of the court. 57 In both testate and intestate estates, if it appears that there are unpaid debts in the home jurisdiction, the residue should be transmitted to the executor or administrator. 58 The practice in this state is not uniform. The petition for distribution may be made when the final account is filed, or one made thereafter. Notice to all persons interested must be given as in other administration cases. Form No. 134. PETITION FOR ORDER FOR PAYMENT OF RESIDUE OP ESTATE. [Title of Cause and Court.] Your petitioner, C. D., administrator of said estate, respectfully represents unto the court that all proceedings required by law have been had for the proper filing, examination, adjustment and allowance of claims against said estate; that all claims allowed have been paid 65 In re Hughes, 95 N. Y. 55; Lawrence v. Kittredge, 21 Conn. 577. 56 Mackey v. Cox, IS How. (U. S.) 100; Ordroneaux v. Helie, 3 Sand. Ch. (N. Y.) 512; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 490; Hutton v. Hutton, 40 N. J. Eq. 461, 2 Atl. 280; Wilkins v. Ellett, 9 Wall. (U. S.) 740; Low v. Bartlett, 8 Allen (Mass.), 259. 67 Fretwell v. McLemore, 52 Ala. 124. 68 Fretwell v. MeLemore, 52 Ala. 124. (418) Chap. 23] ANCILLARY ADMINISTRATION". 271 in full; that on the day of , 19 , your petitioner sub- mitted his final account of his administration, which said account was on the day of , 19 , after due notice given as required by law, approved; that there remains in the possession of said peti- tioner the sum of $ to be distributed among the heirs of said A. B. according to the laws of the state of ; that E. F., of the city of , in the county of , state of is the admin- istrator of said estate in said state of ; that none of the per- sons claiming to be distributees of said estate are residents of the state of Nebraska and all of them reside in said state of . Your petitioner therefore prays that a time and place be fixed for hearing on said petition, that notice thereof be given to all persons interested as by law provided, and that on said hearing a decree of said couit be made and entered assigning said residue to said E. F. as administrator of the estate of said A. B. Dated this day of , 19 . (Signed) C. D. [Add verification.] Form No. 135. DECREE OF DISTRIBUTION OF ANCILLARY ESTATE. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing upon the petition of C. D. [the answer of G. H.] and the evi- dence, and was submitted to the court. Upon consideration whereof the court finds that all the debts, claims, and demands against said estate have been fully paid and satisfied, and there remains a residue in the hands of the administrator of the sum of dollars; that said A. B. was, during his lifetime, a resident of the state of , and that E. F., of the city of , in said state, is the administrator of said estate in said state of . It is therefore ordered that said residue of dollars, after ths paying the costs of these proceedings, be paid to the said E. F., as such administrator of the estate of A. B., deceased, in the state of , and that on filing his receipt therefor he be discharged. (Signed) J. K., County Judge. (419) CHAPTER XXIV. ALLOWING CLAIMS AGAINST THE ESTATE. 272. Creditor's Interest in the Estate of a Decedent. 273. Power of County Judge to Allow Claims. 273a. Presentation of Claims to Representative. 273b. Duty of Representative. 273c. Special Proceedings Against Estate. 273d. Suit Against Representative. 274.. Time and Place for Hearing Claims. 275. Notice to Creditors. 276. Claims Which Need not be Filed. 277. Claims Which Need not be Filed Concluded. 278. Property Held by a Trustee. 279. Statute of Limitations. 280. The Statutes of Nonclaim. 281. The Two Years' Limitation. 282. Proving Claims. 283. Proving Claims Concluded. 284. Funeral Expenses. 285. Funeral Expenses Concluded. 286. Claims Against an Estate Accrued Demands. 287. Claims Becoming Due After Death. 288. Express Contracts to Pay for Services Rendered. 289. Implied Contracts to Pay for Services Rendered. 290. Implied Contract to Pay for Services Rendered Concluded. 291. Conversations and Transactions With Decedent. 292. Competency of Adverse Party. 293. Adverse Party. 291. Waiver of Objections. 295. Declarations and Admissions to Third Party in Presence o Claimant. 296. Claims for Breach of Covenants. 297. Claims Due Nonresidents. 298. Joint Claims. 299. Executor's or Administrator's Claims. 300. Contingent Claims. 301. Contingent Claims Becoming Absolute. 302. Contract to Bequeath or Devise Property. C03. Consideration of Contract. (420) Chap. 24] PROVING CLAIMS. 272 304. Eelief Granted. 305. Writings of Deceased Persons as Evidence. 306. Extending Time for Presentation of Claims. 307. Order Extending Time for Filing Claims. 38. Order Allowing Claims. 272. Creditor's interest in the estate of decedent. The creditors of a decedent have a lien, to the extent of their claims and demands, upon all assets of the estate, except such as pass absolutely to the surviving spouse and children, subject only to the homestead rights and the statutory allowances for support. The law takes such assets into its possession and control through the medium of its duly appointed and qual- ified agent, executor or administrator as the case may be, and holds them for the creditors until the rights of all persons to whom the estate is indebted and the value of the estate are ascertained. While it is neces- sary for them to establish the validity of their de- mands, it is not necessary for them to bring any action to subject the assets to the payment of their debts. Such assets are already in the hands of an officer of the law, whose duty to pay them over, or to satisfy all demands, either in whole or in part, as the estate is solvent or insolvent, can be enforced. 1 Creditors of the same class stand upon an equal foot- ing. The diligent creditor, unless he has previously acquired a lien on some part of the assets, fares the same as the dilatory one whose claim is filed the last day given in the notice. One demand has no prefer- ence over another except it be given by statute. 2 The 1 MiPlintock's Appeal, 29 Pa. 361. 2 In re OsUun's Estate, 36 Or. 8, 58 Pac. 521; Colton v. Field, 131 111. 398, 22 X. E. 545. (421) 273, 273a PBOBATE AND ADMINISTRATION. [Chap. 24 interest of creditors of the estate is exclusive and su- perior to the liens of creditors of heirs, devisees or legatees, upon real estate for their demands. 3 273. Power of county judge to allow claims. Under the Nebraska practice all claims against an estate must be filed in the county court of the county out of and under whose seal letters testamentary or of administration issued, which court has original juris- diction of the examination, adjustment and allowance of all lawful claims and demands of all persons against the deceased, 4 including those payable at a future date and those payable in specific articles, 5 and if the executor or administrator files a setoff against any claim, no matter how payable, to ascertain and allow the balance in favor of or against the estate. 6 His jurisdiction extends to unliquidated demands, 7 and equitable demands for money due where the right and extent of the recovery is easily ascertained. 8 273a. Presentation of claims to representative. Under the Oregon practice, neither the county court nor the judge thereof has original jurisdiction to pass upon claims against the estate, excepting only those 3 Bruch v. Lantz, 2 Eawle (Pa.), 392; Morris v. Mowatt, 2 Paige (N. Y.), 586. 4 Rev. Stats., c. 17, 118, [1382] ; Craig v. Anderson, 3 Neb. Unof. 638, 92 N. W. 640. 5 Rev. Stats., c. 17, 124, [1388], 6 Rev. Stats., c. 17, 123, [1387]. 7 Dubuch v. Wildermuth, 3 La. Ann. 407. 8 Palmer v. Green, 6 Conn. 19; Collins v. Tillouse's Admr., 26 Conn. 313; Shelton v. Hadlock, 62 Conn. 143, 25 Atl. 483; Dixon v. Buel, 21 111. 203; Spaulding v. Warner's Estate, 52 Vt. 29. (422) Chap. 24] PROVING CLAIMS. 273a due the executor or administrator. All other demands are required to be presented to the personal representa- tive with proper vouchers, excepting only those on which actions are pending against decedent at the time of his death, and which may be revived against his estate, or where equitable relief is sought. They should be itemized and verified by the affidavit of the claimant, or someone in his behalf, having per- sonal knowledge of the fact, to the effect that the claim is justly due, that no payments have been made thereon, except as stated, and that there is no just counterclaim to the same to the knowledge of the affi- ant. 9 The demand must be set out with sufficient par- ticularity to show the existence of a liability against the estate, but the formalities demanded of a pleading in action are not necessary. 10 They are deemed presented when proffered to the executor or administrator, and left in his possession a reasonable length of time for him to examine into their merits and determine their validity. 11 What is such time is a question for the court to determine from all the facts and circumstances connected with the matter. 12 He is given no power to summon witnesses or take testimony. If it appears or is alleged that there is any written evidence of such claim, the same may be demanded by him, or its nonproduction accounted for. 13 He must either allow or reject all claims presented. His neglect to act within a reasonable time is equiva- lent to rejecting the demand. 14 L. O. L., 1240; In re Lucke's Estate, 64 Or. 320, 123 Pac. 47. 10 Goltra v. Penland, 42 Or. 18, 69 Pac. 925. 11 Willis v. Marks, 29 Or. 493, 45 Pac. 293. 12 Goltra v. Penland, supra. 13 L. O. L., 1240. W Goltra v. Penland, supra. (423) 273b PROBATE AND ADMINISTRATION. [Chap. 24 273b. Duty of representative. A claim rejected or held by him an unreasonable length of time must be delivered to the claimant on demand, and replevin will lie for its recovery if such demand is refused. 15 If satisfied that the claim is just, he must indorse upon it the words, "Examined and approved," with the date thereof, and sign his name officially. If not so satisfied, he must indorse it "Examined and rejected," with the date and his signature. 16 His duties in passing on claims are not judicial, but more in the nature of those of an auditor. His ap- proval is not even prima facie evidence of its validity, if objected to on the final hearing. 17 An unverified claim cannot be legally presented, 18 and if it is rejected for indefiniteness or irregularity in setting out the de- mand, or for any technical reason, and he wishes to raise the question of its legal presentation, he should note on it the reasons for his rejection. 19 Claims may be presented at any time between the dates of the qualification and discharge of the executor or administrator. 20 He is required to keep a list of all claims legally exhibited against the estate, and every three months file with the county court a statement of all such claims as may have been presented, and whether the same have been allowed or rejected by him. 21 15 Willis v. Marks, 29 Or. 498, 45 Pac. 293. 16 L. O. L., 1241. 17 In re Chambers' Estate, 38 Or. 131, 62 Pac. 1013; Irvine v. Beck, 62 Or. 596, 125 Pac. 832. 18 Zachary v. Chambers, 1 Or. 321. 19 Aikin v. Coolidge, 12 Or. 244, 6 Pae. 712. 20 L. O. L., 387, 1239; In re Murray's Estate, 56 Or. 138, 107 Pac. 19. 21 L. O. L., 1241. (424) Chap. 24] PROVING CLAIMS. 273b Form No. 135a Oregon. VERIFICATION OF CLAIM. State of Oregon, County of , ss. C. D., being first duly sworn, on oath says that the foregoing state- ment of his claim against the estate of A. B., late of said county, de- ceased, is just and correct, and that the amount of $ is justly d-ie thereon; that no payments have been made thereon, except as above set forth; that there is no just counterclaim to the same to the knowledge of affiant; that affiant is the owner of said claim and has personal knowledge of the facts herein set forth. (Signed) C. D. Subscribed and sworn to before me this day of , 19 . (Signed) G. H., Notary Public. Form No. I35b Oregon. CLAIM ON A PROMISSORY NOTE. Estate of A. B., C. D., Executor, in Account with E. F. 19 . To balance on note , To interest at % from to Total . , State of Oregon, County of , ss. E. F., being first duly sworn, on oath says that heretofore, to wit, , 19 , A. B. executed and delivered to affiant his promissory note in words and figures following [copy of note and indorsements]; that no payments have been made hereon except such as have been indorsed upon said note; that the foregoing statement of the amount due affiant from the estate of A. B., late of said county, deceased, is just and correct; that there is no just counterclaim to the knowledge of this affiant, that affiant is the owner of said demand, and has per- sonal knowledge of the facts herein set forth. (Signed) E. F. Subscribed and sworn to before me this day of , 19 . (Signed) G. H., Notary Public. (425) 273C PROBATE AND ADMINISTRATION. [Chap. 24: 273c. Special proceedings against estate. If the executor or administrator reject the claim, two remedies are afforded the claimant: he may either bring suit against such representative, 22 or he may pre- sent his claim to the county court for allowance, giv- ing the executor or administrator ten days' notice of the application. The court thus acquires jurisdiction to hear and determine in a summary manner all such rejected claims. The decision of the court thereon has the force and effect of a judgment, from which an appeal can be taken as in ordinary cases. 23 The pro- ceeding may be brought by his assignee. 24 Formal pleadings are unnecessary. The claim proved must be identical with that presented to the administrator. If he presents a claim on a quantum meruit, evidence of an express contract is inadmissible; he cannot amend by substituting a different cause of action. 25 The proceedings are of an equitable rather than a legal character, 26 with the object of furnishing a speedy and efficient remedy untrammeled by techni- cal pleadings. The burden of proof is on the claimant, and he must show that the claim has been legally pre- sented to the executor or administrator and rejected by him, and that it is a just demand against the estate and unpaid. These latter facts must be established by other evidence than that of the claimant. 27 The claimant is not an incompetent witness, but his testi- mony must be corroborated by that of other witnesses, or other evidence which must be sufficient to establish the indebtedness of the estate to him. 28 22 Pruitt v. Muldrick, 39 Or. 355, 65 Pae. 20. 23 L. O. L., 1241. 24 In re Morgan's Estate, 46 Or. 242, 78 Pac. 1029. 25 Wilkes v. Cornelius, 21 Or. 352, 28 Pae. 135. 26 In re Morgan's Estate, 46 Or. 235, 77 Pac. 608, 78 Pac. 1029. 27 Goltra v. Penland, 45 Or. 261, 77 Pac. 129; L. O. L., 1241; Irvine v. Beck, 62 Or. 596, 125 Pac. 834. 28 Bull v. Payne, 47 Or. 581, 84 Pac. 697; Quinn v. Gross, 24 Or. 150, 33 Pac. 525; Harding v. Grim, 25 Or. 596, 36 Pac. 634. (426) Chap. 24] PROVING CLAIMS. 273d Form No. 135c Oregon. NOTICE OF FILING CLAIM. [Title of Cause and Court.] To C. D., Administrator of the Estate of A. B., Deceased: You are hereby notified that on the day of , 19 at the hour of 10 A. M. of said day, or as soon thereafter as counsel can be heard, I will make application to said court for the allowance of a certain claim held by me against said estate in the sum of $ , which claim was by me presented to you as such administrator for allowance on the day of , 19 , and by you indorsed as ''examined and rejected" on the day of , 19 . Dated this day of , 19. (Signed) E. F. 273d. Suit against the representative. Any person having a demand against an estate which has been presented to the executor or adminis- trator and rejected, or if no action has been taken by him thereon has been held by him a reasonable time, fixed by the court at not more than six months, 29 may at any time before the final settlement and discharge of the executor or administrator, but not less than six months from the date of letters, bring an action against him thereon. 30 The action must be brought within the period of the general statute of limitations, but the time elapsing between the delivery of the demand to the representative and its rejection, or a reasonable time after its delivery when he neglected to take any action on it, cannot be included. During such periods the statute as suspended. 31 The complaint must show that the letters were granted six months before the suit was brought. 32 29 Goltra v. Penland, 45 Or. 263, 77 Pac. 129. 30 L. 0. L., 386, 387; Blaskower v. Steel, 23 Or. 198, 31 Pac. 252; Pruitt v. Muldrick, 39 Or. 355, 65 Pac. 20; Goltra v. Penland, 45 Or. 259, 77 Pac. 129; In re Morgan's Estate, 46 Or. 235, 78 Pac. 1029. 31 In re Morgan's Estate, 46 Or. 235, 77 Pac. 608, 78 Pac. 1029. 32 Wells v. Applegate, 10 Or. 526; Aiken v. Coolidge, 12 'Or. 284, 6 Pac. 712. (427) 274. PROBATE AND ADMINISTRATION. [Chap. 24 If the executor or administrator doubt the validity of any claim presented to him, he may agree in writ- ing with the claimant that an order of reference be made by the court or judge thereof concerning the same. The referee has authority to hear and deter- mine the matter and report to the court, in the same manner and with like effect, as if the order was made in an action or suit upon the claim. 33 Form No. 135d Oregon. AGREEMENT FOR REFERENCE OF CLAIM. Whereas, E. F., has presented to C. D., administrator of the estate of A. B., a claim against said estate in the sum of $ , and said administrator has doubt of the validity of said claim; It is hereby stipulated and agreed by and between said E. F. and said C. D., administrator as aforesaid, that an order be made and entered by the county court of county, Oregon, appointing a referee to hear and determine said claim, and to make and file his report and findings thereon in the same manner as if said order of reference was made by said court in an action or suit on said claim. Dated this day of , 19. (Signed) E. F., O.D., Administrator of the Estate of A. B., Deceased. 274. Times and place for hearing claims. It is the duty of the county judge, within sixty days from the grant of letters testamentary or of adminis- tration, to make an order fixing the time for filing claims and dates for hearings thereon. The time allowed should not be less than six nor more than eighteen months, as the circumstances may require. 34 A like order should be made when a special adminis- 33 L. O. L., 1244, 1245. 34 Rev. Stats., c. 17, 118, 120, [1382], [1384]; Dredla v. Bache, 60 Neb. 655, 83 N. W. 916. (428) Chap. 24] PROVING CLAIMS. 275 trator is appointed on an appeal from the order for letters. 35 The usual practice is to make it a part of the ''gen- eral order," 36 and to fix two dates for hearings, one about thirty days from its date and the other a few days after the last day for filing claims. It must direct how notice shall be given. 275. Notice to creditors. Notice to creditors of the time fixed for filing claims and dates set for hearing must be given by posting the same in four public places in the county, or by publication in a legal newspaper in said county for four weeks, or in any manner which the court may direct. 37 If by publication, the surviving spouse or a majority of the heirs, devisees or legatees of lawful age may designate the paper. 38 The almost universal practice is to give notice by publication. Service of the notice cannot be had until after the order for its issue is made and entered. 39 The notice is not solely for the benefit of creditors, but also for the purpose of notifying all persons inter- ested in the estate, and giving them an opportunity to' object to claims which they think not a proper charge against it. 40 The statute directing such notice is mandatory and not directory. The notice must comply with the 35 Cadman v. Richards, 13 Neb. 383, 14 N. W. 159. 36 Section 182, supra, Form No. 78. 37 Rev. Stats., c. 17, 118, [1382]. 38 Rev. Stats., c. 17, 119, [1383]. 39 Kibble v. Furmin, 71 Neb. 108, 98 X. W. 420. Dredla v. Bache, 60 Xcb. 655, 83 N. W. 916. 275 PEOBATE AND ADMINISTRATION. [Chap. 24 order, and be served by posting or publication, or otherwise in such manner as the court therein directs. If it fails to comply with any of these requirements, it is invalid, and not a bar to the bona fide claims of creditors. 41 Form No. 136. NOTICE TO CREDITORS. [Title of Cause and Court.] Notice to all persons interested in said estate is hereby given that C. D., administrator of said estate, will meet the creditors of said estate at the county courtroom in the city of , said county, on the day of , 19 , and on the day of - , 19 , at the hour of 9 A. M., for the purpose of the hearing, adjust- ment and allowance of claims against said estate. All persons having claims or demands against said estate must file the same in said court on or before , 19 , or said claims will be forever barred. Dated , 19. (Seal) (Signed) J. K., County Judge. It is the duty of an executor or administrator, im- mediately after his appointment, to publish a notice thereof, in some newspaper published in the county, if there be one, or otherwise, in such paper as may be designated by the court or a judge thereof, as often as once a week for four successive weeks, and oftener if the court shall so direct. Such notice shall require all persons having claims against the estate to present them to him with proper vouchers, within six months from the date of such notice, at a place in the county to be therein specified. 42 A copy of the notice with proof of publication of the same must be filed with the clerk of the court before the expiration of the six months. 43 A failure to file the proof will not affect the 41 Ribble v. Furmin, 71 Neb. 108, 98 N. W. 420; Hawkins v. Riden- hour, 13 Mo. 125; Lee v. Patrick, 31 N. C. 135. 42 L. O. L., 1238. 43 L. O. L., 1239; In re Murray's Estate, 55 Or. 138, 107 Pac. 19. (430) Chap. 24] PROVING CLAIMS. 276 decree of discharge, provided the same was actually published. 44 A failure to publish the notice is cause for removal. 45 Form No. I36a Oregon. NOTICE TO CREDITORS. Notice is hereby given that letters of administration [testamentary], upon the estate of A. B., late of county, Oregon, deceased, have been issued to me out of and under the seal of the county court of said county. All persons having claims against said estate are re- quired to present them, with the proper vouchers, to me at my office No. street, in the city of , in said county within six months from the date of this notice. C. D., Administrator of the Estate of A. B., Deceased. 276. Claims which need not be filed. There are certain classes of claims against the estate of a decedent which are not required to be formally filed and approved by the county court before being paid. They consist of those on which an action is pending at the time of decedent's death, or on which .a judgment has been entered or a decree obtained, and those secured by liens on specific property, either real or personal. A claim or demand on which an action is pending against a decedent and which survives, and may be revived with the executor or administrator as defend- ant, need not be filed nor presented to the representa- tive. The judgment obtained thereon, or any other judgment against him, is deemed final and conclusive, and binds the assets of the estate in the same manner as though formally filed or presented and allowed. 48 44 In re Conant's Estate, 43 Or. 535, 73 Pac. 1018. 45 In re Barnes' Estate, 36 Or. 282, 59 Pac. 464. -* Harlin 7. Stevenson, 30 Iowa, 317; O'Donnell v. Herman, 42 Iowa, 60. (431) 276 PROBATE AND ADMINISTRATION. [Chap. 24: All such judgments should be certified to the county- court. 47 Under the Oregon practice, the holder of a judgment obtained against decedent in his lifetime may present a certified copy of the judgment to the executor or administrator as in other cases for his rejection or allowance, or may proceed to enforce it in the same manner by execution and levy as though the party were living. 43 The lien is not discharged by the death of the party. The execution may issue without formal pre- sentation of the claim at any time after six months. from the granting of letters of administration. 49 Any lien on the realty or personalty of a decedent, obtained previous to his death by attachment, judg- ment or execution, may be enforced by the creditor in the same manner as though his death had not occurred. 50 If the writ has been levied and the prop- erty is insufficient to satisfy the claim in full, it may be filed as a contingent claim. 51 The general rule is that the holder of any demand secured by a specific lien on either real or personal property has the same remedy for the collection of his demands against the successors in title that he had against the party himself. He may foreclose, file it and recover from the general assets of the estate,. 47 Section 283, post. 48 L. O. L., 220, 1243. Knott v. Shaw, 5 Or. 484; Barrett v. Furnish, 21 Or. 19, 26 Pac. 281; Bower v. Holladay, 28 Or. 491, 22 Pac. 553; Watson v. Moore, 40 Or. 206, 66 Pac. 814. 60 Eev. Stats., c. 17, 154, [1418]; White v. Ladd, 34 Or. 422, 56- Pac. 515. 51 Ansley v. Baker, 14 Tex. 600; City of Carondelet v. Desnoyers" Admr., 27 Mo. 36. (432) Chap. 24] PROVING CLAIMS. 276 or file it as a contingent claim. The right of a mort- gagee or his assigns to commence a suit for foreclosure and prosecute to a decree and sale of the real estate, after the death of the mortgagor, is recognized by all courts. 52 The holder of a mortgage note not filed against the estate cannot resort to the general assets, should his security prove insufficient; 53 nor is he obliged to first exhaust such security before taking any steps to reach the general assets. He may file it as a contingent claim. 54 The holder of a lien under a verbal contract, or of a statutory lien when a continuance of possession is necessary to maintain it, must make a demand on the representative before bringing any suit to enforce it. 55 A judgment rendered against an executor in an action revived against the estate does not become a lien on the real estate the same as a judgment rendered against the decedent in his lifetime. Its standing is the same as any other proved demand against the estate. 56 , The filing of a note and mortgage as a claim against the estate does not release the lien of the mortgage. 57 Whether a party is entitled to have his debt against the general estate of a deceased mortgagor allowed in 52 Xull v. Jones, 5 Neb. 500; Jones v. Null, 9 Neb. 57, 1 N. W. 867; National Life Ins. Co. v. Fitzgerald, 61 Neb. 692, 85 N. W. 948; Ver- dier v. Bigne, 16 Or. 210, 19 Pac. 64; Teel v. Winston, 22 Or. 491, 29 Pac. 142; Putnam v. Russell, 17 Vt. 54. 53 Null v. Jones, 5 Neb. 500; Teel v. Winston, 22 Or. 491, 29 Pac. 142. 54 Day v. Graham, 97 Mo. 398, 11 S. W. 55. 55 Elaine v. Truax, 58 Or. 582, 115 Pac. 567. 56 Carter v. Penn, 79 Ga. 747, 4 S. E. 896; Vance v. Smith, 124 Cal. 219. 56 Pac. 1031. f-7 National Life Ins. Co. v. Fitzgerald, 61 Neb. 692, 85 N. W. 948; Veidier v. Bigne, 16 Or. 210, 19 Pac. 64. 28 Pro. Ad. (433) 277 PROBATE AND ADMINISTRATION. [Chap. 24 the county court while his foreclosure action is pending is doubtful. Chattel mortgage security follows the same rule. 58 277. Claims which need not be filed Concluded. A claim secured by a vendor's lien on real estate may be treated either as an interest in land or as a mortgage, 59 foreclosed in the same manner at any time after default, and would therefore follow the same rule as a mortgage in regard to filing and allowance. 60 An action of ejectment is one to be determined by the district court, and is not a claim against the estate within the authority of the county judge to consider, there being nothing demanded of the estate except the land which is alleged to be wrongfully withheld. 61 A bond for title is also a claim for land only, and need not be filed. The remedy of the holder of the bond is by suit in equity for specific performance, or by the statutory proceeding to enforce a conveyance. 62 A claim or demand of a municipality for past due taxes on realty or personalty need not be filed. The taxes themselves are a lien on the premises, and the city or county may enforce their rights by the usual proceedings of a tax sale. 63 68 Purdin v. Archer, 4 S. D. 54, 54 N. W. 1043. 50 Hendrix v. Barker, 49 Neb. 369, 68 N. W. 531; Oakes v. Gillilan, 1 Neb. Unof. 893, 95 N. W. 511. 60 Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683; Allen v. Smith, 29 Neb. 74. 61 Kerns v. Dean, 77 Cal. 555, 19 Pac. 317. 2 Gregory v. Hughes, 20 Tex. 345. See 253, supra. 63 Gager v. Prout, 48 Ohio St. 89, 26 N. E. 1013; People v. Olvera, 43 Cal. 492. (434) Chap. 24] PROVING CLAIMS. 278 The liability of the estate of a decedent to the credi- tor of a corporation for corporate debts, where by statute there is a personal liability of the stockholders, is not a proper claim to be presented to the county judge or commissioners for allowance. The right to collect from a corporation stockholder, it has been held, must be enforced by a proceeding to which all the stockholders and others interested are made par- ties, so that the rights and liabilities of all may be adjusted. The object of the statute is to create a common fund, from which all the creditors of the cor- poration may be paid, either in whole or part. 64 The amount of the judgment or decree, if any, should be certified to the county court, as should also the costs in an ejectment case. 278. Property held by a trustee. For the recovery of property which was held by decedent as a trustee, two remedies exist. The parties may establish their claim by bill in equity to impound the fund, when it can be traced, and have it declared a trust fund, or enforce it as an ordinary claim against the estate by filing it in the county court. 65 In either case, if the trustee was appointed by the court, any claim which he might have against the fund must be determined by the court appointing him. 66 If the property consists of shares of corporate stock or other similar personalty, it may be allowed the same as claims payable in specific articles. 04 I n re Martin's Estate, 56 Minn. 420, 57 N. W. 1065; Allen v. Walsh. 25 Minn. 543. 65 Robinson v. Tower, 95 Neb. 198, 145 N. W. 348; Hill v. State, 23 Ark. 604; Gunter v. James, 9 Cal. 643. 6 Robinson v. Tower, 95 Neb. 198, 145 N. W. 348. (435) 279 PROBATE AND ADMINISTRATION. [Chap. 24 In Oregon, only the remedy afforded by an action in equity to impress a lien on the trust fund exists. 67 279. Statute of limitations. No demand barred by the statute of limitations can be allowed by the court either in favor of or against an estate. 68 It was formerly the rule that an executor or administrator could waive the statute and thus per- mit a creditor to enforce a demand which he could not have enforced against the creditor at the time of his death. 69 The order allowing a barred claim is not subject to collateral attack. 70 There is considerable authority to the effect that the death of a debtor interrupts the running of the statute. 71 The larger number of decisions are that in the ab- sence of a statute the death of the debtor does not toll the statute. 72 67 Dunham v. Siglin, 39 Or. 295, 64 Pac. 661. 68 Rev. Stats., c. 17, 123, [1387]; L. O. L., 279; Bnisha v. Hawke, 87 Neb. 254, 126 N. W. 1079; Vette v. Heinrichs, 93 Neb. 551, 141 N. W. 152. 69 2 Kent, Com., 416. 70 Section 308, post. 71 McClintock's Appeal, 29 Pa. 360; Carrier's Admr. v. Whitington's Admr., 26 Mo. 311; Nelson v. Herkel, 30 Kan. 456, 2 Pac. 110; Bauser- man v. Charlott, 46 Kan. 480, 26 Pac. 1051, 143 U. S. 647, 13 Sup. Ct. Rep. 466. These cases are based on the theory that during the period between the death of the debtor and the appointment of his executor or administrator there is no person against whom the creditor can proceed; that a creditor can compel administration, and that, unless he neglects to do so within a reasonable time, the time between the death of the debtor and the appointment of his executor or administrator should be deducted. In many states it is a statutory rule. 72 Baker v. Brown, 18 111. 91; Dekay v. Darrah, 14 N. J. L. 288; Ni ks v. Martindale, Harp. (S. C.) 135, 18 Am. Dec. 647; Quivy v. Hall. 19 Cal. 97. (436) Chap.. 24] PROVING CLAIMS. 280 The question has never been passed on by our supreme court. The rule adopted in Kansas and ap- proved on appeal in the United States supreme court is the most equitable one. The filing of a claim interrupts the running of the statute in the same manner as commencing a suit agairst the decedent in his lifetime. It is in effect the beginning of a suit against his estate. 73 The statute of limitations does not run against un- paid personal taxes due from decedent. They are not " debts," in the usually accepted sense of the term, but a charge or burden imposed upon property for the benefit of the public. 74 There are many varieties of claims against an estate which do not become due until after the death of the intestate, such as demands for support and mainte- nance, and all such must be filed within the time limited. 75 280. The statute of nonclaim. "Ever} 7 person having a claim or demand against the estate of a deceased person, whether due or to grow due, whether absolute or contingent, who shall not, after the giving of notice as above provided, exhibit his said claim or demand to the judge or commis- sioners within the time limited for that purpose, shall 73 Sehaberg v. McDonald, 60 Neb. 493, 83 N. W. 837; Fritz v. Fritz, 93 Iowa, 27, 61 N. W. 169. 74 Price v. Lancaster County, 18 Neb. 199, 24 N. W. 605; Green- wood v. Town of La Salle, 107 111. 225, 26 N. E. 1089; Iowa Land Co. v. Douglas County, 8 S. D. 491, 67 N. W. 52. 75 In re Kessler's Estate, 87 Wis. 660, 59 N. W. 129; Patterson v. Patterson, 13 Johns. (N. Y.) 379; Quackenbush v. Ehle, 5 Barb. (N. Y.) 469. (437) 280 PROBATE AND ADMINISTRATION. [Cliap. 24 be forever barred from recovering on such claim or demand, or setting off the same in any action what- ever. This section does not limit or affect the time within which a person may enforce any lien against property, real or personal, of such deceased person, nor does it affect actions pending against the deceased at the time of his death." 76 There is no statute of this kind in Oregon. The statute of nonclaim, as it is called, operates the same as the statute of limitations. It is a bar to the allowance of all claims properly chargeable against the estate which are not filed within the time fixed by the court in its first order for filing claims or subse- quent order extending the same. 77 The personal rep- resentative is without authority to waive it, 78 and if he neglects to plead it and an order is entered allowing the claim, it is not binding on the estate or the sureties on his administration bond. 79 It applies to all classes of creditors of the estate, though some of them may be nonresidents, infants or incompetent persons. 80 A formal direction to an exec- utor contained in the will to pay debts applies to such debts only as have been filed as the statute requires, 76 Rev. Stats., c. 17, 126, [1390]. 77 Burling v. Alvord, 77 Neb. 861, 110 N. W. 683; Stichter v. Cox, 52 Neb. 532, 72 N. W. 848. 78 Fitzgerald's Estate v. First Nat. Bank, 64 Neb. 260, 89 N. W. 813; Heath v. Wells, 5 Pick. (Mass.) 140; Thayer v. Hollis, 3 Met. (Mass.) 369; Amoskeag Mfg. Co. v. Barnes, 48 N. H. 25. 79 Dawes v. Shed, 15 Mass. 6; Robinson v. Hodge, 117 Mass. 222. 80 Erwin v. Turner, 6 Ark. 14; Rockport v. Walden, 54 N. H. 167; Van Hauen v. Tierney (Mich.), 146 N. W. 658; Gardner v. Estate of Callaghan, 61 Wis. 91, 20 N. W. 685; Cone v. Dunham, 59 Conn. 145, 20 Atl. 311. (438) Chap. 24] PROVING CLAIMS. 281,282 and no general provision for payment of debts relieves the creditor from the duty of filing his claim. 81 A defendant in an action brought by an executor or administrator cannot set up a defense by way of setoff or counterclaim a demand he may have against the estate, unless the same has been filed in court within the time prescribed by the order of such court and allowed, 82 but may plead it as a payment, provided the deceased in his lifetime agreed that it should be credited on account. 83 281. The two year limitation. The statute provides that if any person having a claim or demand shall fail for two years from and after the death of such decedent to apply for and take out letters of administration on the estate of such de- ceased person, or cause such letters to be taken out as provided by law, then such claim shall be forever barred. 84 The limitation applies only to intestate es- tates. It is not a bar to the filing of claims by credi- tors when letters have been granted on the application of the heirs of next of kin more than two years after the death of the decedent. 85 282. Proving claims. The filing of a claim being equivalent to the com- mencement of an action against the estate, all claims 81 Collamore v. Wilder, 19 Kan. 67. 82 Parker v. Wells, 68 Neb. 647, 94 N. W. 717; Carpenter v. Murphy, 57 Wis. 541, 15 N. W. 798; Ewing v. Griswold, 43 Vt. 400; Soule v. Benton, 44 Vt. 309. 83 Parker v. Wells, 68 Neb. 647, 94 N. W. 717. M Rev. Stats., c. 17, 126, [1390]. 85 National Bank v. Bradshaw, 91 Neb. 714, 136 N. W. 1015. (439) 282 PROBATE AND ADMINISTRATION. [Chap. 24 must be filed by the party owning them and having a right to enforce them. 86 They must be in writing, itemized and supported by an affidavit stating the amount due thereon over and above all setoffs and counterclaims. When based upon notes or bonds, such instruments themselves are properly filed, together with a sworn statement of the amounts due thereon; when on a contract or obligation, such contract or obli- gation should be set out, and the demand be substan- tially like a petition in an action on the same in the county or district court. Where the demand is on a covenant, as for a breach of warranty of title in a deed of conveyance, it will greatly lessen the duties of the judge if the case is adjudicated with the same formal- ity as regards pleadings as in an action brought in the district court for that purpose. 87 Claims may be filed at any date after the entry of the order and the close of the last business day fixed by the court. They may be heard and allowed at any times fixed by the court or by agreement of parties, though long after the last date for filing them. 88 The executor, administrator, a creditor or a bene- ficiary of the estate may contest any claim on file in the county court. The filing of a claim is notice to all parties interested in the estate of the pendency of a suit against it. 89 8 Civ. Code, 23. 87 Hartman v. Lee, 30 Ind. 281. 88 Patrick v. Patrick, 72 Neb. 454, 100 N. W. 939; Schaberg's Estate v. McDonald, 60 Neb. 492, 83 N. W. 737; Hueber v. Sesseman, 38 Neb. 78, 56 N. W. 697. so Dredla v. Baache, 60 Neb. 655, 83 N. W. 916. (440) Chap. 24] PROVING CLAIMS. 283 The personal representative should be present on the dates set for hearing, if any claims have been filed. Xo demand can be allowed in his absence. 90 He should examine into all claims filed, and if he has good reason to believe that any claim against the estate is unjust, excessive or not a proper demand, should interpose a defense employing necessary legal assistance. 91 Form No. 137. AFFIDAVIT VERIFYING CLAIM. State of Nebraska, County, as. C. D., being first duly sworn, on oath says that the annexed is a true statement of his account against the estate of A. B., deceased; that the amount of $ is now due claimant, and the same is just and correct, and remains due and unpaid, and that he knows of no legal setoff or counterclaim whatsoever against the same, or any part thereof. (Signed) C. D. 283. Proving claims Concluded. The executor or administrator should file all coun- terclaims and setoffs against demands of creditors, and may interpose any defense which would be available to his decedent in an action brought on the same demand during his lifetime. 92 Formal pleadings on claims are not required by statute but frequently are by court rule. It will always save time and facilitate business if answers and replies are filed as in other cases. They will be given a liberal construction in the interests of justice. 93 o Herman v. Beck, 68 Neb. 567, 94 N. W. 512. 81 Egerton's Exrs. v. Egerton, 17 N. J. Eq. 419. '<2 Lucas v. Cassaday, 1 Greene (Iowa), 208. 93 Fitch v. Martin, 82 Neb. 124, 119 N. W. 250; Fitzgerald's Estate v. First Nat. Bank, 64 Neb. 260, 89 N. W. 813; Fitzgerald's Estate v. (441) 283 PROBATE AND ADMINISTRATION. [Chap. 24 An assignee of a claim filed but not allowed may proceed thereon in the name of the original claimant or be substituted. 94 A claimant who has a suit pend- ing against a decedent during his lifetime for the re- covery of any demand may dismiss the same without prejudice, and establish it before the judge, but if the statute of limitations would have been a bar against the claim were it not for the pending of the suit there- on, the estate may successfully plead the statute of limitations. The claim must stand upon the same footing as though no proceedings were commenced or pending to recover it. 95 A judgment rendered against the deceased in a court in another state or foreign country must be proved the same as in an action brought on a foreign judgment in any court in this state, and the failure of such foreign court to acquire jurisdiction over the party is a good defense. Such foreign judgments, as well as domestic judgments, should always be exhibited. 96 However, where the same party is the personal representative of the estate in the foreign state, a judgment against him as such representative in a court of that state is final and conclusive against the estate of his dece- dent here, and should be certified to the judge or * O7 commissioners. ' Union Savings Bank, 65 Neb. 97, 90 N. W. 994; Devries v. Devries, 5 Neb. Unof. 179, 97 N. W. 590. 94 Harman v. Harman, 62 Neb. 452, 87 N. W. 177; Fitzgerald's Estate v. Union Savings Bank, 65 Neb. 97, 90 N. W. 994. 5 Jones v. Keep's Estate, 23 Wis. 45; Bank of Maywood v. Mc- Allister's Estate, 56 Neb. 188, 76 N. W. 552. 96 Smith v. Grady, 68 Wis. 215, 31 N. W. 477; Jarvis v. Barrett, 14 Wis. 591; McEwan v. Ziramer, 38 Mich. 765. 7 Creighton v. Murphy, 8 Neb. 349. (442) Chap. 24] PROVING CLAIMS. 284 A claim is considered as allowed on the date the judge announces his decision thereon, and not as of the date when it is journalized and spread at large on the records. 98 A county judge cannot adjourn the hearing upon any claim without the knowledge of the personal representative, nor in any manner change or modify his decision without such notice; and where a judge, without notice, set aside his allowance of a claim, and allowed a much larger sum, the allowance will be set aside by a bill in equity, it appearing that the time for appeal has expired, and that the estate has a good and sufficient defense." The rule in regard to allowing claims is that if no objections are made, the affidavit verifying the ac- count is sufficient proof. If a claim is contested, it must be established by the same weight of evidence as would be necessary to establish it in an action brought against the decedent while living. Parties should present their whole case fully and fairly in the county court. 100 284. Funeral expenses. The surviving husband or wife, or in case the dece- dent left no surviving spouse, the next of kin, have charge of the body of the deceased, with the right to designate where it shall be buried, the kind of burial 98 McGrew v. State Bank of Humboldt, 60 Neb. 716, 84 N. W. 99; Bickel v. Butcher, 35 Neb. 761, 53 N. W. 663. 9 Dundas v. Chrisman, 25 Neb. 495, 41 N. W. 449. 100 Fitzgerald's Estate v. Union Sav. Bank, 65 Neb. 97, 90 N. W. 994. (443) 284 PEOBATE AND ADMINISTRATION. [Chap. 24 service and all other funeral arrangements, unless otherwise directed by will. 101 Under the Oregon statute, the executor named in the will, or if there be none, or he do not attend to it, then the husband, widow or next of kin, in the order named, are authorized to incur funeral charges on account of the estate, in the burial of the deceased be- fore administration. The burial must be in a manner suitable to the conditions and circumstances of life of the decedent. If the estate is insufficient to satisfy the claims against it, including legacies and devises, such charges are limited to those necessary to give the de- ceased a plain and simple burial. 102 The expenses of funeral, burial, etc., stand upon a different footing than other demands against the es- tate, as they are not contracted by the decedent, nor, as it frequently happens, by any person who has power to bind the estate. The estate, however, is liable upon an implied promise to a third person who, as an act of duty or necessity, has provided for the burial ex- penses of a deceased person in a manner suitable to his social rank and standing, and such expenses are reasonable. 103 They are therefore more in the nature of expenses of administration, and there is some di- versity of opinion whether they should be paid by the executor or administrator without first being formally allowed by the county judge. The courts generally 101 McEntee v. Bonacum, 66 Neb. 551, 92 N. W. 633; Thompson v. Pierce, 95 Neb. 692, 146 N. W. 948; Larson v. Chase, 47 Minn. 307, 50 N. W. 238; Neighbors v. Neighbors (Ky.), 65 S. W. 607; O'Donnell v. Slack, 123 Cal. 285, 55 Pac. 906; Hackett v. Hackett, 18 R. I. 155, 28 Atl. 42. 102 L. O. L., 1299. 103 Sullivan v. Homer, 41 N. J. Eq. 299, 7 Atl. 411; Lenderink v. Sawyer, 92 Neb. 587, 138 N. W. 744. (444) Chap. 24] PROVING CLAIMS. 285 hold that the personal representative may pay them directly without their being first filed. 104 The practice varies in this state. Some courts, by rule, require them to take the same course as other claims, while others, also by rule, permit the executor or administrator to pay them directly and credit him- self with them in his final account. When the estate is solvent, there seems to be no reason why they can- not as well be paid by the personal representative direct, the question of their validity being determined on the hearing of the final account. If there is any question about the ability of the estate to pay expenses of administration and funeral charges, they should be filed; otherwise the personal representative will have some difficulty in paying the administration expenses in full. 285. Funeral expenses Concluded. Funeral expenses must be reasonable in amount, and such as are warranted by the financial condition of the estate and the social standing of decedent during his lifetime. A costly and elaborate funeral for a man who lived plainly and left only a small estate is out of place, and though such a one is held, the cost of a plain, simple funeral is all the estate can be held liable to pay. 105 Though the same rule applies in the case of insolvent estates, the courts are loath to refuse to sanction pay- ment of funeral expenses which are for such services 104 Lenderink v. Sawyer, 92 Neb. 587, 138 N. W. 744; Patterson Y. Patterson, 59 N. Y. 574; McNally v. Weld, 30 Minn. 209, 14 N. W. 895; Dampier v. St. Paul Trust Co., 46 Minn. 526, 49 N. W. 286; Fitz- hugh's Exr. v. Fitzhugh. 11 Gratt. (Va.) 300. 105 Foley v. Brocksmit, 119 Iowa, 457, 93 N. W. 344. (445) 285 PROBATE AND ADMINISTRATION. [Chap. 24: as are usually rendered the remains of those whose rank and standing in life are the same as those of the deceased. 106 They include charges for the burial, un- dertaker's bill, 107 mourning goods for widow and family, 108 price of a burial lot, 109 and if the deceased died away from home, the cost of the transportation of his remains to the family burial lot. 110 The cost of a suitable monument or tombstone is also a proper expense. 111 The expenses of a "wake," it has been held, are a proper funeral expense where it appeared that a custom prevailed among those of the social posi- tion and nationality as the deceased of holding such a ceremony previous to the funeral proper. 112 At common law a wife's funeral expenses and ex- penses of last illness were not a charge against her separate estate unless they could not be collected from her husband, 113 and such is still the rule in many juris- dictions, 114 though other cases hold her estate primarily liable. 115 106 Bradley's Estate, 11 Phila. (Pa.) 87; Sullivan v. Homer, 41 N. J. Eq. 299, 7 Atl. 411; Flintham's Appeal, 1 Serg. & R. (Pa.) 16. 10T Hewett v. Bronson, 5 Daly (N. Y.), 1. 108 Wood's Estate, 1 Ashm. (Pa.) 314. 109 Metz Appeal, 11 Serg. & R. (Pa.) 201; Jennison v. Hapgood, 10 Pick. (Mass.) 77. no Sullivan v. Homer, 41 N. J. Eq. 299, 7 Atl. 411. 111 Owens v. Bloomer, 14 Hun (N. Y.), 296; Ferrin v. Merrick, 41 N. Y. 315. 112 McCue v. Garvey, 14 Hun (N. Y.), 562. 113 Galloway v. McPherson's Estate, 67 Mich. 546, 35 N. W. 114; Petition of Johnson, 15 R. I. 438, 8 Atl. 248. H4 Gould v. Moulahan, 53 N. J. Eq. 341, 33 Atl. 483; Brand v. Brand, 109 Ky. 721, 60 S. W. 704; Waesch's Estate, 106 Pa. 204, 30 Atl. 1124. us Schneider v. Estate of Brier, 129 Wis. 446, 109 N. W. 99; Mor- risHey v. Mulhern, 168 Mass. 412, 47 N. E. 407; McClellan v. Filson, 44 Ohio St. 184, 5 N. E. 861. (446) Chap. 24] PROVING CLAIMS. 286,287 286. Claims against an estate Accrued demands. Demands which accrued during the lifetime of the decedent and which can be enforced through the county court, except where suits are pending thereon, consist of demands based on a contract, either express or implied, 116 for conversion, 117 for breach of cove- nant, 118 for mesne profits, for an injury to real or per- sonal estate, and for any deceit or fraud, 119 for an accounting on a contract creating a trust relation be- tween decedent and claimant, which contract was com- pleted during decedent's lifetime, and could have been enforced by an action at law 120 for specific articles, 121 for taxes, 122 for liability as surety, 123 and in some cases for trust funds. 124 287. Claims becoming due after death. Another class of claims which should be filed are those which became due after decedent's death. 125 These consist of demands arising from contracts made by the decedent during his lifetime with claimant or his assignor, payment of which was to be made after the death of the decedent, or where there was a general lie 3 Bl. Com., 302. H7 Middleton v. Robinson, 1 Bay (S. C.), 58. 118 Hovey v. Newton, 11 Pick. (Mass.) 421. 119 Civ. Code, 463. 120 Sullivan v. Boss' Estate, 113 Mich. 311, 76 N. W. 309, overruling 98 Mich. 570. 121 Rev. Stats., c. 17, 124, [1388]. 122 Findley v. Taylor, 97 Iowa, 420, 66 N. W. 774. 123 Wood v. Fisk, 63 N. Y. 245. 124 Gaffney's Estate, 146 Pa. 49, 23 Atl. 163. See 278, supra. 125 Rev. Stats., c. 17, 124, [1388]. (417) 288 PROBATE AND ADMINISTRATION. [Chap. 24 promise to pay. 128 The contract may be either verbal or written. 127 They also include certain demands not necessarily based on either an express or implied contract between decedent and claimant or his assignor, but on acts, sur- roundings, conditions and circumstances which the court will construe as imposing a liability against the estate for such services or expenses. They consist of expenses of last illness, and the costs and expenses of an unsuccessful proponent of a will who has acted in good faith and in performance of the duties which the law imposes on him. 128 An unsuccessful contestant of a will, it has been held, has no claim against the estate. 129 288. Express contracts to pay for services ren- dered. Where services are rendered decedent by claimant under an express contract, either verbal or written, which were to be paid for by a devise or legacy, or otherwise, and the decedent dies intestate or fails to provide for claimant in his will, the claimant may re- cover, in the county court, the amount agreed on; or if no amount has been agreed on, he may recover what such services are reasonably worth. 130 If he is given 126 Kidler v. Kidler, 93 Iowa, 347, 61 N. W. 994. 127 Gary v. White, 52 N. Y. 138; Hobart v. Hobart, 62 N. Y. 80; Appeal of Starkey, 61 Conn. 199, 23 Atl. 1081. 128 Clark v. Turner, 50 Neb. 290, 69 N. W. 843; In re Bowman's Will, 133 Wis. 494, 113 N. W. 956. 129 Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 180; overruling See- brock v. Fedawa, 33 Neb. 413, 50 N. W. 270; and Mathis v. Pitman, 32 Neb. 191, 49 N. W. 182. See 104, supra. 130 Wallace v. Long, 105 Ind. 522, 5 N. E. 666; Taggart v. Tcvanny, 1 Ind. App. 339, 27 N. E. 511; Ellis v. Carey, 74 Wis. 176, 42 N. W. (448) Chap. 24] PROVING CLAIMS. 289 a legacy and it is insufficient, he is entitled to the difference between what he received and what he earned. 131 Where the services are of such a nature that their pecuniary value cannot be determined, the claimant may file a bill in equity for a specific performance of the agreement. 132 An agreement to leave claimant a devise or legacy, though void for any reason, is admis- sible for the purpose of showing that the services were not intended by either party to be gratuitous. 133 289. Implied contracts to pay for services rendered. The relation or lack of relationship of the parties, and the circumstances, surroundings and conditions under which the services were rendered may be such as to imply a contract between the parties for their payment. Services performed without any expecta- tion of their being paid for, and without evidence of any request for their payment, for a party closely re- lated, are not a valid claim. 134 Where claimant and decedent are members of the same household, the law will not ordinarily imply a contract between them for support or services rendered. 135 252; Freeman v. Toss. 145 Mass. 361, 14 N. E. 141; In re Kessler's Estate, 87 Wis. 660, 59 N. W. 129; Schwab v. Pierro, 43 Minn. 520, 46 N. W. 71. 131 Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Beynolds v. Robin- son, 64 N. Y. 589. 132 Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788. 133 Martin v. Martin, 108 Wis. 284, 84 N. W. 439. For enforcement of agreement to leave property by will, see 304, post. 134 Xormile v. Osborn, 207 Pa. 367, 56 Atl. 937; Hunson's Estate, 133 Cal. 38, 65 Pac. 14. 135 Robinson v. McAffee's Estate, 59 Mich. 375, 26 N. W. 643; Hall v. Finch. 29 Wis. 278; Dye v. Kerr, 15 Barb. (N. Y.) 444; Hinkle v. 29-Pro. Ad. (449-) 290 PROBATE AND ADMINISTRATION. [Chap. 24 If it appears that there was no intention that the services should be gratuitous, and the facts and cir- cumstances attending the performance of the work are sufficient to rebut the presumption arising from rela- tionship, and authorize the inference that both parties acted upon the understanding that the services were to be paid for, a promise to pay for the same will be implied. 136 The rule that a person who, after becom- ing of age, remains under the parental roof, and occu- pies the same family relations as while a minor, will be presumed to have rendered services to his parents gratuitously, does not apply where the family rela- tions have been sundered for some time, and the par- ties again live together, it appearing from the business relations, surroundings and circumstances that there was an expectation of receiving pay for the services, and an intention on the part of the deceased that the claimant should be rewarded for his labor. 137 290. Implied contract to pay for services ren- dered Concluded. Less proof is required to establish an implied con- tract for services where the parties were but distantly Sage, 65 Ohio St. 256, 65 N. E. 999; Williams v. Hutchinson, 3 N. Y, 312. 136 Hoaker v. Van Slambrook, 127 Mich. 61, 86 N. W. 402; Wallace v. Schaud, 81 Md. 594, 32 Atl. 324. 137 Marietta v. Marietta, 90 Iowa, 201 57 N. W. 798; Morton v. Kainey, 82 111. 215; Ensey v. Hines, 30 Kan. 704, 2 Pac. 261; Hill v. Hill, 121 Ind. 255, 23 N. E. 87; Chapman v. Barnes, 29 111. App. 184; In re Kyder's Estate, 59 Hun (N. Y.), 618; Simmons v. Partridge, 154 Mass. 500, 28 N. E. 901. It is a difficult matter to draw the line be- tween cases where liability will be implied and where none exists. So much depends, as appears from the above-cited cases, on the age,. (450) Chap. 24] PROVING CLAIMS. 291 related, and had never occupied even a quasi parental relation, 138 or were not related. Where the parties were not related, it has been held that the rendition ard acceptance of the services and evidence of their value were sufficient to charge the estate with their payment, 139 and where they are related, evidence suffi- cient to rebut the presumption arising from such re- lationship, though falling short of proving an express contract, is sufficient. 140 A claimant is entitled to recover for such services what they are reasonably worth. 141 The amount of such recovery is determined by evidence of the condi- tion of the decedent, "just as to his condition, as to how he had to be taken care of, the care and attention which such condition required and which he received, and the circumstances and conditions under which the parties came together again under the family roof," and their general condition and standing in life. 142 291. Conversations and transactions with decedent. Our Civil Code provides that no person having a direct legal interest in the result of any civil action or proceeding, where the adverse party is the representa- tive of a deceased person, shall be permitted to testify health, circumstances and conditions of the parties, that each has to *be decided largely on its own particular facts. 138 In re Kessler's Estate, 87 Wis. 660, 59 X. W. 129; Quigly v. ArnoM. 22 111. App. 269. 139 Wallace v. Schaud, 81 Md. 594, 32 Atl. 324; Todd v. Martin (Cal.), 37 Pac. 872. 1*0 In re Kessler's Estate, 87 Wis. 660, 59 X. W. 129. i^i Hawkins v. Doe, 60 Or. 437, 117 Pac. 749. 142 Marietta v. Marietta, 90 Iowa, 201, 57 X. W. 708; Peck v. Mc- Kean, 45 Iowa, 18; Wilson v. V.'ilson, 52 Iowa, 44, 2 N. W. 615. (451) 291 PROBATE AND ADMINISTRATION. [Chap. 24 to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in regard to such transaction or conversation, or unless such representa- tive shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the party having such direct legal in- terest may be examined in regard to the facts testified to by such deceased person, but shall not be permitted to testify further in regard to such transaction or con- versation. 143 The word "representative" includes an executor or administrator, 144 consequently the evidence of third parties is necessary to prove an express verbal contract or an implied contract. A transaction may be defined as an affair which forms the subject of negotiations between parties. 145 It is an exceedingly broad term as used in the code, embracing every variety of matters which are the sub- ject of negotiations, contracts or actions between par- ties, 148 including the contents of a letter, the letter itself having been destroyed, 147 the delivery of a con- tract between the parties, 148 identification of letters written by deceased, 149 identification of checks payable 143 Civ. Code, 335. "4 Gillette v. Morrison, 9 Neb. 395, 2 N. W. 853. 145 Kroh v. Heins, 48 Neb. 691, 67 N. W. 771. 146 Eussell v. Close's Estate, 79 Neb. 318, 112. N. W. 559, 83 Neb. 232, 119 N. W. 515; Wilson v. Wilson, 83 Neb. 562, 120 N. W. 147. 147 Kroh v. Heins, 48 Neb. 691, 67 N. W. 771; Smith v. Perry, 52 Neb. 738, 73 N. W. 282; Sorenson v. Sorenson, 56 Neb. 729, 77 N. W. 68. 148 Russell v. Close's Estate, 79 Neb. 318, 112 N. W. 559; Wilson v. Wilson. 83 Neb. 562, 120 N. W. 147. 149 Harte v. Reichenberg, 3 Neb. Unof. 820, 92 N. W. 987. (452) Chap. 24] PBOVING CLAIMS. 292 to deceased, 150 payment or delivery of money, 151 the de- livery of property, the title to which is in dispute, 152 private diaries containing entries relating to business affairs of the deceased, 153 and the making of indorse- ments on notes. 154 292. Competency of adverse party. The interested party is not disqualified as a witness, but merely from testifying in regard to matters pro- hibited by the code. 155 He may testify that a certain instrument was in existence, where he saw it and its condition when he saw it. 156 A claimant for services rendered or work and labor performed is not entirely barred by the statute from testifying concerning the same. He may testify to what he has done, providing it does not involve a per- sonal transaction with the deceased, and then, if he can connect these services with the deceased by other and competent testimony, his testimony, if otherwise rele- vant and competent, may be considered by the court or jury. 157 The questions cannot be asked in such form that an answer, while ostensibly excluding the iso Holloway v. Filson, 89 Neb. 403, 131 N. W. 606. 151 In re Necker's Estate, 80 Neb. 123, 113 N. W. 1045. 152 Nunnally v. Becker, 52 Ark. 550, 13 S. W. 79. 153 Fitch v. Martin, 83 Neb. 124, 119 N. W. 25. 154 Cornelius v. Miles (Ky.), 53 S. W. 517. 155 Sharmer v. Mclntosh, 43 Neb. 509, 61 N. W. 727; Riddell v. Riddell, 70 Neb. 472, 97 N. W. 609. 156 Hartnett v. Holdredge, 5 Neb. Unof. 114, 97 N. W. 443, 73 Neb. 570, 103 N. W. 277. 157 Fitch v. Martin, 74 Neb. 538, 104 N. W. 1072, 83 Neb. 124, 119 N. W. 25. 293 PROBATE AND ADMINISTRATION. [Chap. 24 deceased therefrom, carries with it the inference that the services were performed for the deceased. 158 The owner of a claim on a book account is not a com- petent witness to prove the entries upon his own books, as they are considered as evidence of transactions. 159 The assignor of a claim who disposed of it in good faith previous to the death of the decedent is not dis- qualified from testifying fully, 160 but if the transfer was made subsequently to his death, he is bound by the same rule as the claimant. 161 Under the Oregon practice, the questions discussed in sections 291, 292, 293 and 294 are not raised in actions on claims. The facts which establish the lia- bility of the estate to the claimant must be proved by other evidence than that of the claimant. He is a com- petent witness as to all matters connected with the claim, but the court, a referee or a jury cannot allow it unless there is sufficient competent evidence outside of his testimony to establish it. 162 293. Adverse party. The husband or wife of claimant may testify as to such transactions or conversations unless he or she be a part owner of the claim. 163 The term "direct legal interest in the result of any civil action or proceeding" refers only to the claim or 158 Fitch v. Martin, 74 Neb. 538, 104 N. W. 1072, 83 Neb. 124, 119 N. W. 25. 159 Martin v. Scott, 12 Neb. 42, 10 N. W. 532. io Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. 949. li Magenau v. Bell, 13 Neb. 247, 13 N. W. 277; Riddell v. Riddell, 70 Neb. 472, 97 N. W. 609. 12 Goltra v. Penland, 45 Or. 261, 77 Pac. 129; L. O. L., 1241. l3 Gillett v. Morrison, 9 Neb. 395, 2 N. W. 853; Parker v. Wells. 68 Neb. 647, 94 N. W. 717; Hisket v. Bozarth, 75 Neb. 70, 105 N. W 990; Adams v. Dennis, 76 Neb. 682, 107 N. W. 865. (454) Chap. 24] PROVING CLAIMS. 294 demand sought to be enforced in the action pending, so that a joint heir or legatee is competent to testify to transactions or conversations if he has no interest in the particular demand. 184 A representative who is only a nominal defendant, as in an action by a wife to set aside the joint deed of herself and husband, is not an adverse party. 185 The term ' ' representative " includes other parties than an executor or administrator, a surviving part- ner, 166 creditors of an insolvent estate, in an action to set aside an alleged fraudulent transfer, 167 an assignee of creditors in an action between such assignee and a deceased assignor, 168 and any party who succeeds to the right of the decedent by purchase, descent or opera- tion of law. 169 A party may testify to conversations and transac- tions with the deceased agent of his adverse party the same as if such agent were living. 170 294. Waiver of objections. Section 335 of the Revised Civil Code does not oper- ate like the statute of nonclaim, and the representative 164 Hageman v. Powell's Estate, 76 Neb. 514, 107 N. W. 749. i5 Buckingham v. Eoar, 45 Neb. 244, 63 N. W. 398. 166 Mead v. Weaver, 42 Neb. 149, 60 N. W. 375; Pierce v. Atwood, 64 Xeb. 92, 89 N. W. 669; North v. Angelo, 75 Neb. 381, 110 N. W. 570. In the latter case a plaintiff was permitted to testify to transac- tions with a decedent in an action against a copartnership which suc- ceeded to the business of a partnership in which decedent was a member. The court approved the rule in the Mead case. 167 Adler Sons Co. v. Hellman, 55 Xeb. 266, 75 N. W. 877. l8 Housel v. Cremer, 13 Neb. 298, 14 N. W. 398. 16 Brown v. Forbes, 1 Neb. Unof. 888, 96 N. W. 52. 170 Walker v. Hale, 92 Neb. 829, 139 N. W. 658. (455) 294 PROBATE AND ADMINISTRATION. [Chap. 24 may waive it by failing to make the proper objection, 171 or by introducing such testimony himself. 172 When he introduces any evidence of a transaction by a claimant with the decedent or of a conversation, the claimant is then competent to testify fully in regard to every element of that phase of the contract gone into by tho other side, but no further. 173 If evidence of a part of the testimony given on another trial, 174 or a part of a conversation, 175 or a letter concerning the transaction is given, 178 the claimant may in rebuttal give his ac- count of the conversation or transaction or conversa- tion. 177 Evidence as to one conversation will not permit tes- timony of another and independent conversation, though it followed almost immediately, 178 nor payment of a note secured by mortgage, of an agreement made when the mortgage was executed. 179 Where testimony of the claimant was taken by depo- sition and proper objections were interposed to the same as incompetent under the code, the personal representative did not waive his objections to the tes- timony by cross-examination, where his objections 171 Bartlett v. Bartlett, 15 Neb. 593, 19 N. W. 691. 172 Parrish v. McNeil, 36 Neb. 727, 55 N. W. 222. 173 Dickinson v. Columbus State Bank, 70 Neb. 260, 98 N. W. 813; Taylor v. Ainsworth, 49 Neb. 496, 68 N. W. 1045; American State Bank v. Harrington, 34 Neb. 597, 52 N. W. 376. 174 Russell v. Close's Estate, 83 Neb. 232, 119 N. W. 515. 175 In re Neckel's Estate, 80 Neb. 123, 113 N. W. 1015. 176 Cline v. Dexter, 72 Neb. 619, 101 N. W. 246. 177 Bangs v. Gray, 60 Neb. 457, 83 N. W. 680, in which, as well as in Russell v. Close's Estate, plaintiff substantially established his cause of action on rebuttal. 178 In re Neckles' Estate, 80 Neb. 123, 113 N. W. 1045. 179 Dickenson v. Columbus State Bank, 70 Neb. 260, 98 N. W. 813. (456) Chap. 24] PROVING CLAIMS. 295 were sustained by the court, and he is not entitled to the benefit of his cross-examination. 180 g 295. Declarations and admissions to third party in presence of claimant. A claimant may testify as to conversations in which he took no part between decedent and a third party, concerning a transaction between claimant and dece- dent. 181 His evidence in such case is on the same foot- ing, as far as admissibility is concerned, as admissions, declarations or conversations made to third parties who have no interest in the claim or demand. 182 Dec- larations or admissions are always competent to prove the terms of a contract and that it has been complied with by the claimant, 183 and thus to prove claimant's demand. 184 By the Oregon code the declaration, act or omission of a deceased person against his interest is admissible as evidence to that extent against his successor in in- terest, 185 and when a party in an action, suit or pro- ceeding against an executor or administrator appears as a witness in his own behalf, or offers statements made by the deceased against the interest of the de- ceased, statements of the deceased in his own favor may also be proven. 186 iso Bentley v. Bentley's Estate, 72 Neb. 803, 101 N. W. 976. 181 Kroh v. Heins, 48 Neb. 691, 67 N. W. 771; Powers v. Powers, 79 Neb. 680, 113 N. W. 189; Wright v. Reed, 118 Iowa, 333, 92 N. W. 61. 182 Heyne v. Dorflier, 57 Hun (N. Y.), 591; Carey v. White, 52 N. Y. 138; Hobart v. Hobart, 62 N. Y. 80. 183 Simmonds v. Partridge, 154 Mass. 500, 28 N. E. 901. 184 Knight v. Knight, 6 Ind. App. 269, 33 N. E. 456; Kettery v. Thumma, 9 Ind. App. 498, 36 N. E. 919. 185 L. O. L., 710. 186 L. O. L., 732. (457) 296,297 PROBATE AND ADMINISTRATION. [Chap. 24 296. Claims for breach of covenants. Damages for breach of covenant in a deed or other conveyance made by a decedent, or of a personal cove- nant, if accruing during his lifetime, are a proper demand against his estate. 187 If occurring after the death of the covenantor, the demand is against the heir or devisee and not the estate, 188 except the covenant be a personal one, in which case the claim lies against the estate. 188 297. Claims due nonresidents. The county court has power to adjust claims of non- residents. The policy of the law is to favor as far as possible the local creditors and to require foreign creditors, when the administration in this state is an- cillary, to file their demands with the representative in their own state. At the same time a nonresident creditor is entitled to the same rights in the estate as a resident. The allowance of the claim in another jur- isdiction and where the estate is under the charge of a different administrator is not binding on the personal representative in this state. There is no privity be- tween them. 190 The local administrator succeeds to none of the powers, rights and duties of the foreign representative, and a decision against the representa- 187 Estabrook v. Hapgood, 10 Mass. 313; Sheldon v. Warner, 58 Mich. 444, 26 N. W. 667. 188 Scott v. Scott, 70 Pa. 244; Booth v. Starr, 5 Day (Conn.), 275. 189 Brownfield v. Holland, 63 Wash. 86, 114 Pac. 890; Elliott v. Garvin, 166 Fed. 278. io See section 268, supra. (458) Chap. 24] PROVING CLAIMS. 298 live in the one state is not binding in the other. The demand must be formally allowed. 191 A nonresident creditor the amount of whose claim is within the jurisdiction of the federal court may maintain an action thereon in such court. 192 It must be begun within the time fixed by the county court for the filing of claims against the estate, 193 and the judg- ment obtained, when filed in the county court, becomes an obligation of the estate enforceable in the same manner as any other demand. 194 298. Joint claims. When any two or more persons shall be indebted upon any joint contract or upon a judgment founded upon a joint contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed as if the contract had been joint and several, or as if the judgment had been against him alone; and the other parties to such contract may be compelled to con- tribute or pay the same, if they would have been liable to do so upon payn*?nt thereof by the deceased. 195 This statute changes the common-law rule, which released 191 Creswell v. Slack, 68 Iowa, 110, 26 N. W. 42; Stacy v. Thrasher, 6 How. (U. S.) 57; Talmadge v. Chappel, 16 Mass. 71; Turner v. Risor, 54 Ark. 33, 15 S. W. 13; McGarvey v. Darnall, 134 111. 367, 25 N. E. 1005. 192 Union Xat. Bank v. Vaiden, 18 How. (U. S.) 503; Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct. Rep. 440. l3 Security Trust Co. v. Black River Xat. Bank. 187 U. S. 211, 23 Sup. Ct. Rep. 52; Schurmier v. Connecticut Mut. Life Ins. Co., 171 Fed. 1. 194 Connecticut Mut. Life Ins. Co. v. Schurmier (Minn.), 147 N. W. 246. 195 Rev. Stats., c. 17, S 160, [1424]. (459) 299 PROBATE AND ADMINISTRATION. [Chap. 24 the estate of a deceased obligor on a joint contract from liability, 196 and makes the liability of the estate the same on both joint and joint and several contracts as if he were living. 299. Executor's or administrator's claims. An executor or administrator having a claim or de- mand against the estate, either absolute or contingent, has no greater privilege in regard thereto than any other party. If the estate is solvent, he, of course, receives his pay in full; if insolvent, he must share with the other creditors his proportion of the loss. There is no reason why he should not be called upon to estab- lish his demand in the same manner he would be ob- liged to had he no other interest in the estate, and, when the estate is insolvent, there cannot well be an order of payment made until his claim is proved. In some states the court of probate jurisdiction is given by statute the authority to appoint a special adminis- trator to represent the estate on such hearings, and the common law recognized the authority of the probate courts to make such appointment, the officer being called an ' ' administrator pendente lite. ' ' If the execu- tor 's or administrator's claim is contested, it might be for the interest of the estate for the court to appoint some person to represent the estate on the hearing, but it would seem that, if the position taken by the per- sonal representative was so antagonistic to the estate, he ought to be removed, and someone else appointed. It has been held, the estate being solvent, the per- sonal representative may retain in his possession suffi- . Pecker v. Julius, 2 Browne (Pa.), 31. (460) Chap. 24] PROVING CLAIMS. cient assets of the estate to satisfy his demand, and the claim need not be presented the same as that of the others, 197 the validity or invalidity of the claim being determined by the court on the hearing of the final account. 198 Claims for expenses incurred by the execu- tor or administrator in the course of the administra- tion are passed upon in his final account. Under the Oregon practice, the county court or judge has authority to allow the claim of an executor or administrator. Such allowance does not conclude a creditor or person interested in the estate in any action, suit or proceeding between such executor or administrator, and such creditor, heir or other per- son. 199 If he reject the claim, either in whole or in part, or in case the same is not presented for allowance as provided by law, the executor or administrator may retain the amount thereof until the final settlement of his accounts, when if the same is controverted, or ob- jected to by any person interested in the estate, the right of the representative to have the same allowed shall be tried and determined by the court. It must be presented to the court before the statute of limitations has run against it. 200 300. Contingent claims. A contingent claim against an estate is one where the liability depends upon some future event, which may or may not happen, and therefore makes it now wholly uncertain whether there ever will be a liabil- ity. - (l] It is a demand or debt which is not then abso- 197 Sanderson's Admrs. v. Sanderson, 17 Fla. 820. 198 In re May, 45 Ch. Div. 499. 199 L. O. L., 1246. 200 L. 0. L., 1247. 201 Sargent's Estate v. Kimball's Estate, 37 Vt. 321. (461) 300 PROBATE AND ADMINISTRATION. [Chap. 24 lute or certain, but depends upon the occurrence or nonoccurrence of some event after the death of the tes- tator or intestate. 202 The contingency is the happen- ing of the event and not the time of its happening. 203 The principal contingent claims are those growing out of liability as indorser, guarantor or surety upon commercial paper, 204 as surety on bonds, as payer of mortgage notes, and the statutory liability of a stock- holder in a banking or other corporation. 205 If any person shall be liable as security for the de- ceased, or have any other contingent claim against his estate which cannot be proved as a debt, the same may be presented, with the proper proof, to the county court, which if satisfied that such claim is a legal de- mand against the estate, may order the executor or administrator to retain in his hands sufficient to pay such contingent claim, when the same shall become absolute, or, if the estate shall be insolvent, sufficient to pay a proportion equal to the dividends of other creditors. 206 When a claim is so filed and approved by the court within the time fixed for filing absolute claims, the holder places himself on terms of proximate equality with the holders of such other claims. 207 Under the Oregon practice, a contingent claim may be presented and allowed the same as any other de- mand. If approved, its present value is paid into court and held subject to the happening of the con- 202 Stichter v. Cox, 52 Neb. 532, 72 N. W. 848. 203 Verdier v. Roach, 96 Cal. 467, 31 Pac. 554. 204 Cockeril v. Hobson, 16 Ala. 391. 205 Hazlett v. Blakeley's Estate, 70 Neb. 613, 97 N. W. 808. 206 Rev. Stats., c. 17, 141, [1405]. 207 Hazlett v. Blakeley, 70 Neb. 613, 97 N. W. 808. (462) Chap. 24] PROVING CLAIMS. 301 tingency. 208 If the estate is insolvent, it would neces- sarily prorate with other claims. 301. Contingent claims becoming absolute. A contingent claim becomes absolute as soon as the event which fixes the liability of the estate occurs. 209 The claimant may, at any time within two years from the time limited to other creditors to present their claims, present his demand, which the court had pre- viously approved as a contingent obligation, for allow- ance as a proper claim, and if the contingency is estab- lished by due proof, it may be allowed and ordered paid in whole or in part as the assets of the estate will permit. 210 The supreme court has said that it was a question of doubt whether a contingent claim not filed as such within the time limited other creditors to present their demands can be subsequently filed and allowed, though it did not accrue or become absolute until after the time limited. 211 A statute was enacted in 1867 which permits a claim- ant having a demand which shall accrue or become absolute at any time after the time limited by creditors to present their claims to prove the same in the county court within one year after it accrues or becomes abso- lute. 212 In 1901 the statute of nonclaim was amended to include contingent claims. Previous to that arnend- 208 L. O. L., 1301. 209 Hazlett v. Blakeley, 70 Neb. 613, 97 N. W. 808. 210 Eev. Stats., c. 17, 142, 143, [1406], [1407]; Brinkworth v. Hazlett, 64 Neb. 502, 90 N. W. 537. 211 Burling v. Alvord, 77 Neb. 861, 110 N. W. 683. 212 Rev. Stats., c. 17, 144, [1408]. (463) 302 PROBATE AND ADMINISTRATION. [Chap. 24 ment a contingent claim filed some time after the ex- piration of the time fixed in the notice to creditors was held a proper charge. 213 The doubtful question is, Was section 144 repealed by implication by the amendment T It was clearly the intention of the legislature to shut out all contingent demands, and it would therefore seem that said section 144 was repealed by implication. Form No. 138. ORDER OF COUNTY JUDGE ALLOWING CONTINGENT CLAIM. [Title of Cause and Court.] Now, on this day of , 19 , being the day fixed by the court for the hearing of the contingent claim of G. H. against sa ; d estate, said G. H. appeared and presented evidence in support thereof, and C. D., administrator of said estate, in opposition thereto; and it appearing to the court that said claim was a contingent one,, and that the same became absolute and the amount thereof deter- mined on the day of , 19 , and that said claim is just and a just demand against said estate; and it further appearing that said administrator has not in his possession sufficient assets with which to pay said claim: It is therefore ordered that said claim be allowed at the sum of dollars ($ ), and that said C. D., administrator, pay such proportion of said claim from the assets of said estate now in his possession as he may have the funds to pay, and, if any real or personal estate of the said A. B. shall afterward come into his possession, he shall pay such claim, or such part thereof as he majr have assets to pay, within thirty days after said assets have been, received by him. (Signed) J. K., County Judge. 302. Contract to bequeath or devise property, A contract by which a party agrees for a considera- tion to make a certain disposition of either real or per- sonal property is valid, and constitutes an obligation 213 Hazlett T. Blakeley, 70 Neb. 613, 97 N. W. 808. (464) Chap. 24] PROVING CLAIMS. 302 of his estate. 214 Such consideration is usually services performed or to be performed by claimant for dece- dent. 215 The execution of reciprocal wills by both hus- band and wife, 216 or the satisfaction of a claim or demand, 217 are also sufficient considerations. The contract may be oral, 218 in which case the evi- dence to establish it must be clear and satisfactory. 21 * The rule of law governing enforcement of contracts to devise or bequeath, and actions for breach of the same, differs somewhat from that on other contracts. The party not in default does not in each case have a choice of remedies. If the consideration is a definite amount of labor performed or services rendered by the claimant and the value of the same can be ascertained, 214 Hawkins v. Doe, 60 Or. 437, 119 Pac. 754; Kelley v. Devin, 65 Or. 215, 132 Pac. 535; Van Dyne v. Freeland, 12 N. J. Eq. 142; Rivers v. Rivers' Exrs., 3 Desaus. (S. C.) 190; Wright v. Tinsley, 30 Mo. 389; Green v. Broylcs, 3 Humph. (Tenn.) 167; Wright v. Wright, 31 Mich. 380; Updike v. Tenbroeck, 32 N. J. L. 105; Smith v. Smith's Admrs. r 28 N. J. L. 208. 215 Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788; Damkroeger v. James (Neb.), 146 N. W. 936; Best v. Gralapp, 69 Neb. 811, 96 N. W. 641; Teske v. Ditberner, 65 Neb. 167, 91 N. W. 181; Kelley v. Devin,. 65 Or. 215, 132 Pac. 575. 216 Brown v. Webster, 90 Neb. 591, 134 N. W. 185. 217 Clawson v. Brewer, 67 N. J. Eq. 201, 58 Atl. 598. 218 Moline v. Carlson, 92 Neb. 419, 138 N. W. 721; Hespen v. Wendcln, 85 Neb. 172, 122 N. W. 852; Harrison v. Harrison, 80 Neb. 103, 113 N. W. 1042. 219 Kofka v. Rosicky, 41 Neb. 328; Teske v. Ditberner, 65 Xeb. 167, 91 N. W. 181, 70 Neb. 544, 98 N. W. 57; Best v. Gralapp, 96 Neb. 801, 96 N. W. 641; Pemberton v. Pemberton's Heirs, 76 Neb. 669, 107 N. W. 996; Peterson v. Bauer, 76 Neb. 652, 107 N. W. 993; Moline v. Carlson, 92 Neb. 419, 138 N. W. 621; Labs v. Labs, 92 Neb. 378, 138 N. W. 561; Damkroeger v. James (Neb.), 146 N. W. 936; Rose v. Oliver, 32 Or. 447, 52 Pae. 176; Richardson v. Orth, 40 Or. 232, 66 Pac. 925, 69 Pac. 494. 30 Pro. Ad. ^465} 303 PROBATE AND ADMINISTRATION. [Chap. 24 and a payment will place the parties in the same posi- tion as before, specific enforcement cannot be had. The remedy of the claimant is to file his demand in court and recover either the specific amount or on a quantum meruit. His right to recover, but not the amount of his recovery, is based on the contract. 220 303. Consideration for contract. If the consideration of the contract is services ren- dered, and they are of such a character that it is im- possible to estimate their value by any pecuniary standard, it is not within the power of any court, after their performance, to restore the party to the same position he was in before the agreement was made by awarding him damages, and his remedy is by bill in equity for specific performance. 221 Under this rule full performance of an agreement, by a son of full age and living away from home, to return with his family and take care of his father and attend to his business, 222 by a son, 223 or stepson, 224 to remain at home and attend to his parents' affairs, by a party who had lived with a family since infancy to remain on the farm of decedent, 225 in consideration of receiving cer- 220 Hawkins v. Doe, 60 Or. 437, 117 Pac. 754; Freeman v. Foss, 145 Mass. 361, 14 N. E. 141; Ellis v. Carey, 74 Wis. 176, 42 N. W. 252. 221 Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788; Kelley v. Devin, 65 Or. 215, 132 Pac. 535; Rhodes v. Rhodes, 3 Sand. Ch. (N. Y.) 279. 2?2 Best v. Gralapp, 69 Neb. 811, 96 N. W. 641, 99 N. W. 837; Harri- son v. Harrison, 80 Neb. 103, 113 N. W. 1042. 223 O'Connor v. Waters, 88 Neb. 224, 129 N. W. 261; Teske v. Dit- berner, 65 Neb. 167, 91 N. W. 181, 70 Neb. 544, 98 N. W. 57; Kelley v. Devin, 65 Or. 215, 132 Pac. 535. 224 Hespen v. Wendelen, 85 Neb. 172, 122 N. W. 852. 225 Moline v. Carlson, 92 Neb. 419, 138 N. W. 721. (466) Chap. 24] PROVING CLAIMS. 304 tain specific property or a share therein, give a right to enforce the same. The same principle governs a like contract for ser- vices for any elderly person if performed under the same conditions. 226 A contract made between deceased and the parent of an infant, by the terms of which the deceased agreed to adopt the minor and to make him an heir with others or give him a fixed share in the estate, is also within the rale when the person so agreed to be adopted en- ters the family of deceased and performs the usual duties of a child. 227 In none of the cases last cited was the claimant formally adopted. 304. Relief granted. When recovery cannot be had on a quantum meruit or actual consideration paid, specific performance is claimant's only remedy. An action for damages for breach of contract to convey cannot be sustained. 228 Part performance of such contract of such character that the court cannot restore the promisee to the situ- ation he was in when the agreement was made, or com- pensate him in damages, takes it out of the statute of frauds. 229 Evidence that the promisor expressly 226 Brinton v. Van Cott, 8 Utah, 480, 33 Pac. 218; McKinnon v. McKinnon, 56 Fed. 409; Jaffee v. Jacobson, 4 U. S. App. 4, 1 C. C. A. 24, 48 Fed. 21. 227 Peterson v. Bauer, 83 Neb. 405, 119 N. W. 764, 76 Neb. 661, 111 X. W. 361; Pemberton v. Pemberton's Heirs, 76 Neb. 669, 107 X. W. 993; Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788. 228 Hertzog v. Hertzog, 34 Pa. 318; Erben v. Lorillard, 19 N. Y. 299. 229 Best v. Gralapp, 69 Neb. 811, 96 N. W. 641; Kelley v. Devin, 65 Or. 215, 132 Pac. 535. (467) 305 PROBATE AND ADMINISTRATION. [Chap. 24: agreed to make a will is not necessary. An agree- ment to "give" claimant a certain piece of land or a certain share in the estate is sufficient. 230 It was formerly held that where the contract in- cluded property in which the surviving spouse had a homestead right, it was enforceable, and the value of such right could be given the surviving spouse by the decree. 231 Under the present holding of the supreme court, 232 it would only be enforceable, if at all, as to the estate of remainder, unless such survivor consented thereto. 233 Executors, administrators, heirs, devisees or lega- tees of the promisor take the property impressed with a trust in favor of the claimant. 234 They are the de- fendants, and the decree against them should be for a substantially specific performance. 235 305. Writings of deceased persons as evidence. The book entries and other writings of a person de- ceased, made at or near the time of the transaction, and when the deceased was in a position to know the facts therein stated, are presumptive evidence of such facts when the entry was made against the interest of the person so making it, or when made in a professional capacity, or in the ordinary course of professional con- 230 Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788; Moline v. Carlson, 92 Neb. 419, 138 N. W. 721. 231 Teske v. Ditberner, 83 Neb. 701, 120 N. W. 147. 232 Meisner v. Hill, 92 Neb. 435, 138 N. W. 583. 233 Moline v. Carlson, 92 Neb. 419, 138 N. W. 721. 234 Bruce v. Moon, 57 S. C. 60, 35 S. E. 415; Howe v. Watson, 179 Mass. 30, 60 N. E. 415; Smith v. Pierce, 65 Vt. 200, 25 Atl. 1092. 235 Wright v. Tinsley, 30 Mo. 389. (468) Chap. 24] PROVING CLAIMS. 306 duct, or when in the performance of a duty especially enjoined by law. 236 The above is declaratory of the common-law rule. It must be shown that such writ- ings are original, contemporaneous, and in the line of the writer's duty, 237 or when he was in a position to know the facts therein stated, that they were in his handwriting, 238 and that they were found among his possessions. The ] (resumption is that the books of account of a deceased person, or the records which he made in any official capacity, were regularly kept by him, and are true statements of the transactions therein set forth. If testimony is subsequently introduced which raises any question as to the validity or authenticity of the writings, it is for the judge to determine, or, in the case of an appeal to the district court, for the jury under proper instructions from the court. 239 306. Extending time for presentation of claims. The court may extend the time allowed to creditors to present their claims, as the circumstances of the case may require; but not so that the whole time shall exceed two years. 240 The application must be filed within six months from the expiration of the time first 236 Civ. Code, 3o4; L. O. L., 798; Susewind v. Lever, 37 Or. 367, 61 Pac. 644. 237 Wharton, Evidence, 233; 1 Greenleaf, Evidence, 115. 238 Welsh v. Barrett, 15 Mass. 380; Inhabitants of Augusta v. In- habitants of Windsor, 19 lie. 317; Van Swearingen v. Harris, 1 Watts & S. (Pa.) 356. 239 Qdell v. Culbert, 9 Watts & S. (Pa.) 66; Van Swearingen v. Harris. 1 Watts & S. (Pa.) 356. 240 Rev. Stats., c. 17, 121, [13S5]. (469) 306 PROBATE AND ADMINISTRATION. [Chap. 24 fixed. 241 It should be by petition, under oath, setting up the demand, the reasons why it was not filed pre- viously, and show that the applicant has not been guilty of laches and has exercised due diligence. 242 Notice of the filing of the application and the date set for its hearing should be given the executor or ad- ministrator as the court may direct. The court has no power to file the claim until after a hearing has been had and leave granted. The appli- cant must show that his neglect was due to such rea- sons as lack of notice of the death of deceased and unavoidable mistake or accident, or fraud. The rule is that the showing must be such as would warrant a court in setting aside a judgment and granting a new trial in ordinary cases, 243 and the order will not be dis- turbed if it appeared that the court acted with dis- cretion. 244 The equities of the case, must be very strong, however, to justify a court in granting the ap- plication where a long time was given in the first no- tice, and the personal representative has rendered his account. 245 241 Eev. Stats., c. 17, 122, [1386] ; Fitzgerald v. First Nat. Bank, 64 Neb. 260, 89 N. W. 813. A strong dissenting opinion was filed in this case, a minority of the court holding that section 121 gave the county court the power to allow a claim to be filed and to act on it, on proper application at any time within two years. 242 Gilchrist v. Eea, 9 Paige (N. Y.), 66; State v. Ramsey Co. Pro- bate Court, 42 Minn. 54, 43 N. W. 692. 243 Nebraska Wesleyan University v. Bowen, 73 Neb. 598, 103 N. W. 275. 244 Kibble v. Furmin, 71 Neb. 108, 98 N. W. 420. 245 Hazlett v. Burge, 22 Iowa, 531; Amsbaugh v. Exchange Bank, 33 Kan. 100, 5 Pac. 384. (470) Chap. 24] PROVING CLAIMS. 307 Form No. 139. APPLICATION FOR ORDER EXTENDING TIME FOB HEARING CLAIMS. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that he is a resident of Chicago, Illinois, and has resided therein for more than three years last past; that said estate is indebted to said peti- tioner in the sum of $ on a certain promissory note executed and delivered by said A. B. to said petitioner on the day of , 19 , and which said note became due and payable on the day of , 19 , at the bank, in the city of Chicago aforesaid; that petitioner had no knowledge whatever of the death of said A. B. or of the appointment of an administrator of his said estate or of the notice to creditors to present their claims against said estate until , 19 , when he was informed that said A. B. had been dead for more than six months and that the time fixed for filing claims against said estate had expired; that said A. B. left no estate within the state of Illinois, and that unless your petitioner be permitted to establish the amount of his said claim in this court, he will be unable to recover said sum of money so due from said estate. Your petitioner therefore prays that an order be made and entered by said court extending the time for presentation of claims against said estate for days. Dated this day of , 19 . (Signed) C. D. [Add verification.] 307. Order extending time for filing claims. If the reasons why the claim was not previously presented appear to the court satisfactory, an order is made extending the time, not to exceed three months, and notice thereof is given in such manner as the court may direct. 246 It has been held under a statute like our own that the extension operates for the benefit of the applicant alone, and that any other belated creditor must make 246 Rev. Stats., c. 17, 122, [1386], (471) 308 PROBATE AND ADMINISTRATION. [Chap. 24 his application also. The court has no power to allow a claim after the time first fixed has expired unless an order for the hearing of such claim has been en- tered. 247 The order is a final one, and an appeal on it will lie to the county court. 248 Form No. 140. ORDEE GRANTING TIME TO FILE A CLAIM. [Title of Cause and Court]. Now on this day of , 19 , this matter came on for hearing on the petition of C. D. to extend the time for filing claims against said estate, the answer of E. F., administrator of said estate, and the evidence was submitted to the court. On consideration whereof the court finds that the said petitioner has not been guilty of laches and that the prayer of said petition should be granted. It is therefore ordered that said C. D. be given leave to file said claim within ten days and the same be set for hearing on the day of , 19, at the hour of 9 A. M. (Signed) J. K., County Judge. 308. Order allowing claims. The order of the county court allowing a claim of a creditor as a proper demand against the estate is valid and binding, and has the force and effect of a judgment against the estate until appealed from, or reversed or vacated in some of the modes prescribed by statute. 249 247 McGee v. McDonald's Estate, 66 Mich. 628, 33 N. W. 737. 248 Bibble v. Furmin, 71 Neb. 198, 98 N. W. 420. 249 McGrew v. State Bank of Humboldt, 60 Neb. 716, 84 N. W. S9; McCormick v. McCormick, 53 Neb. 255, 73 N. W. 693; Patton v. (472) Chap. 24] PROVING CLAIMS. 308 It is not necessary that any formal judgment be en- tered for the payment of each separate demand. The order should show the amount demanded by each claimant, the amount allowed, the amount disallowed, setoff allowed, the balance in favor of the claimant or the estate, and also whether notice of appeal was given or appeal taken either by the claimant or the estate. It should be signed by the judge and recorded, and though such record may be lacking in some recitals, such as appearance of parties, and even if unsigned, if properly entered and showing the date and amount allowed, it is sufficient. 250 It should include claims for debts only. Claims of an executor or administrator for expenses and disbursements belong in his final account. 251 Where it appears that all the statutory steps have been taken to give the court jurisdiction, it cannot be impeached in a collateral proceeding except for fraud. 252 During the term at which it was entered the court has power, on application of an interested party, and notice to the executor or administrator, to vacate the order, 253 or may modify the same for good and sufii- Bostwick, 39 Mich. 218; Stone v. Wood, 16 HI. 177; Yeatman v. Yeat- man, 35 Neb. 422, 53 N. W. 385. 250 McCormiek v. McCormick, 53 Neb. 255, 73 N. W. 693; Yeatman v. Yeatman, 35 Neb. 422, 53 N. W. 385; Scott v. Rohman, 43 Neb. 618, 62 N. W. 46. 251 Erickson v. Nyblom, 78 Neb. 642, 111 N. W. 356. 252 State v. Ramsey Co. Probate Court, 25 Minn. 25; Shoemaker v. Brown. 10 Kan. 385; Baker v. Rust, 37 Tex. 242. 253 Brusha v. Hawke, 87 Neb. 254, 126 N. W. 1079. (473) 308 PROBATE AND ADMINISTRATION. [Chap. 24 cient reasons on notice to such personal representa- tive. 254 After the term and after the time for appeal has expired he may have a claim allowed in his absence and to which he has a good defense set aside by bill in equity, 255 or may have the order vacated or modified by general proceedings under the Civil Code to set aside judgments. 256 An executor, administrator, heir, legatee or devisee may appeal to the district court. 257 Form No. 141. ORDER OF COUNTY JUDGE ALLOWING CLAIMS. [Title of Cause and Court.] Now on this day of , 19 , came C. D., administrator of said estate, in person and by E. F., his attorney; and due proof having been made before me of the following claims, showing them to be just and lawful demands against the estate of A. B., deceased, I therefore adjust, allow or disallow, respectfully, the personal claims heretofore filed against the estate, in favor of or against the several persons hereinafter named, as set forth in the several columns oppo- site their respective names. The first column contains the names of the creditors of the said estate, and the character of their claim; the second shows the amount claimed; the third shows the amount allowed; the fourth shows the amount disallowed; the fifth shows the amount of setoff filed on behalf of the estate against such claim; the sixth shows the amount of setoff disallowed; the seventh shows the balance in favor of the creditors; the eighth shows the balance 254 Dundas v. Christian, 25 Neb. 495, 41 N. W. 449. 255 Dundas v. Christian, 25 Neb. 495, 41 N. W. 449. 256 Civ. Code, 648, 656; McGrew v. State Bank of Humboldt, 60 Neb. 716, 84 N. W. 99. 257 Rev. Stats., c. 17, 252, 271, [1516], [1535]. (474) Chap. 24] PROVING CLAIMS. 308 in favor of the estate; the ninth shows how notice was given the claimants. OB T3 _ O o Names of Creditors and Character of Claims Amount Claimed Amount Allowed Amount Disallowed Amount of 3toff Claime Amount of jtoff Allowe Balance in or of Credit Balance in ivor of Esta Notice, How Given 02 02 oa And it satisfactorily appearing to the court from the proof on file that due notice as required by law has been given of the time and place designated for the hearing of claims against said estate, and it further appearing that said A. B., administrator as aforesid, has sufficient funds in his hands belonging to said estate to pay all the debts allowed against said estate in full:* It is therefore ordered and decreed that said A. B., administrator as aforesaid, pay all the debts in full above allowed against said estate, together with interest thereon at the rate of seven per cent per annum, to the persons respectively entitled to the same. Dated this day of , 19 . (Signed) J. K., County Judge. F6rm No. 142. ORDER BARRING CLAIMS. [Title of Cause and Court.] Whereas, it appears from the records and files in the above-entitled matter that notice to creditors to present their claims and demands against said estate has been given pursuant to the order of the court heietofore issued by publication thereof for four successive weeks i n the , a newspaper printed and published in said county, and by posting the same in three conspicuous places in said county, and that the time fixed by the court for the presentation, adjustment and (475) 308 PROBATE AND ADMINISTRATION. [Chap. 24 allowance of claims against said estate has expired, it is therefore ordered that all claims against said estate, not now on file in said court, excepting only such as are not required by law to be presented for allowance, be and the same are hereby forever barred. Dated this day of , 19 . (Signed) J. K., County Judge. The effect of a judgment or decree against an execu- tor or administrator on account of a claim against an estate of a decedent is only to establish the claim, as if it had been allowed by him, unless in an action brought on a claim filed more than six months after his appointment it is alleged in the complaint and found to be true that the representative has assets in his hands applicable to the satisfaction of the claim, in which case a personal judgment or decree may be en- tered. 258 If he suffers judgment against himself and a subsequent depreciation in value of the assets makes them insufficient, equity will relieve him, but not if the deficiency existed at the time and though on account of a lack of knowledge of the estate or a miscalcula- tion he believed them sufficient. 259 258 L. O. L., 387, 1243. 259 Brenner v. Alexander, 16 Or. 351, 19 Pac. 9. (476) CHAPTER XXV. SALES OF REAL ESTATE FOR PAYMENT OF DEBTS. 309. Creditor's Lien on Realty. 310. Duty of Executor or Administrator to Procure License. 311. Nature of Proceedings. 312. When and Where Petition Filed. 313. Necessary Parties to Proceeding. 314. Necessary Allegations of Petition. 315. Desciiption of Lands. 316. Older to Shbw Cause. 317. Service of Order to Show Cause. 318. Payirent of Debts to Prevent Sale. 319. Hearing on the Application. 320. Hearing Insufficiency cf Personal Property. 321. Hearing Debts and Expenses of Administration. 322. Hearing Lands Subject to Sale. 323. Order of Sale or License. 324. Additional Bond. 325. Notice of Sale. 326. Sale Subject to Liens. 327. Oath of Executor or Administrator. 328. Sale. 329. Adjournment of Sale. 330. Executor or Administrator not to be a Purchaser. 331. Confirmation of Sale. 332. Confii nation of Sale Concluded. 333. Sale of Contract Interest in Land. 334. Death of Executor or Administrator Pending Proceedings. 335. Sales by Foreign Executors or Administrators. 336. Taxation of Costs. 337. Executor's or Administrator's Deed. 338. Title of Purchaser. 339. Sale of Property in Which a Homestead is Included. 309. Creditor's lien on realty. Personal property is the primary fund from which the debts of an estate, and all the costs and expenses of administration, should be paid. When the person- (477) 310 PROBATE AND ADMINISTRATION. [Chap. 25 ally is insufficient, then the real estate becomes liable. In the interests of the creditors, and of the executor or administrator who has necessarily incurred costs and expenses in connection with the administration, all lands of which any decedent died seised, except the homestead exemption, may be sold by the executor or administrator, under the license of the district court, for the purpose of raising a fund with which to pay the debts of the estate, allowances for the support of the family and other costs and expenses of adminis- tration, including the inheritance tax. 1 The death of a debtor gives his creditor a quasi lien on the former's real estate, which is established by the grant of letters testamentary or of administration, and the allowance of the claim, and enforced by a sale under order of the court, and no act of the heir or devisee can deprive him of such lien. A purchaser from such heir or devisee pending the administration of the estate takes a title subject to such rights of creditors therein, even though the executor or admin- istrator consented to the sale. 2 310. Duty of executor or administrator to procure license. A creditor is not obliged to take any action himself in order to have the right which he established in the 1 Bakes v. Brown, 34 Neb. 304, 51 N. W. 848; Eev. Stats., c. 17, 1, 180, [1265], [1446]; L. O. L., 1252; Howe v. Kern, 63 Or. 506, 125 Pac. 838; Houck v. Myers, 23 Or. 10, 17 Pac. 461; Smith v. Whiting, 55 Or. 398, 106 Pac. 793. 2 Watkins v. Holman, 16 Pet. (U. S.) 25; Farran v. Robinson, 17 Ohio St. 12; McCoy v. Morrow, 18 111. 519; Moncrief v. Moncrief, 73 Ind. 487; Westbrook v. Munger, 64 Miss. 575, 1 South. 750; Stiver v. Stiver, 8 Ohio St. 221. (478) Chap. 25] SALES OF LANDS. 311 decedent's real estate by proving his claim in county court enforced by a sale of the lands. If the person- alty of a testator is insufficient to pay his debts, and the costs and expenses of the administration of his estate, including the inheritance tax, and the executor has a power of sale given him by the will, it is his duty to proceed to sell enough lands to meet such payments, and account for the proceeds in his annual or final accounting. If the will gives him no power of sale, he is on the same footing in regard to sales of real estate as an administrator, and it is the duty of either, when the personal estate in his hands is insufficient to pay such debts, costs and expenses, to procure a license from the court and sell lands. 3 The duty is impera- tive, and if he refuse or neglect to make the applica- tion, a creditor may have a writ of mandamus to com- pel him to act. 4 311. Nature of proceeding. The proceeding for the sale of a decedent's real estate for the payment of his debts is a special and statutory one. It is a proceeding in rem, where the principal questions involved are the amount of the debts outstanding against the estate, the amount of personal property available for their payment and the necessity for selling the land to raise a fund for such payment. It is not adversary in its character, in the sense in which the term is used in actions, as only so much of the estate descends to the heirs or passes to 3 Kev. Stats., c. 17, 182, [1446]; L. O. L., 1252. 4 Clement v. Cozart, 109 N. C. 173, 13 S. E. 862. (479) 312 PEOBATE AND ADMINISTRATION. [Chap. 25 the devisees as remains after the debts and expenses are paid. 5 Jurisdiction of the proceeding is given the judge of the district court of the county in which letters testa- mentary or of administration were granted, 6 except when brought by a foreign personal representative. In such case it is brought in the county where the land is situated. 7 Under the Oregon practice, the county court of the county having jurisdiction of the administration has jurisdiction of sales of real estate. 8 The proceeding is there held to be one hostile or adverse as to the heirs. 9 312. When and where petition filed. The proceedings for such sale of real estate, when instituted by a resident executor or administrator, are commenced by presenting a petition to the district court of the county in which he was appointed, setting forth the amount of personal property that has come into his hands, and how much, if any, remains undis- posed of, the debts outstanding against the estate, as 5 Mr-Clay v. Foxworthy, 18 Neb. 295, 25 N. W. 86; Bixby v. Jewell, 72 Neb. 755, 101 N. W. 1026; Miller v. Hanna, 89 Neb. 224, 131 N. W. 226. 6 Rev. Stats., c. 17, 183, [1442]. 7 Section 335, post. Under former statutes the old probate court had jurisdiction of such matters. On account of the fact that many probate judges were not "learned in the law," irregularities occurred so frequently making the sales void for lack of jurisdiction, that pur- chasers were unwilling to pay a reasonable price, so that the sole power to grant such licenses and confirm the sales was given the district judge. 8 L. O. L., 936. 9 Fisk v. Kellogg, 3 Or. 508; Smith v. Whiting, 55 Or. 393, 106 Pac. 790. (480) Chap. 25] SALES OF LANDS. 312 far as the same can be ascertained, a description of all the real estate of which the testator or intestate died seised, and the condition and value of the re- spective portions or lots. 10 It may be presented at a session of the district court, or at chambers anywhere within the judicial district, no matter in what county the lands are located. 11 It need not be filed until later, but when presented at chambers must be filed as soon as practicable in the office of the clerk of the county in which the executor or administrator received his letters, and such filing is jurisdictional. 12 There is no time fixed within which the proceeding must be brought, except the general one that it must be commenced within a reasonable time after the per- sonal representative becomes acquainted with the cir- cumstances and conditions of the estate. An executor or administrator may know very soon after his ap- pointment whether such sale will be necessary, and it may be several years before he can definitely say that he is unable to collect enough assets to pay off all de- mands. 13 Where the cause of the delay was satisfac- torily explained to the court, a license was granted seven years after the death of the decedent, 14 and one thirteen years after. 15 A delay of fourteen years was 10 Bev. Stats., c. 17, 183, [1447]. 11 Eev. Stats., c. 17, 187, [1451]; Stack v. Eoyce, 34 Neb. 383, 52 N. W. 675. 12 Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982; Stack v. Eoyce, 34 Neb. 383, 52 N. W. 675. 13 Hall v. Woodman, 49 N. H. 295; Smith v. Dutton, 16 Me. 308; Gunby v. Brown, 86 Mo. 253. 14 Bursen v. Goodspeed, 60 111. 277. 15 McCrary v. Tasker, 41 Iowa, 255. 31 Pro. Ad. 313 PROBATE AND ADMINISTRATION. [Chap. 25 held sufficient cause for dismissing the petition, no explanation of the delay being made. 10 A longer delay in filing the petition is permissible when the lands still remain in the possession of the personal representa- tive, or the heir or devisee, than when it has passed from their possession into the hands of a purchaser; 17 and if it should appear that the delay was caused by the laches of the personal representative, the petition should be dismissed. 18 It must be filed within the time limited for the pay- ment of debts. 19 313. Necessary parties to the proceeding. If there are two or more executors or administrators, they must all join in the petition, the words "executor or administrator" as used in the statute referring to all those who have qualified and are acting as such. 20 The proceeding, though in rem, is not ex parte. By statute all persons interested in the estate are made parties to the same, and service of. process must be had upon them. 21 The names and relationship of the heirs, the names of the devisees and who, if any, are minors, should be given. If the decedent was intes- tate or the land sought to be sold a lapsed or void devise, not passing into the residuary estate, they with l Jackson d. Jenkins v. Eobinson, 4 Wend. (N, Y.) 436. IT Ferguson v. Scott, 49 Miss. 500. 18 Wolf v. Ogden, 66 111. 224; In re Godfrey's Estate, 4 Mich. 308; Crosby's Estate, 55 Cal. 574; Hatch v. Kelly, 63 N. H. 29. 19 See Rev. Stats., c. 17, 128, [1392]. 20 Hannum v. Day, 105 Mass. 33. 21 Rev. Stats., c. 17, 184, [1448]; L. O. L., 1255; Fiske v. Kel- logg, 3 Or. 503; Howe v. Kern, 63 Or. 501, 125 Pac. 837, 128 Pac. 819. (482) Chap. 25] SALES OF LANDS. 314 the surviving spouse 22 are the only interested parties. 23 In Oregon the widow is not a necessary or even a proper party. 24 In the case of the sale of devised land the devisees are the only persons interested, 25 and where the decedent was intestate and left no heirs or widow, the state is the only such party. 26 Purchasers pending administration are frequently made parties, but they are not in position to interpose any defense. 27 On account of the proceeding being in rem, failure to name all the interested parties in the petition would not render the sale void or subject to collateral attack, but would be taken advantage of by the parties on the hearing. 28 When service of the order to show cause is waived, or when the applicant prays for personal service in- stead of the usual publication, the petition must give the names and relation to the estate of all the inter- ested parties, and who, if any, are minors. 29 314. Necessary allegations of petition. The essential fact, which must be set up in the peti- tion and established to the satisfaction of the district 22 McLaughlin v. McCumber, 36 Pa. 14; Simonton v. Brown, 72 N. C. 46. 23 Lessee of Adams v. Jeffries, 12 Ohio St. 253; Fiske v. Kellogg, 3 Or. 503; Gibson v. EoTl, 30 111. 172; Patterson v. Hamilton, 26 Hun (X. Y.), 665; Winston v. McClendon, 45 Miss. 254. 24 In re Smith's Estate, 43 Or. 595, 73 Pac. 336, 75 Pae. 113. 25 William's Devisees v. Williams' Admr., 49 Ala. 439. 20 TrafTor.1 v. Young, 3 Tenn. Ch. 496. 27 Gibson v. Prits, 69 X. C. 155. 28 Lyons v. Hamer, 94 Ala. 197; Neville v. Kinney, 125 Ala. i49. 23 South. oJ2; Morris v. Hogle, 37 111. 150. See McClay v. Foxworthy, 18 Xeh. 295, 25 X. W. 86. 29 Howe v. Kern, 63 Or. 496, 128 Pac. 819; Smith v. Whiting, 55 Or. 393, 106 Pac. 790. (483) 314 PEOBATE AND ADMINISTRATION. [Chap. 25 court at the final hearing, is that the personal assets of the estate are clearly insufficient to pay the debts, allowances for the support of the family, and the charges of administration and inheritance tax. 30 The necessity for resorting to the real estate for the pay- ment of such debts and expenses must appear affirm- atively upon the face of the petition. 31 The amount of the personalty received by the execu- tor or administrator should be set out in full, not necessarily by items, but the total should be given. A reference to the inventory or appraisement for the pur- pose of showing the amount collected is insufficient, 32 and, if either the whole or a part of the personal estate has been applied to the payment of the debts, the peti- tion should so state, giving amounts paid, and amount remaining in the possession of the executor or admin- istrator applicable to such payment, 33 but it need not aver that all the payments made by the executor or administrator were valid. 34 It is not necessary that the petition give a particular enumeration of the debts, designating the amount owing each creditor. A state- so Houck v. Meyer, 23 Or. 10, 17 Pac. 461; Howe v. Kern, 63 Or. 487, 125 Pac. 838, 63 Or. 500, 128 Pac. 818; Shields v. McDowell, 82 N. C. 137; Lynch v. Baxter, 4 Tex. 431; Foley v. McDonald, 46 Miss. 238; Eoe v. Swezey, 10 Barb. (N. Y.) 247; Guy v. Gericks, 85 111. 428; Stuart v. Allen, 16 Cal. 473. 31 Eenner v. Ross, 111 Ind. 269, 12 N. E. 508; Meadows v. Meadows, 73 Ala. 356; Sharp v. Sharp, 76 Ala. 312. 32 Pryor v. Downey, 50 Cal. 388. 33 Blount v. Pritchard, 88 N. C. 445. 34 Conger v. Cook, 56 Iowa, 117, 8 N. W. 782. (484) Chap. 25] SALES OF LANDS. 315 ment of their aggregate amount, and also of the amount unpaid, is all that is necessary. 35 The petition should be verified, but such verification may be upon information and belief. 36 Under the Oregon practice, in addition to the alle- gations required in such petition in Nebraska, it must set out the probable value of the different portions of the real estate, the amount and nature of the liens thereon, if any, the residences, so far as known, of the heirs or devisees, and if it is desired to sell the whole or any part of the real estate before the sale of the personal property, the petition shall set out the rea- sons therefor. 37 The place of residence of each heir must be given, if known, and not his address. 38 315. Description of lands. The statute requires the petition to contain a de- scription of all the real estate of which the testator or intestate died seised. This requirement is necessary to give the judge jurisdiction of the matter, and an omission to make these averments will render the sale liable to be set aside. 39 The question as to what con- stitutes such a description as will enable the court to acquire jurisdiction to grant the license has been vari- ously determined by different supreme courts. The rule which is generally applied in the best considered 35 Collins v. Farnsworth, 8 Blackf. (Ind.) 575; Moffitt v. Moffitt, 69 111. 641. 36 Rowland v. Carroll, 81 111. 224; 37 L. O. L., 1253; Howe v. Kern, 63 Or. 496, 128 Pac. 819. 38 Smith v. Whiting, 55 Or. 398, 106 Pac. 790. 39 Townsend v. Gordon, 19 Cal. 188; Boland's Estate, 55 Cal. 310. (485) 315 PROBATE AND ADMINISTRATION. [Chap. 25 cases is that the county, township and range, and the subdivision of the section, should be given, or the de- scription, if by metes and bounds or lot and block, be such that a person reading it would know the location of the land. 40 Where the petition failed to give the county, but the land was otherwise accurately de- scribed in the proceedings, the sale was held not affected by the faulty description in the petition. 41 The petition should always be such as to enable the court, aided by its judicial knowledge of public sur- veys, to know just where the lands of decedent are situated. 42 It is not necessary to set out the nature and character of decedent's title. 43 The petition should set out the condition and value of each separate tract. "Unimproved" is a sufficient description of the condition of a vacant lot in a town or city, or of wild, uncultivated land. 44 A statement of its condition without giving the value as near as it can be done is defective as against direct attack on appeal from the order of sale. 45 40 Doe d. Hamilton v. Hardy, 52 Ala. 291; Wright's Heirs v. Ware, 50 Ala. 549; Smitha v. Flournoy's Admr., 47 Ala. 345; Blackwell v. Townshend, -91 Ky. 609, 16 S. W. 587. 41 .Bryan v. Bauder, 23 Kan. 95; Howbert v. Heyle, 57 Kan. 58, 27 Pac. 116. 42 Money v. Turnipseed, 50 Ala. 499. 43 Tyndale v. Stanwood, 182 Mass. 534, 66 N. E. 23. 44 Richardson v. Butler, 82 Cal. 174, 23 Pac. 9. 45 in re Cook, 137 Cal. 184, 69 Pac. 998. It is held by some courts that when the petition is filed by an executor, it should show affirm- atively that the will did not confer on him any power to sell real estate for any purpose, and that if such allegation was omitted, con- firmation should be refused. There is no such requirement in this state. (486) Chap. 25] SALES OF LANDS. 315 Form No. 143. PETITION OF EXECUTOR OE ADMINISTRATOR FOR LICENSE TO SELL REAL ESTATE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Administrator, for License to Sell Real Estate. Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of administration upon the estate of said A. B., deceased, were issued to him out of and under the seal of the county court of said county; that the debts allowed against said estate amount to the sum of dollars ($ ), and the costs of administering said estate will amount to about the sum of dollars ($ ) ; that the allowance made by said county court to E. F. for the support of herself and the minor children of said A. B. will amount to the sum of dollars ($ ), and that the total indebtedness of said estate will amount to about the sum of dollars ($ ) ; that the personal estate that has come into the hands of your petitioner amounts to the sum of dollars ($ ), and that all the personal assets of said estate have been reduced by him to possession; that he has paid from said per- sonal assets upon the debts of said estate the sum of dollars ($ ), and upon allowances for support of widow, E. F., and expenses of administration, the sum of ($ ), and there still remains in his hands, undisposed of, personal assets of said estate of the value of dollars ($ ); that the following described real estate is all that belongs to said estate, to wit [describe each tract or lot of land, giving nature, extent, and value of improvements upon each separate tract or lot, and give value of the lands] ; that, for the purpose of paying such debts, charges, and expenses, it is necessary to sell so much of said real estate as will bring the sum of dollars ($ ). The names and residences of the heirs at law and next of kin of said decedent, and of all persons interested in said estate, are as fol- lows: [Give names and residences, and age, if minors, of each of them.] Your petitioner therefore prays that a license may be granted to him to sell so much of said real estate as may be necessary to pay said debts and expenses, and the expenses of this proceeding, and for such other relief as may be just and equitable. (Signed) C. D., By H. C. M., His Attorney. (487) 315 PEOBATE AND ADMINISTRATION. [Chap. 25 Form No. 143a Oregon. PETITION FOB LICENSE TO SELL EEAL ESTATE. [Title of Cause and Court.] C. D., executor of the estate of A. B., deceased, respectfully repre- sents unto said court that he has sold all the personal property belong- ing to said estate which is applicable for the payment of debts for the sum of $ , and that said amount has been applied by him in the payment of the debts of said estate and the costs and charges of administration, and that the following charges, expenses and claims against said estate are still unsatisfied, , and that no other debts have been presented to your petitioner for allowance, and that there are no other demands against said estate so far as your petitioner has been able to ascertain. That said A. B. died seised of the following described real estate, , that said first described tract of land consists of an improved farm of acres, all of which is capable of cultivation with a dwelling-house, barns and outbuildings thereon, all in a good state of repair, and is of the probable value of $ ; that said last de- scribed tract of land consists of acres unimproved and un- fenced, with some scattering timber thereon of small value, and that the. probable value of said tract is the sum of $ . That the names, ages and residences of the devisees of said A. B. are as follows: L. B., age years, residence ; M. B., age years, residence, ; that it is necessary to sell the whole or a part of said above-described real estate for the purpose of paying the remainder of the debts of said estate and the charges and expenses of administration. Your petitioner therefore prays that a citation issue to the devisees of said deceased to appear at the term of said court to show cause, if any there be, why an order of sale should not be made author- izing and empowering your said petitioner to sell said lands or so much thereof as may be necessary for the payment of said residue of debts, charges and expenses of administration. Dated this day of - , 19. C. D., Executor of the Estate of A. B., Deceased. By W. M. L., His Attorney. [Add verification.] (488) Chap. 25] SALES OF LANDS. 316 316. Order to show cause. "If it appears from the petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the debts outstanding against the deceased and the expenses of administration, and that it is necessary to sell the whole or some portion of such real estate for the payment of such debts, the judge of the district court shall thereupon make an order directing all persons interested in the estate to appear before him at a time and place to be therein specified, not less than six weeks nor more than ten weeks from the time of making such order, to show cause why a license should not be granted to the execu- tor or administrator applying therefor to sell so much of the real estate of the deceased as shall be necessary to pay such debts. ' ' 46 The order may be made by the judge at any time, either in open court or at chambers, 47 anywhere within the district. Under the Oregon practice, a citation issues to the devisees and heirs therein mentioned, and to all others unknown, if any such there be, to appear at a term of court not less than ten days after service of the cita- tion to show cause, if any there be, why an order of sale should not issue. 48 When service is by publica- tion, the return day must be after such publication is completed. 49 46 Rev. Stats., c. 17, 184, [1448]. 47 Rev. Stats., c. 17, 187, [1451]; Stack v. Royce, 34 Neb. 383, 52 X. W. 675. 48 Howe v. Kerrn, 63 Or. 398, 125 Pac. 838, 63 Or. 500, 128 Pac. 818; L. O. L., 1254. 49 Smith v. Whiting, 55 Or. 393, 106 Pac. 791. (489) 316 PROBATE AND ADMINISTRATION. [Chap. 25 The personal representative and other parties inter- ested in the estate cannot waive the issue of an order to show cause. It is absolutely necessary to confer jurisdiction upon the court, and a sale made without conveys no title, and is void, 50 and its validity may therefore be attacked in a collateral proceeding. The order must substantially comply with the stat- ute. It should be addressed to all persons interested in the estate but need not necessarily give the names of all the heirs, devisees, legatees or persons interested in the lands. 51 Its contents should be sufficient to apprise any party reading it of the object and prayer of the petition and the time and place where it will be heard. 52 If it fails to give either the time and place for hearing, the heirs are not bound by it, and the court does not acquire jurisdiction thereby to grant a license. 53 It has been held that the order should also contain a description of the land sought to be sold, and that if it is incorrectly described, the court is without juris- diction, and a sale under a license so issued is void. 54 Our statute does not state just what the order shall contain, and it would seem that the general statement 50 Teverbaugh v. Hawkins, 82 Mo. 180; French v. Hoyt, 6 N. H. 370; Gerrard Y. Johnson, 12 Ind. 637; Hawkins v. Hawkins' Admr., 28 Ind. 71; Gibbs v. Shaw, 17 Wis. 204. 51 Stack v. Boyce, 34 Neb. 833, 52 N. W. 675; Hobson v. Ewan, 62 111. 146; Bostwick v. Skinner, 80 111. 158. 52 Gibson v. Boll, 27 111. 88; Jackson d. Grignon v. Astor, 1 Finn. (Wis.) 137. 53 Finch v. Sink, 46 111. 169; Gibson v. Boll, 27 111. 88; Johnson v. Clark, 18 Kan. 157. 54 Lyon v. Vanatta, 35 Iowa, 528. (490) Chap. 25] SALES OF LANDS. 317 of the object and prayer ought to be enough to apprise interested parties of what land it is desired to sell. 55 Form No. 144. ORDER TO SHOW CAUSE WHY LICENSE SHOULD NOT BE GRANTED TO SELL REALTY. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Administrator, for License to Sell Real Estate. Non-, on this day of , 19 , C. D., administrator of the estate of A. B., deceased, having presented his petition under oath praying for license to sell the following described real estate of the said A. B. [describe real estate the same as in the petition], or a suffi- cient amount thereof to bring the sum of dollars ($ ), for the payment of debts allowed against said estate, and allowances and costs of administration, for the reason that there is not a suffi- cient amount of personal property in the possession of said C. D., administrator, belonging to said estate, to pay said debts, allowances, and costs. It is therefore ordered that all persons interested in said estate ap- pear before me at chambers in the city of , in said county, on the day of , 19 , at the hour of 10 o'clock A. M., to show cause, if any there be, why a license should not be granted to said C. D., administrator, to sell so much of the above-described' real estate of said decedent as shall be necessary to pay gaid debts and expenses. It is further ordered that a copy of this order be served upon all persons interested in said estate by causing the same to be published for four successive weeks in the , a newspaper printed and published in said county of . (Signed) C. H., Judge of the District Court. 317. Service of order to show cause. If all persons interested in said estate signify in writing their assent to the sale, the service of notice 55 i n re Roach, 139 Cal. 17, 72 Pac. 393. (401) 317 PROBATE AND ADMINISTRATION. [Chap. 25 may be dispensed with. 56 Assenting to the sale does not do away with the order to show cause, but with service of it. 57 Service, therefore, can only be dis- pensed with when all the heirs or devisees are of full age and competent. 58 There is authority to the effect that a guardian may sign a consent to sale in behalf of his ward. 59 If such assent is not filed, service of the order to show cause is had by personal service on all persons interested, at least ten days before the date set for hearing, or by publication for four successive weeks in such newspaper as the court shall order. 60 The method of service is optional with the district judge, and it must be strictly complied with. He may order service by publication, though all interested parties are resi- dents of the county in which the application is filed. 61 When service is had by publication, the order must be published for four successive weeks in the news- paper designated and none other. Substituting an- other paper, or publication for a shorter time, is good cause for refusing to confirm the sale. 62 Proof of publication must be made in the usual way by the affidavit of the printer, foreman or principal clerk, or other person knowing the same, and such affidavit is deemed conclusive on collateral attack. 63 56 Rev. Stats., c. 17, 185, [1449]. 57 Section 316, supra. 58 Winston v. McLendon, -43 Miss. 254; Greenman v. Harvey, 53 HI. 486; Ingersol v. Mangam, 84 N. Y. 622. 59 Helms v. Love, 41 Ind. 210; Smock v. Reichwine, 117 Ind. 194, 19 N. E. 776. 60 Rev. Stats., c. 17, 185, [1449]. 61 Fleming v. Bale, 23 Kan. 88; Fudge v. Fudge, 23 Kan. 416. 62 Townsend v. Tallant, 33 Cal. 45; Valle v. Fleming, 19 Mo. 454. 63 Finch v. Sink, 48 111. 169. (492) Chap. 25] SALES OF LANDS. 317 Any of them may also prevent the sale by giving a bond to the judge of the district court with such sureties as he may direct and approve, with condition to pay all the debts and expenses of administration so far as the goods, chattels, rights, credits and effects of the deceased shall be insufficient therefor, within such time as the judge may direct. The bond is for the security and may be prosecuted for the benefit of the creditors, as well as the executor or administra- tor. 64 Application for permission to give the bond should be by motion to the district judge at chambers, and may be made at any time before license is issued. 65 Form No. 145. ORDEK OF JUDGE OF DISTEICT COURT FIXING AMOUNT OF BOND ON .APPLICATION TO PREVENT SALE, In the District Court of County, Nebraska. In the Matter of the Application of C. D., Administrator, for License to Sell Real Estate. Now, on this day of , 19 , on motion of H. C. M., attorney for E. F., heir of said A. B., for leave to file a bond to stay the sale of the real estate described in the petition of said admin- istrator, it is ordered that said proposed sale be not made, provided said E. F. shall give a bond in the sum of , with good and suffi- cient sureties to be approved by me, conditioned to pay all the debts and expenses of administration of said estate, so far as the goods, chattels, rights, credits, and effects of the deceased shall be insufficient therefor, within months from this date. (Signed) W. M., District Judge. 64 Rev. Stats., c. 17, 191, 192, [1455], [145G]. It is doubtful if such bond entirely releases the quasi lien of creditors. If the doctrine laid down in Thompson v. Pope, 77 Neb. 338, 109 N. W. 498, applies, the executor or administrator would still have recourse on the land if unable to collect from the bondsmen. 65 See Davis v. Kendall, 161 Ind. 412, 68 N. E. 894. (493) 317 PROBATE AND ADMINISTRATION. [Chap. 25 Form No. 146. BOND TO PREVENT SALE OF EEAL ESTATE. Know all men by these presents, that we, E. F., of the county of and state of Nebraska, as principal, and G. H. and L. M., of said county, as sureties, are held and firmly bound unto the judge of the district court of said county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Dated this day of , 19 . Whereas, C. D., administrator of the estate of A. B., deceased, has presented to the Honorable W. M., judge of the district court of said county, his petition to sell the real estate of said A. B., deceased, for the purpose of paying the debts of the deceased and the expenses of administration: Now, therefore, the condition of this obligation is such that, if the above-bounden E. F. shall pay all the debts of said deceased and the expenses of administration, so far as the goods and chattels, rights and credits, of the deceased shall be insufficient therefor, within months from this date, then this obligation shall be null and void; otherwise to remain in full force and effect. (Signed) E. F. G. H. L. M. The foregoing bond approved by me both as to form and sufficiency of surety this day of , 19 . (Signed) W. M., Judge District Court, County, Nebraska. In Oregon personal service of the citation must be had on heirs or devisees, known and residents of the state, in the same manner as a summons. Service on nonresidents and unknown parties is had by publica- tion in a newspaper selected by the executor or admin- istrator for not less than four weeks, or such further time as the court or judge may prescribe. When ser- vice is had by publication, the citation must contain a brief description of the property sought to be sold. 68 60 L. 0. L., 1255. (494) Chap. 25] SALES OF LANDS. 318, 319 Service of the order in the manner above provided is jurisdictional. 67 318. Payment of debts to prevent sale. The heirs or devisees may at any time before the sale is completed relieve the lands of the lien by pay- ing the debts, 68 and a bona fide purchaser from an heir or devisee would have the same right. 69 The party desiring to thus release the land must make an abso- lute tender of the amount due; he is not entitled to an assignment of the claim or claims unpaid. 7 * 319. Hearing on the application. At the time and place fixed for the hearing, or at the time to which the same may have been adjourned, upon proof of the service of the order to show cause, or the waiver thereof, the court may hear the testi- mony of all parties interested in the application, either in favor of or in opposition to the same. 71 The ex- ecutor or administrator may be produced and exam- ined on oath, and process to compel their attendance and testimony may be issued with like effect as in other cases. 72 There are no fixed rules for pleadings, and the granting of continuances is within the discretion of the court. Answers or objections may be filed by the 67 Smith v. Whiting, 55 Or. 393, 106 Pac. 791; Browne v. Coleman, 2 Or. 461, 125 Pac. 278. 68 Davis v. Kendall, 161 Ind. 412, 68 N. E. 894; Sagers v. Mead, 171 Pa. "49, 33 Atl. 355. 69 Fletcher v. Livingston, 123 Mass. 388, 26 N. E. 1001. 70 Weil v. Clark's Estate, 9 Or. 387. 71 Rev. Stats., c. 17, 186, [1450]. 72 Rev. Stats., c. 17, 188, [1452]. (495) 319 PROBATE AND ADMINISTRATION. [Chap. 25 heirs or devisees and also by persons claiming as gran- tees under them. 73 The appointment of the administrator cannot be attacked unless the record clearly shows that he was without jurisdiction to act as such officer. 74 If the proceedings for his appointment are regular on their face and the irregularities alleged are not jurisdic- tional defects, they are not a defense. 75 Defects or irregularities in the petition for sale, order and service may be raised by objection. The petition must set out all the allegations required by the statutes. If it omits material facts such as the amount of personal property on hand or a description of the property, the objections should be sustained. The court has the right to permit amendments of the petition by making it more definite, but cannot permit it to be amended to supply omissions which are juris- dictional. 77 The duty of the court in a proceeding for the sale of land for payment of debts is to conserve the estate, and the question to be determined is, are the personal assets of the estate in the hands of the executor or administrator, together with those which it is his duty to reduce to possession, sufficient to pay the debts of the estate and the costs and expenses of administra- tion. 78 73 In re Campbell's Will, 170 N. Y. 84, 62 N. E. 1070; Newell v.. Johns, 128 Ala. 584, 29 South. 609. 74 McAnnulty v. McClay, 16 Neb. 418, 20 N. W. 266. 75 Waldow v. Beemer, 45 Neb. 628, 63 N. W. 918. 76 Wiight v. Edwards, 10 Or. 298. 77 Brown v. Powell, 45 Ala. 149. 78 Sasse v. Sasse, 93 Neb. 341, 141 N. W. 1026; In re Parker's Estate^ 72 Neb. 601, 101 N. W. 233; Waldow v. Beemer, 45 Neb. 628, 63- N. W. 918. (496) Chap. 25] SALES OF LANDS. 320. Hearing Insufficiency of personal property. If there are collectible assets belonging to the estate sufficient to pay all the debts, the court is without authority to grant the license. 79 The term "collectible assets" includes only such as are subject to the pos- session and control of the administrator or executor within this state. 80 In Oregon, when the license is applied for before the personal estate is exhausted, it must be made to appear to the court that it is for the best interest of the estate or of the devisees, legatees or heirs thereof that it should be sold before the personal property. 81 It should appear that all reasonable efforts have been made to relieve the real estate, though old debts due the estate and claims in litigation, the outcome of which is doubtful, need not be considered. 82 Per- sonal assets which have passed into the hands of heirs or legatees, specific bequests excepted, 83 should be re- covered and applied on the debts and costs and charges, 84 and if a will creates a fund for the purpose of taking care of the debts, it must be exhausted. 85 When the application is made by an administrator de bonis non, it is a good defense that there is still a balance due him from his predecessor, and unless he can show that the same cannot be collected from such predecessor or bondsmen, or that even if it were col- 7 Sasse v. Sasse, 93 Neb. 641, 141 N. W. 1026. 80 Section 260, supra. 81 L. O. L., 1252. 82 Schroeder's Estate, Myr. Prob. (Cal.) 7; Bridge v. Swain, 3 Eedf. Sur. (X. Y.) 487. 83 In re Noon's Estate, 49 Or. 293, 88 Pac. 673, 90 Pac. 673. 84 Hollrran v. Bennet, 41 Miss. 322. 80 Sasse v. Sasse, 93 Neb. 041, 141 N. W. 1026. 32-Pro.Ad. 321 PROBATE AND ADMINISTRATION. [Chap. 25 lected there would still be a deficiency, it should be denied. 86 If the deficiency is caused by the acts of the executor or administrator equivalent to a devas- tavit, the courts are divided on the question whether the lands should be mac^ available for the debts. The New York rule is that it does not relieve the estate from liability, 87 while other courts hold it a good de- fense. 88 It is not necessary that the exact amount of the deficiency be determined. The application may be made in the early part of the administration. The right to the sale depends on an insufficiency and does not require the striking of a balance. 89 The burden of proof is on the applicant to establish the allegations of his petition. 90 321. Hearing Debts and expenses of administra- tion. When the petition is filed after the allowance of claims by the county court, the district judge is bound by the order allowing them, and no defense to them can be set up. 91 It has been held, however, that where one claim was the basis of the application and such a state of facts existed as would justify a court of equity in set- ting aside a judgment, all the proper parties being be- fore the court, the license was properly refused. 92 86 Scherer v. Ingerman, 110 Ind. 429, 11 N. E. 8. 87 In re Bingham, 127 N. Y. 206, 27 N. E. 1056. 88 Foley v. McDonald, 46 Miss. 238. 89 Abila v. Burnett, 38 Cal. 658; Succession of Tabor, 33 La. Ann. 343; Shoemate v. Lockridge, 53 111. 503. 90 Garrett v. Bruner, 59 Ala. 513; Lawrence's Appeal from Probate, 49 Conn. 411. 91 Section 308, supra; Smith v. Smith's Admr., 27 N. J. Eq. 445. 92 Hillebrant v. Burton's Heirs, 17 Tex. 140. (498) Chap. 25] SALES OF LANDS. 322 The application may be made before claims are allowed. 93 In that case there would be two lines of defense open to a party alleging that the indebtedness was less than set out in the petition. He can either file a plea in the nature of a plea in abatement, setting up that alleged demands are being contested and that it is impossible to determine at present whether or not there is a deficiency of assets, or he may deny that such indebtedness exists. Of course the court or judge has no authority to hear and determine claims against the estate in the proceeding, but there would appear to be no good reason why he could not deter- mine at least whether they were prima facie debts con- tracted by the deceased in his lifetime and not barred by the statute of limitations. As a matter of fact, more licenses for the sale of real estate are granted before all claims are allowed than after. Costs and expenses of administration are both mat- ters that eventually must be decided by the county court, and can only be estimated at the hearing. 322. Hearing Lands subject to sale. Any land or interest therein the title to which was vested in decedent at the time of his death, except the homestead exemption, 94 may be sold for the benefit of his creditors, though such lands may have been sold by the heirs or devisees, or their title have passed to others by descent or devise. 95 A reversion or re- 93 Cahill v. Bassett, 66 Mich. 407, 33 N. W. 772. 94 Bixby v. Jewell, 72 Neb. 755, 101 N. W. 1026; Brandon v. Jansen, 74 Neb. 569, 104 N. W. 1054; Holmes v. Mason, 80 Neb. 448, 114 N. W. 606. 95 Rev. Stats., c. 17, 194, [1458]; Drinkwater v. Drinkwater, 4 Mass. 354; Willard v. Nason, 5 Mass. 240. (499) 322 PROBATE AND ADMINISTRATION. [Chap. 25 mainder, 96 an interest as vendee in an executory con- tract for the sale of lands, 97 or any equitable interest or estate of inheritance is subject to sale under license, excepting only a leasehold interest, which is person- alty and can be sold as such. 98 Land may be sold though the title is in litigation. An application under such circumstances is inadvis- able, and the conditions may be such as to require the court to refuse to grant the license." Sales for payment of debts when the widow was en- titled to dower were always subject to such estate un- less she had previously been endowed with other lands. 100 As she now takes an estate in fee by virtue of the marital relation, her rights are no greater than those of the heirs. 101 There is authority to the effect that where the pro- ceedings for the sale are before a court of general juris- diction, and all the parties are before the court, the title to the lands may be determined in the action or proceeding, and that a decree refusing the license and quieting title in the heirs was conclusive and not sub- ject to collateral attack except in a direct proceeding for that purpose. 102 96 Valle v. Bryan, 19 Mo. 423; Lundsford v. Jarrett, 2 Lea (Term.), 579. 97 Hovarka v. Havlik, 68 Neb. 14, 93 N. W. 990; Eev. Stats., c. 17, 208, [1472]; Cutler v. Meeker, 71 Neb. 732, 99 N. W. 514; L. 0. L., 1266. 98 Mulloy v. Kyle, 26 Neb. 313, 41 N. W. 1117. 99 Martin v. Bond's Estate, 64 Neb. 868, 90 N. W. 910. 100 Motley v. Motley, 53 Neb. 375, 73 N. W. 738. 101 Rev. Stats., c. 17, 1, [1265]. 102 Parker v. Wright, 62 Ind. 398; Gavin v. Graydon, 41 Ind. 559. (500) Chap. 25] SALES OF LANDS. 323 Granting or refusing a license is largely a matter of discretion, and when no jurisdictional questions are involved, the judgment of the court will not be dis- turbed unless an abuse of discretion injuriously affect- ing the parties interested clearly appears. 103 323. Order of sale or license. If the district judge shall be satisfied after a full hearing on the petition and an examination of the proofs and allegations of the parties interested that a sale of the whole or some portion of the realty is neces- sary for the payment of the debts and expenses of administration, or if such sale shall be assented to by all persons interested, he shall thereupon make an order of sale authorizing the executor or administrator to sell the whole or so much of the real estate of the deceased as is necessary for the payment of the valid claims against the estate and the charges of adminis- tration, which must specify the lands to be sold and direct the order in which the sale shall be made. 104 Lands of a testator which for any reason pass to his heirs must be sold in preference to that which is de- vised, and in no case should land which has been sold by an heir or devisee be ordered sold until that in their possession or in the possession of the personal representative is disposed of. 105 Under the Oregon practice, where the debts for which a sale is sought are secured by mortgage, the mortgaged property must first be sold. 100 103 In re Parker's Estate, 72 Neb. 601, 101 N. W. 233. 104 Eev. Stats., c. 17, 193, 194, [1457], [1458]; L. O. L., 1256; Smith v. Whiting, 55 Or. 399, 107 Pae. 790. 105 Eev. Stats., c. 17, 194, [1458]. 106 Howe v. Kern, 63 Or. 594, 125 Pac. 834. (501) 323 PBOBATE AND ADMINISTRATION". [Chap. 25 Lands specifically devised or devised not chargeable with debts should not be sold until other available property is disposed of. There is no preference be- tween specific devises, each being equally liable after the other property is exhausted. 107 If a part of the lands, sufficient to pay the debts, can- not be divided without injury or loss to the estate, the court may order the entire tract or lot sold. 108 The order should specify the terms of sale, whether for cash or on credit. If on time, the terms must, in Nebraska, be not less than one-fourth cash and the balance, due in not exceeding three years, secured by mortgage on the premises. 109 The description of the lands in the order of sale should be sufficiently definite to fix the location and quantity of each tract. 110 The license may authorize him to sell enough lands from certain described tracts to bring the necessary amount. 111 If the license au- thorizes the sale of only a part of the lands, it will be presumed that the court found that the sale of more was not necessary, and if they do not sell for enough to pay the debts and costs and charges of sale, a new proceeding must be instituted for the sale of other lands. The court cannot issue a supplementary license on the old petition. 112 Before the sale is made where the proceedings are before the judge sitting in cham- 107 Howe v. Kern, 63 Or. 594, 125 Pac. 834, 128 Pac. 818. 108 Rev. Stats., c. 17, 193, [1457]; L. O. L., 1256. 109 Rev. Stats., e. 17, 200, [1464]; L. O. L., 1256, 1257. 110 Bloom v. Burdick, 1 Hill (N. Y.), 130; Graham v. Hawkins, 38 Tex. 628. in Richardson v. Butler, 82 Cal. 174, 23 Pac. 9. 112 Ackley v. Digert, 33 Barb. (N. Y.) 176; Cunningham v. Ander- son, 107 Mo. 371, 15 S. W. 972. (502) Chap. 25] SALES OF LANDS. 324 bers, the petition and the license must be filed in, the office of the clerk of the district court of the county from which letters were issued to the personal repre- sentative. The authority to sell under license issued at chambers is established by the grant of the license, and the filing of a copy of the same together with the petition with the clerk of the court. It is immaterial whether the lands are situated in the county where administration was granted or not. 113 The order of the county court issuing or refusing to issue a license is a final one and subject to review by the supreme court. 114 324. Additional bond. The district judge .has power to require a further bond of the executor or administrator in all orders for sales of real estate, if he deems it necessary, and where more land than is necessary to pay the debts is ordered sold, a bond must be given to the district judge by the representative conditioned to account for all the pro- ceeds that remain after the payment of the debts and charges, and to dispose of the same according to law. 115 It may be approved by the judge or clerk of the dis- trict court. 116 Under the Oregon practice, an additional bond is required unless the penalty of the administration bond is at least double the amount of the personal property in the possession of the representative, or that may 113 Stack v. Royce, 34 Neb. 833, 52 N. Y. 675; Veeder v. McKinley- Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982. 1" Possenecker v. Entermann, 64 Neb. 409, 89 N. W. 1033; In re Smith's Estate, 43 Or. 595, 73 Pac. 336, 75 Pac. 133. "5 Rv. Stats., c. 17, 189, 193, [1453], [1457]. u Melcher v. Schluter, 5 Neb. Unof. 445, 98 N. W. 1082. (503) 324 PEOBATE AND ADMINISTRATION. [Chap. 25 come into his possession, plus double the amount of the probable rents and profits of the real estate, and also plus double the amount of the probable receipts from the sale of the land. It must be conditioned to account for and dispose of the proceeds of the sale according to law, approved by the county judge and filed with the clerk of the court before the sale. 117 The proceeds of any real estate sold for the payment of debts and charges are deemed assets in the hands of the executor or administrator, the same as if they were a part of the personalty, and himself and sureties upon his bond are chargeable and accountable therefor. 118 Courts and judges should in all cases require adequate security for the funds derived from the sale of a dece- dent's lands, in order that such funds may be properly accounted for, and no license for the sale of any real estate should be granted except upon condition that abundant security be given. Where a sale was had and no bond given, the court, on appeal from the order of confirmation, required the administrator to file a bond in double the amount of the proceeds of the sale, within twenty days, the sale to be set aside in case it was not filed. 119 Form No. 147. LICENSE TO SELL REAL ESTATE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Administrator of the Estate of A. B., Deceased, for License to Sell Real Estate. Now, on this day of , 19 , this cause came on for hearing upon the application of C. D., administrator of the estate of A. B., deceased, praying for license to sell the following described 117 L. O. L., 1256; Smith v. Whiting, 55 Or. 399, 107 Pac. 790. 118 Rev. Stats., c. 17, 191, [1455]. H9 McClay v. Foxworthy, 18 Neb. 295, 25 N. W. 86. (504) Chap. 25] SALES OF LANDS. 324 real estate [describe lands as in petition and order to show cause] ; and it appearing to me from the proof on file that due notice of the time and place of hearing said petition has been given to all persons interested in said estate, as required by law, and it further appear- ing to me, after full hearing on the petition, and from a consideration of the proofs and allegations of the parties, that the debts allowed [owing by said estate; or, against said estate] amount to the sum of dollars ($ ), and that the costs and expenses of administration will amount to the sum of about dollars ($ ), and that the personal assets of said estate will not exceed the sum of dollars ($ ), and it is therefore necessary to sell [give description of the land, or of that portion thereof which the court finds it necessary to sell] to pay said debts and expenses: It is therefore ordered and adjudged by me, in consideration of the premises, that the said C. D. be and he hereby is licensed to sell, in the manner required by law, the following described property [describe property to be sold], subject to all liens and encumbrances existing at the death of the said A. B., said lands to be sold in the following order [state order], and upon the following terms, one-third cash, and the balance on three years' time, with interest at six per cent per annum, to be secured by note and mortgage on the premises sold; that prior to said sale, said C. D., administrator, give a bond, as required by law, in the sum of dollars ($ ), and immediately after said sale shall make a due return of his proceedings in the premises by virtue of this license. Given under my hand this day of , 19 . (Signed) W. M., Judge of District Court. Form No. 148. BOND OF EXECUTOR OX SALE OF EEALTY. Know all men by these presents, that we, A. B., as principal, and C. D. and E. F., as sureties, all of county, Nebraska, are held and firmly bound unto- the judge of the district court of county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Dated this day of , 19 . Whereas, a license has been granted by the judge of the district couit of county, Nebraska, to A. B., executor of the estate of L. M., deceased, to sell the following described realty [describe (505) 325 PEOBATE AND ADMINISTRATION. [Chap. 25 realty], and the proceeds of said sale will more than pay the debts and charges against said estate: Now, therefore, the condition of this obligation is such that, if the 'above-bounden A. B. shall well and truly account for all the proceeds of said sale that shall remain after the payment of said debts and charges, and dispose of the same according to law, then these presents shall be null and void; otherwise to be in full force and effect. (Signed) A. B. C. D. E. F. Form No. 149. GENEEAL BOND ON SALE OF REALTY. [First part as in Form No. 148.] Whereas, a license has been granted by the judge of the district court of county, Nebraska, to A. B., executor of the estate of L. M., deceased, to sell the following described realty [describe realty] : Now, therefore, the condition of this obligation is such that, if the said A. B. shall well and truly account for all the proceeds of said sale, and administer the same according to law and the will of the said testator, then these presents shall be null and void; otherwise to be in full force and effect. (Signed) A. B. C. D. E. F. 325. Notice of sale. It is the duty of the district judge granting the license after the bond, if one is required, has been approved, to deliver to the executor or administrator a certified copy of the license, and such personal repre- sentative is thereupon authorized to sell the real estate as therein directed within one year after the date of the order, but not after that period. 120 A sale pur- porting to be under such license after that date is void. 121 120 Eev. Stats., c. 17, 195, [1459]. 121 Campau v. Gillett, 1 Mich. 416, 53 Am. Dec. 73. (506) Chap. 25] SALES OF LANDS. 325 Notice of the time and place of sale must be given by posting the same in three of the most public places of the county in which the land is situated, and by pub- lication in some newspaper printed in the county for three consecutive weeks next before the sale, or, if there be no newspaper printed in the county, then in such other newspaper as the judge may direct. The notice must describe the lands and tenements to be sold with common certainty. 122 The sale must be held within one week from the date of the last publication, 123 at public auction within the county where the lands are situated, between the hours of 9 o'clock in the morning and the setting of the sun on the same day, and must be held open for one hour, which hour shall be stated in the notice. 124 The executor or administrator has power, when the terms of sale are not stated in the license, to fix them himself under the same restrictions as the district judge, the matter subsequently coming before the court for approval on confirmation, 125 which terms should be fully set out in the notice. When the lands are encumbered, it is not necessary that the notice state that they will be sold subject to such encumbrances, for they can be sold no other way. 12a 122 Rev. Stats., c. 17, 197, [1461]. 123 Hartley v. Croze, 38 Minn. 325, 37 N. W. 450. 124 Rev. Stats., c. 17, 198, [1460], 125 Rev. Stats., c. 17, 200, [1462]. 1*6 Section 327, post. It is a good plan for the applicant to state in his notice that a complete abstract of title to said land is in the hands of the attorney for the executor or administrator and may be examined by a purchaser at any time, and that the title sold will be as appears on the abstract. (507) 325 PEOBATE AND ADMINISTRATION. [Chap. 25 Under the Oregon practice, such sales may be either public or private. The court or judge has power, if it appears to be for the best interests of the estate, either on the first hearing or on a subsequent applica- tion to order a private sale. In the case of public sales notice is given in the same manner as in sales on execu- tion, but the court may order the sale to be made on the premises. 127 A notice particularly describing the property must be posted four weeks before the sale in three public places in the county and published once a week for the same period in a newspaper of the county, if there be one, or if there be none, then in a newspaper published nearest to the place of sale, or in a newspaper published by the state printer. 12 ' It must be published for the full twenty-eight days. 125 When the executor or administrator is authorized to sell at private sale, a notice shall be both posted and published for the same length of time as in the case of sales at auction, which notice must describe the property and terms of sale, and that from and after a certain day named therein he will proceed to sell the real estate described at private sale. 130 The particular place in the city or village where the sale is to take place should be given, merely designat- ing the city or village is not sufficient. 131 The notices must be both posted and published for the three suc- cessive weeks. Neither of itself is sufficient. 132 Proof of posting and publishing the notices is made in the usual manner by affidavits filed in the district court, and are evidence of the time, place and manner of giv- 127 L. O. L., 1257. 128 L. O. L., 1257. 129 Q'Hara v. Parker, 27 Or. 174, 39 Pac. 1004. 130 L. O. L., 1257. 131 Hartley v. Croze, 38 Minn. 325, 37 N. W. 450. 132 Kempe v. Pintard, 32 Miss. 324. (508) Chap. 25] SALES OF LANDS. 325 ing the notice. 133 The proof of posting the notice must show where they were posted. The question whether they were the three most conspicuous places in the county is determined by the court in passing on the sufficiency of notice, and if he finds that the notice is sufficient and properly given, such finding is conclusive that the places were the most conspicuous ones. 134 Form No. 150. NOTICE OF EXECUTOR'S OB ADMINISTRATOR'S SALE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Administrator of the Estate of A. B., Deceased, for Leave to Sell Real Estate. Notice is hereby given that, in pursuance of an order of the Honor- able W. M., judge of the district court of county, Nebraska, made on the day of , 19 , for the sale of the real es- tate hereinafter described, there will be sold at public vendue to the highest bidder for cash [if on credit, state terms], at the front door of the courthouse in the city of , in said county, on the day of , 19 , at the hour of 10 o'clock A. M., the following described real estate: [Describe said real estate.] Said sale will remain open one hour. Dated this day of , 19 . (Signed) C. D., Administrator of the Estate of A. B., Deceased. Form No. 151. AFFIDAVIT OF POSTING NOTICES. State of Nebraska, County, ss. C. D., being first duly sworn, on oath says that on the day of , 19 , he posted notices, of which the foregoing is a true 133 Rev. Stats., c. 17, 204, [1468]. 134 Dexter v. Cranston, 41 Mich. 448, 12 N. W. 674; Schaale v. Wasey, 72 Mich. 414, 38 N. W. 317; Hugo v. Miller, 50 Minn. 105, 52 N. W. 381. (509) 326,327 PROBATE AND ADMINISTRATION. [Chap. 25 copy, in the following described public places: [State places where notices were posted, said places being three of the most public places in the said county of .] (Signed) C. D. Subscribed in my presence and sworn to before me this day of , 19. (Signed) C. F. D., Notary Public. 326. Sales subject to liens. All such sales of lands are subject to all liens and charges existing thereon at the date of the death of decedent; and in case the estate shall be in any way liable for the amount so secured thereon, the purchaser is required to execute a bond to the personal repre- sentative to indemnify the estate against the same. 135 The usual practice is for the purchaser to pay off the liens and deliver the releases to the personal repre- sentative. Any agreement between the representative and the purchaser to bind the estate for the payment of the liens is void, and the purchaser can be compelled to pay the amount of his bid and take the property subject to the liens. 136 327. Oath of executor or administrator. Every, executor or administrator who may be au- thorized by the court to sell the realty of his decedent shall, before making the sale, take and subscribe an oath before the judge of the district court, or some other officer authorized to administer oaths, to use his best endeavors to dispose of the same to the advantage 135 Rev. Stats., c. 17, 213, [1477]; In re Vasek's Estate (Neb.), 150 N. W. 1004. 136 Maul v. Hellman, 39 Neb. 222, 58 N. W. 112. (510) Chap. 25] SALES OF LANDS. 328 of those interested therein, which oath must be filed with the judge of the district court before the con- firmation of the sale. 137 The oath is sufficient if it substantially complies with the wording of the stat- ute, 138 and the sale will not be set aside on confirmation where the oath appears among the other papers in the case, but is not marked as filed. 139 An oath is not required by the Oregon statutes. Form No. 152. OATH OF EXECUTOR OR ADMINISTRATOR ON SALE OF REAL ESTATE. State of Nebraska, County, ss. I, C. D., do solemnly swear that, in the sale of the following de- scribed real estate, to wit [describe property to be sold], which I am now about to offer for sale under a license issued to me as executor of the estate of A. B., deceased, by the Honorable W. M., judge of the district court of county, Nebraska, I will exert my best endeavors to sell the same in such manner as will be most for the advantage of all persons interested in said estate. (Signed) C. D. Subscribed in my presence and sworn to before me this day of , 19. (Seal) (Signed) C. F. D., Notary Public. 328. Sale. The sale must be made at the time and place spe- cified in the order, 140 and under the direction of the representative himself. He has no power to delegate 137 Comp. Stats., c. 17, 203, [1467]. 138 Montour v. Purdy, 11 Minn. 384, 88 Am. Dec. 88; Frazier v. Steenrod, 7 Iowa, 339. 139 West Duluth Land Co. v. Kurtz, 45 Minn. 380, 47 N. W. 1134. 140 Eev. Stats., c. 17, 198, [1462]. (511) 328 PROBATE AND ADMINISTRATION. [Chap. 25 his power to an agent, nor is he obliged to act as auc- tioneer or personally attend to every detail. The law requires him to supervise the sale, and he should be present though the sale be cried by his auctioneer or attorney. 141 If the license gave the terms of the sale, he must strictly comply with them, and in all cases must offer the lands on the terms the notice calls for. 142 If the land consists of two or more parcels, they should be offered separately. 143 Offering them as one tract would be ground for refusing confirmation, 144 but such sale is not subject to collateral attack. 145 He may sell a part only of the land described in the license, 146 but no more than is described therein. 147 A sale of more or other land than the license covers, unless sold separately, is not only void as to the excess, 148 but as to the entire tract. 149 The executor or administrator should use every effort to sell the land for the highest price and on the best terms obtainable. 150 Unlike other sales, he is not l Levara v. McNeny, 5 Neb. Unof. 318, 98 N. W. 679; Gridley's Heirs v. Phillips, 5 Kan. 349. 142 Reynolds v. Wilson, 15 111. 394; Smelser v. Blanchard, 15 La. Ann. 254. 143 Kinney v. Knoebel, 51 111. 112; Jackson v. Newton, 18 Johns. (N. Y.) 355; Bell v. Taylor, 114 Kan. 277. 144 Bunner v. Rand, 19 Wis. 253; Smith v. Seholtz, 68 N. Y. 41; Bouldin v. Ewart, 63 Mo. 430; Foley v. Kane, 53 Iowa, 64, 4 N. W. 821; Nelson v. Bronenberg, 81 Ind. 193. 145 Brown v. Hannah, 132 Mich. 33, 115 N. W. 980. 146 Ewing's Lessee v. Higbee, 7 Ohio St., pt. 1, p. 198. 147 Wakefield v. Campbell, 20 Me. 393. 148 Adams v. Morrison, 4 N. H. 166; Lockwood v. Sturdevant, 6 Conn. 373. 149 Litchfield v. Cudworth, 15 Pick. (Mass.) 23. 150 Pearson v. Moreland, 7 Smedes & M. (Miss.) 609. (512) Chap. 25] SALES OF LANDS. 328 obliged to strike off the property to the highest bidder, if he considers the bid below its reasonable market value. He can refuse to consummate the sale in order to prevent a sacrifice of the land, and advertise again, 151 or in his report to the court he may ask to have the sale set aside and the property readvertised and sold again. 152 He has no authority to accept, in payment for the property, anything else than cash, and the note or bond and mortgage given for the deferred payment. Should he accept the personal security of the pur- chaser, it is a breach of his duty, and he would be liable upon his official bond should a loss ensue thereby, even though he acted prudently and in good faith. 153 Nor can he accept claims or accounts against the estate. He is held liable for the full sum the realty belonging to the estate sold for. 154 In making the sale he acts solely under the order of the court, and can make no other terms with the purchasers than those prescribed in the license and the provisions of the statute. 155 Payment should be made by the actual transfer of the cash required by the bid of the pur- chaser to the executor or administrator on the date of the sale, or soon thereafter. 156 He has no authority to bind the estate by warranty, though he may so bind himself, if he chooses. 157 151 Rogers v. Dickery, 117 Ga. 819, 45 S. E. 71. 152 Rohlff v. Estate of Snyder, 73 Neb. 524, 103 N. W. 49. 153 Foster v. Thomas, 21 Conn. 285. 154 Richards v. Adamson's Estate, 43 Iowa, 248. 155 Hamilton v. Pleasants, 31 Tex. 638, 98 Am. Dec. 551; Edmon- BOn v. Garnett, 33 Tex. 259. 15 Durnford v. Degruys, 8 Mart. (La.) 220; State v. Lawson, 14 Ark. 114. 157 Worthy v. Johnson, 8 Ga. 238; Lynch v. Baxter, 4 Tex. 431. 33 Pro. Ad. 329,330 PROBATE AND ADMINISTRATION. [Chap. 25 329. Adjournment of sale. If, at the time appointed for the sale, the executor or administrator shall deem it for the best interests of all persons concerned therein that the sale shall be postponed, he may adjourn the same from time to time, not exceeding in all three months. 158 Power to ad- journ a personal representative's sale exists inde- pendent of the statute. 159 He should be present at the time and place set for the sale and notify any party present of the adjournment. He cannot delegate to his attorney the power to adjourn a sale at his discretion. 160 The adjournment may be to a different place than that given in the notice, 161 and be good on collateral attack. 162 Notice must be given by public declaration at the time and place appointed, and, if it be for more than one day, further notice should be given by post- ing or publishing the same, as the circumstances may permit. 163 330. Executor or administrator not to be a pur- chaser. "The executor or administrator making the sale and the guardian of any minor heir of the deceased shall not, directly or indirectly, purchase or be interested in the purchase of any part of the real estate so sold, and 158 Eev. Stats., c. 17, 205, [1469]. 159 Jewett v. Guyer, 38 Vt. 209; Tinkom v. Purdy, 5 Johns. (N. Y.) 345; Goddard v. Sawyer, 9 Allen (Mass.), 78; Kelley v. Green, 63 Pa. 299. 160 Wolf v. Van Metre, 27 Iowa, 348. 161 Jewett v. Guyer, 38 Vt. 209. 162 Thompson v. Burdge, 60 Kan. 549, 57 Pac. 710. 163 Kev. Stats., c. 17, 206, [1470]. (514) Chap. 25] SALES OF LANDS. 330 all sales contrary to the provisions of this section are void, but the guardian may purchase the land for his ward." 164 The above-cited statute does not make such sales absolutely void in the sense that they convey no title or interest whatever to the purchaser, but voidable; the parties interested having the right to have them set aside by motion or suit, as the condition of the proceedings allow, at any time after being apprised of the facts. 165 If the personal representative sells to another per- son, and before confirmation buys the land himself, he is considered as a purchaser at his own sale. 166 The law also forbids him to sell to one who has a vested interest in his estate, so that neither husband nor wife can be a purchaser at the other's sale, 167 or a partner- ship the land sold by a partner as an executor. 168 Sales of this class come under substantially the same rule as where the personal representative is the pur- chaser, and can be set aside in the same way. 169 The widow or an heir or legatee may purchase the land when the sale is made by another party as repre- sentative of the estate. 170 164 Eev. Stats., c. 17, 199, [1463]; L. O. L., 1277. 165 Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982; Cole v. Boyd, 68 Neb. 146, 93 N. W. 1003. 166 Woodard v. Jaggers, 48 Ark. 250, 2 S. W. 851; Bland v. Fleeman, 58 Ark. 84, 23 S. W. 4. 167 Scott's Estate v. Gorton's Exrs., 14 La. Ann. 111. 168 Harrod v. Norris' Heirs, 11 Mart. (La.) 297. 169 Musselman v. Eshelman, 10 Pa. 304; Worthy v. Johnson, 8 Ga. 236; Coat v. Coat, 63 111. 73; Potter v. Smith, 36 Ind. 231; Smith v. Drake. 23 X. J. Eq. 302. no Rfinhart v. Seaman, 208 111. 448, 69 N. E. 847; Aubuchon v. Aubuchon, 133 Mo. 260, 34 S. W. 569. (515) 331 PROBATE AND ADMINISTRATION. [Chap. 25 331. Confirmation of sale. The executor or administrator should, as soon as practicable after the sale, file a report of his proceed- ings in the district court and bring the sale up for confirmation. The sale may be confirmed by the judge at chambers during vacation without the ten days' notice. 171 If the purchaser has not paid the amount of his bid, personal service should be had on him of the order to show cause why the sale should not be confirmed. The personal representative and other persons may be examined on oath concerning the sale, value of the land, etc., and if the district judge shall be of the opinion that the proceedings were unfair, or that the sum bid is disproportionate to the value, and that a sum exceeding the bid at least ten per cent can be obtained, exclusive of the expenses of a second sale, he is required to vacate such sale and direct that an- other be had in the same manner as though no pre- vious sale had been had. 172 If it appears to the judge that it was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property, he should make an order confirming the same and direct- ing that conveyances be executed and delivered. 173 171 Brusha v. Phipps, 86 Neb. 822, 126 N. W. 856. 172 Eev. Stats., c. 17, 201, [1465]; L. O. L., 1260; Miller v. Hanna, 89 Neb. 224, 131 N. W. 226; Rohlf v. Estate of Snyder, 73 Neb. 524, 103 N. W. 49. 173 Rev. Stats., c. 17, 202, [1466]; Saxon v. Cain, 19 Neb. 488, 26 N. W. 385. It was held in this case that when the administrator makes an application to sell a tract of land, is granted a license to sell an undivided seven-eighths interest, sells the same, makes his re- port and asks for confirmation, the purchaser of such interest cannot have the order or license reviewed on error. (516) Chap. 25] SALES OF LANDS. 331 Form No. 153. RETURN OF EXECUTOR OR ADMINISTRATOR ON SALE OF REAL ESTATE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Executor of the Estate of A. B., Deceased, for Leave to Sell Real Estate. To the Judge of the District Court of Said County: I, C. D., administrator of said estate, herewith make return of my proceedings in the sale of the following described real estate [describe property the same as in the license], in pursuance of the license granted me on the day of , 19 . That in pursuance of said license I executed a bond, which was duly approved, and took the oath required by law, before L. M., a notary public of said county, and filed the same with this court, and thereupon I gave public notice of the time and place of said sale by publication of the same for three successive weeks in the , a newspaper printed and published in said county; that attached hereto, marked "Ex. A," and made a part of this return, is the affidavit of B. X., foreman of the said , of the publication of said notice; and by posting said notice in three of the most public places in said county of ; that attached hereto, marked "Ex. B," and made a part of this return, is the affidavit of E. F. of posting said notices; that in pursuance of the terms of said notice, and at the time and place mentioned therein [if an adjournment was had, state to what time and place, and how notice thereof was given] I offered said real estate for sale at public auction to the highest bidder for cash, and kept said sale open for one hour, and sold said real estate to E. F. for the sum of dollars ($ ), he being the highest bidder therefor; that said sale was in all respects fairly conducted, and I exerted my best endeavors to sell said real estate in such manner as would be for the advantage of all persons interested in said estate; and in my opinion no greater sum than the amount specified can be obtained for the same. All of which is respectfully submitted. Dated this day of , 19 . (Signed) C. D., Administrator of the Estate of A. B. ( Deceased. Under the Oregon practice, confirmation of all sales of lands for payment of debts is required. Within ten days after the sale, the executor or administrator shall (517) 332 PBOBATE AND ADMINISTRATION. [Chap. 25 make a return of his proceedings to the county court. At any time within fifteen days thereafter any person cited to appear on the application may file his objection to confirmation. 174 332. Confirmation Concluded. An heir or devisee, or his grantee, may appear be- fore the court and show cause why the sale should not be confirmed. It has been held that a purchaser can- not be heard on the return to the order, and is pre- cluded from objecting to his own act in bidding in the property. 175 Upon such hearing the court passes on the regularity of the entire proceedings, but as the jurisdiction of the court to grant the license and the necessity for the sale have already been determined in the hearing on the application, they will be presumed to have been regular. 176 The court therefore passes on the acts of the executor or administrator in making the sale, which include the bond, oath, publication and posting of notices, adjournments and notices of the same, the sufficiency of the price and the right of the bidder to become a purchaser. 177 Confirmation of a sale is necessary to give it valid- ity. 178 The title does not pass from the estate until the order is made and entered and the deed executed 174 L. O. L., 1258; In re Seidel's Estate, 64 Or. 320, 130 Pac. 55. 175 Levy v. Biley, 4 Or. 398. 176 Saxon v. Cain, 19 Neb. 488, 26 N. W. 385. 177 Dawson v. Helmes, 30 Minn. 107, 14 N. W. 462; Culver v. Harden- brugh, 37 Minn. 225, 33 N. W. 792; Allen v. Shephard, 87 111. 314; Koehler v. Ball, 2 Kan. 173. 178 In re Seidel's Estate, 64 Or. 325, 130 Pac. 55. (518) Chap. 25] SALES OF LANDS. 332 and delivered in pursuance thereof. 179 A deed exe- cuted before confirmation will not pass the title. 180 Confirmation cures irregularities in making the sale, as where the administrator sold the land on credit, when the court required it to be for cash, 181 or where the license is granted to two administrators, and, one refusing to take part in the proceeding, the other qualifies and makes the sale according to law, 182 or a failure to sell the tracts separately, according to the order, 183 or a slight departure from the order of the court as to the terms; 184 provided it appears to the satisfaction of the court that the sale has been fairly conducted, the proceedings regular, no question of jurisdiction involved, and the best possible price ob- tained. If the land to be sold consists of several tracts, the court may approve and confirm the sale of one or more of them, the sales having been made sepa- rately, and vacate the sale of the others; and the fact that one or more sales have been held invalid does not in any manner affect the validity of a deed to the tract or tracts the sale of which was upheld and confirmed. 185 If mortgaged land is sold for its full value and the administrator pays off the mortgage from the proceeds 179 Valle v. Fleming, 19 Mo. 454; Brown's Appeal, 68 Pa. 53; Greenough v. Small, 137 Pa. 132, 20 Atl. 553. 180 Eea v. McEachron, 13 Wend. (N. Y.) 465. 181 McCully v. Chapman, 58 Ala. 325. 182 Osman v. Traphagen, 23 Mich. 80; Wilkerson v. Allen, 67 Mo. 502. 183 Meadows v. Meadows, 81 Ala. 451, 1 South. 29. 184 Jackson v. Magruder, 51 Mo. 55; Brubaker v. Jones, 23 Kan. 411; Jacobs' Appeal, 23 Pa. 477. . 185 Bacon v. Morrison, 57 Mo. 68. (519) 332 PROBATE AND ADMINISTRATION. [Chap. 25 of the sale, confirmation cures his failure to sell subject to the mortgage. 185 * Except where jurisdictional questions are involved, confirmation is largely a matter within the discretion of the district judge, and his order will be rarely disturbed. 186 The title in the purchaser dates back to the date the land is struck off to him at the sale; and any lease or contract affecting the land made by the executor, ad- ministrator, heir or devisee, or alienee of either, is void as to him. 187 A purchaser cannot be compelled to pay the entire price for the property until the sale is confirmed and deed ordered. If he then refuses to pay, the executor or administrator may obtain an order from the dis- trict court to compel him to comply with his bid, which order is, in effect, a judgment for specific performance, and enforced the same way. 188 Form No. 154. CONFIRMATION OF SALE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Executor of the Estate of A. B., Deceased, for Leave to Sell Real Estate. An order to show cause why the sale of the following described real estate [describe real estate as in license] should not be confirmed, having been made on the day of , 19 , and given to all persons interested therein, and it appearing to me that notice was given of the time and place of said sale according to law, that the sale of said real estate was had according to said notice, was legally made I85a In re Vasek's Estate (Neb.), 150 N. W. 1004. 186 in re Estate of Parker, 72 Neb. 601, 101 N. W. 283. 187 Inman's Admr. v. Gibbs, 47 Ala. 305. 188 Maul v. Hellman, 39 Neb. 222, 58 N. W. 112. (520) Chap. 25] SALES OF LANDS. 333 and fairly conducted, and that the sum bid is not disproportionate to the value of the property sold,* it is therefore ordered and adjudged by me that the said sale be and the same hereby is confirmed, and that C. D., administrator of the estate of said A. B., deceased, is hereby directed, as such executor, to execute a deed of conveyance to E. F., the purchaser of the above-described premises. Dated this day of , 19 . (Signed) W. M., Judge of District Court, County. 333. Sale of contract interest in land. When the equity of the decedent in land held by a contract of purchase or bond for a deed is sold, the sale is made subject to all the payments, if any, to be- come due, and the sale should not be confirmed until the purchaser execute a bond to the executor or adminis- trator for the benefit and indemnity of the person en- titled to the interest of the deceased in the land so con- tracted for, in double the whole amount of payments thereafter to become due on such contracts, with sure- ties as the judge of the district court shall approve. If there are no further payments to be made, a bond is unnecessary. 189 The conditions of the bond are that the purchaser will make all payments for such land as shall become due after the sale, and fully indemnify the executor or administrator and the person so en- titled against all demands and expenses, by reason of any covenants and agreements contained in said con- tract. 190 Upon the confirmation of such sale, the exec- utor or administrator executes to the purchaser an assignment of the contract, which assignment vests in the purchaser, his heirs and assigns, all the right, title 189 Rev. Stats., c. 17, 2CS, [1472]; L. 0. L., 1267. io Eev. Stats., c. 17, 209, [1473]; L. O. L., 1267. (521) 333 PROBATE AND ADMINISTRATION. [Chap. 25 and interest of the estate in and to the land sold at the time of the sale, and such purchaser has the same rights and remedies against the vendor which the deceased would have were he living. 191 Form No. 155. BOND OF PURCHASER OP VENDEE'S INTEREST IN LAND CONTRACT. Know all men by these presents, that we, E. F., as principal, and G. H., and L. M., as sureties, all of county, Nebraska, are held and firmly bound unto C. D., executor of the estate of A. B., deceased, in the penal sum of dollars [double the amount unpaid on con- tract or mortgage], for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Dated this day of , 19 , Whereas, on the day of , 19 , E. F. purchased at public auction of C. D., as executor of the estate of A. B., deceased, the interest of said estate in a contract for the purchase of the fol- lowing described realty [describe property as in license], and there is still unpaid on said contract the sum of dollars ($ ), payable as follows [state when payments become due]: Now, therefore, the condition of this obligation is such that, if the said E. F. shall well and truly pay or cause to be paid to R. S., the vendor in said contract, his heirs, executors, administrators, or as- signs, all the payments set forth in said contract yet to become due, and fully indemnify said C. D., executor, and all other persons entitled to any interest in said land so contracted as heirs or devisees of said A. B., against all demands, costs, charges, and expenses, by reason of the covenants and agreements in said contract contained, then these presents shall be null and void; otherwise to be and remain in full force and effect. (Signed) E. F. G. H. L. M. 191 Rev. Stats., c. 17, 210, [1474] ; L. O. L., 1268. (522) Chap. 25] SALES OF LANDS. 334 The foregoing bond and surety approved by me this day of (Signed) W. M., Judge of the District Court, County. Form No. 156. CONFIRMATION OF SALE OF CONTRACT EQUITY IN REAL ESTATE. [Follow Form No. 154 te *, then say:] And the bond of the pur- chaser of said premises, E. F., conditioned that said E. F. will make all payments for such land as shall become due after the date of such sale, and will fully indemnify said C. D., executor, and C. B., the heir, of said A. B., against all demands, costs, charges, and expenses by reason of any covenant or agreement contained in the said contract for the purchase of said premises entered into between L. M. and said A. B., having been approved by me both as to form and sufficiency of sureties, it is therefore ordered and adjudged by me that said sale be and the same hereby is confirmed, and C. D., executor of the estate of A. B., deceased, is hereby directed, as such executor, to execute a deed of conveyance to said E. F., the purchaser of the above-described premises. Dated this day of , 19 . (Signed) W. M., Judge of District Court, County. 334. Death of executor or administrator pending proceedings. When an executor or administrator dies pending the proceedings for the sale, the administrator de bonis non may go on with the proceedings, the administra- tion being continued by the same official, but a dif- ferent person. If the license has not issued, he should be substituted and license granted to him. 192 The same principle applies where his death occurs after license. He should make the sale and report to the court the same as his predecessor would have done, 12 Trumble v. Williams, 18 Neb. 144, 24 N. W. 716. (523) 335 PROBATE AND ADMINISTRATION. [Chap. 25 and the court can empower him to execute and deliver the proper conveyances. 193 335. Sales by foreign executors or administrators. When any executor or administrator shall be ap- pointed in any state or territory, or in any foreign country, on the estate of any person dying out of this state, and no executor shall be appointed within this state, the foreign executor or administrator may file a copy of his appointment, duly authenticated, in the district court of the county in which there may be any real estate of the deceased, and upon filing such copy be licensed to sell the real estate for the same purposes and in the same manner as if he were appointed in this state. 194 If the decedent was a resident of this state at the time of his death, and letters testamentary or of administration issued upon his estate in another state or foreign country, such letters would not confer upon his executor or administrator any authority to act in this state in any manner, and a license to sell his real estate in this state could only be granted to an exec- utor or administrator appointed by the county court of that county which was the place of his domicile at the time of his death. 195 If the foreign executor or administrator file a duly authenticated copy of his bond with the district judge granting him the license of sale, and it shall appear therefrom that he is bound by sufficient sureties in the state or country in which 193 Gress Lumber Co. v. Leitner, 91 Ga. 810, 18 S. E. 63; Baker v. Bradsby, 23 111. 632; Brown v. Eedwyne, 16 Ga. 67. 194 Rev. Stats., c. 17, 214, [1477]. 195 McAnulty v. McClay, 16 Neb. 420, 20 N. W. 266. (524) Chap. 25] BALES OF LANDS. 336, 337 he received his appointment to account for the pro- ceeds of the sale for the payment of debts or legacies and charges of administration, no other bond need be required, but, if the foreign bond be not filed, the judge shall require him to give a bond with the same condi- tions as that of the local administrator, except that the proceeds are to be disposed of according to the law of the state or country where he was appointed. 196 If the license empowers him to dispose of more realty than is sufficient to pay the debts, legacies and charges of administration, he must give a bond conditioned to account for such excess, and dispose of the same according to law. 197 336. Taxation of costs. The sale of a decedent's real estate for the payment of his debts is for the benefit of his estate, and the costs of the application, sale and deed should be paid there- from unless it appear to the district judge on the hear- ing that the application is unreasonable, and the objec- tions thereto are sustained, in which event the court may, in its discretion, award costs to the party pre- vailing, and enforce payment thereof. 198 337. Executor's or administrator's deed. The deed of an executor or administrator should refer to the authority under which he acted, and con- tain apt words to convey the estate of the decedent, as distinguished from his own private estate. 199 It 19 Eev. Stats., c. 17, 215, [1479]. 197 Rev. Stats., c. 17, 216, [1480]. 198 Rev. Stats., c. 17, 220, [1484]. 199 Griswold v. Bigelow, 6 Conn. 258; Brown v. Redwyne, 16 Ga. 67; Bobb v. Barnum, 59 Mo. 394; Kingsbury v. Wild, 3 N. H. 30. (525) 337 PEOBATE AND ADMINISTRATION. [Chap. 25 should also state that the estate conveyed belonged to the decedent. If the deed recites a compliance with all the formalities required by the statute, it consti- tutes prima facie evidence of the regularity of the pro- ceedings. 200 As an executor's or administrator's deed executed without the order of the court is void, his sole power being derived from a compliance with the statute, enough of the proceedings by which the order was obtained should appear on the face thereof to show his authority therefor, and the fact and circum- stances under which it was executed. 201 Mere mis- recitals in the deed as to the order of sale or previous proceedings will not invalidate the conveyance of the title, if enough appears from the whole record and proceedings to show the true facts and circumstances under which the deed was made. 202 The Oregon statute requires the executor's or ad- ministrator's deed to set out the date of the order directing the sale, and the book, number thereof, and the page containing the same, and the date of the order confirming the sale, giving the book and page where it is recorded. 203 200 Chase v. Whiting, 30 Wis. 544; Doe d. Clements v. Henderson, 4 Ga. 148. 201 Goforth's Lessee v. Longworth, 4 Ohio, 129, 19 Am. Dec. 588; Atkins v. Kinnan, 20 Wend. (N. Y.) 241, 32 Am. Dec. 540; Doe d. Clements v. Henderson, 4 Ga. 148, 48 Am. Dec. 216; Tutt v. Boyer, 51 Mo. 425 ; Watson v. Watson, 10 Conn. 77. 202 Garner v. Tucker, 61 Mo. 427; Thomas v. Le Baron, 8 Met. (Mass.) 355; Lessee of Glover's Heirs v. Ruffin, 6 Ohio, 255. 203 L. O. L., 1261. (526) Chap. 25] SALES OF LANDS. 337 Form No. 156a Oregon. EXECUTOR'S OR ADMINISTRATOR'S DEED. Know all men by these presents, that in pursuance of an order of the Honorable J. K., county judge of county, Oregon, made on the day of , 19 , and recorded in Book Number , of the probate records of said county, I was licensed by said judge to sell at public auction, in the manner provided by law, the real estate in said order described; that thereupon I gave notice of the time and place of sale as required by law, and at the time and place therein specified sold the real estate hereinafter described at public auction to C. D., of the county of , and state of , he being the highest bidder therefor; that said sale was on the day of , 19 , duly reported to said county judge, and on the day of , 19 , an order confirming said sale and directing the execution and delivery of a deed to said purchaser, was made by said judge and entered in Book Number , page , of the probate records of said county. [Balance as in. Form No. 157.] Form No. 157. EXECUTOR'S OR ADMINISTRATOR'S DEED. Know all men by these presents, that, in pursuance of an order of the Honorable W. M., judge of the district court of county, Nebraska, made on the day of , 19 , I was licensed by said judge to sell at public auction, in the manner provided by the law, the real estate hereinafter described; that thereupon I gave notice of the time and place of said sale, as required by law, and at the time and place therein specified, after said sale had been held open one hour, sold said real estate at public auction to E. F., of the county of , .state of , he being the highest bidder therefor; that said sale was thereupon reported to said judge of the district court, and by him in all things confirmed, and I was ordered to make a deed of convey- ance of said premises to said purchaser. Now, therefore, I, C. D., administrator of the estate of A. B., de- ceased, in consideration of the premises and the sum of dollars ($ ) so bid and paid by said E. F., and by virtue of the powers 1 vested in me by said order and proceedings, do by these presents grant, sell, and convey unto the said E. F., and to his heirs and assigns, the real estate described as follows [describe property], with all the heredita- ments and appurtenances thereunto belonging or in any wise apper- (527) .337 PROBATE AND ADMINISTRATION. [Chap. 25 taining, to have and to hold the same to him, the said E. F., and to his heirs and assigns, forever. In witness whereof I have hereunto set my hand this day of , 19-. (Signed) C. D., Administrator of the Estate of A. B., Deceased. Witness: (Signed) L. M. State of Nebraska, County, ss. On this day of , 19 , before me, the undersigned, a notary public, duly commissioned and qualified, in and for said county, personally appeared C. D., administrator of the estate of A. B., deceased, personally known to me to be the identical person whose name is sub- scribed to the foregoing instrument as grantor, and acknowledged the execution thereof to be his voluntary act and deed as said administrator for the purposes therein expressed. Witness my hand and official seal the day and year above written. (Seal) (Signed) C. F. D. Notary Public. Form No. 158. ASSIGNMENT OF LAND CONTRACT BY EXECUTOR OR AD- MINISTRATOR. Know all men by these presents, that, in pursuance of an order of the Honorable W. M., judge of the district court of county, Nebraska, made on the day of , 19 , I was licensed by said judge to sell at public auction, in the manner provided by law, the interest of the estate of A. B. as vendee in a contract for the pur- chase of the real estate hereinafter described; that thereupon I gave notice of the time and place of sale, as required by law, and at the time and place therein specified, after said sale had been held open one hour, sold said interest of said estate as vendee to E. F., he being the highest bidder therefor; that said sale was thereupon reported to said judge of the district court, and the said E. F. filed his bond with said judge as required by law, and the same was approved, and said sale in all things confirmed, and I was ordered to make an assignment of the interest of said estate as vendee in said contract to said purchaser. Now, therefore, I, C. D., administrator of the estate of A. B., de- ceased, in consideration of the premises and the sum of dol- (528) Chap. 25] SALES OF LANDS. 338 lars ($ ) so bid and paid by said E. F., and by virtue of the powers vested in me by said order and proceedings, do by these presents sell, assign, and transfer unto the said E. F., his heirs and assigns, all the right, title, and interest of said estate in and to a certain contract for the purchase of the following described real estate [describe prop- erty], which said contract is hereto attached. In witness whereof I have hereunto set my hand this day of , 19-. (Signed) C. D., Administrator of the Estate of A. B., Deceased. Witness : L. M. [Acknowledgment, as in Form No. 157.] 338. Title of purchaser. The purchaser takes the interest which the deceased had in the land at his death, with all the rights, heredit- aments and appurtenances belonging thereto, includ- ing growing crops which would pass with the land. 204 The rule of caveat emptor applies to the sale, and the prospective purchaser should always investigate the title and inform himself of any existing equities as well as liens, 205 and he cannot have the sale set aside on the ground that the deceased had no title to the prop- erty when the records would have disclosed such information to him. 206 There is considerable authority to the effect that the rule goes no further than to cover defects disclosed by the records, and in the case of a bona fide purchaser 204 Backenstoss v. Sahler'a Admrs., 33 Pa. 251; Mcllvaine v. Harris, 20 Mo. 457, 64 Am. Dec. 196. 205 Motley v. Motley, 53 Neb. 375, 73 N. W. 738; Bingham v. Maxcey, 15 111. 295. 206 Beene's Admr. v. Collenberger, 38 Ala. 647; Bennett v. Owen, 13 Ark. 177. 34 Pro. Ad. (529) 339 PROBATE AND ADMINISTRATION. [Chap. 25 will not reach secret equities attaching to the title. 207 In such case the purchaser could rescind the sale or interpose the defense of no consideration to the action or proceeding to recover the purchase price. 208 If the land is in the actual possession of other par- ties, the executor or administrator is under no obli- gation to put the purchaser in possession, and the latter must himself pay the cost of acquiring what he has bought. 209 339. Sale of land in which a homestead is included. The lots or land occupied by decedent as a home during his lifetime are subject to the demands of his creditors, to the extent of the difference between the homestead exemption of two thousand dollars and the value of decedent's interest therein at the time of his death. 210 There is no proceeding by statute for the sale of lands by the personal representative in order to obtain this difference and apply it on the debts, nor is there any action at law which would reach it. It has been held that the personal representative may apply to the district court for a decree to sell the land in which the widow has a homestead exemption, that the court, by virtue of its general inherent equity powers, has 207 Wilson v. Holt, 18 Ala. 528, 3 South. 321; Banks v. Ammon, 27 Pa. 172; Rorer, Judicial Sales, 462. 208 Roehl v. Pleasant, 31 Tex. 45, 98 Am. Dec. 515. 209 Rudolph v. Underwood, 88 Ga. 664, 16 S. E. 55. 210 Meisner v. Hill, 92 Neb. 435, 138 N. W. 583; Perry Livestock Co. v. Biggs, 4 Neb. Unof. 440, 94 N. W. 712. The homestead exemption cannot be sold for debts, but according to the decision in the Meisner- Hill case, the liability of the excess above the two thousand dollars is clearly admitted. (530) Chap. 25] SALES OF LANDS. 339 jurisdiction to order a sale and the payment of the two thousand dollars of the proceeds to the widow, or as the court may direct for her benefit, the balance to be applied as in other cases. 211 211 Wardell v. Wardell, 71 Neb. 774, 89 N. W. 674. The holding in the Meisner-Hill case overrules but one point in the Wardell case, i. e., the definition of a homestead. The court concedes that the decision in the Wardell ease was what the law and fats called for, but say that the definition of a homestead by Commissioner Ames was too broad, including estates having no debts, when he should have limited it, as was done in the case, to estates where there were debts. (531) CHAPTER XXVI. COLLATERAL ATTACK ON PERSONAL REPRE- SENTATIVE'S SALES. S 340. When Action may be Brought. 341. Void and Irregular Sales. 342. Attacking the License. 343. Attacking the License The Petition. 344. Attacking the License Order to Show Causa. 345. Jurisdictional Irregularities. 346. Failure to Give Bond. 347. Failure to Take Oath. 348. Notice of Time and Place of Sale. 349. Compliance With the Order of Sale. 350. Purchase by Disqualified Party. 351. Fraud. 352. Rights of Purchaser at Void Sale. 340. When action may be brought. An heir or devisee, or person claiming under him, can maintain an action to set aside a void sale of his lands by an executor or administrator within ten years from the date of the confirmation of the same. 1 If he is under legal disability when his cause of action accrued, he may bring it within ten years after such disability is removed. 2 In Oregon the suit must be brought within five years from the removal of disability. 3 1 Holmes v. Mason, 80 Neb. 448, 114 N. W. 606; Brandon v. Jensen, 74 Neb. 569, 104 N. W. 1054; Hobson v. Huxtable, 79 Neb. 334, 112 N. W. 658; Mitchell v. Campbell, 19 Or. 213, 24 Pac. 456; Fuller v. Hager, 47 Or. 242, 83 Pae. 782. 2 Civ. Code, 16, 17; Albers v. Kozeluh, 68 Neb. 522, 94 N. W. 521, 97 N. W. 646. 3 L. O. L., 17. (532) Chap. 26] EECOVEEY OF LANDS SOLD. 340 The limitation of time for setting aside irregular sales is five years from the date of confirmation, or if the party be under disability, within five years from the removal of such disability, residence outside of the state being equivalent to disability. 4 Under the Oregon practice, the statute 5 fixes the limitation at five years, without any saving clause. It would seem, however, that the general provision of law 6 would govern. In neither case will the action lie if the heir or dev- isee has received and retained, with knowledge of the facts, any part of the proceeds of the sale, 7 such acts operating as an estoppel even though the sale was void. Nor will equity permit a party to recover the land or a share in it and retain the proceeds of its sale. If he brings suit within the proper time after obtaining knowledge of the facts, the purchaser is entitled to reimbursement, but must account for the use of the premises. 8 As the action accrues on date of confirmation, it may be brought by a remainderman during the continuance of the previous estate. 9 4 Rev. Stats., c. 17, 221, 222, [1485], [I486]. 5 L. 0. L., 7160. L. O. L., 17. 7 Mote v. Kleen, 83 Xeb. 585, 119 N. W. 1125; Staats v. Wilson, 76 Neb. 204, 107 N. W. 230, 109 N. W. 379; Browne v. Coleman, 62 Or. 461, 125 Pac. 279. 8 Cole v. Boyd, 68 Neb. 146, 93 N. W. 1003; Browne v. Coleman, 62 Or. 461, 125 Pac. 279. In the Cole case the profits received exceeded the taxes and the purchase price and the court held that the plaintiff was under no obligation to offer to reimburse such purchaser. Lyons v. Carr, 77 Neb. 833, 110 N. W. 785; First Nat. Bank of Perry v. Pilger, 78 Neb. 168, 110 N. W. 704. In the case first cited a homestead worth less than two thousand dollars was sold and the pur- (533) 341 PROBATE AND ADMINISTRATION. [Chap. 26 341. Void and irregular sales. Executor's and administrator's sales which are sub- ject to collateral attack are those which are void in their inception and those which are voidable. The purchaser at a void sale takes no title. Such sale fol- lowed by possession operates to disseise the heir or devisee, and if continued for the statutory period ripens into a title by adverse possession. 10 A voidable sale conveys a title which may be terminated at the suit of the lawful owner of the fee. 11 Void sales of this class consist of sales of homesteads worth under two thousand dollars, 12 sales to parties who are incompetent purchasers under the statutes, 13 and sales in which the court entirely failed to acquire jurisdiction of the proceeding. 14 Voidable sales are those in which the defects and irregularities in the proceedings were not such as to entirely deprive the court of power to act, as where the court did comply chaser took possession. An action to quiet title was brought by the widow and heirs more than ten years after the youngest child became of age. It was held that the sale was void at its inception, that the holder of the fee could have maintained an action during the continuance of the life estate, but that the action had become barred as to all the parties by the statute. 10 Mitchell v. Campbell, 19 Or. 198, 24 Pac. 455. 11 Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982. 12 Tindall v. Peterson, 71 Neb. 160, 99 N. W. 659; Bixby v. Jewell, 72 Neb. 755, 101 N. W. 1026; Holmes v. Mason, 80 Neb. 448, 114 N. W. 606; Hobson v. Huxtable, 79 Neb. 334, 112 N. W. 658. is Rev. Stats., c. 17, 199, [1463] ; Cole v. Boyd, 68 Neb. 146, 93 N. W. 1003. 14 Mitchell v. Campbell, 19 Or. 198, 24 Pac. 455; Smith v. Whiting, 55 Or. 393, 106 Pac. 790. (534) Chap. 26] RECOVERY OF LANDS SOLD. 341 with the statute but the parties failed to take the steps necessary to show that it had done so. 15 In the case of any action relating to real estate sold by an executor or administrator in which an heir or person claiming under him shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear: First. That the executor or administrator was licensed to make the sale by the district court having competent jurisdiction; Second. That he gave a bond which was approved by the judge of the district court, in case a bond was required upon granting a license; Third. That he took the oath prescribed by the statute; Fourth. That he gave notice of the time and place of sale as by law prescribed; Fifth. That the premises were sold accordingly and the sale confirmed by the court, and that they are held by one who purchased them in good faith. 16 Plaintiff's recovery is limited to the share or interest in the land which passed to him as an heir or devisee. 17 Under the Oregon practice, when land has been sold by an executor or administrator under license from the court of probate jurisdiction for the payment of debts, and the sale was made in good faith, the money devoted to that purpose, and the sale confirmed or 15 Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982. 16 Rev. Stats., c. 17, 223, [1487]. i? Holmes v. Mason, 80 Neb. 448, 114 N. W. 606; Hobson v. Hux- table, 79 Neb. 334, 112 N. W. 658; Lyons v. Carr, 77 Neb. 883, 110 N. W. 705. (535) 342 PKOBATE AND ADMINISTRATION. [Chap. 26 acquiesced in by the court, and the period of five years has elapsed since the sale and confirmation, such sales are by law considered as confirmed and approved, not- withstanding any informalities or irregularities in the proceedings prior to the sale, and are sufficient to sus- tain a deed to the purchaser conveying all the interest decedent had in such real estate, and in case no deed has been given, it entitles such purchaser to such deed, and if through mistake or omission in said deed, or defect in its execution, it shall be inoperative, it is made sufficient to convey the title to the property de- scribed therein, and may be made the basis of an action to quiet title in the purchaser. 18 The above cited provisions of the statutes do not apply to deeds which are absolutely void, because the county court or judge was entirely without jurisdic- tion to make them. They apply exclusively to irregu- lar sales curing defects and informalities and not an entire want of power to act. 19 342. Attacking the license. The issue of a license to sell real estate to a party as executor or administrator who never actually was, or had any authority to act as, such executor or ad- ministrator does not give the party receiving it any rights as against the heirs or devisees. The sale is clearly subject to collateral attack. 20 A valid license can only issue to a person duly ap- pointed executor or administrator, one to whom let- is L. O. L., 1256, 1258. i Mitchell v. Campbell, 19 Or. 198, 24 Pac. 455; McCullough v. Este, 29 Or. 349, 25 Pac. 724; Fuller v. Hager, 47 Or. 242, 83 Pac. 782; Browne v. Coleman, 62 Or. 461, 125 Pac. 279. 20 Prior v. Downey, 50 Cal. 388; Coon v. Cook, 6 Ind. 268; Burrell v. Chicago M. & St. P. By. Co., 43 Mina. 363, 45 N. W. 849; Griggs' Appeal, 101 Pa. 412. (536) Chap. 26] BECOVEBY OF LANDS SOLD. 342 ters have lawfully issued from a court having juris- diction. The weight of authority is that if the court of probate did not acquire jurisdiction to grant the letters, the district court has no authority to hear and determine his petition for the sale of his decedent's realty, and that a sale under such circumstances is subject to collateral attack. 21 The general rule regulating collateral attack on the appointment of an executor, administrator or guardian is that, where the jurisdiction depends upon some col- lateral fact, which can be decided without deciding the case on the merits, then the jurisdiction can be questioned collaterally and disproved, even though the jurisdictional facts be averred of record, and were actually found from evidence, by the court rendering the judgment or decree, to exist. 22 Where the question involved is one which goes to the very gist of the suit, so that it cannot be decided without going into the merits of the original action or proceeding itself, then the order is collaterally con- clusive, because the question cannot be tried without retrying the case on its merits, which is not permissible in a collateral proceeding. 23 21 Washington v. McCaughan, 34 Miss. 304; Haug v. Primeau, 98 Mich. 91, 57 N. W. 25; Templeton v. Falls Land & Cattle Co., 77 Tex. 55, 13 S. W. 964; James v. Meyer, 41 La. Ann. 1100, 7 South. 618; Hyde v. Redding, 74 Cal. 493, 16 Pac. 380. 22 Holyoke v. Haskins, 5 Pick. (Mass.) 20; Jochumsen v. Suffolk Sav. Bank, 3 Allen (Mass.), 87; Wanzer v. Rowland, 10 Wis. 8; Sears v. Terry, 26 Conn. 273; Salladay v. Bainhill, 29 Iowa, 555; Burns v. Van Loan, 29 La. Ann. 560. 23 Staples v. Fairchild, 3 N. Y. 41; Angell v. Bobbins, 4 E. I. 493; Brown v. Foster, 6 B. I. 564. (537) 342 PEOBATE AND ADMINISTRATION. [Cliap. 26 In the appointment of a personal representative, either executor, administrator or guardian, the court which issued the letters is presumed to have acted upon sufficient evidence, and therefore, where it has acted upon a petition which sets up the necessary juris- dictional facts, and it appears that notice has been given to all parties in interest in the manner prescribed by law, and letters issued, the proceedings cannot be collaterally avoided by evidence that the necessary facts were not established. 24 The appointment of the wrong person one not entitled to letters cannot be questioned collaterally. 25 Irregularities in the appointment of an administra- tor de bonis non are not grounds of collateral attack upon sales made by him. The weight of authority is that, when the court has once acquired jurisdiction over the estate, the removal or discharge of one ad- ministrator, and the appointment of another, upon grounds not recognized by law, or in a manner not authorized by the statutes, are simply errors touching the administration of the estate, and do not in any way affect his sales of realty by order of the court. 26 24 Andrews v. Avory, 14 Gratt. (Va.) 236; Sutton v. Button's Estate, 13 Vt. 71; Abbott v. Coburn, 28 Vt. 663; Seward v. Didier, 16 Neb. 58, 20 N. W. 12; Moore v. Philbrick, 32 Me. 102. 25 Pick v. Strong, 26 Minn. 303, 3 N. W. 697; Eamp v. McDaniel, 12 Or. 108, 6 Pac. 456; Brubaker v. Jones, 23 Kan. 411. 26 Boody v. Emerson, 17 N. H. 577; Culver v. Hardenbergh, 37 Minn. 225, 33 N. W. 792; Duffin v. Abbott, 48 111. 17. Contra, Dooley v. Bell, 87 Ga. 74, 13 S. E. 284; Kamerer v. Morlock, 125 Mieh. 320, 84 N. W. 319. (538) Chap. 26] RECOVERY OF LANDS SOLD. 343,344 343. Attacking the license The petition. The records in the proceeding must show that a good petition was filed by the executor or adminis- trator in the court which had jurisdiction of such pro- ceeding. 27 Recitals in the order of confirmation that such petition was duly filed when neither the records of the proceeding nor the files show that such was the case make the sale subject to collateral attack. 28 If the record shows a petition containing sufficient allegations to give jurisdiction filed in the proper court and that it has been acted upon as sufficient by such court, in the absence of fraud or collusion, 29 defects and irregularities in the petition itself cannot be in- quired into collaterally, 30 but defects in the petition in giving the names and residences of the parties inter- ested in the estate, and a consequent defective and insufficient service upon them, made the sale void. 31 A failure to verify the petition does not affect the jurisdiction of the court, and is therefore an insuffi- cient ground of attack. 32 344. Attacking the license Order to show cause or citation. While there is some authority to the effect that an executor's or administrator's sale cannot be attacked 27 Schroder v. Wilcox, 39 Neb. 136, 57 N. W. 1031; Veeder v. Mc- Kinley-Lanning & L. T. Co., 61 Neb. 892, 86 N. W. 982. 28 Ball v. Collins (Tex.), 5 S. W. 622. 29 Seymour v. Bicketts, 21 Neb. 240, 31 N. W. 781. 30 Smith v. Barr, 83 Minn. 354, 86 N. W. 342; Phillips y. Phillips, 23 S. D. 231, 83 N. W. 94. 31 Smith v. Whiting, 55 Or. 393, 106 Pac. 790. 32 Trumble v. Williams, 18 Neb. 144, 24 N. W. 716; Johnson v. Jones, 2 Neb. 126. (539) 344 PEOBATE AND ADMINISTRATION. [Chap. 26 collaterally for the want of an order to show cause or a citation, when the record shows a regular confirma- tion, 33 the weight of authority is all the other way. Its sufficiency, where the court found that " proper notice" was given to all persons interested according to law, will not be impeached on collateral attack, such grounds alone being insufficient to set aside the sale, 34 unless it also appears from the records that the pro- visions of the statutes and the order of the court for the service of the .process have not been complied with. 35 Jurisdiction of the court will not be presumed, and it should appear from the records of the proceed- ings for the sale that the court obtained the power to grant the order of sale by a legal service of process. 36 In the case of service by publication, and the records fail to show that the order was published as directed by the court, extrinsic evidence that the publication was actually made will cure the defect. 37 The sale will be held invalid at the suit of an heir when he, while a minor, or his guardian for him, 33 Spurgin v. Bowers, 82 Iowa, 187, 47 N. W. 1029; Ryan v. Fergusson, 3 Wash. 356, 28 Pac. 910; Appeal of Kelsey, 47 Ark. 413, 2 S. W. 102. 34 Moore v. Neil, 39 111. 256; Moffitt v. Moffitt, 69 111. 641; Stow v. Kimball, 28 111. 93. 35 Fiske v. Kellogg, 3 Or. 503; Smith v. Whiting, 55 Or. 393; Chicago K. & N. Ey. Co. v. Cook, 43 Kan. 83, 22 Pac. 988; Dickinson v. Dickin- son, 124 111. 483, 16 N. E. 861. 36 Knapp v. Wallace, 50 Or. 354, 92 Pac. 1054; Northcutt v. Lemery, 8 Or. 316; Smith v. Whiting, 55 Or. 393, 106 Pac. 790, holding that where the order of sale recites that due service was had, but that the only service on resident heirs was by publication, the sale was subject to collateral attack. 37 Schroeder v. Wilcox, 39 Neb. 136, 57 N. W, 1031. (540) Chap. 26] BECOVEBY OF LANDS SOLD. 345 waived service of the order; 38 also where an attorney entered an appearance for him and there was no ser- vice or attempted service of process on him. 39 345. Jurisdictional irregularities. A sale made by a personal representative under au- thority of a license issued by a district judge at cham- bers is voidable and the heir or devisee can recover the lands, unless the petition, the order to show cause, the proof of service of same, and the license are on file in the office of the clerk of the district court of the county from which his license issued. 40 The power to make the sale must be proved by the record which the law directs shall be kept, 41 so that although the power granted a district judge at chambers to grant a license carried with it the implied power to deter- mine the necessity of the sale, and the sufficiency of the pleadings, and when jurisdiction is once obtained the order or judgment rendered is valid until set aside in direct proceedings, 42 if the record of the proceed- ings for sale have not been perpetuated as required by the statute by filing all such papers with the clerk of the district court, there is no lawful evidence of such sale and an heir can have it set aside. 43 The statute requires the license to give a description of the lands to be sold, but on collateral attack a full, 38 Winston v. McClendon, 43 Miss. 254; Dickison v. Dickison, 124 HI. 483, 16 N. E. 861 ; Ingersol v. Mangam, 84 N. Y. 622. 3 Bonnell v. Holt, 89 111. 71. 40 Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982. 41 Stack v. Royce, 34 Xeb. 833, 52 N. W. 675. 42 Trumble v. Williams, 18 Xeb. 144, 24 N. W. 716. 43 Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N. W. 982. (541) 346,347 PROBATE AND ADMINISTRATION. [Chap. 26 complete and definite description is not necessary. A description sufficient to enable a person to identify the land, it is held, complies with the law. 44 Failure to appoint a guardian ad litem of a minor at the hearing on the petition for license is not a ground for setting aside the sale. 45 The grant of a license on the date for hearing fixed by the district judge, which date was four days short of the six weeks required by law, is an irregularity only, and will not avoid the sale, nor is evidence that no claims were ever allowed a cause for setting it aside. 46 346. Failure to give bond. The issue of an order of sale to an executor, admin- istrator or guardian confers upon him an additional duty and responsibility beyond that contemplated in his appointment and his original bond, that of using his best endeavors to dispose of the property to advan- tage, and of making a disposition of the proceeds according to law and the directions of the court; and the heir or former ward can always recover when he shows that no bond was given and approved. 47 Ex- trinsic evidence is admissible to show that the bond was in fact given and approved. 48 347. Failure to take the oath. The heir or former ward will be entitled to recover the property when he shows that the oath was not 44 Robertson v. Johnson, 37 Tex. 52; Doe d. Clements v. Henderson, 4 Ga. 148 ; Money v. Turnipseed, 50 Ala. 499. 45 McClay v. Foxworthy, 18 Neb. 295, 25 N. W. 86; I. O. L., 1255. 46 Haight v. Hayes, 3 Neb. Unof . 587, 92 N. W. 297. 47 Stewart v. Bailey, 28 Mich. 251; Babcock v. Cobb, 11 Minn. 347 (Gil. 247); Melcher v. Schluter, 5 Neb. Unof. 445, 98 N. W.. 1082. 48 Myers v. MeGavock, 39 Neb. 843, 58 N. W. 522. (542) Chap. 26] RECOVERY OF LANDS SOLD. 348 taken before the sale was made; 49 taking it after the sale would not make the sale valid. 50 If the oath fail to comply with the wording of the statute, but be of substantially the same effect, the plaintiff will not be entitled to recover; 51 nor can he recover where the oath is not marked "Filed," but appears to have been regu- larly taken, and is in the files of the case. 52 Parol evidence is competent to show that an oath which appears to have been taken after the sale was actually taken in proper time. 53 348. Notice of time and place of sale. The giving of notice of the time and place of sale is one of the five things necessary under the statute to make a sale good on collateral attack. Where no- tice is essential, as it is in this state, it has been held that its failure to state the place in the city or town where the sale would be held, merely naming the town alone, 54 or failure to give the hour when it would be held, 55 or where it was not both posted in three of the most public places in the county and published for the required time before the sale in the newspaper which the court directed, it was voidable and subject to collateral attack. 56 < Campbell v. Knights, 26 Me. 224; Parker v. Nichols, 7 Pick. (Mass.) Ill; Howe v. Blomenkamp, 88 Neb. 389, 129 N. W. 539. 50 Ryder v. Flanders, 30 Mich. 336; Thornton v. Mulquinne, 12 Iowa, 549; Blackman v. Baumann, 22 Wis. 611. 51 Montour v. Purdy, 11 Minn. 384; Frazier v. Steenrod, 7 Iowa, 339. 52 West Duluth Land Co. v. Kurtz, 45 Minn. 380, 47 N. W. 1134. 53 Norman v. Olney, 64 Mich. 533, 31 N. W. 555. 64 Hartley v. Croze, 38 Minn. 325, 37 N. W. 449. 55 Trustees of Schools v. Snell, 19 111. 156. 66 Kempe v. Pintard, 32 Miss. 324. (543) 349 PROBATE AND ADMINISTRATION. [Chap. 26 349. Compliance with order of sale. An executor's or administrator's sale which is not made by or under the direction of such representative is void. No one else can be appointed to make it. 57 A slight variation in the time of the day the sale is held from that stated in the notice is an irregularity only, 58 and is cured by confirmation. 59 A sale at another place than that given in the notice, or at a different place from that to which it had been adjourned, are voidable, and the lands may be recov- ered. 60 The sale must be at public auction. A private sale vests no title in the purchaser as against the heirs or those claiming under them. 61 A failure to sell in parcels when so ordered by the license is an irregularity which is cured by confirma- tion, and on that ground alone no recovery can be had. 62 Courts apply a very liberal rule when a doubt exists as to whether a sale has been confirmed. If the pro- ceedings were regular, the records and files showing 57 Jarvis v. Kusick, 12 Mo. 63; Crouch v. Eveleth, 12 Mass. 503; Chambers v. Jones, 72 111. 275. 58 Meyers v. Carter, 37 N. C. 146. 5 Tippett v. Mize, 30 Tex. 365. 60 Hall v. Ray, 40 Vt. 576; Murphy v. Hill, 77 Ind. 139; Paulsen v. Hall, 39 Kan. 365. 61 Hutchinson v. Cassidy, 46 Mo. 431; Caines v. De La Croix, 6 Wall. (U. S.) 719; Neal v. Patten, 40 Ga, 363; Van Horn v. Ford, 16 Iowa, 578. In the latter case the heir was permitted to recover the land from an innocent purchaser eighteen years after the sale was made and con- firmed. 62 McCampbell v. Durst, 73 Tex. 410, 11 S. W. 380; Osman v. Trap- hagen, 23 Mich. 80. (544) Chap. 26] BECOVEEY OF LANDS SOLD. 350 that the purchaser was entitled to the order, deed given, the land paid for, possession given, no question of fraud raised, almost anything in the shape of an order or memorandum is sufficient confirmation, 63 and a notation on the judge's docket, "Sale confirmed, deed ordered," has been held ample evidence of confirma- tion. 64 350. Purchase by disqualified party. Another good cause for recovering the land sold is its purchase by the personal representative through a third party and later deeded to him. A transfer to him of the property soon after the sale is presump- tively fraudulent. 65 If it is made a considerable time afterward, fraud will not be presumed, but must be established by other evidence than that appearing on the face of the records. 66 Instead of an action to quiet title to the land in the heir or devisee, he may elect to hold the purchaser as a trustee, holding the legal title for the benefit of those interested. 67 He is a trustee ex maleficio, and the trust so far void in equity that it can be set aside by 63 Moody v. Butler, 63 Tex. 210; In re Harvey, 16 111. 127. 64 Camden v. Plain, 91 Mo. 117, 4 S. W. 86. It has been held that where all proceedings are regular, no confirmation is necessary. Learned v. Mathews, 40 Miss. 210. 65 Whipff v. Heder, 6 Tex. Civ. App. 685, 26 S. W. 118; Bergin v. Haight, 99 CaL 52, 33 Pac. 760; Fisher v. Bush, 133 Ind. 315, 32 N. E. 924. 66 Stephen v. Beall, 22 Wall. (U. S.) 329; Michoud v. Girod, 4 How. (U. S.) 503. 67 Siting v. Biggsville Xat. Bank, 173 111. 368, 50 JS T . E. 1095; Stuckey T. Lockhard, 87 Ark. 232, 112 S. W. 747. 35 Pro. Ad. (545) 351 PROBATE AND ADMINISTRATION. [Chap. 26 the cestui que trust on account of the purchase being by or for the person selling. 68 351. Fraud. Any fraudulent scheme or combination between the executor or administrator and an heir, guardian or purchaser which causes a loss to the estate is good cause for collateral attack. A sale so made is void- able, but cannot be set aside where the same facts were brought before the court on objections to confirma- tion. 69 A sale at an inadequate price is always evi- dence of fraud, 70 and if accompanied by other evidence, is sufficient to set aside the sale. In many cases but little other evidence is necessary; as where land was sold to a party who was a close friend and confidential adviser of the executor, 71 or the administrator was the only creditor and the land sold for just enough to pay his claim. 72 Willful misrepresentation of the quality or produc- tiveness of the land, or facts showing that there was a combination with the administrator to keep parties from bidding and that consequently a smaller price was received than the property was worth, are suffi- cient to avoid the sale. 73 68 Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 252; Glass v. Greathouse, 20 Ohio, 503; Brackenridge v. Holland, 2 Blackf. (Ind.) 377; Bergin v. Haight, 99 Cal. 52, 33 Pac. 760. 69 Gordon v. Gordon, 55 N. H. 399. 70 Webster v. Calden, 52 Me. 203; Kimball v. Lincoln, 98 111. 578; Williams v. Johnson, 112 N/C. 424, 17 S. E. 496. 71 Barnawell v. Threadgill, 56 N. C. 50. T2 Humes v. Cox, 1 Finn. (Wis.) 551. 73 McQueen v. McDaniel, 18 Ky. Law Rep. 954, 35 S. W. 880; Man- ning v. Mulrey, 192 Mass. 547, 78 N. E. 551; Jones v. French, 92 Ind. 138. (546) Chap. 26] KECOVERY OF LANDS SOLD. 352 A sale will be set aside where it appears from the appointment of the administrator down to the date of the deed a scheme was carried out to get possession of valuable property at a small price. 74 352. Rights of purchaser at void or voidable sale. A purchaser at an executor's or administrator's sale which is later set aside has been uniformly held to be entitled to receive back the money which he has paid in and which has been paid out in satisfaction of the debts of the estate, 75 in satisfaction of encumbrances on the estate, 76 and for taxes. 77 He is substantially subrogated to the rights of parties who have charges against the land. Any other rule would be to appro- priate one man's property to the use of another. 78 He is also entitled to payment for any increase in the value of the land on account of improvements he has put on it. 79 He must account for the rents and profits received. 80 74 Bergin v. Haight, 99 CaJ. 52, 33 Pac. 760, in which a party fraudu- lently procured the appointment of his agent as administrator, had fraudulent claims allowed against the estate, and the land sold for a meager price by his agent, and sale confirmed and deed ordered to him. He th:n sold to a third party, but the fraud was so flagrant all through the administration that a purchaser from the heirs was permitted to have the deed set aside. 75 Cole v. Boyd, 68 Neb. 146, 93 N. W. 2003; Blodgett v. Hitt, 29 Wis. 169; Baker v. Martin, 156 Ind. 53, 59 X. E. 174. 76 Holz v. Burling, 84 Neb. 211, 120 N. W. 954, in which the heir repudiated the sale on account of the land being a homestead. 77 Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099. 78 Valie v. Fleming, 19 Mo. 454; Hudgin v. Hudgin's Exr., 27 Gratt. (Va.) 304; Winslow v. Crowel, 32 Wis. 639. 7 Miller v. Rich, 204 111. 444, 88 N. E. 488; Mulford v. Minch, 11 N. J. Eq. 16; Hatcher v. Briggs, 6 Or. 31. 80 Cole v. Boyd, 68 Neb. 14G, 93 N. W. 1000. (547) CHAPTER XXVII. PAYMENT OF DEBTS AND EXPENSES. 353. Time Within Which Debts are Payable. 354. Time Granted an Administrator De Bonis Non to Pay Debts. 355. Assets Liable for the Payment of Debts. 356. Order of Application of Personalty to Payment of Debts. 357. Direction in Will for Payment of Debts. 358. Debts Charged on the Real Estate. 359. Assets not Liable for Debts. 360. Adjustment of Liens on Realty. 361. Liability of Heirs, Legatees and Devisees for Payment of Debta. 362. Actions Against Heirs, Devisees and Legatees. 363. Actions Against Executors and Administrators. 364. Executor or Administrator not Subject to Garnishment. 365. Classification of Claims for Payment of Debts. 366. Interest on Claims. 367. Order for Payment of Claims. 368. Payment, How Made. 369. Liability of Executor or Administrator to Creditors. 353. Time within which debts are payable. The debts of an estate should be paid as soon after their allowance as the assets will permit. No claim should be paid before it is allowed, and any agreement between the claimant and an heir, legatee or devisee for the payment of an ordinary unsecured claim which has not been regularly filed and approved by the county judge is not binding on the estate. 1 The time first fixed for their payment is not to exceed eighteen months. 2 Extensions may be granted as the circumstances may require, and not exceeding six months at a time, not extending the entire time beyond 1 Johnson v. Pulver, 1 Neb. Unof. 290, 95 N. W. 697. 2 Rv. Stats., c. 17, S 127, [1391]. (548) Chap. 27 J PAYMENT OF DEBTS AND EXPENSES. 353 three years, on application of the executor or admin- istrator. 3 If the time first fixed was less than a year and a half, extensions up to that time may be granted by the court without notice to parties interested. Whenever application is made for an extension beyond one year and six months from e the date of letters, notice is required to be given all parties interested of the pendency of the application, and of the time and place set for hearing the same by publication for three successive weeks in some newspaper to be designated by the court, and no order extending the time shall be granted unless such notice shall have been previously given. 4 Form No. 159. APPLICATION FOE EXTENSION OF TIME FOR PAYMENT OF DEBTS. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that he is the duly appointed executor of said estate; that heretofore, to wit, an order of said court was made and entered fixing the date for the payment of tne debts and legacies of the said deceased at one year and six months from said date, which time will elapse on the day of - , 19 , and that debts and demands have been allowed against said estate in the sum of dollars; that said estate is solvent, and able to pay all debts in full; that he will be unable to collect the assets of said estate, owing to his being obliged to bring suits against G. H. and E. F. for the recovery from them of demands : due said estate, and which said suits are now pending in the court of county, Nebraska, and on account of his inability toisell; a sufficient amount of said estate for a sum equivalent to said debts and legacies within the time fixed by this court for the payment of said debts and legacies; that he has a reasonable expectation of col- lecting all the assets of said estate, or sufficient thereof to satisfy all of said debts, legacies, and expenses within six months. 3 Rev. Stats., c. 17, 128, [1392]. 4 Rev. Stats., c. 17, 129, [1393], (549) ' 353 PROBATE AND ADMINISTRATION. [Chap. 27 Wherefore, your petitioner prays that the court may appoint a time and place for hearing and deciding upon said application, and cause notice of the pendency thereof to be given to all persons interested, in the manner prescribed by law, and that, upon said hearing, the time for paying said debts and legacies and settling said estate be extended for the period of six months from the day of , 19 . Dated this day of , 19. (Signed) C. D., Executor Estate of A. B. [Add verification, Form No. 5.] Form No. 160. NOTICE OF APPLICATION TO EXTEND TIME FOR PAYING DEBTS. [Title of Cause and Court.] To All Persons Interested in the Estate of A. B., Deceased: Notice is hereby given that C. D., executor of said estate, on the day of , 19 , filed his application in said court, pray- ing that the time heretofore, by order of said court, allowed for the payment of debts and legacies and settling of said estate, be extended for the period of months to the day of , 19 . It is further ordered that notice of the pendency of this petition, and of the time and place for the hearing of the same, be given to all per- sons interested in said estate by publication once each week for four successive weeks in the , a newspaper published in said county. Dated this day of , 19. (Signed) J. K., County Judge. Form No. 161. ORDER EXTENDING TIME FOR PAYMENT OF DEBTS AND LEGACIES. [Title of Cause and Court.] This matter came on for hearing upon the application of C. D., ex- ecutor of said estate, praying that the time fixed by the court for the payment of the debts and legacies of said estate be extended for the period of six months, and to the day of , 19 , and was submitted to the court. The court finds that due notice of the pendency of said petition has been given by publication in. the manner prescribed by law, and that (550) Chap. 27] PAYMENT OF DEBTS AND EXPENSES. 353 the circumstances of the case require that the executor be granted further time for the payment of said debts and legacies. It is therefore ordered that the time fixed by the court for the pay- ment of said debts, legacies, and expenses be extended for the period of , and to the day of ; 19 . (Signed) J. K., County Judge. Under the Oregon practice, the county court, at the first term after the filing of the first semi-annual ac- count, ascertains and determines if the estate be suffi- cient to pay the claims presented and allowed during that period, together with the funeral charges and expenses of administration, and if he so finds, an order is entered for that purpose, but if the estate is insuffi- cient, he shall ascertain what per centum of claims it is sufficient to satisfy, and order and direct accord- ingly. Similar orders are entered at the close of each six months' period thereafter. 5 Claims not due are ordered paid at their present value. 6 Claims filed within the six months' period fixed by the statute take precedence over those presented later, and payment of the later claims is postponed until those presented within the first six months are satis- fied. 7 The order of the court for their payment, ex- cepting only those demands allowed by the county court in special proceedings on claims, or which have been reduced to judgment against the representative, afford him no protection as against objections to their allowance on the final hearing on his account. 8 He may pay claims without first obtaining an order of the court, but incurs an additional liability should he pay them out of order or the court refuse for any reason to approve his acts. 9 L. O. L., 1284. L. O. L., 1301. 7 In re Murray's Estate, 56 Or. 138, 107 Pac. 19. 8 In re Chambers' Estate, 38 Or. 134, 62 Pac. 1013. Tostel T. Morat, 19 Or. 183, 23 Pac. 900. (551) 354,355 PROBATE AND ADMINISTRATION. [Chap. 27 354. Time granted an administrator de bonis non to pay debts. When an administrator de bonis non is appointed, it is the duty of the court to make an order allowing a time for disposing of the estate unadministered, and paying the debts and legacies, which time shall not, in the first instance, exceed one year for the time such new administrator shall be appointed, and it may be extended upon like notice and in like manner as in the case of an original executor or administrator. 10 The statute, however, is not construed as taking away the liability of an executor or administrator to make an immediate payment when demanded upon a decree for the distribution of the assets among creditors, legatees or heirs at law. The new administrator has the same length of time as is allowed his predecessor for closing up the estate, the three years commencing to run from the time of his appointment. 11 355. Assets liable for the payment of debts. All property which a person owned at the time of his death, excepting only that which he cannot devise or bequeath, and that necessary for the payment of the expenses of administering his estate, together with that which has been recovered by the personal repre- sentative from the persons to whom he fraudulently transferred it, 12 is liable for the payment of his debts. 13 10 Rev. Stats., c. 17, 130, [1394]. 11 Saxon v. Gain, 19 Neb. 488, 26 N. W. 385. 12 Section 212, supra. 13 Norton v. Norton, 5 Gush. (Mass.) 524; Lunn v. Yeaton, 3 Crancb C. C. 182, Fed. Gas. No. 8642. (552) Chap. 27] PAYMENT OF DEBTS AND EXPENSES. 355 A testator cannot by will exempt any part of his property from such liability to the prejudice of his creditors, 14 nor direct that any preference other than that made by law be given one creditor or class of creditors over another. 15 Personal property is the primary fund for the pay- ment of the debts of an intestate. In the case of a testate estate, if the will contains no direction for their payment, or clause setting out any part of the estate for that purpose, they will be paid from the personalty. In order to make them a charge upon the realty, it must clearly appear from the will that it was the intention of the testator that his defrts be paid from his real estate. 16 If the will makes provisions for the debts, or desig- nates the particular portion of the estate to be appro- priated therefor, then they are to be paid accordingly out of the estate so appropriated, as far as the same shall be sufficient. 17 If such provisions are not suffi- cient, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be applied, according to the provisions of the law, for that purpose. 18 The estate, real or personal, given by will to any devisee or legatee shall be held liable for the payment of the debts and expenses of adminis- H Magruder v. Carroll, 4 Md. 335; Henderson's Succession, 113 La. 101, 36 South. 904. is Peering v. Kerfoot, 89 Va. 491, 16 S. E. 671. 16 Leigh v. Savidge's Exrs., 14 N. J. Eq. 124; Bragaw v. Bolles, 51 N. J. Eq. 84, 25 Atl. 949; Adams v. Brackett, 5 Met. (Mass.) 280; Arnold v. Dean, 61 Tex. 249; Cadmus v. Combes, 37 N. J. Eq. 264. 17 Rv. Stats., c. 17, 52, [1316]. 18 Kev. Stats., c. 17, 53, [1317J. (553) 356, 357 PROBATE AND ADMINISTRATION. [Chap. 27 tration in proportion to the amount of the several legacies and devises, except the specific devises and legacies, and the persons to whom they shall be made, shall be exempt if it appear to the court necessary in order to carry out the intention of the testator, and there be other sufficient estate. 19 356. Order of application of personalty to payment of debts. The order in which personal property may be taken for debts depends very largely on the terms of the will. Where there is no property designated for the debts and no direction for their payment, the rule is the same as in case of devises, and general legacies should be first exhausted before specific legacies are taken, 20 and the residuary personalty will be applied before general legacies. 21 The effect of the words so frequently found in wills, "after the payment of all my just debts," is to post- pone the vesting of all legacies and devises until they are paid, thus making the debt, unless the will contain other directions, a charge upon the entire estate, the same as if debts were not mentioned. 22 357. Directions in will for payment of debts. A clause in a will directing the payment of the debts from certain property makes such property a primary i Eev. Stats., c. 17, 54, [1318]. 20 In re De Bernal Estate (Cal.), 131 Pac. 375; In re Martin's Estate, 25 R. I. 1, 54 Atl. 589. 21 Stevens v. Underbill, 67 N. H. 68, 36 Atl. 370; Brown v. Brown, 41 N. Y. 507; L. O. L., 1251; Howe v. Kern, 62 Or. 496, 125 Pac. 837. 22 Shallcross v. Finden, 3 Ves. 738. (554) Chap. 27] PAYMENT OF DEBTS AND EXPENSES. 358 fund, and to that extent releases the rest of the estate from liability. 23 A direction to the executor to pay all the debts makes them a primary charge on that part of the estate which comes into his possession pending administra- tion, to wit, the personalty and the income from the realty, 24 and if he is a devisee or legatee, they would be a charge on his devise or legacy. 25 The word "debts," as used in wills, will generally be held to include any claim which can be allowed against the estate, 26 and also debts secured by mort- gage. 27 358. Debts charged on real estate. The common-law rule is that in order to charge the debts on the real estate and exonerate the personalty there must be an express direction to that effect in the will. 28 It is not necessary that this be done in so many words. It is sufficient if that intent be gathered from t"he instrument as a whole, or its conditions are such that they cannot be complied with were the debts to be paid from the personalty, 29 and in order to entirely shift the primary liability from the personal to the 23 Smith v. Wyckoff, 11 Paige (N. Y.), 49; Newport v. Newport, 5 Wash. 113, 31 Pac. 428. 24 Cook v. Dawson, 29 Beav. 126. 25 Reynolds v. Reynolds' Exrs., 16 N. Y. 257; Shallcross v. Finden, 3 Ves. 738; Williams v. Chitty, 3 Ves. 345. 26 Rogers v. Rogers, 3 Wend. (N. Y.) 503, 20 Am. Dec. 716. 27 Turner v. Laird, 68 Conn. 198, 35 Atl. 1124; French v. Vraden- burgh, 105 Pa. 10. 28 Tait v. Northwick, 4 Ves. 823. 29 Wright's Appeal, 12 Pa. 256; Tracy v. Tracy, 15 Barb. (N. Y.) 503; Seaver v. Lewis, 14 Mass. 83; Bugbee Y. Sargeant, 27 Me. 38. (555) 359 PROBATE AND ADMINISTRATION. [Chap. 27 real estate, it must appear that such was the clear in- tention of the testator. 30 If the personal estate is all specifically bequeathed, and the real estate ordered sold for the payment of debts, the personalty will be released. 31 The tendency of the more recent decisions is to get away from the common-law rule and to hold that a general intention, instead of a specific, express or im- plied direction, is sufficient to charge the debts on the real estate. 32 If the will directs that the real estate be sold, and the proceeds, together with the personal estate, charged with the payment of the debts, the two species of property would be liable in proportion to their re- spective values. 33 If realty and personalty are both charged with payment of the debts, the personalty still remains the primary fund. 34 359. Assets not liable for debts. Damages recovered under the statute for causing the death of the decedent by the wrongful act, neglect or default of another are not liable for his debts, but are for the exclusive benefit of his next of kin. 35 30 Crone's Appeal, 107 Pa. 571; Calder v. Curry, 17 B. I. 610, 25 Atl. 103. 31 Hoes v. Van Hoesen, 1 Barb. Ch. (N. Y.) 400. 32 Kiswetter v. Kress, 24 Ky. Law Rep. 1239, 70 S. W. 1065; Jackson v. Bevins, 74 Conn. 96, 49 Atl. 890; McKinley v. Coe ; 66 N. J. Eq. 70, 57 Atl. 1030. 33 Turner v. Turner, 57 Miss. 775. 34 2 Redfield on Wills, 210. 35 Eev. Stats., c. 17, 164, 165, [1428], [1429]. It has been held that the personal representative who recovers such damages is entitled to retain therefrom his legal commission, including anything above the (556) Chap. 27] PAYMENT OP DEBTS AND EXPENSES. 360 In Oregon such assets are equally liable for debts with other property. 36 Advancements, though required to be deducted from the share accruing to the heir, are not considered, in the strict sense of the term, as assets of the estate, that is, as far as the payment of the debts is concerned, an executor or administrator cannot recover them from the heir, even though the estate be insolvent. 37 360. Adjustment of liens upon realty. It is an old established rule of law that an admin- istrator has the right to satisfy a mortgage debt from the personal assets of the estate, thus relieving the realty from the encumbrance; 38 and it has been held that the heir may compel the application of the per- sonalty to the discharge of a mortgage, except he dis- pose of his entire interest in the estate or in the realty. 8 * There is little to be gained from such a course. The heir might just as well receive his share in cash, and apply it to the satisfaction of the mortgage, as to com- pel the personal representative to pay it. In Oregon the redemption of property from the lien of mortgages is largely within the direction of the county court. If the deceased left any property, either real or personal, under mortgage, and did not devise or provide for the redemption of the same by will, the regular percentage which the court may adjudge to be due him for special services and a reasonable fee for his attorney. Baker v. Raleigh & G. R. Co., 91 N. C. 308. 30 Section 263, supra. M 2 Bl. Com. 513; Wilson v. Soper, 13 B. Mon. (Ky.) 411; L. 0. L., 7854i 38 Sutherland v. Harrison, 86 111. 363. 30 Haven v. Foster, 9 Pick. (Mass.) 112, 19 Am. Dec. 353. (557) 360 PROBATE AND ADMINISTRATION. [Chap. 27 county court or judge, on the application of an heir, creditor or other person interested in the estate, may order the executor or administrator to redeem such property out of the proceeds of the other personal property, if it appears that such redemption would be for the interest of the estate, and not prejudicial to creditors. 40 If redemption is not ordered, the court shall enter an order for the sale of the property in the same manner as sales of other lands for the payment of debts. The conveyance covers the equity of the estate only in the property. 41 After the return to the order of sale and ten days before making an order for the application of the pro- ceeds, the mortgagee or other person to whom the debt secured by such mortgage is payable shall be cited to appear and show the amount of his debt; and may file objections to the report of the expenses of the proceed- ing and sale. The proceeds are applied in payment of the expenses of the sale, but not including general administration expenses or compensation of the repre- sentative; secondly, to the satisfaction of the debt, and the residue is applied in due course of administration. 42 If the mortgage is not due, the party entitled to it shall receive its present value. 43 The right of the party holding the mortgage or other lien to a foreclosure or to enforcement of a judgment or decree is not affected by the statute. 44 In regard to testate estates, the rule is necessarily different, the will often containing provisions setting apart certain property for the payment of debts, or a clearly expressed intention that the devisee should take subject to the encumbrance. If it clearly appears 40 L. O. L., 1271; Howe v. Kern, 62 Or. 496, 125 Pac. 833. 41 L. O. L., 1272; Howe v. Kern, supra. 42 L. O. L., 1273; Shephard v. Saltzman, 34 Or. 43, 54 Pac. 882. 43 L. O. L., 1274. 44 Verdier v. Bigne, 16 Or. 210, 19 Pac. 64; L. 0. L., 1274. (558) Chap. 27] PAYMENT OF DEBTS AND EXPENSES. 360 from the terms of the will that it was the intention of the testator that the devisee should take subject to the encumbrance, the personal estate cannot be used for that purpose; otherwise, the same rule applies as in the case of intestate estates; 45 and the same would be true of the payment of vendors ' liens upon the realty. 48 Taxes upon the realty accruing previous to the death of the decedent should be paid from the personalty. Those accruing after his death are a charge upon the land, and the heir or devisee takes subject to them, 47 and the statute does not require them to be paid by the personal representative, 48 except when he takes posses- sion of the same. 49 Though at common law the devisee of encumbered real estate or legatee of encumbered personalty was entitled to have the same paid, 50 they were not payable from specific bequests or from the proceeds of other devised lands. 51 If the mortgage was on the land at the time it came into testator's possession, the devisee took the property subject to the lien. 52 45 Keene v. Munn, 16 X. J. Eq. 398; Lennig's Estate, 52 Pa. 135. 46 Henderson v. Whitinger, 56 Ind. 131. 4" Henderson v. Whitinger, 56 Ind. 131; Lamport v. Beeman, 34 Barb. (X. Y.) 239. 48 Rev. Stats., c. 17, 102, [1366], 49 Patrick v. Patrick, 72 Neb. 454, 100 X. W. 939. 50 Richardson v. Hall, 124 Mass. 228; Plimpton v. Fuller, 11 Allen (Mass.), 139; Thompson v. Thompson, 4 Ohio St. 333; Hoff's Appeal, 24 Pa. 203; Johnson v. Goss, 128 Mass. 433. 51 Frazier v. Littleton, 100 Va. 9, 40 S. E. 108; 2 Jarman on Wills, 626, 634. 52 Thompson v. Thompson, 4 Ohio St. 333; Andrews v. Bishop, 5 Allen (Mass.), 403. (559) 361 PROBATE AND ADMINISTRATION. [Chap. 27 361. Liability of heirs, legatees and devisees for the payment of debts. Whenever, pending the settlement of the estate, any of the personal assets thereof shall have been trans- ferred by the personal representative to the heirs or legatees, and it shall subsequently appear that the per- sonalty still remaining in the hands of the executor or administrator is insufficient to pay the debts in full, it is the duty of such legatee or heir to return to the personal representative the assets transferred to him, or enough thereof to pay the debts. Such liability fre- quently arises in the case of contingent claims. When a contingent claim shall be presented within one year from the time it shall accrue, and be established, and the executor or administrator shall not have sufficient to pay the whole of said claim, the creditor shall have the right to recover the whole or a part of his claim as the executor or administrator has not assets to pay, against the heirs, devisees or legatees who. shall have received sufficient real or personal property from the estate. 53 When the heirs, devisees or legatees shall have received real or personal estate, and shall be liable for any debts by reason of the executor or adminis- trator not having in his possession enough property to pay the same, it having been transferred to such heirs, devisees or legatees, they shall be liable in proportion to the estate they may have respectively received ; and the creditor may have any other action or suit at law or in equity, and shall have the right to recover his claim against a part or all of such devisees, heirs or 53 Rev. Stats., c. 17, 144, 145, [1467], [1468]. (560) Chap. 27] PAYMENT OF DEBTS AND EXPENSES. 361 legatees to the amount of the estate they may have re- spectively received. 54 This action is not an original one, but a special pro- ceeding for the enforcement and collection of a claim previously allowed, and it has been held to have been properly brought in the district court. If it is realty that is sought to be recovered, the proper action is by petition to subject the lands to the lien of the debt, and it will be sustained, even though the heirs or devisees have sold their interest to third parties. 55 It is also a special proceeding under the Oregon prac- tice. The sureties may be made parties to the same. Notice of the application must be given ten days before the term at which it is made. The decree directs the payment of the amount within a definite time, and if not paid, it may be enforced by execution against the sureties the same as a decree of the district court. 56 On account of personalty being the primary fund, legacies should be first recovered, 57 and devises cannot be resorted to except where the legacies are insuffi- cient. 58 The value of the gift is fixed as of the date of the death of the decedent. 59 A party who receives possession of a bequest or de- vise which is charged with debts before the debts are paid does not become liable for the entire amount of the debts, but only for an amount equal to the value of the property which he has received as a beneficiary. 60 64 Rev. Stats., c. 17, 148, [1412] ; L. O. L., 1308, 1309. 55 Horst v. McCormiek Harvester Co., 30 Neb. 558, 46 N. W. 717. 56 L. O. L.. 1309. 57 Hunt v. Grant, 87 Minn. 189, 91 N. W. 485. 58 Hcssig v. Hessig, 131 Ky. 514, 115 S. W. 748. 59 Rogers v. Rogers, 3 Wend. (X. Y.) 503. CO O thcimer v. Single, 73 X. J. Eq. 539, 68 Atl. 231; Frost v. Win- gate, 73 X. H. 535, 63 Atl. 19. 36 Pro. Ad. ( 561 ) 362 PROBATE AND ADMINISTRATION. [Chap. 27 A devise so charged, or other assets which were re- ceived by the beneficiary before the debts were paid, may be followed into the hands of third parties, pur- chasers from the beneficiaries, and subjected to their ehare of the unpaid debts, 61 and at common law any creditor could follow assets which had been obtained by third parties by collusion with the personal repre- sentative. 62 362. Action against heirs, devisees or legatees. The action against the heirs, devisees or legatees must be brought within one year from the date upon which the claim is allowed and established. The stat- ute commences to run from the date when the claim was allowed in the county court. If an appeal Is taken, it interrupts its running, and it commences to run again when the judgment, affirmed in the district or supreme court, is certified back to the county court, the date on which the records of the county court would show that the claim was finally allowed and established. 63 All parties who have received assets of the estate should be made defendants. The original petition may be filed against a part of them, and the others brought in by proper process, and the court will allow such amendments as may be necessary to make them defendants on terms. 64 61 Thomas v. Williams, 80 Kan. 632, 102 Pac. 772; Ristine v. Kurtz, 97 Iowa, 339, 66 N. W. 185; Elwood v. Deifenclorf, 5 Barb. (N. Y.) 398. 62 Worthy v. Johnson, 8 Ga. 236; Shannon's Heirs v. Dillon, 8 B. Mon. Or. 465, 81 Pac. 356. 62 Potter v. Potter, 43 Or. 149, 72 Pac. 702. 63 Jenkins v. Hall, 26 Or. 79, 37 Pae. 62; L. O. L., 7306. (608) Chap. 29a] . DOWEE AND CUKTESY.' '3~8~8g assigns, hereby covenants and agrees to and with 'the said-C. D. that he is lawfully seised of the above-described premises in fee simple, that they are free from all liens and encumbrances, and that he has full right and authority to convey the same; and he further covenants and agrees to warrant said premises against the demands of all persons whatsoever. And the said C. D., for and in consideration of said marriage and the execution and delivery of this instrument by the said A. B., hereby expressly assents and agrees to receive said premises in lieu of dower in all lands of which the said A. B. may be seised of all estate of inheritance at any time during their marriage. In witness whereof, the parties hereto have hereunto set their hands the day and year first above written. (Signed) A. B. C. D. Witness: G. H. L. M. State of Oregon, County, ss. On this day of , 19 , before me, a notary public duly commissioned at and within the county aforesaid, personally came A. B. and C. D., to me known to be the persons described in and who executed the foregoing instrument, and acknowledged the same to be their free act and deed, and executed for the purposes therein mentioned. Witness my hand and official seal. (Seal) (Signed) J. C. C., Notary Public. 388g. Election between jointure and dower, or devise and dower or curtesy. If the jointure or pecuniary provision be made be- fore marriage and without the consent of the intended wife, or if it be made after marriage, she shall make her 'election after the death of the husband whether she will take such jointure or pecuniary provision or be endowed with the lands of her husband, but she shall not be entitled to both. 64 At common law the &< L. O. L., T'302 ; Kunyan v. Winstock, 55 Or. 203, 105 Pac. 895. 39 Pro. Ad. (609) 388h PBOBATE AND ADMINISTRATION. [Chap. 29a widow was entitled to both dower and a devise, or pecuniary provisions in the will of her husband, unless such will expressly declared to the contrary. 65 Under the Oregon statutes she is not entitled to both, but must make her election which she will take, unless the will plainly shows an intention to give her both. 66 A devise or bequest, in order to be in lieu of dower, must be made direct to the widow or for her use and benefit, freed from any trust for other purposes, 67 nor will a charge on the estate for the board, lodging, clothing and all desirable comforts for a wife in her declining years be considered as a bequest in lieu of dower. 68 388h. Assignment of dower. Upon the death of the husband the right of the widow to dower becomes a vested one, but until for- mally set apart to her, she has no right to an undivided one-half or the use of any particular tract or portion, 6 * excepting only the right to the occupancy of the dwell- ing-house. 70 She may continue to occupy the lands with the children, or other heirs of the deceased, or may receive one-half of the rents, issues and profits therefrom so long as the heirs or others interested do not object, without having her dower assigned. 71 She may also, by agreement with the heirs and personal representatives, receive a gross sum from the estate equal to the present value of her life interest or estate, interest being computed at the legal rate, 72 or an agree- 65 4 Kent, Com., 58; In re Gotzian, 34= Minn. 159, 24 N. W. 920 j Atkinson v. Staig, 13 R. I. 725. 66 L. O. L., 7303. 67 Rittgers v. Rittgers, 52 Iowa, 218, 9 N. W. 188. 68 Bentley v. Bentley, 112 Iowa, 625, 84 N. W. 676. As to method of election, see 431, post. 69 Neal v. Davis, 53 Or. 424, 100 Pae. 212. 70 L. O. L., 7308; Aikin v. Aikin, 12 Or. 203, 6 Pac. 682. 71 L. O. L., 7297. 72 Hale v. James, Johns. Ch. (N. Y.) 258; Williams' Case, 3 Bland (Md.), 186. (610). Chap. 29a] DOWEB AND CUKTESY. 3881 ment may be made with the heirs for the payment, properly secured, of the one-half of the income during her lifetime. 7 * When the value of the income for one year has been agreed upon, the present value can be figured from mortality and interest tables. Find from the mortality table her life expectancy, then from the interest tables the present value of an annuity of one dollar per year during such expectancy ; multiply this amount by the value of the income for one year, and the result is the present value of her dower. 388L Assignment of dower by county court. An action for recovery of dower or curtesy must be brought within ten years from the date of the death of the deceased. 14 When the right to the estate is not disputed by the heirs, or devisees or any persons claim- ing under them, it may be assigned, in whatever coun- ties the lands may lie, by the county court of the county in which the estate is settled, on the application of the surviving spouse or other person interested in the estate. 75 This statute is a limitation on the powers of the county court over the settlement of the estates of deceased persons given it by the constitution, and in order to oust such court of jurisdiction, objections must be filed setting out facts which, if established, would defeat the right of the petitioner to recover. 76 Notice of the hearing on the petition is required to be given to the heirs, devisees or other persons in such manner as the court may direct. 77 If objections are filed, the court has no jurisdiction to proceed further, and the proceedings should be dis- missed without prejudice. If there are none, the court 73 Lenfers v. Henke, 73 HI. 405. 74 Laws 1913, p. 211. 75 L. 0. L., 7293. 76 Guthman v. Guthman, 18 Neb. 104, 24 N. W. 435; demons v. Heli- han, 52 Neb. 287, 72 N. W. 270. 77 L. 0. L., 7293. (611) 3881 PROBATE AND ADMINISTRATION. [Chap. 29a may enter an order awarding dower and for the pur- pose of assigning the same direct that a warrant issue to three discreet and disinterested persons, authorizing and requiring them to set out the dower by metes and bounds, when it can be done without injury to the whole estate. 78 The commissioners shall be sworn by a judge of any court of record, or a justice of the peace, faithfully to discharge their duties, and shall as soon as may be set off the dower according to the command of such warrant, and make return of their doings, with an account of their charges and expenses in writing to the county court; and the same being accepted and recorded and an attested copy thereof filed in the office of the county clerk where the lands are situated, the dower shall remain fixed and certain, unless such con- firmation be set aside and reversed. Costs on appeal and one-half of the costs of such proceeding shall be paid by the widow, and the other half by the adverse party. 79 Form No. 166b. PETITION FOR ASSIGNMENT OF DOWER BY WIDOW COUNTY COURT. [Title of Cause and Court.] , Your petitioner, C. B., respectfully represents unto the court that on the day of , 19 , at the city of , in the state of Oregon, she was married to said A. B. ; t that on or about the day of , 19 , at the city of , in said state, said A, B., then being a resident of said : county, departed this life intestate [if .decedent left a will, say, "leaving a last will and testament, which was duly admitted to'^robate in the county court of said county On the day of , 19 ; that your petitioner hereby re- nounces the provisions made for her in said will, and elects to be endowed of the estate of which said A. B. died seised"] ; that said A. B. was 1 seised of an estate of inheritance in the following described real estate [describe real estate] ; that your petitioner is the widow of said A. B., 78 L. O. L., 7294. 79 L. O. L., 7295. (612),!, Chap. 29a] DOWEB AND CUBTESY. 3881 and that her right of dower in said real estate has not been barred by any act or omission on her part, either before or after the death of her said husband, and that she is therefore entitled to her dower interest therein; that said dower right in said real estate has not been disputed by any of the heirs [devisees] of said A. B., nor by any other persons claiming through or under them; that the following persons are inter- ested in said real estate [give names and places of residence, as far as known, of heirs or devisees or other persons interested]. Your petitioner therefore prays that dower in said real estate may b assigned to her, and for such other relief as may be just and equitable. (Signed) C. B. Dated at , Oregon, this day of ; 19 . [Add verification, Form No. 5.] i Form No. I66c. NOTICE OF PENDENCY OF PETITION FOB DOWER COUNTT COURT. State of Oregon, County ,- To the Heirs at Law, Devisees, and All Persons Interested in the Estate of A. B., Deceased: You are hereby notified that on the day of , 19 , C. B. filed her petition in the county court of said county, duly verified, praying for the assignment to her of dower in the following described premises: [Describe premises as in petition.] You are notified to appear at the county court room in the city of , said county, on the day of , 19 , and show cause, if any there be, why the prayer 1 of the said petitioner should not be granted. It is further ordered that a copy of this petition be served on all parties interested in said lands by publication thereof once each week for three successive weeks in the , a newspaper printed and published in said county. In witness whereof, I have hereunto set my hand and affixed the seal' of said court this day of , 19 . (Seal) (Signed) J. K., County Judge. Form No. 166d. ANSWER SETTING UP DEFENSE TO DOWER. [Title of Cause and Court.] Comes now E. F., and for answer to the petition of said C. B., pray- ing for the assignment to her of dower in the following described lands, (613) 388J PBOBATE AND ADMINISTRATION. [Chap. 29a [describe lands as in petition], alleges that said C. B. is not the widow of said A. B., deceased; that on the day of , 19 , in the county court of - - county, , in a certain case in which said A. B. was plaintiff and C. B. defendant, said A. B. was granted a decree of divorce from said C. B., and that said decree has never been reversed or modified, and is now in full force and effect, and was granted for the cause of adultery committed by said C. B. ; [that said E. F. purchased said lands above described on the day of , 19 , at a judicial sale on a judgment rendered in the circuit court of - county, Oregon, in an action wherein G. H. was plaintiff and A. B. was defendant, and that, since the purchase of said property, the same has been greatly enhanced in value on account of the erection by said E. F. of a brick block of the value of $10,000] ; [that on the - day of , 19 , said C. B., C. D., administrator of said estate, G. H., L. M., and your petitioner, sole heirs of said A. B., entered into a contract and agreement with said C. B. by the terms of which said G. H., L. M., and E'. F. purchased of said C. B., for the sum of $2,000, her dower and other interest in said estate]. Said E. F. therefore prays that this proceeding may be dismissed. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] 388j. Assignment of dower by circuit court. The general equity jurisdiction of the circuit court gives it the power to assign dower in all cases, irre- spective of the statute vesting such power to a limited extent in the county court, 80 and whenever the right is disputed its jurisdiction is exclusive. 81 The action may be brought by the widow or an interested party, making all parties claiming title, including grantees of the heirs or devisees, defendants, or against the grantees of the heirs alone. The petition need not set up that the right to dower is denied by the defend- ants. 82 The practice regarding appointment of com- missioners, report and confirmation and filing same in 80 Baer v. Ballingall, 37 Or. 422, 61 Pac. 825. 81 Baer v. Ballingall, supra. 82 McKay v. Freeman, 6 Or. 449. (614) Chap. 29a] DO WEB AND CURTESY. 388k the office of the county clerk where the lands lie is usually the same as in the county court. Dower may also be assigned in an action for parti- tion, provided the widow expressly assents. The in- terest is not sufficient to authorize her to bring such action and compel a sale of the interests of the heirs. 83 388k. Dower in lands that have enhanced in value. The widow is entitled to dower in lands that were aliened by the husband without her having joined in the conveyance, and which have enhanced in value since their alienation according to their value at the time of the transfer. 84 The term "enhanced in value" as used in the above section means an increase in value caused by the erection of buildings or the making of improvements, and does not cover an advance in values owing to extrinsic causes, or common to all tracts simi- larly located. 85 The date of the alienation of the prop- erty is determined by the date of the deed, or if sold under judicial proceedings, by the date of the judg- ment, if in a court of law, or of confirmation, if in equity. 86 In determining the value of the dower the value of the property is fixed as of the date of the assignment and the value of improvements placed thereon since the date of the transfer deducted. The widow is en- titled to the present value of the use of the one-half of the resulting amount. 87 Repairs which merely keep the property in about the same condition as it was in when the transfer was made are not included. 88 83 Hurste v. Hotaling, 20 Neb. 178, 29 N. W. 299; Coles v. Coles, 15 Johns. (X. Y.) 319; Woods v. Clute, 1 Sand. Ch. (N. Y.) 201. 84 L. 0. L., 7292. 85 Thorburn v. Doseher, 32 Fed. 812. 8 Butler v. Fitzgerald, 43 Neb. 192, 61 N. W. 640 ; Scheffer v. Weed, I Gilm. (111.) 511; Hale v. James, 6 Johns. Ch. (N. Y.) 258. 87 Butler v. Fitzgerald, 43 Neb. 192, 61 N. W. 640; Allen v. McCoj, t Ohio St. 418; Summers v. Babb, 13 111. 483. W Walsh v. Wilson, 131 Mass. 535. (615) 388m PBOBATE AND ADMINISTRATION. [Chap. 29a 3881. Dower in lands that have depreciated in value. ^ Where property depreciates in value after aliena- tion, from natural causes, negligence or the voluntary act of the alienee, a proportion of the loss falls on the widow if she asks to have dower assigned therein.* 9 If the lands were not aliened during the life of the husband and the depreciation is caused by the loss or destruction of the improvements by fire, and the insur- ance money has been received by the personal repre- sentative, heirs or devisees, she is entitled to the bene- fit of a share of such amount, the value of the property being treated as of the date of the husband's death, 90 388m. Dower in property not capable of division. It is not necessary that the commissioners set apart any separate tract of land which is to be the property of the widow during her lifetime. Whenever the es- tate consists of a mill or other tenements which cannot be divided without damage to the whole, and in all cases where it is impracticable to divide the estate by metes and bounds, dower may be assigned of half of the rents, issues and profits to be had and received by the widow as a tenant in common. 91 Form No. 166e. PETITION FOB ASSIGNMENT OF DOWEE CIRCUIT COURT. [Title of Cause and Court.] The plaintiff complains of the defendants, and for cause of action alleges, that on the - - day of , 19, at the city of - in said county, plaintiff was married to A. B., and that afterward, and on or about the day of , 19, said A. B. departed this 89 Hale v. James, 6 Johns. Ch. (N. Y.) 258; Thompson v. Morrow, 5 Ser. & R. (Pa.) 289; Powell v. Bronson & Brimfield Mfg. Co., 2 Mason, 347. 90 Campbell" v. Murphy, 55 N. C. 357. 91 L. O. L., S 7296. Chap. 29a] DOWER AND CUBTESY. <388m life at his residence, in said county of [intestate], leaving a last will and testament, which was duly admitted to probate in the county court of said county on the day of , 19 ; that on the day of , 19 , plaintiff filed in said county court her waiver. of the provisions made for her in the will of the said A. B., and elected to take her dower interest in said estate. (2) That E. F. and G. H. are the children and only heirs at law of the said A. B. (3) That said A. B., during the time of said marriage, was seised in fee simple of the following described real estate, to wit [describe premises], situated in county, Oregon, and that defendant I. J. now claims said premises by virtue of a deed executed and delivered by the said A. B. to the said I. J. on the day of , 19 , and which said deed was not signed or acknowledged by this plaintiff. (4) That plaintiff, by reason of said marriage, upon the death of the said A. B., became entitled to dower in the lands above described, which dower has never been assigned to her, nor has she received any equivalent therefor, or released the same. Plaintiff therefore prays that she may recover dower in the premises above described, and for such other relief as equity may require. (Signed) C. B., By G. G. M., Her Attorney. [Add verification, Form No. 8.] Form No. 166f. PETITION BY HEIR FOR ASSIGNMENT OF DOWER. In the Circuit Court of County, Oregon. L. B., Plaintiff, vs. C. B., 8. D., E. F. ? and G. H., Defendants. The plaintiff complains of the defendants, and for cause of action alleges, that on the day of , 19, A. B. and C. B., the father and mother of plaintiff, were married at the city of -, in county, state of , and that afterward, on the day of , 19 , at his residence in the county of and state of Oregon, said A. B. died intestate, leaving his widow and S. D., D. F., and G. H., his children, his only heirs at law. (617) 388m PROBATE AND ADMINISTRATION. [Chap. 29a (2) Said A. B. died seised in fee simple of the following described real estate, situated in county, Oregon. [Describe real estate.] (3) Said C. B., by virtue of said marriage, upon the death of the said A. B., became entitled to dower in the above-described lands, which dower has never been assigned to her, nor has she received an equivalent therefor, or released the same. (4) That plaintiff has purchased the interest of the other heirs in said above-described premises subject to the dower of said C. B., and is compelled to encumber the same and have said dower assigned. The plaintiff therefore prays that the said C. B. may be assigned her dower in the premises above described, and for such other relief as justice may require. (Signed) L. B., By G. G. M., His Attorney. [Add verification, Form No. 5.] Form No. 166g. DECREE FOB DOWER COUNTY COURT. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the petition of C. B. and the answers of E. F. and G. H., and the evidence, and was submitted to the court, on consideration whereof the court finds that A. B., in his lifetime, was seised of all estate of inheritance of the following described real estate, to wit [describe property], and that the plaintiff is the widow of the said A. B., and is entitled to dower in said premises, and to have the same assigned. It is therefore considered by the court that the said petitioner be endowed of the one-third part of the above-described premises as her dower therein as the widow of the said A. B., and that C. V., B. N., and M. H., of said county, be and hereby are appointed by the court to assign said dower to said plaintiff according to law, and report said assignment of dower to this court without delay. (Signed) J. K., County Judge. (618) Chap. 29a] DOWEB AND CUBTESY. 388m Form No. 166h. WARRANT TO COMMISSIONERS. State of Oregon, County, ss. To C. F., B. N., and M. H., of Said County: Whereas, C. B. filed her petition in the county court of county, Oregon, praying for the assignment to her of dower in the following described premises [describe property], and, after due notice by personal service of an order to show cause upon all the parties named therein, a hearing was had thereon, and the court having found from the evi- dence that the petitioner is the widow of the said A. B., that he died seised of an estate of inheritance in the land above described, and that the petitioner is entitled to dower in the same, you are hereby appointed commissioners to admeasure the dower of the said petitioner in said above-described estate by setting off the same by metes and bounds, if it can be done without injury to the whole estate. If the premise? eannot be divided without damage to the whole estate, you will assign the rents, issues, and profits of said estate to be had and received by the widow as tenant in common with the owners of the said estate. You will give due notice to all parties interested in said estate, to wit [give names of parties interested], of the time and place for the admeasurement of said dower, and will admeasure the same, and make due return of your proceedings with all convenient speed. Form No. 166i. OATH OF COMMISSIONERS TO SET OFF DOWER. We and each of us do solemnly swear that we will faithfully dis- charge the duties devolving upon us as commissioners, appointed by the county court of county, Nebraska, to set off the dower of C. B. in the lands of which her late husband, A. B., died seised of all estate of inheritance. (Signed) C. F. B. N. M. H. Subscribed in my presence and sworn to before me this day Of , 19- (Signed) J. H. W., Justice of the Peace. (619) 388m PBOBATE AND ADMINISTRATION. [CHap. 29a Form No. 166j. REPORT OF COMMISSIONERS ON ASSIGNMENT OF DOWER. [Title of Cause and Court.] We, the undersigned, duly appointed by an order of said court to assign dower to C. B., widow of said A. B., respectfully report that, having first taken the oath required by law, and which is hereto attached, marked "Ex. A," we gave personal notice to all the persons named in the petition filed in this proceeding that, on the day of , 19 , we would meet to assign said dower. That on said day we met at the premises described in said order, to wit [describe as in the decree],* and caused a survey to be made of the same in the presence of the parties interested, and in their presence we admeasured and laid off to said widow one-third of the said premises, 88 follows' [describe portion assigned to widow], and designated the ' same by monuments. [If land cannot be divided, follow to *, then ' insert: That said estate consists of a business block [state what it con- sists of], and ' cannot be divided by metes and bounds. We therefore assigned to the said C. B. one-third of the rents, issues and profits of said estate, to be had and received by her as tenant in common with the owners of said estate.] Dated this ' day of ,19 . (Signed) E. F. G. H. I. J. Form No. 166k. ORDER CONFIRMING ASSIGNMENT OF DOWER. [Title of Cause and Court.] Now, 'on this day of , 19, this cause came on for hearing upon the report of the commissioners appointed by the court to make an assignment of dower from said estate to C. B., widow of said A. B. Upon consideration whereof, the court finds that said as- signment and proceedings have in all respects been made in conformity to law, and the same are hereby approved and confirmed. It is therefore ordered that the said C. B. have use and possession of the lands so assigned her during her life, said lands being described as follows : [Describe property as in decree.] Dated this day of , 19. (Signed) J. K., ,- County Judge. (620) Chap. 29a] DOWEB AND CUETEST. 388n, 388o 388n. Damages for withholding dower. Whenever a widow recovers her dower in lands of which her husband died seised, she is entitled to dam- ages for withholding the same, which are fixed by the statute at one-half of the annual value of the mesne profits of the lands in which she shall recover dower, not including the use of permanent improvements made after the death of the husband by his heirs, or by any other person claiming title to such lands, to be estimated in a suit against the heirs of her husband from the time of his death, and in suits against other persons from the time of demanding her dower of such persons. 92 When a widow shall recover her dower in any lands aliened by the heir of her husband, she shall be entitled to recover of such heir, in a civil action, her damages for withholding such dower from the time of the death of the husband to the time of the alienation by the heir, not exceeding six years in the whole; and the amount which she shall be entitled to recover from such heir shall be deducted from the amount she would otherwise be entitled to recover from such grantee, and any amount recovered as damages from the grantee shall be deducted from the sum she would otherwise be entitled to recover from such heir. 93 388o. Incidents of dower. When a widow accepts an assignment of dower in her husband's lands, it is a bar to any further claim for dower against the grantee of the husband, his gran- tee, or the grantee of the heir, unless she shall have been lawfully evicted from the lands so assigned. 94 The estate so assigned to the widow becomes her separate property. It may be sold or assigned by her and subjected to her debts and sold on execution. 95 2 L. 0. L., 7309, 7310, 7311. 3 L. O. L., 7312. 94 L. 0. L., 7313. 5 Baer v. Ballingall, 37 Or. 424, 61 Pac. 802. (621) 388p PROBATE AND ADMINISTRATION. [Chap. 29a The widow must keep the houses and fences in good repair, and is liable to the person having next imme- diate inheritance therein for waste. 9 * She may cut wood and timber for ordinary farm purposes or so as to fit the land for cultivation or pasture, provided the same is not cut for sale but for use in connection with the premises. 97 Where mining property is assigned her, she may take out ore in a vein or lead already opened, and for such purpose may sink a shaft to strike a lead disclosed in the mine, 98 but has no right to open up new mines. 99 As between herself and the remainderman, she is liable for the taxes. 100 388p. Dower recovered by default or collusion. "When a widow, not having right to dower, shall, during the infancy of the heirs of her husband, or any of them, or of any person entitled to the lands, recover dower by the default or collusion of the guardian of such infant heir or other person, such heir or other per- son, so entitled, shall not be prejudiced thereby; but when he comes of full age, he shall have an action against such widow to recover the lands so wrongfully awarded for dower. ' ' 101 86 L. O. L., 7307. 7 Disher v. Disher, 45 Neb. 100, 65 N. W. 369; Webster v. Webster, 33 N. H. 18; McCracken v. McCracken, 6 T. B. Mon. (Ky.) 352. 8 Ward v. Carp River Iron Co., 47 Mich. 65, 10 N. W. 109; Gains v. Green Pond Iron Min. Co., 33 N. J. Eq. 603; MeCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 27 Pac. 863. Cecil v. Clark, 49 W. Va. 359, 39 S. E. 202; Ohio Oil Co. v. Daughetee, 240 111. 361, 88 N. E. 818. 100 Spiech v. Tierney, 56 Neb. 514, 76 N. W. 1090; King v. Boetcher (Neb.), 147 N. W. 836. 101 L. O. L., 7314. (622) CHAPTER XXX. ASSIGNMENT OF HOMESTEAD. 8 389. Descent of Homestead. 390. How Homestead of Surviving Spouse Barred. 391. Rights of Survivor in Homestead. 392. Assignment of Homestead by County Court. 393. Selection and Setting Out Homestead from Larger Tract. 394. Assignment of Homestead by District Court. 395. The Remainder in the Homestead Property. 389. Descent of homestead. Upon the death of the holder of the legal title to a homestead, two estates are created: a life estate in the surviving spouse, which cannot be defeated by will, and an estate of remainder in the heirs or devisees. 1 The homestead is defined by the supreme court as the house and land where the family dwells. 2 It is the actual home of the family, including the land and buildings which constitute the same, and the posses- sion and enjoyment of all which may be successfully defended by either husband or wife during the mar- riage state against the independent acts of either, and against the void acts of either or both. It is this home- stead to which the survivor succeeds and in which he or she takes a life estate. 3 Its area is limited to one hundred and sixty acres, if situated outside the limits of an incorporated city 1 Xaiman v. Bohlmeyer (Neb.), 150 N. W. 829; Brichacek'v. Bricha- cek, 75 Neb. 417, 106 N. W. 473; Bev. Stats., c. 29, 1, [3076], 2 Gallagher v. Smiley 28 Neb. 189, 44 N. W. 187; Palmer v. Sawyer, 74 Neb. 108, 103 N. W. 1088. 3 Anderson v. Schertz, 94 Neb. 390, 143 N. W. 287; Meisner v. Hill, 92 Neb. 435, 138 N. W. 583. (623) 389 PROBATE AND ADMINISTRATION. [Chap. 30 or village, and to two surveyed and platted lots if within such limits. 4 The lots or tracts must be contiguous, but in case of farm lands, need not be in the same government sub- division. 5 The term "lot" includes any part of a platted subdivision of a city or village. 6 Its value is limited, as against the rights of general creditors, to the sum of two thousand dollars, just the same as it was during the lifetime of the former owner, but as against the interests of heirs or devisees there is no limitation. 7 Such value is determined by the claimant's interest in the land and not by the actual worth of the prem- ises. Therefore, if, after deducting the amount of the mortgages and liens against the property, the value is two thousand dollars or under, the entire property passes to the survivor, subject to such liens. 8 The homestead right is in addition to the statutory share of the survivor, or the provisions made for him "or her by will. It is an absolute right passing to the survivor, though the children may all be of age and away from home, 9 or there are none surviving, 10 or the 4 Eev. Stats., c. 29, 1, [3076] ;' Meisner v. Hill, 92 Neb. 435, 138 N. W. 583; In re Jurgen's Estate, 87 Neb. 571, 127 N. W. 855; Ander- son v. Schertz, 94 Neb. 390, 143 N. W. 238. 5 Tindall v. Peterson, 71 Neb. 160, 98 N. W. 688, 99 N. W. 659. 6 Norfolk State Bank v. Schwend, 51 Neb. 146, 70 N. W. 970. 7 Meisner v. Hill, 92 Neb. 435, 138 N. W. 583. This ease expressly overrules Tyson v. Tyson, 61 Neb. 438, 98 N. W. 1076, and Wardell v. Wardell, 71 Neb. 774, 99 N. W. 674, in so far as they hold that the two thousand dollar limitation applies to all cases. 8 Hoy v. Anderson, 39 Neb. 386, 58 N. W. 125; Corey v. Plummer, 4& Neb. 381, 67 N. W. 445. 9 Gallagher v. Smiley, 28 Neb. 189, 44 N. W. 187. 10 Roberts v. Greer, 22 Nev. 318, 40 Pac. 6. (624) Chap. 30] ASSIGNMENT OF HOMESTEAD. 390 survivor is not the head of a family, 11 and does not de- pend on occupancy. 11 ' It is not essential that the decedent held a title in fee. The right attaches to any estate of inheritance. 12 A homestead has been defined by the Oregon su- preme court as the home place, the place where the family resides. 13 It is not an estate or a fixed interest in or charge on the lands, but a right of exemption from levy and sale on execution or attachment in cer- tain real estate which is the actual abode of, and is owned by, a party or some member of his family. It is in the nature of a contingent interest, which becomes fixed and determinable only by the act of the owner, or owner and husband or wife of a married party. 14 Such homestead shall not exceed fifteen hundred dol- lars in value, nor one hundred and sixty acres in ex- tent, if not located in a city or town laid off into blocks and lots; if located in any city or town, then it shall not exceed one block; but in no instance shall it be reduced to less than twenty acres or one lot, regardless of value. 15 390. How homestead right barred. The homestead right may be lost by abandonment. To constitute abandonment it must appear that the surviving spouse left the home of the decedent long before his or her death, without cause, and with intent to renounce the marital relations, and established a 11 First Xat. Bank v. Reece, 65 Neb. 292, 89 N. W. 804. iia Xaiman v. Bohlmeyer (Xeb.), 150 N. W. 829. 12 State v. Townsend, 17 Neb. 530, 23 N. W. 509; Burling v. Alvord's Estate, 77 Neb. 861, 110 N. W. 683. 13 Mansfield v. Hill, 56 Or. 405, 108 Pac. 1007. 14 L. O. L., 221, 223. 15 L. O. L., 222. 40-.Pro.Ad. (625) 391 PROBATE AND ADMINISTRATION. [Chap. 30 home elsewhere, which he or she claimed as a resi- dence. 18 Whether an antenuptial contract, executed as the statute directs, by which the surviving spouse re- nounces the right to inherit a part or all the lands of the decedent, bars the homestead right is an open question. 17 The weight of authority is that such con- tract not specifically mentioning the homestead is not a bar. 18 The only sure way the homestead right can be barred is by a conveyance executed and acknowledged by both husband and wife as the statute provides. 19 Any con- tract, lease or agreement to devise to a third party which is not so executed is void. 20 391. Rights of survivor in homestead. The underlying principle of the homestead law is the furnishing the surviving spouse a place where he or she and the family are safe as to everybody, if the place is not worth more than two thousand dollars, and if it does exceed two thousand dollars in value, then save as to everybody except creditors. Upon the death of the fee-holding spouse, a new title in the property occupied as a home is created in the survivor, 16 Dickman v. Burkhauser, 16 Neb. 686, 21 N. W. 396; Lainb v. Wogan, 27 Neb. 236, 42 N. W. 1041. l? Reiger v. Schaible, 81 Neb. 33, 115 N. W. 560. 18 Zachman v. Zachman, 201 111. 380, 66 N. E. 256; Mahaffy v. Mahaffy, 63 Iowa, 505, 18 N. E. 685; Mann v. Mann's Estate, 53 Vt. 38. The cases above cited are based on the proposition that the words "inherit real estate" refer to the vesting of the fee. i Rev. Stats., c. 29, 4, [3079]. 20 Meek v. Lange, 65 Neb. 783, 91 N. W. 695; Koike v. Wolf, 78 Neb. 594, 111 N. W. 134; Teske v. Ditberner, 70 Neb. 544, 98 N. W. 57. , (626) Chap. 30] ASSIGNMENT OF HOMESTEAD. 391 which vests, eo instanti, in such survivor for life, in- dividually and unconditionally, free from the right of the children of either spouse to a division of the income therefrom. 21 The homestead right is not lost by abandonment, 22 unless such abandonment had become a bar to the right of the survivor to claim a homestead previous to the death of the fee-holding spouse, 23 nor is it in any way dependent upon the actual occupancy of the premises as a home by such survivor or family. 24 The surviving spouse is under no obligations to share the income of the premises with the minor children of the fee-hold- ing spouse. 25 Where the title to the homestead was in the surviv- ing spouse, and such survivor on the death of the dece- dent ceased to be the head of a family, the homestead rights which became vested in such survivor during the lifetime of such deceased spouse do not cease at his or her death. 26 21 Shearon v. Goff, 95 Xeb. 417, 145 N. W. 855; Durland v. Seller, 27 Neb. 33, 42 N. W. 741; Nebraska Loan & Trust Co. v. Smassall, 38 Neb. 516, 57 N. W. 167; In re Estate of Robertson, 86 Neb. 490, 125 N. W. 1093. 22 Richardson County v. Smith, 25 Xeb. 767, 41 N. W. 744; Durland v. Sci!er. 27 Xeb. 33, 44 X. W. 744; Bauman v. Franse, 37 Neb. 897, 56 X. W. 305 ; L. O. L., 223. 23 Section 390, supra. 24 Richardson County v. Smith, 25 Neb. 767, 41 N. W. 744; Shearon v. Goff, 95 Neb. 417, 145 N. W. 855; Naiman v. Bohlmeyer (Neb.), 150 N. W. 829. 25 In re Estate of Robertson, 86 Neb. 490, 125 N. W. 1093; Fletcher v. Fletcher, 83 Xeb. 156, 119 N. W. 232. 26 First Nat. Bank of Greenwood v. Reece, 64 Neb. 292, 89 N. W. 804; Palmer v. Sawyer, 74 Neb. 108, 103 N. W. 1088. .(627) 391 PROBATE AND ADMINISTRATION. [Chap. 30 The homestead is subject to liens and encumbrances existing thereon at the death of the decedent. 27 It cannot be sold under license from the district court for the payment of the debts of the estate or costs and expenses of administration, though such debts are secured by liens on the property. 28 The remedy for the enforcement of such claims is by foreclosure, and pending the same the court has no power to appoint a receiver to collect the rents and profits. 29 Neither executor nor administrator have any interest whatever in the homestead property in which the sur- viving spouse takes a life estate. 30 No formal action making a selection is necessary. If the survivor continues to occupy the town lots or one hundred sixty acre tract which comprised the homestead during the life of the decedent, such occu- pancy, in the absence of clear and satisfactory evidence to the contrary, is a sufficient selection of the property from the lands of the decedent. 31 In Oregon the widow and minor children are entitled to remain in possession of the homestead until admin- 27 Wardell v. Wardell, 71 Neb. 774, 99 N. W. 674; Cooley v. Jansen, 54 Neb. 33, 74 N. W. 351; Prugh v. Portsmouth Sav. Bank, 48 Neb. 414, 67 N. W. 445; Hoy v. Anderson, 39 Neb. 386, 58 N. W. 125. 28 Bixby v. Jewell, 72 Neb. 755, 101 N. W. 1026; Luona v. Carr, 77 Neb. 833, 110 N. W. 705; Holmes v. Mason, 80 Neb. 448, 114 N. W. 606; Hadsal v. Hadsal, 82 Neb. 587, 118 N. W. 331; Judson v. Creighton, 88 Neb. 37, 128 N. W. 620; Naiman v. Bohlmeyer (Neb.), 150 N. W. 829. 29 Joslin v. Williams, 3 Neb. Unof. 192, 90 N. W. 1124. SO In re Estate of Eobertson, 86 Neb. 490, 125 N. W. 1093; Tindall v. Peterson, 71 Neb. 160, 98 N. W. 688, 99 N. W. 659; Brandon v. Jensen, 74 Neb. 569, 104 N. W. 1054; Hadsall v. Hadsall, 82 Neb. 587, 118 N. W. 331. si Shearon v. Goff, 95 Neb. 417, 145 N. W. 855. (628) Chap. 30] ASSIGNMENT OF HOMESTEAD. 392 istration has been granted and the inventory filed, 32 and the widow is also entitled to remain in the dwell- ing-house of her husband for one year without being chargeable with rent therefor. 33 Her rights in the dwelling-house are merely to continue in possession during the year. If she leaves the property she can- not regain possession by either ejectment or forcible detention. 34 The exemption passes to the party or parties who succeed to the fee, but there is no way by which the exempt property can be set off in favor of the surviving spouse or family. 35 The fee passes to the heirs subject to the exemption. 8 ' 392. Assignment of homestead by county court. The county court has inherent jurisdiction, though of a limited character, to assign the homestead to the surviving spouse. 37 The rule is the same as for as- signing dower under the former dower law. If the right is contested and an issue of fact raised, which if established by proof would defeat such right, and the issue is of such a nature that the county court has no power to determine it, that court is without jurisdic- tion. 38 The answer should set up the defense affirma- tively. A general denial or plea to the jurisdiction is not sufficient. 39 32 L. 0. L., 1233. 33 L. O. L., 7308 ; Aikin v. Aikin, 12 Or. 293, 6 Pac. 682. 34 Aikin v. Aikin, supra. 35 Mansfield v. Hill, 56 Or. 405, 107 Pac. 471. 36 L. O. L., 226. 37 Guthman v. Guthman, 18 Neb. 98, 24 N. W. 435; Seery v. Curry, 26 Xeb. 353, 42 N. W. 97. 38 Tyson v. Tyson, 71 Neb. 438, 98 N. W. 1076; Guthman v. Guthman, 18 Neb. 98, 24 N. W. 435. 39 Tyson v. Tyson, 71 Neb. 438, 98 N. W. 1076; demons v. Helebhan, 52 Neb. 287, 72 N. W. 270. (629) 392 PROBATE AND ADMINISTRATION-. [Chap. 30 Application for assignment of homestead should be by petition of the claimant, under oath, or if the claim- ant is incompetent, by his general guardian or guardian ad litem. The judge may then set the petition for hearing and give notice to all parties interested as he sees fit. The statute contains no directions in regard to notice or service, and its issue and service are within the discretion of the court. If the property clearly appears to be a homestead and the interest of the survivor not worth over two thousand dollars, or if worth more than two thousand dollars, that there are no general creditors having any claim against it, the court should make an order as- signing it to the survivor for life, provided, of course, no question affecting the jurisdiction is raised. Form No. 167. PETITION FOR ASSIGNMENT OF HOMESTEAD. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that she is the widow of said A. B., deceased; that said A. B. was at the date of his death the owner in fee of the following described real estate situated in said county [describe real estate] ; that there are no creditors of said estate or charges against said estate save and except costs and expenses of administration, and there is sufficient personal property to pay the same; or that said real estate is worth not more than two thou- sand dollars after first deducting existing liens against the same; that said above-described premises constituted the homestead of said A. B. and were occupied as such by said A. B. and your petitioner at the time of his death, and that your petitioner is entitled to a homestead in said premises for the use and benefit of herself and the minor children of her, said petitioner, and said A. B. Your petitioner therefore prays that an order of said court be made and entered setting out said premises to her as a homestead, for the use and benefit of herself during her lifetime and of the minor children of said decedent during their minority. (Signed) C. D. [Add verification, Form No. 5.] (630) Chap. 30] ASSIGNMENT OF HOMESTEAD. 393 Form No. 168. ORDER ASSIGNING HOMESTEAD. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing on the petition, under oath, of C. D. for the assignment to her of the following described property [describe premises as in petition], as and for a homestead, and the evidence, and was submitted to the court. Upon consideration whereof, the court finds that said C. D. is the widow of said A. B., that said premises were at the date of the death of said A. B. occupied by said A. B. and said petitioner as a homestead, and that the net value of the same, after first deducting existing liens thereon, does not exceed the sum of two thousand dollars; or that there are no creditors of said estate or charges against said estate save and except costs and expenses of administration, and there is sufficient per- sonal property to pay the same, and that said petitioner is entitled to have said premises set out to her as a homestead. It is therefore ordered that said premises be assigned to said C. D. as a homestead for the use and benefit of herself and minor children during her lifetime. (Signed) J. K., County Judge. 393. Selection and setting out homestead from larger tract. When an execution issued on a judgment rendered against decedent in his lifetime is levied on land in which a homestead exemption is included, the head of the family may have such exemption set out to her in the same manner as the judgment debtor could if he were living. 40 Where there are general creditors of the estate and the value of the homestead tract exceeds two thousand dollars, there is no method provided by the statutes for 40 Rev. Stats., c. 29, 5, [3080]. See First Nat. Bank of Tekamah v. McClanahan, 83 Neb. 706, 120 N. W. 185. (631) 393 PROBATE AND ADMINISTRATION. [Chap. 30 setting out the specific tract on which the dwelling and appurtenances are located, though the value of the interest of the estate therein may be under the two thousand dollars. The former dower law directed the appointment of appraisers by the county court to set out dower. From analogy between homestead and dower there would seem to be no sufficient reason why the homestead right could not be set out the same way in cases where the right is not questioned, and the object is simply to segregate from the larger tract that particular part of the same which cannot be reached for debts. If such part cannot be set out without in- jury to the whole tract, then the county court is with- out jurisdiction. The value of the homestead property should be fixed as of the date of the death of decedent. 41 Form No. 169. ORDER FOR ASSIGNMENT OF HOMESTEAD AND APPOINTING APPRAISERS. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing on the petition of C. B., widow of said A. B., under oath, for the assignment to her of a homestead in the homestead property of which said A. B. died seised, and the evidence and was submitted to the court. Upon consideration whereof the court finds that notice of the time and place fixed for hearing on said petition has been given pursuant to the order of said court heretofore made and entered; that said A. B. died seised of the following described real estate, which was at the date of his death occupied by himself and family as a homestead, ; that the value of said real estate exceeds the sum of $2,000; that said petitioner is entitled to a homestead exemption in said real estate to the extent of $2,000, and that on account of the insufficiency of the personal estate of said decedent to pay the debts and costs of adminis- tration of said estate a sale of real estate will probably have to be made 41 In re Jurgen's Estate, 87 Neb. 571, 127 N. W. 885. (632) Chap. 30J ASSIGNMENT OF HOMESTEAD. 39.3 by the administrator of said estate, including that interest in said above- described real estate which is liable for the debts of said estate. It is therefore ordered and adjudged by me that E. F., G. H. and L. M., disinterested residents of said county, be and hereby are ap- pointed appraisers, and are hereby directed to set apart from said real estate a part thereof on which the buildings and appurtenances are located, not exceeding in value $2,000, as a homestead for said C. B., provided the same can be done without injury to said real estate as a whole, and to report their proceedings hereon to this court within days from this date. (Signed) J. K., County Judge. Form No. 170. REPORT OP APPRAISERS. [Title of Cause and Court.] We, E. F., G. H., and L. M., appraisers duly appointed by said court to set out the homestead exemption of C. B., widow of said A. B., in the homestead of which said A. B. died seised, respectfully report that we have examined said homestead and premises and find that a tract of land on which the buildings and appurtenances are located, of the value of $2,000, can be set apart without injury to the entire tract, which said tract that can be so set apart is described as fol- lows: . Dated this day of , 19 . (Signed) E. F., G. H., L. M., Appraisers. Form No. 171. ORDER CONFIRMING REPORT AND ASSIGNING HOMESTEAD EXEMPTION. [Title of Cause and Court.] Now, on. this day of , 19, E. F., G. H., and L. M., appraisers heretofore appointed to set out the homestead exemption of C. B. in the homestead of which said A. B. died seised, having filed their report, and the same having been examined by said court, it is hereby ordered that the same be approved and that the following described tract of land be set out to said C. B. as and for a homestead exemption: (Signed) J. K., County Judge. (633) 393 PROBATE AND ADMINISTRATION. [Chap. 30 In Oregon the homestead exemption can only be set out in cases where a creditor has had an attachment or execution levied on the property. The proceedings which may be instituted by the owner of the fee or the husband, wife, agent or attorney of such owner, are the same as when the levy is made during the lifetime of the debtor, 42 and are commenced by a notice to the officer making the levy that the owner claims a home- stead exemption in the premises, describing the same by metes and bounds, lot or block, or legal subdivision of the United States. The officer thereupon notifies the creditor of such claim. If the property exceeds the minimum of twenty acres or one lot and the owner deem it of greater value than fifteen hundred dollars, he may direct the sheriff to select three disinterested householders of the county, who shall examine and appraise such homestead under oath, commencing with the twenty acres or lot upon which such dwelling is located, appraising such lot or twenty acres sepa- rately; and if the same exceed fifteen hundred dollars, then the sheriff shall proceed to sell all in excess of fifteen hundred dollars, by lots or smallest legal sub- divisions, offering them in the order directed by the judgment debtor, if he chooses to direct; otherwise he shall sell the same as aforesaid, so as to leave the home- stead as compact as possible. 43 In lieu of such pro- ceedings the creditor may pay the judgment debtor fifteen hundred dollars, and then sell the homestead as he might heretofore have done, adding the fifteen hun- dred dollars to his lien. The fifteen hundred dollars in the hands of the debtor shall be exempt from exe- cution. 44 42 Mansfield v. Hill, 56 Or. 405, 107 Pac. 471. 43 L. O. L., 224. 44 L. O. L., 225. (634) Chap. 30] ASSIGNMENT OF HOMESTEAD. 394 394. Assignment by district court. The statute contains no directions for assigning the homestead when, on account of the indebtedness of the estate, the interest of the survivor is limited to the use of two thousand dollars in value, and a tract of land on which the buildings and appurtenances are situ- ated cannot be set apart to such survivor: In such case a homestead right is a first lien on the property, 45 subject, of course, to prior existing liens. 46 The district court of the county in which the home- stead property is situated has original jurisdiction to set out the homestead exemption in cases of this char- acter, as well as in cases where an answer is filed bringing the title to the real estate into question. 47 The claimant may maintain an action, substantially a bill in equity, to have such interest set out to him. The Wardell case is based on the proposition that inas- much as the entire estate of realty, excepting only the homestead right, is subject to debts, the administrator may sell the land under the statute directing sales for payment of debts, and in that action or proceeding the right of the survivor in the homestead may be ascer- tained, its value determined and paid to him. This case was overruled by Meisner v. Hill only to the extent that the court followed a wrong rule of construction of the statutes which define a homestead ; that instead of allowing Mrs. Wardell the use of two thousand dollars during her lifetime, she should have been given the use Perry Livestock Co. v. Biggs, 4 Neb. Unof. 440, 94 N. W. 712; Meisner v. Hill, 92 Neb. 435, 138 N. W. 583. 46 Section 391, supra. *7 Wardell v. Wardell, 71 Neb. 774, 99 N. W. 674. (635) 395 PROBATE AND ADMINISTRATION. [Chap. 30 of what was left of the proceeds of the sale of the home property after paying the debts. 395. The remainder in the homestead property. On the death of the surviving spouse, the remainder in the homestead property, unless otherwise disposed of by will, passes to the heirs of the fee-holding spouse. 48 Heirs and devisees take such remainder discharged from liability for debts of the former owner of the fee to the same extent that it was in his lifetime. 49 48 Schuyler v. Hanna, 31 Neb. 307, 47 N. W. 932; Fort T. Crook, 3 Neb. Unof. 12, 90 N. W. 634. 49 Rev. Stats., c. 29, 16, [3091] ; Holmes v. Mason, 80 Neb. 448, 114 N.'W. 605; Hall v. Hooper, 47 Neb. Ill, 66 N. W. 33; Lyons T. Carr, 77 Neb. 833, 110 N. W. 705. (636) CHAPTER XXXI. INHERITANCE TAX. 396. Nature of the Tax. 397. Tax on Inheritance, Devises and Bequests. 398. Property Transferred in Contemplation of Death. 399. Property Liable to Taxation. 400. Jurisdiction of County Court Over Inheritance Tax. 401. Duties of Appraisers. 402. Duties of Appraisers Concluded. 403. Assessment of the Tax. 404. Appeals. 405. When Inheritance Tax Due. 406. Payment of Inheritance Tax by Executor, Administrator or Trustee. 407. Refunding Excess or Erroneous Payment. 408. Action for Recovery of Tax. 409. Inheritance Tax Records. 409a. Life Expectancy Tables. 396. Nature of the tax. The right of a person to take property by descent, devise or bequest depends upon statutory and not com- mon law, and therefore the state has power to impose a restriction in the way of a tax on inheritances, be- quests and devises, and also to fix the situs of the prop- erty for purposes of taxation. 1 It is not a tax on prop- erty, but on the right of succession to property, and is not within the constitutional provisions requiring uni- formity of taxation because not included therein. 2 1 In re Sanford's Estate, 90 Neb. 410, 133 N. W. 870; State v. Vinson- haler, 74 Neb. 675, 105 N. W. 472; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 42 L. Ed. 1037; United States v. Perkins, 163 U. S. 625, 41 L. Ed. 287. 2 State v. Allston, 94 Tenn. 674, 30 S. W. 750; Union Trust Co. T. Durfee, 125 Mich. 487, 84 N. W'. 1101; In re Swift, 137 N. Y. 77, 32 N. E. 1096; State v. Hamlin, 86 Me. 445, 20 Atl. 76; Ferry v. Campbell, (637) 397 PROBATE AND ADMINISTRATION. [Chap. 31 397. Tax on inheritances, devises and bequests. The lineal descendants, father, mother, husband, wife, brother, sister, widow of a deceased son, or hus- band of a deceased daughter of any person who died seised or possessed of any property, real, personal and mixed, which shall pass by will or the intestate laws of this state, while a resident of this state, or if he was not a resident of this state at the time of his death had property within this state, are liable for the pay- ment of an inheritance tax upon the clear market value of the property so actually received by each such per- son of one per cent on the excess above ten thousand dollars. Any child or children adopted as such in con- formity to the laws of the state, or any person to whom the deceased for not less than ten years stood in the acknowledged relation of parent, is liable to the same tax. 3 The statutory share of a surviving spouse does not pass under the intestate laws, though right of posses- sion does not accrue until the death of the decedent, but by virtue of the marital relation. It is not subject to the payment of an inheritance tax. 4 Should dece- dent be testate and he or she elect to take under the will, the value of such statutory interest would still 110 Iowa, 290, 81 N. W. 604; In re Short's Estate, 16 Pa. 63. Inherit- ance tax laws have been in force in England for almost a hundred years, and within the last twenty-five years have been placed on the statute books of nearly all of the United States. Their constitutionality has been strongly attacked in both state and federal courts, the power of legislatures to enact them has been almost uniformly sustained, and they are a very important part of our revenue system. 8 Rev. Stats., c. 69, 334, [6622]. 4 Strahan v. Wayne County, 93 Neb. 828, 142 N. W. 678. (638) Chap. 31] INHERITANCE TAX. 397 be exempt. 5 The surviving spouse takes the home- stead interest also by virtue of the marital relation, and the same rule would make the present value of his or her interest therein exempt. 6 Collateral heirs are liable for the payment of a tax of two per cent on the excess over two thousand dol- lars of the clear market value of the property actually received by each one of them, whether by descent, be- quest or devise. Other persons or corporations receiving property in the same way are liable to a tax as follows: On each and every hundred dollars of the clear market value of all property, and at the same rate for any less amount, up to five thousand dollars, two dollars; on all estates of over five thousand dollars and not exceeding ten thousand dollars, three dollars; on all estates of over ten thousand dollars and not exceeding twenty thou- sand dollars, four dollars; on all estates of over twenty thousand dollars and not exceeding fifty thousand dol- lars, five dollars; and on all estates of over fifty thou- sand dollars, six dollars. Estates of under five hun- dred dollars are not subject to a tax. 7 A devise or bequest of any property or income therefrom or interest therein for life or years to one of the parties liable for the lowest inheritance tax rate, with remainder to a collateral heir or stranger in blood, or a corporation, is subject to the tax separate and apart from the remainder. 8 5 In re Sanford's Estate, 91 Neb. 752, 137 N. W. 864. 6 In re Estate of Kennedy, 157 Cal. 517, 108 Pac. 280. 7 Rev. Stats., c. 69, 334, [6622]. 8 Eev. Stats., c. 69, 335, [6623]. (639) 397 PEOBATB AND ADMINISTRATION. [Chap. 31 If the remainder passes to one of the same class as the life estate or term for years, the lesser estate is not separately taxable. The intent of the law seems to be not to exempt either from taxation, but to collect the tax the same as though it were an absolute bequest or devise, leaving its adjustment to the recipients. 9 The Nebraska statute was adopted from Illinois. The inheritance tax law of Oregon includes grand- parents among those liable for the one per cent tax, fixes the exempt amount at five thousand dollars, and entirely exempts estates of under ten thousand dollars in value. When property passes to collateral heirs, the exemption is two thousand dollars, and estates of under five thousand dollars are exempt. In all other cases the tax is three per cent on all amounts re- ceived up to ten thousand dollars, four per cent on all amounts over ten thousand and not exceeding twenty thousand dollars, and five per cent on amounts received over twenty thousand and not exceeding fifty thou- sand, and six per cent on amounts over fifty thousand dollars. Gifts of under five hundred dollars in value and all gifts to benevolent, charitable or educational institutions incorporated in Oregon and actually en- gaged therein in carrying out the work for which they were incorporated, or to any person or persons to be held in trust for any such institution in lieu thereof, are entirely exempt. 10 The Oregon inheritance tax law is drafted on the same lines as that of Nebraska. It is construed there as including the widow's dower, though that question has never been decided by the supreme court. In re Kingman's Estate, 220 111. 563, 77 N. E. 135. 10 L. O. L., 1192, 1191. (640) Chap. 31] INHERITANCE TAX. 398 398. Property transferred in contemplation of death. Property transferred by deed, grant, sale or gift, made in contemplation of the death of the grantor or bargainer, or intended to take effect in possession or enjoyment, after such death, to any person or persons or any body politic or corporate, in trust or otherwise, or by reason thereof any person or body corporate shall become beneficially entitled, in possession or ex- pectation to any property or income therefrom, is also subject to a tax in the same amounts. 11 The law imposes no restrictions on the right of a person to give away his property during his lifetime, provided the gift was actually made, not colorable only, and not in contemplation of death and with in- tent to defeat collection of the tax. 12 Whether or not it was so made is largely a question of fact, determined from a consideration of the terms of the instrument, the age and state of health of the deceased, and all the circumstances and conditions surrounding it. 13 Gifts causa mortis are clearly taxable, 14 as is a deed of prac- tically all one's property shortly before death, with full knowledge that death was imminent and without consideration. 15 The term "in contemplation of death" means the apprehension which arises from some existing condi- 11 Rev. Stats., c. 69, 334, [6622] ; L. O. L., 1191. 12 People v. Kelley, 218 111. 509, 75 N. E. 1038. 13 In re Spalding, 163 N. Y. 607, 57 N. E. 1134; State v. Pabst, 139 Wis. 561, 121 N. W. 351; In re Benton, 234 111. 366, 84 N. E. 1026. Matter of Cornell, 170 N. Y. 423, 63 N. E. 445. is Rosenthal v. People, 211 111. 306, 71 N, E. 1121; Merrifield v. People, 212 111. 400, 72 N. E. 446. 41 Pro. Ad. (641) 398 PROBATE AND ADMINISTRATION. [Chap. 31 tion of body or impending peril, and not the general expectation which every mortal possesses. 16 The payment of the tax can only be defeated by such a bona fide conveyance as parts absolutely with the title, control, management, possession and enjoyment during the grantor's lifetime, 17 and not made in con- templation of death. 18 The burden of proof is on the county to prove that gifts made by decedent in his lifetime were made for the purpose of defeating payment of the tax. 19 The Oregon statute protects the interest of the state to a greater extent than that of Nebraska, as it imposes a liability for the payment of the tax in certain cases on parties who had in their possession assets of an estate. No safe deposit company, trust company, bank, corporation, person, or persons holding securities or assets of a decedent or of a corporation in which de- cedent at the time of his death owned any stock, shall deliver or transfer the same to the executors, admin- istrators or legal representatives of said decedent, or upon their order or request, unless notice of the time and place of such intended transfer be given the state treasurer in writing at least five days prior to such transfer. The treasurer or his representative has the right to examine the securities, and if he deems it ad- visable that the securities be not immediately deliv- ered, he shall notify the party holding the same in writing not to deliver them for ten days, unless the 1 In re Baker's Estate, 178 N. Y. 575, 70 N. E. 1094; In re Spalding, 163 N. Y. 607, 57 N. E. 1124. 17 Lacy v. State Treasurer (Iowa), 121 N. W. 179; Seibert's Appeal, 110 Pa. 329, 1 Atl. 346; People v. Moir, 207 111. 180, 69 N. E. 905; In re Todd, 237 Pa. 466, 85 Atl. 845. 18 Matter of Baker, 178 N. Y. 575, 70 N. E. 1094; People v. Burk- halter, 247 HI. 600, 93 N. E. 379. l In re Dessert, 154 Wis. 320, 142 N. W. 647. (642) Chap. 31] INHERITANCE TAX. 399 notice be sooner revoked. Failure to serve notice or to defer delivery when it is ordered renders the party holding the securities liable for the tax in case one is levied. 20 399. Property liable for taxation. All real estate passing by will, the statutes of inher- itance, or by deed executed in contemplation of death, if within the values fixed by law, is subject to the pay- ment of the tax, whether the owner was a resident of the state or otherwise. The interest of a mortgagee in real estate, or his interest as vendor in a contract for the sale of land, is not such an interest as will render such items of property subject to the tax in this state where they were continuously in the possession of a nonresident outside of the state. They are not tax- able as interests in lands but as personalty. 21 The clear intent of the statute is to make the right of succession to all personal property, the title to which must be traced through the executor or administrator in this state, and also such personal property as had an actual situs in this state at the date of the death of the decedent, though he be a nonresident, liable for a tax.- 2 Urfder the Oregon statute only suet personal prop- erty as is subject to the jurisdiction of the county court for distributive purposes can be taxed in that state, except where decedent was domiciled in Oregon. 23 Tangible property of a deceased nonresident, such as livestock, merchandise, grain, or even a bank de- 20 L. o. L., 1201. 21 Dodge County v. Burns, 89 Neb. 534, 131 N. W. 922. 22 Rev. Stats., c. 69, 334, [6622]. 23 L. 0. L., 1228. (643) 399 PROBATE AND ADMINISTRATION. [Chap. 31 posit, are subject to a tax here, 24 as are also notes, bonds, mortgages and similar securities in the hands of a deposit company, or of an agent for purposes of collection and reinvestment, if actually in this state at decedent's death. 25 Shares of stock in a Nebraska corporation have a situs under the law in this state, can only be trans- ferred by virtue of the laws thereof, and it has been held are taxable here. 26 Corporate bonds are taxable where the decedent last lived, and hence those owned by a foreign estate would not be taxable here unless actually within the state. 27 Payment of the tax in one state is no defense to a proceeding under the laws of another state for the col- lection of a tax on such property as is or was at dece- dent's death actually in the state where such proceed- ing is pending. 28 The situs of devised property under the law is fixed as of the date of the death of the decedent. No agree- ment between the devisees for the conveyance of a part of the land to a claimant in satisfaction of his demand in any manner affects its liability for the tax, 29 nor can a personal representative avoid payment of the tax by any transfer of the assets, or applying them 24 Blackstone v. Miller, 183 U. S. 202, 47 L. Ed. 444. 25 In re Stanton's Estate, 142 Mich. 491, 105 N. W. 1122. 26 Kountz v. Douglas County, 84 Neb. 596, 121 N. W. 593; Gardner T. Carter, 74 N. H. 507, 69 Atl. 939. 27 In re Clinch, 180 N. Y. 300, 73 N. E. 85; Frothingham v. Shaw, 175 ; Mass. 59, 55 N. E. 623. 28 Douglas County v. Kountz, 84 Neb. 506, 121 N. W. 593; McCurdy v. McCurdy, 197 Mass. 248, 83 N. E. 881. 29 Sanford v. Saunders County, 90 Neb. 410, 133 N. W. 870. (644) Chap. 31] INHERITANCE TAX. 400 in the payment of the shares of parties entitled to an exemption instead of those which are not. 80 In Oregon the tax is assessed on the market value of a foreign estate remaining after the payment of such debts and expenses as are chargeable to it under the laws of that state. If the executor, administrator or trustee in such foreign state files with the clerk of the court having ancillary jurisdiction, and with the state treasurer, duly certified statements, exhibiting the true market value of the entire estate of the dece- dent owner, and the indebtedness for which said estate has been adjudged liable, fully attested by the judge of the court having original jurisdiction, the beneficiaries shall be entitled to have deducted such proportion of the said indebtedness of the decedent from the value of the property as the value of the property within this state bears to the value of the entire estate. 31 "Whenever a decedent appoints one or more trustees or executors, and in lieu of their allowance or commis- sion makes a bequest or devise of property to them, which would otherwise be liable for the tax, or ap- points them residuary legatees, and said bequests, devises or residuary legacies exceed what would be a reasonable compensation for their services, such excess shall be liable for the tax, and the court having juris- diction of his accounts, upon its own motion or on application of the state treasurer, shall fix such com- pensation. 32 400. Jurisdiction of the county court over inherit- ance taxes. The county court of the county in which the estate is being administered or of which deceased was a resi- 30 In re Kamsdijl, 190 N. Y. 492, 83 N. E. 584. 31 L. O. L., 1229. 32 L. 0. L., 1204. (645) 400 PROBATE AND ADMINISTRATION. [Chap. 31 dent, or if a nonresident of the county, in which the estate is located, has jurisdiction to hear and determine all questions relating to inheritance taxes, and the court first acquiring jurisdiction hereunder shall re- tain the same to the exclusion of every other. 33 It is the duty of the county treasurer to see that no property liable for the payment of an inheritance tax goes clear. The judge and county clerk are required once every three months to make a statement in writ- ing to him of the party from which or the party from whom they have reason to believe such tax is due and unpaid. 34 Whenever any real estate of which the decedent may be seised shall pass to any body corporate, or to any person or persons, or in trust for them or some of them, it shall be the duty of the executor, adminis- trator or trustee of such decedent to give information thereof in writing to the treasurer of the county wherein the real estate is situated within six months after they undertake the execution of their expected duties, or if the facts shall not be known within that period, within one month after the same shall have come to their knowledge. 35 If the county treasurer has reason to believe that an estate is liable for such tax, he should notify the county attorney, who is required to proceed, to enforce the same and represent the county in all proceedings for its assessment and collection. The first step is the appointment of an appraiser to determine the value of the property, which appointment may be made by 83 Rev. Stats., c. 69, 346, [6634] ; -L. O. L., 1205. 34 Rev. Stats., c. 69, 349, [6637]. 35 Rev. Stats., c. 69, 340, [6628]. (646) Chap. 31] INHERITANCE TAX. 401 the judge on his own motion, or on application of an interested party or the county attorney. It is the duty of the county judge within ten days after the filing of the will, or the application for letters testamentary or of administration, if in his opinion the estate is subject to the payment of the inheritance tax, to cause the county clerk to send to the state treasurer a certificate of the filing of such will or application for the grant of letters, and to proceed as soon as prac- ticable thereafter to determine the value of the prop- erty and the amount of the tax due thereon. 36 The statute requiring an inventory should be strictly en- forced in such cases, and in case there is a trustee of the estate, he should file his inventory within thirty days from his acceptance of his trust, but on applica- tion of a party in interest, may be granted further time not exceeding three months. 37 The executor, administrator or trustee of an estate which appears to be liable for the tax must at least ten days prior to the making of the assessment notify the state treasurer, in writing, of the time and place fixed for making the same, and file proof of service with the clerk of the court. 38 The court has power to. assess the tax on the basis of the first inventory and appraisement, or he may require the same to be re- appraised. 39 401. Duties of appraisers. The order appointing an appraiser should name the parties interested or claiming an interest in the estate, all of whom are entitled to notice of the time and place fixed for the appraisement, and it may also direct the W L. O. L.. 1206. *7 L. 0. L., 1207, 1208. 38 L. O. L., 1209. 8 L. O. L., 1210. r (647) 401 PBOBATE AND ADMINISTRATION. [Chap. 31 appraiser to find the present value of life estates, annuities, and other matters involved in the assess- ment of the tax. The appraiser is required to give notice by mail to such persons as the court may direct of the time and place fixed for making the appraisement. He may be authorized to issue subpoenas and to compel the at- tendance of witnesses. The testimony must be taken under oath, and reduced to writing and filed with his report in the county court. The appraiser determines from such evidence the value of the property, makes findings on such other questions submitted to him, and files the same with statement of fees with the court. All costs are paid by the county treasurer out of any funds he may have in his hands on the certificate of the county judge. 40 Form No. 172. APPOINTMENT OF INHERITANCE TAX APPRAISER. [Title of Cause and Court.] To C. D. : You are hereby appointed appraiser under the inheritance tax law of the estate of A. B., deceased, late of said county, and are directed to appraise it at its fair market value the following described real estate and personal property of said A. B., together with such other property of said A. B. as you may find he died seised or possessed of, said value to be fixed as of the date of the death of said A. B., to wit, You are also directed to fix and determine the value of all annuities ,and life estates created under the terms of the will of said A. B. and the present value of the homestead interest of C. B., widow of said A. B. You are directed to fix a time and place for making said appraisement, and forthwith notify E. P., whose postoffice address is - , etc., they being persons having or claiming to have an interest in said prop- 40 Rev. Stats., c. 69, 344, [6632]. (648) Chap. 31] INHERITANCE TAX. 401 erty, of the time and place fixed by you for making said appraisement. At the time and place so fixed by you, you are directed to take the testimony, under oath, of such witnesses as may be necessary, and compel their attendance. From such evidence and from your inspection of said premises 1 , you will make a report of the fair market value of the said property of said estate in writing, and return the same, together with your findings on the other matters submitted to you with said depositions, to this court. Witness the seal of said court this day of , 19 . (Seal) (Signed) J. K., County Judge. The county court has power on his own motion, if no inventory has been filed, or if the one on record ap- pears to be insufficient or inadequate, or on application of the state treasurer or an interested party, to appoint one or more persons as appraisers to appraise the true value of the property embraced in any inheritance, de- vise, bequest or legacy, subject to the payment of any tax imposed by this act. 41 Other matters, such as the values of life estates and annuities, may also be sub- mitted to him or them. The order should also fix the time and place when the appraisement will be made. Notice thereof is re- quired to be given by the county clerk to the state treasurer, and to all persons known to have a claim or interest in the inheritance, devise, bequest, legacy or gift to be appraised, and to such other persons as the court may direct. Such notice shall be given by mail. The fees of the appraisers are fixed at three dollars per day and actual and necessary traveling expenses, payable by warrant on the state treasurer, issued on the certificate of the county judge, and payable from the inheritance tax fund. In all other respects the powers and duties of the appraisers are the same as ID Nebraska. 42 L. o. L., 1211. 42 L. 0. L., 1213. '(649) 402 PROBATE AND ADMINISTRATION. [Chap. 31 402. Duties of appraisers Concluded. The notice should fix the time far enough in advance of the hearing to give both parties sufficient oppor- tunity to prepare their evidence. Its service, in the manner directed by the court, is jurisdictional. 43 Neither real estate nor personal property should be appraised on the basis of assessment for other taxes, but their value should be ascertained and determined by the evidence of competent witnesses. 44 The stat- ute contemplates that the appraiser may, if he thinks necessary, personally examine real estate and take testimony at different places as will be most accessible, and convenient for the witnesses, thus avoiding ex- cessive mileage. The statute does not give the county judge power to appoint an appraiser for each county in which land is situated when the application is filed. In a few counties such practice prevails, the apprais- ers in the outside counties simply appraising the lands in their counties. This may save money for the road fund but the statute does not warrant it. An ap- praiser may appraise the personalty and the real estate in his county, file a report thereon and resign and per- mit another to be appointed in the other county. Corporate stock which has a regular market value or which is listed on a stock exchange should be ap- praised at what it was selling for at the date of the death of the decedent. 45 In appraising unlisted stocks or shares in close corporations, the value of the plant In re Backhouse, 185 N. Y. 544, 77 N. E. 1181. In re Westurn, 152 N. Y. 43, 46 N. E. 315; In re McGhee, 105 Iowa, 9, 74 N. W. 695. 45 Walker v. People, 192 111. 106, 61 N. E. 489. (650) Chap. 31] INHERITANCE TAX. 402 and other property, its earning capacity and general condition is about the best evidence of their value. 48 It is doubtful whether the appraiser has power to compel such corporation to produce its books and papers for the purpose of fixing the value of its stock. 47 The value of a life estate is usually considered the present value of an annuity of the income of the prop- erty as ascertained from mortality and annuity tables. 48 The present value of the remainder is determined by deducting the present value of the annuity from the whole value of the property. 49 The Oregon statute requires all such inheritances, devises, bequests or gifts to be appraised at their full and true value immediately upon the death of the dece- dent, or as soon thereafter as may be practicable; pro- vided that when the same shall be of such a nature that its full and true value cannot be ascertained at such time, it shall be appraised in like manner when such value first becomes ascertainable. The value of every future, contingent or limited estate, income, interest or annuity dependent upon any life or lives in being shall be determined by the rules or standards of mor- tality, and of value commonly used by actuaries' com- bined experience tables, except that the rate of interest on computing the present value of all future or con- tingent interests or estates shall be four per cent per annum interest. 50 46 In re Jones, 172 N. Y. 675, 65 N. E. 570; In re Palmer, 183 N. Y. 238, 76 N. E. 16. 47 State v. Carpenter, 129 Wis. 189, 108 N. W. 641. 48 Howe v. Howe, 179 Mass. 546, 61 X. E. 225. State v. Pabst, 139 Wis. 561, 121 N. W. 351 j People v. Nelms, 241 111. 571, 89 X. E. 683. > L. O. L., 1212. (651) 402 PBOBATE AND ADMINISTRATION. [Chap. 31 Form No. 173. [Title of Cause and Court.] I herewith submit my report of the appraisement of said estate aa follows: Pursuant to the order of appointment which is herewith returned, on the day of , 19 , I fixed 19 , and my office in the city of , as the time and place for making said appraise- ment, and gave notice of the same to C. D., E. F., and G. H., by letter addressed to said C. D., E. F., and G. H., at , copies of which said letters are herewith returned marked "Ex. A," "Ex. B," and "Ex, C." I, on the same day, issued subpoena for G. H. and C. F. and delivered same to the sheriff of county for service. Said sub- poena was on the day of , 19 , returned indorsed as fol- lows: [Return of officer.] ' 6n the said day of , 19 , I proceeded to take testi- mony concerning the value of said estate within the state of Nebraska. G. H., administrator, appeared in person and by A. B., his attorney. It was stipulated and agreed that the testimony of all witnesses taken in this county be taken in shorthand by M. B., a stenographer, reduced to writing by him, and need not be signed by said witnesses. Testimony of G. H. and C. F. taken. Said depositions are herewith returned marked "Ex. C" and "Ex. D." [If hearing adjourned, state time and place and issue and return of subpoenas, if any.] [If real estate was viewed by appraiser, so state, giving date.] From said depositions and an inspection of said property, I find the reasonable market value of said estate on the date of the death of said decedent, to wit, , 19 , to be the sum of dollars ($ ), as is hereinafter more particularly set forth. IL Real estate in county: [Give specific description of each lot or tract in county of which dece- dent died seised and valuation of each, and foot the column.] in. Personal estate in county: [Give valuation of each item of personal property subject to general taxation in the county, or was within the county.] (-652) Chap. 31] INHERITANCE TAX. 402 IV. I find the fair market value of the estate of said A. B. located in aid county, to be the sum of dollars ($ ). [Make similar separate findings for property in each county.] V. That the following described premises, -, were at the date of the death of said A. B. occupied by him and his wife, C. B., as a homestead, and that the clear market value of the homestead interest of said C. B. in said last above-described premises is the sum of $ , and that the value of the statutory share of said C. B. in said entire estate is the sum of . Dated this day of , 19 . Bespectfully submitted, Statement of Costa. Stenographer's fees Subpoenas Mileage miles Postage Sheriff's fees ! Witness fees: miles. .! miles.. j Appraiser. Time Necessarily Employed in Making Appraisement. Notices 1 day Taking testimony " Viewing land " Hearing argument, findings and report " Total costs $ [If the appraiser was instructed to find the value of the shares of the heirs and the amount due each county, insert after V:] VI. I find from the record and files in said estate that the debts of said estate and the costs and expenses of administration amount to the sum of $ , and that the total value of said estate to be distributed to the widow and heirs at law is the sum of $ . VII. The following named persons are heirs of said A. B. and their relation- ship to him, the clear market value of their shares or interests in said (653) 402 PROBATE AND ADMINISTRATION. [Chap. 31 estate, the sums exempt from payment of an inheritance tax, and the amount of the tax due from each are as follows: Value of Names. Eolation. Share. Exemption. VIII. That the shares of said tax due the various counties in which the assets of said estate are situated are as follows: Share. Percentage. Tax. county. $ % $ Total, $ 100% Form No. 174. REPORT OF APPRAISERSREMAINDERS, CHARGES AND LIFE ESTATES. The will was substantially as follows : Devise in fee including home- stead and bequest of specific property to wife; bequest to son subject to debts, expenses, etc.; devise to son for life with remainder to a corpo- ration; devise to another party subject to two legacies. The bequest to the son was more than sufficient to pay the charges against it. [Form No. 173 to VII.] VIL That by the terms of said will there was devised to C. B., the widow of said decedent, the following described real estate: [describe lands] of the clear market value of $ , and also bequeathed to her per- sonal property, to wit: [describe personalty] of the clear market value of $ . That the clear market value of the interest of the said C. B. in said estate is the sum of $ , which is exempt from the payment of an inheritance tax. VIII. That by the terms of said will there was bequeathed to F. B., a son of said decedent, personal property, to wit: [describe personalty] of the (654) Chap. 31] INHERITANCE TAX. 402 clear market value of $ , and also devised to him an estate for life in the following described lands: [describe lands]. That said F. B. is years of age and the clear market value of said life estate is the sum of $ , and that the clear market value of the interest of said F. B. in said estate is the sum of $ , of which said amount the sum of $10,000 is exempt from the payment of an inheritance tax. IX. That the remainder in said real estate in finding VII, above described, was devised to , a corporation, and the clear market value of said remainder is the sum of $ , no part of which is exempt from the payment of an inheritance tax. X. That by the terms of said will there was devised to E. F., a nephew of said decedent, the following described real estate: [describe lands] of the value of $ , subject, however, to the payment of a legacy in the sum of $5,000 to one G. H., also a nephew of said decedent, and .also with the payment of a legacy of $2,000 to L. M.; that the interest of said E. F. in said estate is of the value of $ , of which said amount the sum of $2,000 is exempt from the payment of an inheritance tax; that $2,000 of the legacy to said G. H. is exempt from the pay- ment of an inheritance tax, and no part of the legacy to L. M. is exempt ;from the payment of such tax. XL The following named persons are devisees and legatees of said A. B., and the clear market value of the respective interests of each, the rate of taxation, and the amount of tax due from each to the respective counties in this state in which such property is situated are as follows: Names. Values. I Rate. I Exemption. Tax. County. Total Tax. F. B. F. B. E. F. E. F. G. H. L. M. 1% 2% 2% 2% 2% 2% $10,000 $ 2,000 $ 2,000 None None [Balance as in previous form.] 1(655) 402 PROBATE AND ADMINISTRATION. [Cliap. 31 Any appraiser who takes any fee or reward from an executor, administrator, trustee, legatee or next of kin, or other interested person, is deemed guilty of a misdemeanor, and subject to fine and imprisonment. 51 Such personal representative must within ten days after an appraisement or reappraisement, and before payment to the legatees or any party entitled to a bene- ficial interest therein, make and render to the state treasurer a copy of the inventory and appraisement, duly certified as such by the clerk of the court, and also make and file with the state treasurer a duplicate list or statement of the amount of such legacy or dis- tributive share, together with the amount of tax which has accrued or which will accrue. Such list must con- tain the name of each and every person entitled to any beneficiary interest in the estate, together with the clear market value of such interest as found and deter- mined by the court, and must be under oath. 52 Within thirty days after the assessment and deter- mination of the tax, the state treasurer may file objec- tions thereto in writing and apply for a reassessment. Ten days' notice must be given all parties interested, and on the hearing evidence may be introduced in sup- port or opposition thereto. The court may either sus- tain the appraisement or set it aside and determine the value of the property. The evidence must be taken and filed the same as that taken by the appraiser. An appeal to the circuit court may be made by the state treasurer or any party interested in the estate, which is heard in the same manner as appeals in suits in equity. 53 J Eev. Stats., c. 69, 345, [6633] j L. 0. L., 1232. 52 L. O. L., 1209. 53 L. O. L., 12 Id. (656), Chap. 31] INHERITANCE TAX. 403 403. Assessment of the tax, Upon the filing of the report of the appraiser, the court forthwith determines and fixes the cash values of all estates, annuities and life estates or terms of years growing out of said estates and the tax for which the same is liable, and gives immediate notice through the mails to all parties interested therein. 54 The values as found by the appraiser are the basis for the assessment, and he cannot change and modify them. 55 Findings or other questions submitted may be modi- fied. Unless he had previously referred the matter to the appraiser, he should ascertain from the records the debts against the estate, and the costs and expenses of administration as near as the same can be done, 56 and deduct the total from the gross value of the estate, or from the devises and legacies chargeable therewith. The shares of the heirs, devisees or legatees in this balance is determined, and the amounts remaining after deducting the exemptions are the bases of the assessment. 57 It has been held that a devisee cannot defeat the tax by a showing that the gift to him was in satisfaction or payment of a debt due him from the estate. 58 It is impossible for either court or appraiser to de- termine the exact amount due until the final account of the executor or administrator is allowed, except where no administration is had in this state. The ap- praiser is seldom appointed until the year allowed for 54 Rev. Stats., c. 69, 344, [6632] ; L. O. L., 1214. 55 Weston v. Goodrich, 86 Hun (N. Y.), 194. 56 In re Gihon, 169 N. Y. 443, 62 N. E. 561. 57 Callahan v. Woodridge, 171 Mass. 595, 51 N. E. 176. 58 In re Gould's Estate, 156 N. Y. 423, 51 N. E. 287. 42 Pro. Ad. 403 PBOBATE AND ADMINISTRATION. [Chap. 31 the payment of the tax without interest has nearly expired, and if there is an overpayment, it may be re- covered. If there is a shortage, the road fund is the loser. Form No. 175. ORDER ASSESSING INHERITANCE TAX. [Title of Cause and Court.] Whereas, C. D., appraiser, has filed his report of th clear market value of all the estate, real and personal, of which said A. B. died seised, situated within the state of Nebraska, and which is liable for the payment of an inheritance tax in said state, and it appearing there- from that the clear market value of the estate of said A. B. at the date of his death, situated within the state of Nebraska, and which may be liable for the payment of an inheritance tax, is $ , as follows: Personal estate in county of the value of Personal estate in county of the value of Description. Value 1 . $ Description. Value. That the following described property was the homestead of A. B. at the date of his death, , and that the present value of the home- stead interest of C. B., the widow of said A. B., therein is the sum of $ , and that the right of succession to the same is not liable for the payment of an inheritance tax. I find from said report and the records and files in the matter of said estate that the value of the statutory interest of said C. B., widow, in said estate is the sum of $ , and that the right of succession to the same is not liable for the payment of an inheritance tax. *I find that J. B. is a son of said A. B., and under the statute takes by inheritance the one-half of the estate of said A. B. remaining after deducting the homestead interest and statutory share of said C. B., and that the clear market value of the estate so inherited by him, the said C. B., is the sum of $ , that he is entitled to an exemption of (658) Chap. 31] INHERITANCE TAX. 403 $10,000, and that the clear market value of the property so inherited by aid J. B., the succession to which is liable for the payment of an inheritance tax, is $ , and that the tax due thereon is the sum of $ . [Similar findings for other heirs.] I find that % of said tax is due the said county of , and that % of said tax is due said county of %, and that the entire tax due from the heirs of said A. B. on their rights of succession to his said estate is the sum of $ . I hereby assess a tax on said right of succession of said A. B. in the sum of $ , of which said sum $ is payable to said county and $ to county. [Similar findings on taxes due from other heirs.] It is also ordered that C. D., appraiser, be allowed the sum of $ for his services, and that the following parties be allowed the sums set after their respective names for their fees in connection with said appraisement: C. M., stenographer E. F., witness "W. D., constable and that said costs be paid by the county treasurer of county. Dated this day of , 19 . (Signed) J. K., County Judge. Porm No. 176. ORDER ASSESSING INHERITANCE TAX, REMAINDERS, CHARGES AND LIFE ESTATES. [Follow Form No. 175 to *.] I find that by the terms of the will of said A. B. there was devised to said C. B. the following described real estate, , of the clear market value of $ , and bequeathed to her personal property of the clear market value of $ , and that the value of the property so devised and bequeathed to her is the sum of $ and is less than the present value of her homestead interest and of her statutory share, should she elect to take under the statute, and that the right to succeed to said property under said devise and bequest is not liable for the payment of an inheritance tax. I find that by the terms of said will there was bequeathed to F. B., a son of decedent, personal property of the clear market value of $ , all situated in said county of , and that there was devised to iim a life estate, the description of which and clear market values are (659) 403 PROBATE AND ADMINISTRATION. [Chap. 31 as follows: [Descriptions and values by counties as in Form No. 175, adding another column giving values of his life interest.] That the clear market value of the interest of said F. B. in said estate is the sum of $ ;" that he is entitled to an exemption of $10,000, and that the clear market value of the property so devised and bequeathed unto said F. B., the right to the succession to which is liable for the payment of an inheritance tax, is $ , and the tax due thereon is the sum of $ , of which said amount the sum of $ is due and payable to the county treasurer of county and $ to the county treasurer of county, Nebraska. I find that the remainder in said real estate devised to said F. B. was devised to , a corporation; that the clear market value of said estate of remainder is the sum of $ , no part of which is entitled to exemption, and that the tax due on the right of succession to the same is $- , of which said amount the sum of $ - is due county and $ due county, Nebraska. [Similar findings for other devisees or legatees.] I hereby assess a tax on the said right of succession of said F. B. to property situated in county in the sum of $ - and to property in county in the sum of $ . [Similar findings as to other taxes.] It is hereby ordered that C. D., executor of said estate, be and he hereby is directed to retain in his possession from the said legacy to said F. B. the sum of $ , the same being the inheritance tax thereon; that F. B. pay to said executor the balance of said tax, the same being the sum of $ ; that said E. F. deduct from the legacy to said G. H. which was charged on the lands devised to him the tax due from G. H. on his right to succession to his said legacy in the sum of $ , and pay the same to said C. D., and that said - , a corporation, pay to said C. D. the tax assessed on its said right of succession. [Costs as in previous form.] When a tax is assessed against the right of succes- sion to property in two or more counties, the exemption should be proportionately deducted from the values in each. One county ought not to be deprived of money for its road fund at the expense of another. Each county ought to pay its share of the costs of appraisement, which in some cases can be done by (660) Chap. 31] INHERITANCE TAX. 404 apportioning it to the amount of tax received by each. If the appraiser in the home county resigns after ap- praising the home assets and other appraisers are suc- cessively appointed in different counties, each county should pay the fees and costs of its own appraiser. If he takes testimony in different counties, witness and officers' fees should be charged to the county in which the testimony was taken, and his mileage and a part of his fee is also a proper charge. It is a matter largely in the discretion of the court. 404. Appeals. The statute provides that any person dissatisfied with the appraisement or assessment may appeal to the county court of the proper county within sixty days after making and filing such appraisement or assess- ment, conditioned upon giving security to the court to pay all the costs, together with all taxes that may be fixed by the court. 59 The usual practice in this state is for the losing party to file his objections to the appraisement in the county court, and take his appeal from the appraisement or assessment direct to the district court. 60 59 Rev. Stats., c. 69, 344, [6632]. 60 See Dodge County v. Burns, 89 Neb. 534, 131 N. W. 922; In re Sanford, 90 Xeb. 410, 133 N. W. 870; Strahan v. Wayne County, 93 Neb. 828, 142 N. W. 878. In construing a statute similar to our own, the New York court of appeals holds that in making the assessment the judge acts as a ministerial or taxing officer, and that any question on the liability of the succession to the property for the payment of an inheritance tax must be brought before him sitting as a court on appeal. In re Wolf, 137 X. Y. 205, 33 N. E. 156; Weston v. Goodrich, 86 Hun (X. Y.), 154; In re Costello, 189 X. Y. 288, 82 X. E. 139. In Douglas County v. Kountz, 84 Xeb. 506, 121 N. W. 593, an appeal was taken (661) 404 PBOBATE AND ADMINISTRATION. [Chap. 31 The appeal may be taken by any party interested, which includes, besides heirs, devisees or legatees, the county, 61 and an executor, 62 but not an administrator. 63 The burden of proof in the district court is upon the appellant to show jurisdictional defects or irregular- ities in the proceedings, the liability or nonliability of the succession to certain property to the tax, or that the findings of values are not supported by the evi- dence. 64 Form No. 177. BOND ON APPEAL FROM ASSESSMENT OF INHERITANCE TAX. [Title of Cause and Court.] Whereas, on the day of , 19 , an order of said court was made and entered assessing an inheritance tax in the sum of dollars on the right of C. D. to take the following described real estate as a devisee of said A. B., and the said C. D. is dissatisfied with said assessment and desires to appeal therefrom to the district court of said county : Now, therefore, we, C. D., as principal, and E. F. and G. H., as sureties, do hereby undertake unto the county court of said county to pay all costs of said appeal, together with all taxes that may be fixed by said district court thereon. to the district court from an order of the county court overruling a de- murrer to an answer to an application for the appointment of an ap- praiser. The supreme court questioned the right of the party to appeal, but assumed jurisdiction for the purpose only of determining whether the succession to the property was subject to the tax. 61 Commonwealth's Appeal, 128 Pa. 603, 13 Atl. 386. See Dodge County v. Burns, 89 Neb. 534, 131 N. W. 922 ; In re Culver's Estate, 153 Iowa, 461, 133 N. W. 722. 62 Humphreys v. State, 70 Ohio St. 67, 70 N. E. 957. 3 Commonwealth v. Coleman, 52 Pa. 468. 64 state v. Kiler, 121 Iowa, 423, 96 N. W. 952; People v. Kelley, 218 111. 509, 75 N. E. 1038; In re McPherson, 104 N. Y. 306, 10 N. E. 685; Ferry v. Campbell, 110 Iowa, 290, 81 N. W. 604. (662) Chap. 31] INHEBITANCE TAX. 405 This obligation shall be binding on the heirs ; executors, administrators and assigns of the parties hereto. Dated this day of , 19 . (Signed) C. D. E. F. G. H. The above security approved by me both as to form and sufficiency. Dated this day of , 19. (Signed) J. K M County Judge. On an appeal by the county no bond is necessary. Under the Oregon practice, an appeal also lies to the circuit court from all final orders, judgments or decrees in the matter of assessing the tax, which are heard and tried in the same manner as appeals in suits in equity. 65 405. When inheritance tax due. Taxes on the right of succession to property are due and payable at the death of the decedent, and in- terest at the rate of seven per cent per annum shall be charged and collected therefrom for such time as they are not paid; provided that if the tax is paid within one year from the accruing thereof, interest shall not be charged, and if the executor, administra- tor or tnistee does not pay the tax within one year, he shall be required to give a bond for the payment of the same with interest. 66 The county court has no power to remit the interest on the tax, and if it is not paid within the year, interest from the date of dece- dent's death to date of payment should be collected. 67 w L. o. L., 1224. 6 Rev. Stats., c. 69, 336, [6624]. 67 Saunders County v. Sanford, 90 Neb. 410, 133 N. W. 870. (663) 405 PEOBATE AND ADMINISTRATION. [Chap. 31 In Oregon the inheritance tax is due and payable eight months from the date of the death of the dece- dent, excepting only those on conditional or contingent devises and legacies, which are due and payable when the party beneficially entitled thereto shall come into the possession thereof. 68 Any person or body corporate succeeding to a re- mainder, the right of succession to which is chargeable with the tax, may elect not to pay the same until they come into the possession and enjoyment of it. In such case such persons or body corporate shall give a bond to the state of Nebraska in a, penal sum of three times the amount of the tax, conditioned for the payment of the tax at such time or period as they or their rep- resentatives may come into the actual enjoyment of the property, which bond shall be filed with the clerk of the county to which the tax is payable. They are also required to file a verified return of the property and the above bond within one year from the death of the decedent, and may renew the same for five years. 69 Form No. 178. BOND OF REMAINDERMAN TO SECURE PAYMENT OF INHERIT- ANCE TAX. Know all men by these presents, that we, C. D., as principal, and E. F., G. H., and L. M., as sureties, all of county, Nebraska, are held and firmly bound unto the state of Nebraska in the penal sum of - thousand dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns, by these presents. Whereas, by the terms of the last will and testament of A. B., late of said county, deceased, which said will was, on the day of , 19 , admitted to probate in the county court of said county, and 8 L. O. L., 1193. 69 Rev. Stats., c. 69, 335, [6625]; L. O. L., 1203. (664) Chap. 31] INHERITANCE TAX. 406 letters testamentary granted thereon to X. T., a devise was made to C. D. of the following described real estate, subject to the life estate of R. S. therein [describe real estate], and the fair market value of said devise has been determined to be thousand dollars, and the inherit- ance tax due the state of Nebraska from said C. D. thereon is the sum of dollars, and said C. D. is desirous of deferring payment of the same until he enters into the possession thereof: Now, therefore, the condition of this obligation is such that, if the said C. D. shall well and truly pay or cause to be paid to the treasurer of said county the sum of dollars, being the amount of said inheritance tax, together with interest thereon at the rate of seven per cent per annum from the day of , 19 [date of death of decedent], to the date of payment, and shall, at the request of the county judge of said county, renew this obligation within five years from its date, then this obligation to be null and void; otherwise to be and remain in full force and effect. Dated this day of , 19 . (Signed) C. D. E. P. G. H. L. M. I hereby approve of the foregoing bond, both as to form and sufficiency of sureties. Dated this day of , 19 . (Signed) J. K., County Judge. 406. Payment of inheritance tax by executor, ad- ministrator or trustee. It is the duty of the executor, administrator or trus- tee having any charge or trust in legacies or property for distribution to deduct the tax therefrom before making any payments. If the legacy or property be not money, he shall collect the tax thereon upon the appraised value thereof from the legatee or person entitled to such property, and he shall not deliver or be compelled to deliver any specific legacy or property subject to tax to any person until he shall have col- (665) 406 PEOEATE AND ADMINISTRATION. [Chap. 31 lected the tax thereon. Whenever any such legacy shall be charged upon or payable out of the real estate, the heir or devisee, before paying the same, shall deduct such tax therefrom, and pay the same to the executor, administrator or trustee, and the same shall remain a charge upon such real estate until paid, and the payment thereof shall be enforced by the executor, administrator, or trustee in the same manner that the payment of said legacies might be enforced. If, how- ever, such legacy shall be given in money to any per- son for a limited period, he shall retain the tax upon the whole amount, but, if it he not in money, he shall make application to the court having jurisdiction of his accounts to make apportionment, if the case re- quires it, of the sum to be paid into his hands by the legatees, and for such further orders relative thereto as the case may require. 70 The personal representa- tive of a decedent has full power and authority to sell the assets of the estate in the same manner as for the payment of debts for the purpose of paying this tax. 71 All inheritance taxes assessed in Oregon are pay- able to the state treasurer, and if paid within eight months from the death of the decedent, are subject to a discount of five per cent. If not paid within eight months from the time they accrue, they bear interest at eight per cent from the time they become due, unless by reason of claims upon the estate, necessary litiga- tion or other unavoidable delay, they cannot be deter- mined and paid within the time provided, in which case they bear six per cent interest from the date they accrue until the cause of the delay is removed, and eight per cent thereafter, and in all cases where a bond is given to secure their payment, interest at six per 70 Rev. Stats., c. 69, 337, [6625] ; L. O. L., 1199. 71 Rev. Stats., c. 69, 338, [6626] ; L. O. L., 1198. (666) Chap. 31] INHERITANCE TAX. 406 cent must bs paid. 72 The procedure for the payment of the tax to the state treasurer is identical with that for the payment of the same tax in Nebraska to the county treasurer, and the tax remains a lien for the same period of time. 73 Inheritance taxes on real estate are payable to the treasurer of the county within which the lands are situated and those on personal property to the treas- urer of the county in which the property was subject to general taxation, or in which the late owner, if a resident of this state, resided. Shares of stock in Nebraska corporations owned by nonresidents may be taxed in the county where the corporation has its principal business office. 74 Every sum of money retained by any executor or administrator, or trustee, or paid into his hands for any tax on any property, shall be paid by him within thirty days thereafter to the treasurer of the proper county, who is required to give, and every such repre- sentative shall take, a receipt for the same. 75 Whenever any foreign executor shall assign or transfer any stocks or loans in this state standing in the name of the decedent or in trust for the decedent which shall be liable to such tax, he is required to pay the same to the county treasurer, otherwise the tax shall be paid by the corporation, provided it has knowl- edge before the transfer of the stocks or loans that they are subject to an inheritance tax. 76 Receipts for inheritance taxes should state on what real property, if any, they are paid, the name of the 72 L. O. L., 1197. 73 L. O. L., 1194-1196, 1198, 1199. 74 Douglas County v. Kountz, 84 Neb. 506, 121 N. W. 593. 75 Rev. Stats., c. 69, 359, [6627]. 78 fiev. Stats., c. 69, 342, [6630]; L. O. L., 5 1201. T(667) 407 PKOBATE AND ADMINISTRATION". [Chap. 31 party paying the same, and whether or not in full pay- ment. A certified copy of the same may be obtained on payment of a fee of fifty cents, and the receipt or copy recorded in the office of the county clerk where the lands are situated. 77 In Oregon such receipts can be obtained from the state treasurer on payment of a fee of twenty-five cents and recorded with like effect in the office having con- trol of the deed records of the county. 77 * The tax remains a lien on the property for five years. 78 407. Refunding excess or erroneous payments. When any debts shall be proved against the estate of the deceased after the distribution of legacies from which the inheritance tax has been deducted in com- pliance with the' statute, and the legatee is required to refund any portion of the legacy, a proportion of the tax shall be paid to him by the executor or admin- istrator, or by the county treasurer, if it has been paid to him. 79 If any tax has been paid to the county treasurer erroneously, it may be refunded by him on satisfactory proof of error in the amount of the same if applica- tion is made within two years from the time of its payment. 80 Under the Oregon practice, the time within which such action must be brought is fixed at three years. 81 77 Rev. Stats., c. 69, 352, [6640]. 77a L. O. L., 1220, 1221. 78 Eev. Stats., c. 69, 353, [6641]; L. 0. L., 1196. 79 Rev. Stats., c. 69, 341, [6629]. 80 Rev. Stats., c. 69, 353, [6631]. 81 L. O. L., 1200. The above sections of the statutes clearly refer to cases where excessive taxes have been paid by reason of errors of (668) Chap. 31] INHERITANCE TAX. 408 408. Action for recovery of tax. If it shall appear to the county court that any in- heritance tax has not been paid according to law, the county court shall issue a summons commanding the person or corporation liable to pay such tax or inter- ested in such property to appear before the court on a certain day, not more than three months after date of such summons, to show cause why such tax should not be paid. The proceedings, practice and pleadings, and the hearing and determination and judgment in said court, shall be the same as now provided or those which may be hereafter provided in probate cases in county courts in this state, and the fees and costs in such cases shall be the same as in probate cases in county courts. 82 Under the Oregon practice, proceedings for the en- forcement of the tax are commenced on the applica- tion of the prosecuting attorney of the county at the request, in writing, of the state treasurer. A citation to the persons liable for the tax is issued commanding them to appear and show cause before the court on a day specified not more than thirty days from its date, unless the court for good cause grants a longer time, why the tax has not been paid. The citation is served as ordered by the court. If it shall appear that the tax is due and payable and cannot be enforced under the provisions of the inheritance tax, the prose- cuting attorney is given power to sue for the same in the name of the state. The costs of the proceeding, if the county judge certifies that there was probable cause for instituting it, are payable by a warrant on fact, and not errors of law in determining whether or not the property is actually liable for the tax. The remedy in such cases is clearly by appeal. 82 Eev. Stats., c. 69, 347, [6635]. (669) 409 PROBATE AND ADMINISTRATION. [Chap. 31 the inheritance tax fund in the same manner as the costs of appraisement. 83 Whenever the estate charged or sought to be charged is of such a nature or is so disposed that the liability is doubtful, or the value thereof cannot be ascertained with reasonable certainty, the state treas- urer may, with the written approval of the attorney general, setting forth the reasons therefor, compromise with the beneficiaries and compound the tax, subject to the approval of the county court. 84 409. Inheritance tax records. The records of inheritance taxes are kept separate from the other records of the estate in books furnished by the secretary of state, in which should be entered the returns made by the appraiser, the cash value of annuities, life estates and terms for years, and other property fixed by him and the tax assessed thereon, and the amounts of any receipts for payments thereof filed with him. 85 The inheritance tax constitutes a special road fund, which is under the charge of the county board. Form No. 179. PETITION OF COUNTY ATTORNEY FOR PAYMENT OF DE- LINQUENT INHERITANCE TAX. In the County Court of County, Nebraska. In the Matter of the Estate of A. B., Deceased. Your petitioner, R. J. S., county attorney of said county of , and acting in his capacity as such county attorney, respectfully repre- sents unto the court that A. B., late a resident of said county, departed this life at the village of , in said county, leaving a last will and testament, which said instrument was, on the day of , 19 , duly admitted to probate by said court, and that letters of administra- 83 L. O. L., 1217. 84 L. O. L., 1222. 85 Rev. Stats., c. 69, 5 349, [6687], (670) Chap. 31] INHEKITANCE TAX. 409 tion thereupon issued to C. D., the executor therein named, and said C. D. is now the duly qualified executor of said estate; that on the day of , 19 , L. M., of said county, was appointed by said court to appraise the property of said estate liable for the payment of the inheritance ; that said L. M. thereupon gave notice of the time and place fixed by him for appraising said property, and on the day of , 19 , appraised said property at the sum of dol- lars, and filed the report of his proceedings, together with the deposi- tions taken by him in said appraisement matter, in said court; and that on the day of , 19 , this court made an order assessing said tax in the words and figures following: [Copy order in full.] Your petitioner therefore prays that a summons to show cause issue t<> C. D., executor of the estate of said A. B., and to E. F. and the X Y. Z. Co., commanding them to show cause, if any they have, why a decree of said court should not issue directing said executor to pay the said tax, and for such other and further relief as justice may require. Dated this day of , 19 . (Signed) R. J. S., County Attorney. Under the Oregon practice, the county court is re- quired to enter in a book furnished by the secretary of state a record of all estates on which letters testamen- tary or of administration are granted, giving names of the heirs, devisees, legatees and beneficiaries, their residences and relationship to the decedent, the amount of their legacies, the estimated values of their devises, the amount of the inventory, the returns of the inherit- ance tax appraisers, the value of all inheritances, de- vises, bequests, legacies and gifts inherited from such decedent, or given by such decedent in his will or otherwise, as fixed by the court; and the tax assessed thereon and the amounts of any receipts for payment thereof filed in said court. Expectancy tables, and tables giving values of annuities and life estates, and the present worth of remainders and reversions. 86 The tax to the amount of $5,000 constitutes an in- heritance tax fund. Amounts in excess of that sum are 86 L. O. L., 1218. (G71) 409a PROBATE AND ADMINISTRATION. [Chap. 31 transferred to and become a part of the general fund of the state. 87 409a. Life expectancy tables. Life expectancy tables are necessary in determining the present value of homestead interests and life es- tates. Such tables which have been prepared by recognized authorities, and are contained in a law book of general acceptance as a standard, or other reliable publication, are competent evidence of a person's ex- pectancy of lif e, 87a As they are prepared from general mortality statistics, proof that the party whose ex- pectancy it is desired to determine is in sound health is not necessary. 87b They are not conclusive, and evi- dence of the habits and present physical condition of the party is admissible to show that his expectancy is above or below the average. 88 The American and Carlisle tables are the ones most frequently referred to. 89 The Actuaries table, pre- pared from mortuary statistics of a large number of life insurance companies by an association of actuaries, is also a standard. There is but little difference be- tween them, except that for extreme old ages the expectancies according to the Carlisle table are too high. 87 L. O. L., 1195. 87a Chicago R. I. & P. R. Co. v. Hambel, 2 Neb. Unof. 607, 89 N. W. 643; Sellars v. Foster, 27 Neb. 118, 42 N. W. 907. 87b Cusick v. Boyne, 1 Cal. App. 643, 82 Pac. 985. 88 South Omaha v. Sutliffe, 72 Neb. 746, 101 N. W. 997. 89 Chicago E. I. & P. R. Co. v. Hambel, 2 Neb. Unof. 607, 89 N. W. 643. (672) CHAPTER XXXII. ACCOUNTING. 410. Duty of Executor or Administrator to Bender an Account. 411. When Accounting Required. 412. Proceedings for an Accounting. 413. Annual or Interlocutory Accounts. 414. Debtor Side of Account General Charges. 415. Debtor Side of Account Interest. 416. Debtor Side of Account Lands Purchased. 417. Credit Side of Account General Charges. 418. Costs and Expenses of Administration. 419. Costs and Expenses of Administration Concluded. 420. Fees of Executor or Administrator. 421. Fees and Special Compensation. 422. Notice of Hearing on Administration Account. 423. Hearing on the Account. 424. Hearing on the Account Concluded. 425. Order Allowing Final Account. 426. Coexecutors and Coadministrators. 427. Equitable Action to Recover Assets. 428. Accounting by Former Executor or Administrator With Admin- istrator De Bonis Non. 410. Duty of executor or administrator to render an account. Every administrator, or an executor who has given a general bond as such, is required to give an account of the whole of the goods, chattels, rights and credits of the deceased which may come into his possession, including proceeds of the sale of real estate for the payment of debts and legacies, and of all the interest, profit and income that shall in any way come into his hands from the estate of the deceased. 1 l Rev. Stats., c. 17, 237, [1501]; L. O. L., 1282, 1285. 43 Pro. Ad. (673) 411 PEOBATE AND ADMINISTRATION. [Cliap. 32 An executor who has given a bond as residuary legatee is not compelled to file an account of the prop- erty that has come into his charge; a statement accom- panied by vouchers, or showing that all the debts allowed against said estate, and the legacies and the costs and expenses of administration have been paid, is all that is required. 2 The Oregon statutes do not provide for a residuary legatee bond, and consequently a full accounting is required of all estates. 411. When accounting required. Every executor or administrator is required to ren- der an account within one year from the date of his letters, unless further time is allowed by the court, or at any time pending administration, when cited so to do, on application of an interested party. Where for any reason a full settlement cannot be had within the time fixed by the court, a settlement shall be made as far as possible, and the administration continued until a full settlement can be had. 3 Under the Oregon practice, he is required within the first ten days of April and October of each year, until the administration is completed, to file a verified account with the clerk of the county court, with proper vouchers showing the amount of claims presented, amount allowed and disallowed, and payments made. In case the notice of his appointment shall be within sixty days next preceding the first day of April or October, the filing of the account shall be omitted until the succeeding April or October. 4 2 McElroy v. Hathaway, 44 Mich. 339, 6 N. W. 367; Copp v. Hersey, 31 N. H. 317. 3 Rev. Stats., c. 17, 245, [1509]. 4 L. 0. L., 1262; In re Mark's Estate, 68 Or. 344, 133 Pae. 777. (674) Chap. 32] ACCOUNTING. 411 He may be cited to file his account at any time after the expiration of six months from his appointment when it is made to appear by the application, under oath, of any party interested in the estate that there are assets in the hands of such representative, the whole or any portion of which ought to be immediately paid to such applicant. Such citation may also issue when he has neglected to file his accounts within the time fixed by the statute. 5 An interested party includes a creditor, 6 an heir, distributee or legatee, 7 and in some cases a remainder- man. 8 A surety upon his bond cannot compel an accounting.* After the time for completing the administration has expired the court may of its own motion cite him to account. 10 The statutes contemplate that an estate be adminis- tered within three years from the date of letters, except in cases of a testate estate where a trust exists which cannot be closed up within that period. If at the ex- piration of three years the debts and legacies are all paid, the court may of his own motion cite the personal representative to account. Where a trust has been created by the will, the estate can be closed up except in so far as the trust prevents. 11 5 Eev. Stats., e. 17, 248, [1512]. See L. O. L., 1283; In re Mark's Estate, 66 Or. 344, 133 Pac. 777. Wever v. Marvin, 14 Barb. (N. Y.) 376; Beeber's Appeal (Pa.), 8 Atl. 191. 7 Eogers v. Marston, Me. 404, 15 Atl. 22. 8 Godwin v. Wartford, 107 N. C. 168, 11 S. E. 1051. Durnell v. Providence Mun. Ct., 9 B. I. 189. 10 Whitman's Appeal, 28 Pa. 376; In re Campbell, 12 Wis. 3C9. 11 Kev. Stats., c. 17, 128, 1392]. [(675) 412 PEOBATE AND ADMINISTRATION. [Chap. 32 There is no statute of limitations fixing the time within which application for an accounting by the per- sonal representative may be granted. 12 As long as there are assets of the estate unadministered, it is the duty of the court to cite him to appear. Lapse of time raises a presumption, which is not conclusive, that the administration has been fully completed. 13 After one year, provided he has not been granted an extension of time, or some trust exists, he has no valid reason for not filing either a full or partial account. No excuse will be accepted short of an absolute dis- charge, 14 or that no assets have ever come into his hands, which is in effect a final account. 15 412. Proceedings for an accounting. When the personal representative has never filed an account or procured an extension of time, and the time fixed for completing the administration has ex- pired, a motion or petition setting up such fact is all that is required. An application for an interlocutory account should set out sufficient facts to show that some disposition should be made of the assets in the hands of the executor or administrator. 16 If for a final accounting, it should show that the estate is fully administered. If the executor or administrator has 12 Fuller v. Cushman, 170 Mass. 286, 39 N. E. 361; Allen v. Bartlett, 52 Kan. 387, 34 Pac. 1042. 13 Fuller v. Cushman, 170 Mass. 286, 39 N. E. 361; Eoberts v. Johns, 16 S. C. 171. 14 Montgomery v. Cloud, 27 S. C. 188, 3 S. E. 196; Portis v. Cummings, 14 Tex. 139; In re Sanderson's Estate, 74 Gal. 199, 15 Pac. 753. 15 In re Soutter, 105 N. Y. 514, 12 N. E. 34. 16 Treadwell v. Sorrell, 23 Miss. 563. (676) Chap. 32] ACCOUNTING. 412 uncollected notes or securities in his possession, a final settlement cannot be had unless the parties entitled thereto have agreed upon a distribution of such as- sets. 17 A petition filed a long time after letters issue should set out with particularity the assets remaining on hand and the duties of the representative not complied with. 18 In all cases it should allege the interest the applicant has in the estate and should be verified. 19 A citation should issue and personal service had on the representative. Should he fail to comply with the order of the court, he may be proceeded against for contempt, and is also liable on his bond for all dam- ages that may accrue. 20 The order is not subject to appeal. 21 Form No. 180. GENERAL PETITION FOR AN ACCOUNTING BY AN EXECUTOR OR ADMINISTRATOR. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that he is an heir at law of said A. B. (legatee of said estate]; [that on the day of , 19 , he .filed a claim against said estate in said court, which claim was, on the day of , 19 , allowed by the judge thereof in the sum of dollars, and no appeal has been taken from the order allowing the same] ; that on the day of , 19 , letters of administration issued out of and under the seal of said court to C. D. ; that on the day of , 19 , the said court made an order fixing the time of payment of debts and disposing of said estate at one year from said date last aforesaid, and 17 In re Morrison's Estate, 48 Or. 612, 87 Pac. 1043. 18 Tait v. Gardner, 119 Ga. 133, 46 S. E. 73. 19 In re Robinson, 6 Mich. 137; Rev. Stats., c. 17, 248, [1512]. 20 Rev. Stats., e. 17, 248, [1512]; L. O. L., 1283; Rutenic r. Hamakar, 40 Or. 451, 67 Pac. 192. 21 In re Palthorp, 160 Pa, 316, 28 Atl. 689. (677) 412 PROBATE AND ADMINISTRATION. [Cliap. 32 that no further time has been granted by the court for that purpose ; that said administrator has disposed of said estate, but has neglected and still neglects to pay the debts due from said estate, and settle the same, and render an account of his admin istration. Your petitioner therefore prays that said C. D., administrator as aforesaid, may be required to pay the debts against said estate, and settle the same, and render an account of his administration, as far as the same may be had, and that, in the case of his failure to do so, his account be determined in his absence, and for such other and further relief as may be deemed just and equitable. (Signed) E. F. [Add verification, Form No. 5.] Form No. 181. PETITION BY LEGATEE FOB AN ACCOUNTING. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that he is interested in said estate as a legatee thereof; that on the day of , 19 , letters testamentary issued out of and under the seal of said court to C. D., as executor of said estate; that sa.id C. D., ex- ecutor as aforesaid, has collected from the personalty of said estate the sum of dollars ($ ), and now holds the same in his posses- sion; that the debts due from said estate have beea paid; that, according to the terms of said will, a legacy of dollars ($ ) was di- rected to be paid to your petitioner within six months from the date of the issue of letters testamentary, and made a first charge upon the assets of said estate; that there is now in the hands of said executor funds sufficient to pay said legacy, and all expenses of administration; that said C. D., executor as aforesaid, has neglected and refused, and still neglects and refuses, to pay said legacy as directed by said will, and that the amount of said legacy should be immediately decreed to be paid to your petitioner. Your petitioner therefore prays that said C. D., executor as aforesaid, be required to render an account of his administration, and decreed to pay said legacy to your petitioner, and for such other and further relief as may be just and equitable. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] X678) Chap. 32] ACCOUNTING. 413 Form No. 182. CITATION TO EXECUTOR OK ADMINISTRATOR TO ACCOUNT. State of Nebraska, County, 38. To C. D., Executor of the Estate of A. B., Deceased: You are hereby notified that, on the day of , 19 , E. F. filed his petition in the county court of said county praying for an accounting of your administration of said estate. You are required to render an account of your doings as administrator of said estate on or before the day of , 19 . Dated this day of , 19 . (Seal) (Signed) J. K, County Judge. 413. Annual or interlocutory accounts. Accounts rendered pending administration, and be- fore the final account, are in the nature of a statement of the transactions of the executor or administrator up to that date, and differ materially from the final ac- count. They are often made ex parte, and without notice to those interested in the estate, and the hear- ing thereon very frequently takes place in the absence of such persons. The approval of them by the court is a judicial determination that they are only prima facie correct. 22 The accounts so allowed without prac- tically any hearing thereon are not considered binding and conclusive. At any time before the final account of administration is allowed they may be opened up and their correctness questioned; and this is true, though no exception or appeal has been taken from their allowance. 23 Such account, however, is presumed 22 Musick v. Beebe, 17 Kan. 47. 23 Bachelor v. Schmela, 49 Neb. 37, 68 N. W. 378; Boales v. Fer- guson, 55 Neb. 565, 76 N. W. 18; In re Heath's Estate, 58 Iowa, 36, 11 N. W. 723; Griggs v. Shaw, 42 N. J. Eq. 631, 9 Atl. 578. (679) 413 PROBATE AND ADMINISTRATION. [Chap. 32 to be correct until attacked on the hearing of a second interlocutory or a final account on account of mistakes, errors, or fraud. 24 In cases where the account is contested, it has been held conclusive on all of those contesting it who were not under disability, and on all those under disability who were properly represented by guardians. 25 The order not being final is not appealable. 26 Form No. 183. ANNUAL OR INTERLOCUTORY ACCOUNT OF EXECUTOR OR ADMINISTRATOR. [Title of Cause and Court.] The undersigned, C. D., administrator of the estate of A. B., de- ceased, herewith submits the account of his administration of said estate, including all transactions of said estate up to , 19 . C. D., Administrator, in Account with Estate of A. B., Deceased. DB. CR. 19 . . $ 19 $ [Give items of all cash received.] [Give all disburse- ments by items.] d> By bal. on hand. There remains in my possession and undisposed of the following as- sets of said estate, the appraised value of which is set opposite each item: Items Values $ sion undisposed of $ 24 Patterson v. Bell, 25 Iowa, 150. 25 Kittson v. St. Paul Trust Co., 78 Minn. 325, 81 N. W. 7; Duke's y descent or assignment, 26 nor is the right to revoke the same. 27 24 Ludington v. Patton, 111 Wis. 208, 86 N. W. 571. 25 Huguenin v. Baseley, 14 Ves. 273; Bridgeman v. Green, Wilmot, Ops. 58, 65. 26 Estate of Nordquist v. Sahiboom, 114 Minn. 329, 131 N. W. 329; Welch v. Anderson, 28 Mo. 293; Penhallow v. Kimball, 61 N. H. 596; Pinkerton v. Sargent, 102 Mass. 56. 27 FergoB v. Schaible, 91 Neb. 180, 135 N. W. 448. .(719) 432 PROBATE AND ADMINISTRATION. [Chap. 33 If insane or otherwise incompetent, the survivor can- not make a valid renunciation, nor has his or her guardian such rights without express direction from the county court. 28 It is the duty of the county judge, on the application of the guardian or guardian ad litem, to make the elec- tion, and he should protect the interests of the incom- petent without regard to any advantage or disadvan- tage that may accrue to the legatees or devisees. 29 The usual practice is for the guardian to file a peti- tion setting out in full all the circumstances and con- ditions and ask for directions. However, an oral ap- plication, made by a guardian ad litem and acted on by the court, has been held to be sufficient. 30 Form No. 192. PETITION BY GUAEDIAN OF INCOMPETENT WIDOW FOR AUTHORITY TO ELECT. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , he was appointed by said court guardian of C. B., an incompetent person; that one A. B., late of said county, the husband of said C. B., departed this life in said county on the day of , 19 , leaving a last will and testament, which was, on the day of , 19 , admitted to probate in eaid court; that said will contains the following bequests and devises to said C. B. [copy all provisions of said will which contain any be- quest or devise to widow] ; that said C. B. was, on the day of 28 Donald v. Portis, 42 Ala. 29; Heavenridge v. Nelson, 56 Ind. 90; Pinkerton v. Sargent, 102 Mass. 568; Young v. Boardman, 97 Mo. 181,. 10 S. W. 48. 29 Bonacum v. Manning, 85 Neb. 90, 122 N. W. 711; Penhallow v. Kimball, 61 N. H. 596; Young v. Boardman, 97 Mo. 181, 10 S. W. 43; Andrews v. Bassett, 92 Mich. 449, 52 N. W. 743. 30 Gaster v. Gaster's Estate, 90 Neb. 529, 134 N. W. 235. (720) Chap. 33] DIVISION OF THE ESTATE. 433 , 19 , adjudged an insane person by the commissioners of in- sanity in and for said county, and is now, and for more than two years last past has been, insane and incompetent to transact any busi- ness; that said C. B. is possessed in her own right of no property what- soever, and has no other means than her interest in the estate of said A. B., or the provisions made for her in said will; that said estate consists of real estate of the value of dollars, unencumbered by mortgage, and personal property of the value of dollars, and that the debts against said estate will not exceed the sum of dollars. Your petitioner therefore prays that instructions may be given him by said court whether to elect, on behalf of his said ward, to receive the above provisions of said will, or to have assigned to her her stat- utory interest in said estate, and the provisions made for her by statute. Dated this day of , 19 . (Signed) C. D. [Add verification, Form No. 5.] Form No. 193. OEDEB DIEECTING GUAEDIAN OF INCOMPETENT WIDOW TO ELECT STATUTOEY SHAEE. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the petition, duly verified, of C. D., for instructions whether to receive for and on behalf of his ward, C. B., the provisions made for her by the will of said A. B., or renounce the same and be endowed of his estate. Upon consideration whereof, the court finds that the provision made for said C. B. by the will of said A. B. will yield a smaller income for said C. B. than her statutory interest in said estate. The said C. D., guardian, is therefore directed and instructed to elect to renounce the provisions of said will for and on behalf of his said ward. (Signed) J. K., County Judge. 433. Effect of rejection of devise or bequest. The effect of an election to take under the statute is to terminate the interests given by the will to the 46 Pro. Ad. (721) 433 PBOBATE AND ADMINISTRATION. [Chap. 33 survivor, and to place him or her, in so far as the prop- erty in this state is concerned, in the same position as though deceased died intestate, giving him or her the share or interest of the surviving spouse an intestate person, neither more nor less. 31 Election to take under the statute does not revoke the will, but may make it a difficult matter to find out what was the testator's in- tention, and as to the other beneficiaries it will be complied with as far as possible. 32 The amount necessary to make up the statutory share may generally be obtained by adding to the property given by the will contributions from the other parties in proportion to their bequests or devises, and made either in realty or personalty, as the case may be. 33 If a life estate is given the survivor and the remainder to designated parties, the rejection of the will gives the remaindermen the right to immediate enjoyment, 34 unless the will indicates otherwise. 35 In many cases it is almost impossible to ascertain and carry out the testator's intentions when the sur- vivor elects to take under the statute. The draftsman of a will can obviate an election in almost every case by explaining to the testator the rights the surviving spouse has in an estate. 31 Geiger v. Bitzer, 80 Ohio St. 85, 88 N. E. 134; Ashelford v. Chap- man, 81 Kan. 312, 105 Pac. 534; In re Fogg, 105 Me. 480, 74 Atl. 1133. 32 Pitman v. Pitman, 81 Kan. 643, 107 Pac. 235; Fennell v. Fennell, 80 Kan. 730, 106 Pac. 1038. 33 Shreve v. Shreve, 176 Mass. 458, 57 N. E. 686; In re Klenke, 210 Pa. 575, 60 Atl. 167. 34 Hall v. Smith, 61 N. H. 144; Woodburn's Estate, 151 Pa. 586, 25 Atl. 145; Beideman v. Sparks, 64 N. J. Eq. 374, 55 Atl. 1132. 35 Jones v. Knappen, 63 Vt. 391, 22 Atl. 630. <722) Chap. 33] DIVISION OF THE ESTATB. 434 434. Descent of real estate to heirs. The residue of the estate remaining after deducting the share of the surviving spouse as in section 429 described, and any real estate or any right thereto, or any interest therein in fee simple or for the life of another, not lawfully devised, of which a person not leaving a husband or wife surviving shall die seised, descends, subject to his debts, in the manner following: First. In equal shares to the children and to the lawful issue of any deceased child, by right of repre- sentation. If there be no issue living at the date of his or her death, to his or her lineal descendants, if of the same degree, equally, otherwise by right of representation. Second. If there be no issue to the father and mother of the deceased or the survivor of them. Third. If there be no issue or father or mother, to the brothers and sisters and the children of any de- ceased brother or sister by right of representation. Fourth. If there be no issue, or father or mother, or brother or sister, to the next of kin in equal degree, ex- cepting that where there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearest an- cestor shall be preferred to those claiming through an ancestor more remote. Fifth. If any person die leaving several children, or one child and the issue of one or more children, and any such surviving child shall die under age and not having been married, all the estate that came to the deceased child by inheritance from such deceased par- ent shall descend, in equal shares, to the other chil- (723) 434a PROBATE AND ADMINISTRATION. [Chap. 33 dren of the same parent and to the issue of any such child who shall have died, by right of representation. Sixth. If, at the death of such child, who shall die under age and not having been married, all the other children of said parent shall also be dead, and any of them shall have left issue, the estate that came to said child by inheritance from his or her said parent shall descend to all the issue of the other children of the .same parent, and if all the said issue are of the same degree of kindred to said child, they shall take the estate equally, otherwise they shall take according to the right of representation. Seventh. If the deceased leave no kindred or hus- band or wife, his estate shall escheat to the state of Nebraska. 36 Under the first subdivision of the above statute, grandchildren of a deceased intestate take the share which their parent would take if living. Under the third subdivision grandchildren of a deceased brother or sister are not included, and grandnephews and grandnieces do not inherit when there are brothers or sisters or children of deceased brothers and sisters surviving. 37 A grandfather inherits before an uncle. 38 434a. Descent of real estate to heirs Concluded. Under the Oregon statutes the real estate of which an interstate dies seised descends, subject to his debts, as follows: 1. In equal shares to his or her children, and to the issue of any deceased child by right of representation; 8 Rev. Stats., c. 17, 2, [1268]. 37 Noteware v. Colton, 95 Neb. 541, 145 N. W. 993. 38 Smallman v. Powell, 18 Or. 367, 23 Pac. 249. (724) Chap. 33J DIVISION OF THE ESTATE. 434a and if there be no child living at the time of his or her death, such property shall descend to all his or her lineal descendants. If of the same degree, they take equally; otherwise by right of representation. 2. If the intestate shall leave no lineal descendants, such real property shall descend to his wife, or if a married woman, to her husband, and if the intestate shall leave no wife or husband, the property shall descend in equal proportions to his or her father and mother. 3. If the intestate leaves no lineal descendants, nor husband, wife nor a father, the property descends to his or her mother, and if the mother is not living, then to the brothers and sisters in equal shares, and the issue of any deceased brother and sister by right of representation. 39 4. If the intestate shall leave no lineal descendants, nor husband, wife, father, mother, brother or sister, the property descends to his or her next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree but claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claim- ing through a more remote ancestor. 5. When any child shall die under the age of twenty-one years and leave no husband nor wife nor children, any real estate which descended to such child shall descend to the heirs of the ancestor from whom such real property descended the same as if such child died before the death of such ancestor. 6. If the intestate shall leave no lineal descendants nor kindred, such real property shall escheat to the state of Oregon. 40 Subdivision 5, which has been enacted in substance in many states, is, as in Nebraska, clearly a modifica- tion of the previous parts of the section. Before the 39 Grant v. Paddock, 30 Or. 320, 47 Pac. 712. 40 L. O. L., 7348; Gen. Laws 1913, c. 39. (725) 435 PROBATE AND ADMINISTRATION. [Chap. 33 amendments of 1905 and 1913 it was held that on the death of a woman intestate and leaving property which passed to her husband and minor children, fol- lowed shortly after by the death of one of the children, the inheritance of such child passed to the father, to the exclusion of the brothers and sisters. 41 As the act now stands the property would pass to the children to the exclusion of the parent. 42 435. Descent of real estate to heirs Concluded. The term "next of kindred," as used in the statutes, is limited to relations by blood or consanguinity only, descendants from the same stock or ancestors; 43 hence the reason that the wife or husband do not inherit from each other as kin or descendants. 44 The degrees of kindred are computed according to the rules of the civil law. 45 In order to determine in what degree a person is related to the intestate, begin -with the in- testate and ascend from him to a common ancestor, and descend from that ancestor to the person, counting each generation as one degree, excluding the decedent and including the heir. The law does not permit inheritance per stirpes ex- cept where it is expressly and affirmatively provided. 46 It applies only from necessity, or where there are lineal heirs of different degrees. 47 41 Stitt v. Bush, 22 Or. 239, 29 Pac. 737. 42 See 435, post. 43 Birney v. Wilson, 11 Ohio St. 426. 44 Prather v. Prather, 58 Ind. 141; Warren v. Englehart, 13 Neb. 283, 13 N. W. 401. 45 Eev. Stats., c. 17, 28; L. O. L., 7353. 46 Douglas v. Cameron, 47 Neb. 358, 66 N. W. 430; Clary v. Wat- kins, 64 Neb. 386, 87 N. W. 1042. 47 Knapp v. Windsor, 6 Cush. (Mass.) 156. (726> Chap. 33] DIVISION or THE ESTATE. 435 "When an intestate leaves neither widow, father, mother, brother, nor sister, but nephews and nieces, and grand nephews and nieces, the nephews and nieces take, to the exclusion of grand nephews and nieces, and, being of equal degree, they take per capita and, in all cases where the next of kin are of the same degree, they take per capita. Under the common law, a distinction was made be- tween estates which came to the intestate by inherit- ance and those which were the result of his own efforts. Our statutes contain no such provisions, ex- cept in the case of infants dying under age, unmarried, and kindred of the half blood. Property which such infant inherited from a parent passes to his brothers and sisters and the children of deceased brothers and sisters, to the exclusion of the surviving parent. The portions of the statute denning the parties who take the property which such minor inherited limit or modify the previous subdivisions. 50 If such minor dies intestate leaving no brothers or sisters, or issue of any deceased brothers or sisters, his estate inherited from his father or mother would be distributed and descend in the same manner as that of any other intestate leaving the same heirs. The limitation extends to an estate derived from parents only, and not to that received by him by inheritance or right of representation from a grandparent or other Douglas v. Cameron, 47 Neb. 358, 66 N. W. 430. * Nichols v. Shepard, 63 N. H. 391; Baker v. Bourne, 127 Ind. 466, 26 N. E. 1078; Van Cleve v. Van Fossen, 73 Mich. 342, 41 N. W. 258; Snow v. Snow, 111 Mass. 389. 60 In re Van Orsdol's Estate, 94 Neb. 98, 142 N. W. 686. 436 PROBATE AND ADMINISTRATION. [Chap. 33 ancestor. 61 Such estate is the absolute property of the infant while living, and may be used for the payment of his debts and his maintenance and education, if necessary. 52 436. Kindred of the half blood. "Kindred of the half blood shall inherit equally with those of the whole blood, in the same degree, unless the inheritance came to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be ex- cluded from such inheritance. " 52a Therefore, where the estate has been obtained by descent or devise from a common ancestor or by purchase, brothers and sisters of the half blood inherit from each other. 53 The law does not completely bar out those of the half blood, for, if they have any of the blood of the ancestor, however small the fractional part, they inherit as the intestate's next of kin, equally with those of the whole blood. 54 The children of a deceased brother or sister of the whole blood will take by representation, to the exclu- sion of brothers and sisters of the half blood, where the estate came by gift or inheritance from a person not the ancestor of the half blood. 55 51 Goodrich v. Adams, 138 Mass. 552; Sedgwick v. Minot, 6 Allen (Mass.), 171. 52 Wiesner v. Zaun, 39 Wis. 188. 52a Rev. Stats., c. 17,.11, [1275]. 53 Den d. Pierson v. De Hart, 3 N. J. L. 73; Cutter v. Waddingham, 22 Mo. 206. 54 Den d. Delaplaine v. Searing, 8 N. J. L. 340; King T. Neely, 14 La. Ann. 165; Scott v. Terry, 37 Miss. 65. 55 Eev. Stats., c. 17, 11, [1275]; L. O. L., 7353. (728) Chap. 33] DIVISION OF THE ESTATE. 437,438 The foregoing rules in regard to the descent of realty among those of the half blood apply to the distribution of personalty. 56 437. Descent of estate of illegitimate. The estate of an illegitimate dying intestate passes to his issue; if he leaves no lawful issue, to his mother, and in case of her decease, to her heirs at law. 57 The property which so passes to them is that remaining after deducting the share of the surviving spouse. 58 On an issue of the legitimacy of a deceased intestate, the courts adopt a liberal rule in admitting testimony, it coming within the exception of the common-law rule admitting hearsay evidence in cases involving pedi- gree. Declarations of the deceased, declarations and acts of his mother and those of the relatives of his alleged father who were acquainted with him, are ad- missible. 59 Under the Oregon statute the estate of an illegiti- mate dying intestate descends to the surviving spouse or issue, as in other cases; if none such survive, to the mother. 60 If there be no spouse, issue or mother sur- viving, his property escheats to the state. 61 438. Right of illegitimate to inherit. At common law an illegitimate child was nullius filius, and therefore incapable of inheriting from M Rev. Stats., c. 17, 3, [1267]. 57 Rev. Stats., c. 17, 10, [1274]. 58 Rev. Stats., c. 17, 1, [1264]. 59 State v. McDonald. 55 Or. 435, 104 Pac. 967. 60 L. O. L., 7352. 61 State v. McDonald, 59 Or. 525, 117 Pac. 288. (729) 438 PROBATE AND ADMINISTRATION. [Chap. 33 ancestors or collaterals. 82 This disability has been partially removed by the statute. He is the heir of his mother, inheriting her estate either in whole or part, the same as if he were born in lawful wedlock, and also of his father, if the latter has by an instru- ment in writing, signed in the presence of a competent witness, acknowledged himself as such. 63 The writing must be one in which the paternity of the child is directly, unequivocally and unquestionably acknowledged. 64 It is not necessary that it be exe- cuted for the purpose or intent of constituting the party an heir nor that the illegitimacy be mentioned ; 65 nor is it necessary that the witness actually affixed his name to the writing, where the witness saw him write and sign it. 68 Evidence that the decedent was ad- judged the father of an illegitimate child in a bastardy proceeding before a court of competent jurisdiction is not sufficient to prove such illegitimate an heir; there must be a signed and witnessed writing, the voluntary and unequivocal act of the parent. 67 It does not make the child legitimate. 68 He cannot claim, as representing his father or mother, any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried and had other chil- 62 2 Bl. Com. 249. 63 Eev. Stats., c. 17, 9, [1273]. 64 Lind v. Burke, 56 Neb. 785, 77 N. W. 444; Van Hove v. Van Hove, 94 Neb. 575, 143 N. W. 836. 65 Thomas v. Estate of Thomas, 64 Neb. 581, 90 N. W. 630; Suc- cession of Fletcher, 11 La. Ann. 60. 66 Blythe v. Ayers, 96 Cal. 532, 31 Pac. 915. 67 Moore v. Flack, 77 Neb. 52, 108 N. W. 143. 8 Brisbin v. Huntington, 128 Iowa, 166, 103 N. W. 144. (730) Chap. 33] DIVISION OF THE ESTATE. 438 dren, and his father after such marriage shall have acknowledged him in the manner provided by law, or adopted him into his family, in which case such child and all legitimate children shall be considered as brothers and sisters, and the rights of both parents and children in each other's estates are the same as though all the children are legitimate. 69 Under the Oregon statute he is the heir of his mother, but cannot take through her by representa- tion, provided that when the parents of such child have formally married, and lived and cohabited as hus- band and wife, he is not regarded as an illegitimate, though the marriage be void. 70 A marriage, in order to legitimatize previously born offspring, may be one in form only and void at its inception, but must be fol- lowed by living and cohabiting together as husband and wife. 71 There is no law providing that the writ- ten and witnessed acknowledgment by a father of his illegitimate child shall make him his heir. A subsequent marriage of the parents is not of itself sufficient to make their child legitimate. There must also be the birth of other children, and either adoption into the family or a written acknowledgment by the father. 72 Adoption into the family in such cases does not necessarily mean formally adopted by proceedings in the county court, but admitted and received into the family, given the family name, and recognized as a child. 73 69 Rev. Stats., c. 17, 9, [1273]. 70 L. O. L., 7351, 7352. 71 McCalla v. Bain, 45 Fed. 838. 72 Trayer v. Setzer, 72 Neb. 845, 101 N. W. 989. 73 Morton v. Morton, 62 Neb. 420, 87 N. W. 182. (731) 439 PROBATE AND ADMINISTRATION. [Chap. 33 439. Inheritance by adopted children. The right of an adopted child to inherit from his adoptive parents is strictly statutory. Unless the articles of adoption otherwise provide, the child has conferred upon him by the decree of the county court all the rights, privileges and immunities of children born in lawful wedlock. 74 If there are conditions or limitations in the articles, he takes accordingly, unless otherwise provided for by will. Articles which direct that the child shall receive a specified sum when of age and also the rights of a child born in lawful wedlock give both the money and rights in the estate. 75 The adopted child is generally held to be entitled to the same property rights as natural children only in the estate of his adoptive parents, 76 but does not in- herit from the natural children of his parents, 77 nor succeed to the estate of his foster parent's ancestors. 78 If he dies before his foster parents leaving issue, such issue take from the foster parents by right of repre- sentation. 79 The adoption of a child does not take away any rights which he previously acquired, and while in- heriting from his foster parents, will also inherit from his own kindred and parents. 80 74 Eev. Stats., c. 18, 84, [1623]. See L. O. L., 7089. 73 Martin v. Long, 53 Neb. 694, 74 N. W. 43. 76 Flannagan v. Howard, 200 111. 296, 65 N. E. 782; Martin v. Long, 53 Neb. 694, 74 N. W. 43. 77 Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 585; Helms v. Elliott, 89 Tenn. 446, 14 S. W. 930. 78 Meader v. Archer, 65 N. H. 214, 23 Atl. 251; Sunderland's Estate, CO Iowa, 732, 13 N. W. 655. 79 Pace v. Klink, 51 Ga. 220. 80 Wagner v. Varner, 50 Iowa, 532. (732) Chap. 33] DIVISION OF THE ESTATE. 440 440. Posthumous children. Posthumous children are considered by law as living at the death of the father, and if he was intestate, take the same share of his estate, and can take by repre- sentation. 81 If he left a will and made no provision for such child, the child will take the same share as if he had died intestate, unless it shall be apparent from the will that it was the intention of the testator that no provision shall be made. 82 The provisions must be actual and definite though it may be entirely inade- quate. 83 The burden of proof appears to be on the party alleging that the omission to provide for such child was intentional. 84 Stillborn children are presumed by law never to have had life, 85 but if the child lived even a few minutes, it acquired a right to take by descent or will. 86 The county court having jurisdiction of the adminis- tration has power to set out such share. Proceedings should be by petition, notice to interested parties and service thereof as may be ordered by the court. Per- sonal service should be had on the executor or ad- ministrator and on the devisees, legatees and heirs as far as possible. 81 Rev. Stats., e. 17, 18, [1382]. 82 Eev. Stats., c. 17, 47, [1311]; Chicago B. & Q. R. R. v. Wasser- man, 22 Fed. 872. 83 Stebbins v. Stebbins, 94 Mich. 304, 54 N. W. 159; In re Donges' Estate, 104 Wis. 397, 79 N. W. 786. 84 Knapp v. Minot, 164 Mass. 38, 41 N. E. 63; Bowen v. Hoxie, 137 Mass. 527. 85 Marsellis v. Thalhimer, 2 Paige (X. Y.), 35. 86 Catholic Mut. Ben. Assn. v. Firnane, 50 Mich. 82, 14 N. W. 707. (733) 440 PROBATE AND ADMINISTRATION. [Chap. 33 If the decedent died testate, the question depends on the construction of the will, which power is vested in the county court, subject to the usual restrictions on the rights of adverse claimants. 87 His interest could also be determined in an action for partition. 88 Form No. 194. PETITION FOE ORDER SETTING OUT SHARE OF POSTHUMOUS CHILD. [Title of Cause and Court.] Comes now C. B., a minor of the age of , by L. M., his guard- ian, under letters issued out of and under the seal of said court, and shows unto the court that he is a posthumous child of said A. B. and was born on the day of , 19 ; that said A. B. died on the day of , 19 , leaving a last will and testament, which was on the day of , 19 , admitted to probate in said court and letters testamentary thereupon issued to C. D. That said will contains no provision whatever far any child which might be born in lawful wedlock to said A. B. after the date of his death, and it is not apparent from said will that it was the intention of the testator that no provision shall be made for such child. That C. D., executor as aforesaid, has filed his final account as such executor, which said account was on the day of , 19 , approved by said court, and, as appears by said account and the records and files in said matter, said C. D., executor, now has in his hands, to be divided and distributed among the legatees, distributees, and heirs at law, personal property of the value of dollars, and real estate of the value of dollars, which said real estate is described as follows: [Describe real estate.] Your petitioner therefore prays that a time may be fixed by the court for the hearing of his said petition, that notice of the pendency thereof be given to all persons interested in the estate, and that, upon said hearing a decree be entered assigning to your petitioner the same 87 Youngson v. Bond, 69 Neb. 356, 95 N. W. 700; Andersen v. Ander- sen, 69 Neb. 565, 96 N. W. 276; Reischick v. Reiger, 68 Neb. 348, 94 N. W. 156. 88 See Brown v. Brown, 71 Neb. 200, 98 N. W. 718. (734) Chap. 33] DIVISION OF THE ESTATE. 440 share in the estate of the said A. 6., both real and personal, as though he, the said A. B., had died intestate. Dated this day of , 19 . (Signed) C. B. (a Minor), By L. M., His Guardian. [Add verification, Form Xo. 5.] Form No. 195. NOTICE OF HEARIXG OX PETITION OF POSTHUMOUS CHILD. [Title of Cause and Court.] To All Persons Interested in Said Estate: You are hereby notified that C. B., a minor, by L. M., his guardian, has filed his petition in said court praying for a decree assigning to him a share in said estate as a posthumous child of said A. B., and that said petition will be heard at the county court room in said county on the day of , 19 , at the hour of 9 A. M. Dated this day of , 19 . (Seal) (Signed) J. K., County Judge. Under the Oregon statute a testator who fails to name a child or the descendants of a deceased child in his will, though born after the date of the will or after his death, or make provision for such child or issue, is deemed intestate in so far as such child or issue of deceased children are concerned, and the parties to whom the estate is given are required to refund their proportional parts. 89 The omitted children take under the law of descent the same shares as if the ancestor died intestate. 90 The children or grandchildren must be clearly named and provided for. 91 A devise to a widow for life or to sell and convey the said property for the benefit of herself and her heirs, does not men- tion and provide for the children, the word " heirs '* not being the equivalent of "children." 02 89 L. O. L., 7325; Worley v. Taylor, 21 Or. 589, 28 Pac. 903. 90 Xorthrop v. Marquam, 16 Or. 186, 18 Pac. 419; In re Monser's Estate. 60 Or. 229, 118 Pac. 1022. i Gerrish v. Gerrish, 8 Or. 351. 92 Xeal v. Davis, 53 Or. 423, 99 Pac. 69, 100 Pac. 212. (735) 441 PROBATE AND ADMINISTRATION. [Chap. 33 Form No. 1S6. ORDER SETTING OUT SHARE OF POSTHUMOUS CHILD. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the petition of C. B., a minor, by L. M.. his guardian, for an order assigning to said C. B. his share in the estate of said A. B. as a posthumous child of him. said A. B., and the evidence and arguments of counsel, and was submitted to the court. Upon consideration whereof, the court finds that service of the notice of hearing has been had on all parties interested, as appears from proof of service on file herein; that the last will and testament of said A. B. does not show an apparent intention that no provision be made for any posthumous child born to said A. B., and that the said petitioner. C. B., is entitled to have assigned to him the same share in the estate of said A. B. that he, said C. B., would receive had said A. B. died intestate; that the final account of C. D., executor of said estate, showing the sum of dollars in his hands for division, has been allowed, and that said C. D., executor, has in his possession the following described real estate: [Describe real estate.] It is therefore decreed that said C. B. is entitled to [state share of child] in said sum of dollars, being the sum of dollars, and that he be assigned the same interest as tenant in common with the devisees of said estate in the above-described real property. (Signed) J. K., County Judge. 441. Share of child not provided for by will. If any testator omit to provide in his will for any of his children or the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate as though the deceased had died intestate. 93 The burden of proof is upon the claimant to show that the omission was by mistake, and parol evidence is admissible. 94 3 Rev. Stats., c. 17, 48, [1312]. 94 Brown v. Brown, 71 Neb. 200, 98 N. W. 718. (736) Chap. 33] DIVISION OF THE ESTATE. 442 The share of a posthumous child or of a child unin- tentionally omitted from the will is taken from the residuary estate as far as possible, and proportionately from the share of each devisee and legatee. 96 Form No. 197. PETITION BY CHILD OMITTED IN THE WILL FOB ASSIGN- MENT OF HIS SHABE IN AN ESTATE. [Title of Cause and Court.] Comes now your petitioner, C. B., and respectfully represents unto the court that he is a son of said A. B., and was born in lawful wed- lock on the day of , 19 ; that said A. B. departed this life on the day of , 19 , at the county aforesaid, leaving a last will and testament, which was on the day of , 19 , admitted to probate in said court, and letters testamentary there- upon issued to C. D. as executor of said estate; that said will omits to provide for your petitioner [state facts showing said omission to have been accidental and unintentional]. [Balance as in Form No. 194.] 442. Rights of nonresident aliens. Resident aliens are given the same right to the descent, enjoyment and possession of property as are citizens. 96 A resident alien is an nnnaturalized foreigner living in this state; if living in another state, he is a nonresident alien." 7 At common law an alien could not take either by descent or devise. Restrictions in this state apply only to nonresident aliens, and their rights are the same as those of residents in property within the limits of an incorporated city or village, and that held s Bowen r. Hoxie, 137 Mass. 527; Shelby v. Shelby, 1 B. Mon. (Ky.) 266. Const., art. I, sec. 25. 7 Glynn v. Glynn, 62 Neb. 872, 87 N. W. 1052. ( 737) 442 PROBATE AND ADMINISTRATION. [Chap. 33 for the purpose of erecting and maintaining manu- facturing establishments. 98 In Oregon there is no discrimination against aliens. Such alien does not lose all rights in real estate devised to him or of which his ancestor died seised of an estate of inheritance, which is located outside the limits of a city or incorporated village. He may be- come a bona fide resident of the state and thus become entitled to its possession and enjoyment. If he is the sole party in interest, he may maintain an ex parte proceeding in the district court of the county in which the land is situated to have the property sold. The land reverts and escheats to the state. It is sold and the proceeds divided among those who would have been entitled to the lands." Where the deceased alien acquired title previous to March 16, 1889, while his rights were identical with those of a citizen, his widow, heirs or devisees may hold the same for ten years. If not sold within that time, or if they have not become residents of this state, it is in the same condition as lands acquired by such nonresident alien under a judgment or order of sale in foreclosure proceedings, which lands must be sold within ten years from the date possession is acquired. Whenever lands so escheat and revert to the state, it is the duty of the county attorney of the county in which the lands are situated to commence proceedings against such alien for the purpose of having a for- feiture declared. Service of summons is had as in 8 Rev. Stats., c. 68, 87, [6273]; Glynn v. Glynn, 62 Neb. 872, 87 N. W. 1052; Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317. 99 Eev. Stats., c. 68, 88, [6274]. (738) Chap. 33] DIVISION OF THE ESTATE. 443 cases of mortgage foreclosure. An appraisement of the lands is made by the judge, treasurer and clerk of the county, and the balance after deducting costs of appraisement is paid from the state treasury to the persons who would have been entitled to the lands. The widow, heirs or devisees of nonresident aliens may also maintain suit for partition, and the proceeds of the sale will be divided as if there had been no escheat. 100 443. Distribution of personalty. When any person shall die possessed of any per- sonal estate, or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows: First. The surviving husband or wife, if any, and if there be no surviving husband or wife, then the child or children, if any, of the deceased shall be al- lowed all the wearing apparel and ornaments and household furniture of the deceased, and all the prop- erty and articles that was or were exempt to the de- ceased at the time of his or her death, from levy or sale upon execution or attachment, and other personal property to be selected by her, him or them not ex- ceeding two hundred dollars in value, and this allow- ance shall be made to such surviving husband or wife or child or children, if any, as well when he, she or they shall receive provision made in the will of the deceased as when the deceased dies intestate. Second. The allowance for the support of the sur- viving spouse and children. 101 100 Rev. Stats., c. 68, 88, 89, [6274], [6275]. 101 See 186 et sec-. '(739) 443 PROBATE AND ADMINISTRATION. [Chap. 33 Third. The allowance for the support of the chil- dren under fourteen years of age when neither parent survives. 102 Fourth. If the value of the estate does not exceed five hundred dollars, the court may, by a decree for that purpose, assign for the use and support of the surviving husband or wife, or for the support of chil- dren under fourteen years of age, the whole of such estate after the payment of the funeral charges and the costs and expenses of administration. Fifth. If the personal estate amounts to more than five hundred dollars, and more than the allowances mentioned in the preceding subdivision of the section, the same shall be applied to the payment of the debts of the deceased and the charges and expenses of set- tling his estate. Sixth. The residue is distributed to the same per- sons and in the same proportions as the real estate. 10 * The household furniture, wearing apparel, articles or property exempt to the decedent from attachment or execution, and two hundred dollars in addition thereto, pass to the surviving spouse or children, whether decedent was testate or intestate and whether the surviving spouse accepts or rejects the terms of the will. 104 No part of such property is assets of the estate or liable for the debts. 105 102 See 187, supra. 103 Eev. Stats, c. 17, 3, [1267]. 104 In re Leavitt's Estate, 85 Neb. 721, 124 N. W. 114; O'Shea v. Bruning, 85 Neb. 156, 122 N. W. 881; Fletcher v. Fletcher, 83 Neb. 156, 119 N. W. 232. 105 Judson v. Creighton, 88 Neb. 37, 128 N. W. 651. (740) Chap. 33] DIVISION OF THE ESTATE. 443a 443a. Distribution of personalty Concluded. If the decedent or surviving spouse was the owner of a homestead, the value of the property which would pass to the survivor or the children under subdivision first above cited is two hundred dollars, not including specific exemptions. If such survivor or decedent was not the owner of a homestead, then he or she or the children would be entitled to a five hundred dollar ex- emption in lieu of homestead, and the amount which they would take under this subdivision would be seven hundred dollars, not including specific exemptions, and in neither case is such property subject to the debts of the estate. 106 If the personal estate, not including that mentioned in subdivision first, exceeds five hundred dollars, and is sufficient to pay the allowances for the support of the surviving spouse and children under fourteen, then the surplus after paying the allowances is applicable to debts, costs and expenses of administration, and to distribution to the heirs, but if such estate does not exceed five hundred dollars, it may be assigned to the survivor or children under fourteen for their support, subject to funeral charges and administration ex- penses. The exempt property, not including specific exemp- tions, together with the personal property of the value of two hundred dollars, must be selected by the sur- vivor, or a request or demand made by him or her for the same, and if such property was not set out to the survivor during his or her lifetime, the right to it io Judson v. Creighton, 88 Neb. 37, 128 N. W. 651. (741) 443a PEOBATE AND ADMINISTKATION. [Chap. 33 does not pass to the estate of such survivor, it being considered in the nature of an allowance for support. 107 Under the Oregon statute, the personal property of a deceased intestate is applied and distributed as follows: 1. If the intestate leaves a widow, she shall be al- lowed all articles of his apparel and ornament, accord- ing to the degree and estate of the intestate, and such property and provision for the use and support of her- self and minor children as have been granted her by the court, 108 and this allowance shall be made as well when she waiv.es the provisions made for her in the will as when he dies intestate. 2. The remaining personal property is applicable to the payment of the debts and expenses of administra- tion. 3. The residue, if any, is distributed among the per- sons entitled to the real property of the intestate except, 4. If the intestate leave a husband, or widow and issue, such husband or widow shall be entitled to one- half of such personalty; but if no issue survive, the husband or widow shall be entitled to the whole of the residue. 5. If there be no husband, widow or kindred, the whole of such residue shall escheat to the state of Oregon. 109 Subdivision 1 gives the widow, for herself and the minor children, the property which was exempt from execution during the lifetime of the husband, and makes all the other personalty liable for the debts and charges of administration. 107 Section 186, supra. 108 Section 186, supra 108 L. O. L., 7349; Kaser v. Kaser (Or.), 137 Pac. 189. (742) Chap. 33] DIVISION OF THE ESTATE. 444,445 444. Exceptions to right to inherit. A person convicted of murder, or of unlawfully con- spiring to kill another, cannot inherit from his victim, but there are no other exceptions. 110 In Oregon the right of a murderer to inherit from his victim is governed by the common law, and the weight of authority is that under a plain and un- ambiguous statute, it is immaterial how the death of the ancestor occurred; the court cannot change the order of descent. 111 The interest which a party has in public lands under a federal statute is not an estate of inheritance. The rights of the decedent therein pass to the surviving spouse or heirs by appointment under the federal stat- utes. 112 Lands granted or allotted to an Indian by act of Congress, there being no federal statutes of descent, on his death intestate pass to the surviving spouse or heirs under the laws of the state where they are situated. 113 445. Escheats. When a person dies intestate without heirs or spouse surviving, or when the heir or spouse is incapable of inheriting on account of having been convicted of crime, the entire estate escheats to the state. 114 no Rev. Stats., c. 17, 19, [1283], 111 Shallenberger v. Ransom, 41 Xeb. 631, 59 N. W. 935; Owens v. Owens, 100 N. C. 240, 6 S. E. 794. 112 Walker v. Ehresman, 79 Xeb. 775, 113 N. W. 218; Haun v. Martin, 48 Or. 204, 86 Pac. 371; Braun v. Matheissen, 139 Iowa, 409, 116 N. W. 789. H3 Porter v. Parker, 68 Neb. 338, 94 N. W. 123; Beam v. United States, 162 Fed. 260; Non-She-Po v. Wa-Win-Ta, 37 Or. 213, 62 Pac. 15. iw Bev. Stats., c. 17, 1 19, [1283]. X743), 445 PROBATE AND ADMINISTRATION. [Chap. 33 Property escheats in Oregon solely on failure of heirs or no spouse surviving. 115 The word "widow" does not appear in the above section, but as there must be a failure of the parties mentioned in section 7348, L. O. L., the widow is clearly an heir, and takes a fee as such and not by virtue of the marital relation, as in Nebraska. The appointment of an administrator in such estates is proper, and is necessary in order to provide for the payment of the debts of the deceased. 116 The title to the property and the right to its possession, eo instanti, vest absolutely and wholly in the state. No inquest or proceedings as at common law are necessary. The land becomes an immediate part of the school fund and is disposed of as other school lands. 117 Under Oregon practice, an action at law must be brought by the district attorney, under the direction of the governor, on behalf of the state, or whatever action is necessary for the protection of its rights. 118 The action is commenced by the filing of an information in the circuit court of the county in which such estate or any part thereof is situated, and the issue of a sum- mons and service of the same by publication thereof in some newspaper for six weeks. 119 The filing of the information does not oust the administrator or county court of jurisdiction over the allowance and payment of claims, or proceedings for sales of real estate for payment of debts. 120 As far as the personalty is con- cerned, the circuit court has no jurisdiction over it 115 L. O. L., 7363; 59 Or. 525, 117 Pac. 283. us State v. Seeder, 5 Neb. 205; State v. O'Day, 41 Or. 495, 69 Pac. 542; Oregon v. Simmons, 46 Or. 159, 79 Pac. 498; State v. McDonald, 55 Or. 419, 104 Pac. 967. H7 State v. Eeeder, 5 Neb. 203. "8 L. O. L., 7364, 7366. ii L. O. L., 7366. 120 L. O. L., 7367, 7371; State T. O'Day, 41 Or. 495, 69 Pac. 542; State v. McDonald, 55 Or. 419, 104 Pac. 967. (744), Chap. 33] DIVISION OF THE ESTATE. 446 until the county court has found that there is no law- ful claimant to it. The court acquires a jurisdiction over the real estate, and may pass on the devolution of the title to it, its jurisdiction in that respect being independent of the county court. 121 Land which escheats to the state is sold by the sheriff of the county in the same manner as sales of real estate on execution, the sale confirmed and the proceeds, after paying the costs, etc., paid into the state treasury. 122 Unpaid claims against the estate arid the costs and expenses of administration are paid by the state treasurer on warrants issued on the cer- tificate of the county judge from the proceeds of the sale of the assets of the particular estate. 123 Any person not a party or privy to the escheat pro- ceeding may at any time within ten years file a peti- tion in the circuit court of the county to establish his claim to the property, and if he recovers, is entitled to the same, less the costs and charges in connection therewith and the costs of administration, but with- out interest. 124 446. Personalty distributed as realty. The surplus, if any, remaining after payment of debts, etc., from the proceeds of the sale of real estate, is treated as real estate in the order of distribution, and divided in the same proportions and among the same persons who inherited the land. 125 The common- law rule is the same, 126 and the same is true of the 121 State v. McDonald, 55 Or. 419, 104 Pac. 967. 122 L. O. L., 7370. 123 L. O. L., 7375. 124 L. O. L., 7374; Young v. State, 36 Or. 424, 59 Pac. 812 36 Or. 427, 60 Pac. 711. 125 Rev. Stats., c. 17,5219, [1483]. 1^6 Pence's Appeal, 11 Ohio St. 290; Garner v, Wood, 71 Md. 37, 17 Atl. 1031. (745X 447 PROBATE AND ADMINISTRATION. [Chap. 33 sale of the lands of an infant which pass to his brothers and sisters and the issue of the same by representation. 127 447. Decree of distribution. Heirs and legatees under our statutes and procedure, as at common law, trace their title to the personal property which they receive from the estate of their decedents through the executor or administrator. 12 * After the payment of the debts, funeral expenses, costs and expenses of administration, and the allowances for the support and maintenance of the widow and minor children, a decree may be made assigning the residue to the persons designated by law. 129 Such decree is necessary in both testate and in- testate estates, as neither an executor nor adminis- trator will be protected in the payment of legacies or distributive shares until an order of the court has been made and entered, giving the name of the party, the amount of the legacy or distributive share, or a description of the legacy, if a specific one. 130 A distribution may be made as far as practical after the debts, charges and expenses are paid, when the estate is not ready for final settlement on account of pending litigation, 131 or on account of a trust relation being created by the will and the office of executor made a continuing one. 182 127 In re Price, 67 N. Y. 231, 47 Hun (N. Y.), 109. 128 Clark v. Bundy, 29 Or. 193, 44 Pac. 282. Section 193, supra. 129 Eev. Stats., c. 17, 229, 230, [1493], [1494]. 130 Fauber v. Keim, 88 Neb. 379, 129 N. W. 538; Boales v. Ferguson, 55 Neb. 565, 76 N. W. 18. 131 Merrick v. Kennedy, 46 Neb. 264, 64 N. W. 989. 132 Eev. Stats., c. 17, 86, [1350]. (746} Chap. 33] DIVISION OF THE ESTATE. 448 The county court has original exclusive jurisdiction of the distribution of the personal assets of an estate. 133 448. Petition for decree. Application for final decree of distribution may be made by an executor or administrator, or any person interested in the estate. 134 A separate petition may be filed for that purpose and notice given the same as on hearing on the final account. It may be filed with such account, and the notice of hearing should notify the parties that a hearing will be had on the application for distribution. Form No. 198. PETITION FOR DISTRIBUTION OF RESIDUE OF ESTATE. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of administration upon said estate issued to him out of and under the seal of said court; that all the proceedings required by law have been had for the proper filing, examination, and allowance of claims against said estate, and the same have been allowed and fully paid; that the funeral charges, expenses of administration, allowances for the support of the widow and family of the deceased pending administration, allowances for the support of the children of said deceased under fourteen years of age, and the amount allowed to the widow have been paid in full. That on the day of , 19 , he filed his final account, which on the day of , 19 , after due notice, was exam- ined and allowed; that it appears from said account that there remains in the hands of said administrator, your petitioner, a residue of dollars, and that the following named persons are entitled to share in such residue: [Give names, ages, and residences of heirs and legatees.] 133 In re Creighton's Estate, 12 Neb. 28t), 11 N. W. 313; Manning v. Bonacum, 83 Neb. 417, 119 N. W. 672. 134 Rev. Stats., c. 17, 232, [1496]; Lydick v. Chancy, 64 Neb. 288, 89 N. W. 801. (747) 449 PROBATE AND ADMINISTRATION. [Chap. 33 Your petitioner therefore prays that a day may be fixed for the hearing of the petition, and due notice thereof given all persons inter- ested in the estate, and that such residue may be assigned and dis- tributed in the proportion required by law, and for such other relief as may be just and equitable. (Signed) C. D. [Add verification, Form No. 5.] 449. Hearing on application for distribution. In order to establish his right to a share in the dis- tribution of the estate the heir must prove his rela- tionship to the decedent. 135 He must prove his descent either from deceased or a common ancestor. 136 If the legitimacy of himself or of an ancestor through whom he claims is raised, marriage must be proved, 137 but proof of facts from which a legal mar- riage may be inferred is sufficient. 138 He must also bring himself within the provisions of the law of dis- tribution under which he claims a share in the estate, and prove the exhausting of all lines of descent which would have a right to claim before him. 139 The hearing is a proceeding in rem. The right to open and close is left to the discretion of the court, inasmuch as each claimant must recover on his own 135 Jackson d. Lawrence v. Hilton, 16 Johns. (N. Y.) 96; Birney v. Ilann, 3 A. K. Marsh. (Ky.) 322. 136 Speese v. Shore's Estate, 81 Neb. 593, 116 N. W. 439. 137 Sorenson v. Sorenson, 68 Neb. 483, 94 N. W. 540; Morrill v. Otis, 12 N. H. 466. 138 Pratt v. Pierce, 36 Me. 448; Kaise v. Lawson, 38 Tex. 160. 139 Sorenson v. Sorenson, 68 Neb. 583, 94 N. W. 540; Stinchfield v. Emerson, 52 Me. 465; Emerson v. White, 29 N. H. 482; Bates v. Shrader, 13 Johns. (N. Y.) 261. (748) Chap. 33] DIVISION OF THE ESTATE. 449 merits, and no decree can be entered without showing the rights of the distributees. 140 The administrator is not regarded as an adverse party, consequently the claimant may testify to trans- actions with the deceased. 141 In determining the amounts due distributees, it is the duty of the court to consider advancements made by the ancestor to the distributee and deduct them from his share. 142 The indebtedness of an heir to an estate must be deducted from his distributive share of the per- sonalty. 143 It differs from an advancement, as a per- sonal representative is not obliged to collect an advancement even though the estate be insolvent, but before he is entitled to have his distributive share in the estate, his debt to the estate must be settled. 144 If it has not been already determined, the court has power on the hearing to fix the amount of such in- debtedness to the estate. 145 The amount of his in- debtedness in excess of his share in the personal prop- erty is a lien on his share in the real estate, which 140 Sorenson v. Sorenson, 68 Neb. 483, 100 N. W. 930, overruling same case in 94 N. W. 540, on this point. 141 Sorenson v. Sorenson, 68 Neb. 483, 100 N. W. 930, 103 N. W. 455. 142 McClave v. McClave, 60 Neb. 464, 76 N. W. 18. 143 Marvin v. Bowlby, 142 Mich. 245, 105 N. W. 751. 144 Oxsheer v. Nave, 90 Tex. 568, 40 S. W. 7; In re Dickinson's Estate, 148 Pa. 142, 23 Atl. 1053; Ayers v. King, 168 Mo. 244, 67 S. W. 558. 145 Holden v. Spier, 65 Kan. 412, 70 Pac. 348; Head v. Spier, 66 Kan. 386, 71 Pac. 836; Martin v. Martin, 170 111. 18, 48 N. E. 694; Stenson v. Halverson (N. D.), 147 N. W. 800. (749) 450, 450a PKOB ATE AND ADMINISTRATION. [Chap. 33 lien is superior to that of any execution or judgment rendered against the heir or devisee. 146 450. Requirements of the decree. The decree of distribution must name the persons and the proportions or parts to which each shall be entitled, and such persons shall have the right to demand and recover from the executor or adminis- trator, or any person having the same, their respective shares. 147 Unless it give both the names of the dis- tributees and the amounts to which they are entitled, the administrator has no authority to make payments thereon. 148 It should describe the real estate, give the names of the parties to whom it descends, and the interests which each holds as tenant in common. Where there are personal assets undisposed of, such as cattle or livestock, they should be assigned to the distributees in common, and decree stating the pro- portion to which they are entitled the same as the real estate. It should direct the personal representative to pay to each distributee his share. 450a. Special proceedings for determining heirship. A special proceeding for determining who are the heirs and distributees is provided by the Oregon stat- utes, in cases where the county court is of the opinion that a reasonable doubt exists, on the showing sub- mitted, as to who are the heirs or distributees in whole or in part of the estate, or where any person claiming 146 Boyer v. Robinson, 26 Wash. 117, 66 Pac. 119; Keever v. Hunter, 66 Ohio St. 616, 57 N. E. 454; Gosnell v. Flack, 76 Md. 423, 25 Atl. 411; Stenson v. Halverson (N. D.), 147 N. W. 800. 147 Rev. Stats., c. 17, 231, [1495]. 148 B&ales v. Ferguson, 55 Neb. 565, 76 N. W. 18. (750) Chap. 33] DIVISION OF THE ESTATE. 450b to be an heir or distributee shall request such action. Any claimant, or any number of persons claiming to be heirs or distributees of the whole or a part of the estate, may file a verified petition in the county court for such purpose at any time after six months from the grant of letters testamentary or of administration. Such petition must set forth sufficient facts to show prima facie that each plaintiff is entitled to be declared an heir or distributee of a share in the estate and the proportionate share to which he is entitled. All per- sons not joined as plaintiffs who appear from the facts set out in the petition to have or claim rights as heirs or distributees, or who have filed in the matter of the estate written claims to be heirs or distributees, stating therein their names, ages, residences, and places of birth and relationship to the deceased, and all other persons known to the plaintiffs, or any of them, to have or claim rights as heirs or distributees, and all persons unnamed and unknown having or claiming to have any such interest, shall be made de- fendants. The name, age, residence, and relationship to deceased of all defendants so far as the same is known by plaintiffs or can be ascertained by reason- able diligence shall also be set out. If a minor is de- fendant, his guardian, if he have one in this state, must be joined with him. It is the duty of the court before setting the petition down for a hearing to examine the same, and he may order that it be made more definite or certain or that other parties be joined as defendants. 149 450b. Citation and service. On filing the petition the court makes an order for a hearing, which must be on a day certain, not less than ninety days nor more than six months from the date of the order, and directs the issue of a citation 1 Laws 1913, p. 646. (751) 450C PROBATE AND ADMINISTRATION. [Chap. 33 to the defendants to appear and show cause why the facts should not be found, and the rights of heirship and distribution to said estate be decreed as set forth and prayed for in the petition of the plaintiffs on file therein, and to all persons named or unnamed having or claiming an interest to appear and file answers set- ting out their rights in the estate. The allegations of the petition and the facts as to the relief prayed need not be set out except by reference. 150 Personal service of the citation must be had on all resident defendants, together with a copy of the peti- tion, at least twenty days before the date of hearing. Service on nonresidents and unknown and unnamed persons is had by publication in some newspaper of the county not less than once a week for six successive weeks, and a copy thereof, together with a copy of the petition, mailed to those whose place of residence is known. 151 450c. Hearing on petition. The county court acquires jurisdiction by the ser- vice of the citation and copy of the petition as above described. If any defendant is a minor with no guardian in the state, a guardian ad litem must be appointed. Any person may appear on or before the time fixed for the hearing, file an answer, putting in issue any of the allegations of the petition and setting out the facts of his heirship or interest in the estate. A copy must be served on the plaintiff or his attorney, who may reply thereto. The case is heard by the court on the issues of law and fact made by the plead- ings as a civi f l action. The court shall not decree any person to be an heir or distributee of an estate unless 150 Laws 1913, p. 648. 151 Lawa 1913, p. 648. (752) Chap. 33] DIVISION OF THE ESTATE. 450d satisfied from the proof submitted, in which connec- tion the verified petition and any affidavits, deposi- tions, oral testimony and transcripts of church or official records, or other evidence subr-itted, may be considered, that such person bears the relationship to the deceased which he claims to bear. If the court has reason to believe that the person died without heirs, the proceedings shall be stayed for sixty days and immediate notice given to the governor. 152 450d. Decree determining heirs. Under these proceedings the court shall not refuse to find who are the heirs or distributees entitled to any estate being administered therein because of the sup- posed or possible existence of an unknown or missing heir or distributee who has failed to appear at the hearing, unless it shall affirmatively appear that such heir or distributee has been seen or heard from within a period extending back not more than seven years prior to the death of the person whose estate is under administration; nor shall it be presumed without affirmative proof thereof that any such missing or un- known heir or distributee left issue ; but the court shall in such case presume and adjudge that such heir or distributee has died without issue prior to the death of the decedent, and shall ascertain the heirs and or- der distribution accordingly. 153 The decree of the court determining who are the heirs or distributees and designating their share or interests fully protects the executor or administrator, and is final and conclusive. It may be taken to the circuit court by appeal in the same manner as other civil cases. Any defendant or claimant, known or un- 152 Laws 1913, p. 649. 153 Laws 1913, p. 649. 48-Pro.Ad. (753) 450d PEOBATE AND ADMINISTRATION. [Chap. 33 known, against whom service has been had by publica- tion, and who shall not have had actual knowledge of the pendency of such proceedings prior to the entry of a decree therein, or his representatives, may, upon good cause shown, and upon such terms as may be proper, be allowed to answer and set up his rights, and defend after the decree and within three years from the entry thereof. If he proves his case, he is entitled to his share in the estate, and may have judgment and execution against each of the distributees for such part as he should refund. Notice of application to re- open the decree must be given by personal service upon the distributees within the state, otherwise by such citation as the court may direct. All persons who appeared in the original proceed- ings, or who have been adjudged heirs or distributees, or accepted any distributive share, are deemed before the court, and such court has jurisdiction over them, for the purpose of proceedings to reopen the decree, for three years. 154 Form No. 199. DECEEE OF DISTEIBUTION. [Title of Cause and Court.] Now, on this day of -, 19 , this cause came on for hearing upon the petition of C. D., administrator, for distribution of the residue of said estate now in his possession, the answer of G. H., and the evidence, and was submitted to the court. On consid- eration whereof, the court finds that all debts, claims, and demands against said estate, the allowances for the support of the widow and minor children, and the amount allowed the widow have been paid in full, and that there remains a residue in the hands of the admin- istrator in the sum of dollars [together with forty head of milch cows, three hundred head of steers on the range, and ten head of horses] ; that C. B. is the widow of said A. B., and C. D., E. F., and G. H. are sons of said A. B., and the only persons entitled to share in said residue, and that the sum of dollars has been paid to 154 Laws 1913, p. 650. (754) Chap. 33] DIVISION OF THE ESTATE. 451 C. D. as an advancement; that, including said sum of dollars, .there remains for distribution the sum of dollars; that C. B. is entitled to one-sixteenth of said sum of dollars, C. D. five- sixteenths, E. F. five-sixteenths, and G. H. five-sixteenths; that the livestock above described be assigned to said C. B., C. D., E. F., and G. H. in the same proportions, to be held by them in common. It is therefore ordered and decreed that said residue be divided as follows: To C. B., the sum of dollars; to said C. D., the sum of dollars; to E. F., the sum of dollars; and to G. H., the sum of dollars. It further appearing that said A. B. died seised of the following described real estate [describe real estate], and that said C. D., E. F., and G. H. are the only heirs of said A. B., it is therefore ordered that said lands be assigned to them in common. (Signed) J. K., County Judge. 451. Effect of decree of distribution. A decree of distribution is based on what the execu- tor or administrator had or which the court finds such representative ought to have had in his hands for the legatees or distributees. It is a judgment operating as a judgment de bonis propriis at common law. The lia- bility may be enforced by execution and on return null a bona by action against the bondsmen. 155 Lega- cies and distributive shares draw interest from their date. 156 It is final and subject to appeal. The county court has original jurisdiction to set it aside not only for the causes and in the manner prescribed by the code, 157 but after the expiration of the time for such proceed- ings, for fraud, mistake or misrepresentation. 158 155 Lydick v. Chancy, 64 Neb. 288, 89 N. W. 801. 156 Rev. Stats., c. 32,53, [1267]; Smullin v. Wharton, 83 Neb. 328, 119 N. W. 773, 121 N. W. 441. i" Civ. Code, 648. 656. 158 Williams v. Miles, 63 Neb. 851, 89 N. W. 459; Weeka v. Wort- man, 77 Neb. 407, 109 N. W. 503. .(755) 451 PROBATE AND ADMINISTRATION. [Chap. 33 Under the Oregon practice, the order directing a distribution and settling the final account is a decree and not a judgment, 159 and is conclusive not only on the executor or administrator but on the sureties on his bond. 160 The most effective remedy for attacking the order is by an action in equity in the circuit court to set it aside for fraud. 161 Errors and irregularities can be raised by writ of review. 162 The law imposes on an executor or administrator the duty of making a full and voluntary disclosure to the heirs, distributees, legatees and devisees of the situation, condition and value of the estate, and they are entitled to rely on his representations respecting such condition, situation and value, 103 and if he has betrayed such trust and the facts are not learned until after the time for appeal from the decree has expired, the only remedy they have is to reopen the decree. 164 After the entry of the decree, as the amount due the heir or legatee is therein determined, and the only duty of the personal representative remaining being to pay over the same to the party entitled thereto, the reasons which prevent the issue of a writ of garnish- ment to a personal representative do not apply, and the practice in the courts of this state has been to allow the writ. 159 In re Plunkett's Estate, 33 Or. 414, 54 Pac. 152. ico Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714; Thompson v. Dekum, 32 Or. 506, 52 Pac. 517, 755. ici Froebich v. Lane, 45 Or. 13, 76 Pac. 351; Johnson v. Savage, 50 Or. 294, 91 Pac. 1082. 162 Section 489, post. 163 Creamer v. Ingalls, 89 Wis. 112, 61 N. W. 82. 164 See Estate of Leavens, 65 Wis. 440, 27 N. W. 324: Beem v. "Kim- berly, 72 Wis. 343, 39 N. W. 542; Frawley v. Cosgrove, 83 Wis. 444, 53 N. W. 689. (756) Chap. 33] DIVISION OF THE ESTATE. 451 Under the Oregon statute, if the distributees fail to apply for their shares of the estate within three months after the date of the order of distribution, the court may, on a showing to that effect by the executor or administrator, make an order directing payment of the same to the county treasurer, who holds the money in a special fund, subject to the further order of the court for its payment to the party entitled to it. If no application is made for it for one year, it is paid to the state treasurer, and if not claimed within ten years, escheats to the state. 165 Form No. 200. PETITION TO REVOKE DECREE OF DISTRIBUTION. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that on the day of . 19 , the last will and testament of said A. B. was admitted to probate in said court, and letters testamentary thereupon issued to C. D.; that on the day of , 19 , said C. D., executor, filed an inventory of the property belonging to said estate, which said inventory enumerated the following described real estate [describe real estate] and personal property, which was appraised at the sum of dollars; that the following described personal property belonging to said estate came into the possession of said executor, and was not enumerated in said inventory, and has never been accounted for by him, to wit [describe personalty alleged to have been omitted, and state value]; that your petitioner had no knowledge of the existence of said last-described personalty, nor of its possession by said C. D., executor, until on or about the day of , 19. That on the day of , 19 , said C. D., executor, filed in said court a petition alleging that he had fully administered said estate, and praying for an order of distribution; that your petitioner was by said will given a legacy of the sum of dollars, and was the devisee of the following described real estate [describe real estate], which said real estate is of the reasonable value of dollars; that your petitioner is a resident of the state of South Caro- lina, and has been a resident of said state for more than twenty years 165 L. 0. L., 1303. (757) 451 PROBATE AND ADMINISTRATION. [Chap. 33 last past, and that he had previous to the day of , 19 , no knowledge of the amount, character, and value of the said estate of said A. B., except such information as he received from said C. D., executor; that said C. D. had full knowledge of said estate, and the value thereof, and did falsely and fraudulently, and with the intent of him, said C. D., to defraud your petitioner, represent and pretend to your petitioner that the fund from which said legacy to your peti- tioner was required to be paid had failed, and that said legacy, there- fore, could not be paid. That said C. D. further falsely and fraudulently represented to your petitioner that claims had been filed against said estate in the sum of dollars, that said claims were legitimate demands against said estate, and would be allowed by the court, and that it would be necessary to sell the real estate devised to your petitioner for the purpose of paying said debts; whereas, in truth and in fact, the claims filed against said estate aggregated the sum of dollars, and those allowed the sum of dollars, and no appeal has been taken from any order of this court disallowing any claim. That your petitioner relied upon said false and fraudulent repre- sentations, so made to him as aforesaid by said C. D., and verily be- lieved that said C. D. had represented to him the true condition of said estate; that, so relying upon said false and fraudulent representa- tions so made by said C. D., as aforesaid, your petitioner, for and in consideration of the sum of dollars to him in hand paid by said C. D., executed and delivered to him, said C. D., a conveyance and assignment of all his, your petitioner's, interest in said estate, which said conveyance and assignment was attached to the said peti- tion of said C. D. for order of distribution and filed in this court. That notice of the hearing on said petition for order of distribution was given by publication in the , a newspaper printed and pub- lished in said county, and that your petitioner had no actual knowledge of the date fixed for said hearing until the day of , 19 . That on the day of , 19 , an order of this court was entered, assigning to said C. D. all of said share, both real and per- sonal, which was devised and bequeathed to your petitioner. Your petitioner therefore prays that a summons issue to said C. D., commanding him to show cause why said order of distribution here- tofore entered on the day of ,"19 , be revoked and can- celed; that said C. D. be compelled to account for all the property that has come into his possession as such executor, and to file herein a full, particular, and itemized account of his administration of said (758) Chap. 33] DIVISION OF THE ESTATE. 452 estate, and of all his doings in respect thereto, or in any manner concerning the same, and his management and conduct thereof from the beginning of his said administration. Dated this day of , 19 . (Signed) E. F., By E. H. S., His Attorney. [Add verification, Form No. 5.] [This form is the petition in Creamer v. Ingalls, supra.] 452. Discharge of executor or administrator. The executor or administrator may pay the legacies and distributive shares to the parties entitled thereto, taking their receipts for same. He also has the right to pay them into court for the use of the parties in cases where he is unable to find the legatee or heir, and such payment releases him from further liability for such amounts. 166 When the representative has paid these shares and there appear to be no further duties to be performed, he is entitled to a discharge. 167 The discharge is not a release from all duties and lia- bilities; it only discharges and releases him from lia- bilities up to that time, and does not affect his relation as a trustee. 168 Form No. 201. DISCHAEGE OF EXECUTOR OR ADMINISTRATOR. [Title of Cause and Court.] Now, on this day of , 19 , C. D., administrator of the estate of said A. B., having filed in this court the receipts of C. D., E. F., G. H., and C. B. for the amounts adjudged to be due them by 166 Eev. Stats., c. 16, 14, [1241]. 167 Cowherd v. Kitchen, 57 Neb. 426, 77 N. W. 1107; Barney v. Babcock's Estate, 115 Wis. 409, 91 N. W. 982. 168 Hazlett v. Blakeley's Estate. 70 Neb. 613, 97 N. W. 808; Union Pacific R. R. Co. v. Smith, 5 Xeb. Unof. 631, 99 N. W. 813. (759) 452 PROBATE AND ADMINISTRATION. [Chap. 33 this court, from the residue of said estate, according to the order duly entered herein on the day of , 19 , it is hereby ordered that said C. D., administrator, be and he hereby is discharged from any further duties of administration, and that the sureties upon his official bond be released from any further liability thereon. (Signed) J. K., County Judge. Under the Oregon practice, it is the duty of the executor or administrator with the will annexed to have a copy of the will duly certified, recorded in every county of the state in which such testator left any real estate, in the record of deeds of such counties. 169 In other counties than that in which the administration is had, copies of the petition for his appointment, the order for letters and the final order discharging him must also be recorded. 170 In the case of an intestate estate, copies of the peti- tion for administration and of the orders appointing the administrator, determining heirship and for his dis- charge must be recorded. 171 169 L. O. L., 1144. 170 L. O. L., 1147. 171 L. O. L., 1147. (760) CHAPTER XXXIV. ENFORCEMENT OF PROBATE BONDS. 453. Purpose for Which Bond is Given. 454. Failure of Bond to Comply With Statute. 455. Common-law Bond. 456. Cumulative Bond. 457. Liability of Sureties of Coexecutors and Coadministrators. 458. Who can Bring Suit on Probate Bond. 459. Proceedings Necessary in Order to Sustain Action on Probate Bond. 460. Fixing Liability of Bondsmen. 461. What Constitutes a Breach of the Bond. 462. What Constitutes a Breach of the Bond Concluded, 463. Losses not Covered by Bond. 464. Residuary Legatee's Bond. 465. Suit by Administrator De Bonis Non. 466. Authority to Bring Suit on Bond. 467. Time Within Which Action may be Brought. 468. Liability of Sureties. 469. Liability in Regard to Real Estate. 470. Liability for Proceeds of Sales of Real Estate Under Order of Court. 471. Action on the Bond. 472. Action, When Barred. 453. Purpose for which probate bond is given. The object of the bond required of an executor or administrator before letters issue is to secure to all parties interested in the estate creditors, heirs and legatees the amounts, or specific articles, to which the court finds they are justly entitled, and to afford them a source from which they can enforce payment of what they should receive from the estate, should the personal representative be guilty of mismanage- ment, misappropriation of funds, negligence, or of fail- ure to comply with the decrees of the county court. (761) 454 PROBATE AND ADMINISTRATION. [Chap. 34 454. Failure of bond to comply with the statutes. The statutes specifically define what the conditions of the bond shall be. They are construed as directory, and if the bond substantially complies therewith, it is valid. 1 If some essential conditions are omitted, the parts which should have been inserted cannot be read into it, and the sureties are liable only for a breach of the conditions it contained. 2 The general rule is that informalities and omissions where there was an evident intention on the part of the representative and his sureties to comply with all the legal requirements will not make the bond void, though its conditions vary slightly from those re- quired, except in so far as it increases the statutory liability, 3 as where it did not state the name of the obligee running to "the judge of the probate court," 4 or where it ran to the surrogate of another county but the conditions made it apply to the county where filed, 5 or where it failed to give the name of the de- cedent, it appearing to be the intention of the parties to obligate themselves to all concerned in the will which their principal was called on to execute, 6 but one in which no person or officer is named as obligee, 7 1 Holbrook v. Bentley, 82 Conn. 502; Lanier v. Irvine, 21 Minn. 447; Schill v. Reisdorf, 88 111. 411; Probate Court v. Strong, 27 Vt. 202; Graves v. McHugh, 58 Mo. 499. 2 Carroll v. Connett, 2 J. J. Marsh. (Ky.) 195. 3 State v. Price, 15 Mo. 375; Newton v. Cox, 76 Mo. 352. < Buel v. Dickey, 9 Neb. 285, 2 N. W. 884. 5 Gerould v. Wilson, 81 N. Y. 573. c Foley v. Hamilton, 89 Iowa, 686, 57 N. W. 439. 7 Tidball v. Young, 58 Neb. 261, 78 N. W. 507. (762) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 455 or no amount is given, 8 is neither a statutory nor com- mon-law obligation, and is void. 455. Common-law bond. If the instrument intended for a probate bond utterly fail to comply with the statute, or be given by a person acting under an absolutely void grant of letters, it will still be valid as a common-law obligation, 9 and, after he has acted as such personal representative, his sureties would be liable on the bond for a violation on the part of their principal of the legal obligations which he assumed therein. 10 Action upon such common-law bond must be brought by the county judge to whom it was given, and who approved it, as trustee for the benefit of all parties interested in the estate. His successor has no au- thority to bring the action. 11 The Oregon statutes provide that a surety on the bond of an executor or administrator may be released from subsequent liability for the act of his principal by order of the court upon the filing by such principal of a new bond. Such surety may apply by petition to the county court which approved the bond, praying to be relieved from further liability for the acts or omissions of the executor or administrator occurring after the date of the order relieving him, and for an order to his principal to show cause why such surety should not be released as prayed and the principal re- quired to account and to give a new bond. The court thereupon causes an order to be issued returnable at 8 Everts v. Stiger, 6 Or. 55. State v. Creusbauer, 68 Mo. 254. 10 Shalter's Appeal, 43 Pa. 83; Cleaves v. Dockray, 67 Me. 118; Waterman v. Dockray, 79 Me. 149, 8 Atl. 685. 11 Frye v. Crockett, 77 Me. 157. (763) 456 PEOBATE AND ADMINISTRATION. [Chap. 34 such time and place and to be served in such manner as said court shall direct, and may in the meantime restrain the principal from acting, except in such man- ner as the court shall direct for the preservation of the estate. If the executor or administrator gives a new bond and the same is duly approved by the court within the time limited in the order, the court must make an order releasing the surety filing the petition from further liability as prayed; and in default of such principal thus accounting and filing a new bond within the time limited in such order, said court shall at once make an order directing him to account within ten days, and if the estate shall be found and made good or properly secured, such surety shall be dis- charged from any and all further liability as such for the subsequent acts of his principal after the date of such surety being relieved or discharged, and further discharging said executor or administrator from his position. 12 456. Cumulative bond. When an additional bond is given under the order of the county court, or voluntarily without such order, the liability of the sureties on the first bond are in no way affected. They still remain liable for the past, present and future misconduct of their principal, and the county court cannot change such liability. 13 The liability of the new bondsmen dates back to the grant of letters, the same as that of the sureties on the new bond. 14 12 L. O. L., 685. 13 Bellinger v. Thompson, 26 Or. 330, 37 Pac. 714; Commonwealth v. Bogers, 53 Pa. 470; Wood v. Williams, 61 Mo. 63; Eichter v. Leiby's Estate, 101 Wis. 434, 77 N. W. 745. 14 Elizalde v. Murphy, 163 Cal. 681, 126 Pac. 978. (764) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 457 Under the Oregon statutes, 15 the giving of a new or substituted bond under the order of the court dis- charges the sureties on the former bond from subse- quent liability. The two sets of sureties are equally liable for a breach of the conditions of either obligation, no matter when it occurred. As far as creditors, legatees or dis- tributees are concerned, there is no primary liability, 16 but as between themselves, a surety on either bond against whom a judgment has been rendered for a default of his principal can enforce contribution from the sureties on both bonds. 17 457. Liability of sureties of coexecutors and coad- ministrators. The surety on the separate bond of a coexecutor or coadministrator is only liable for a violation of the obligations of the bond by his own principal, 18 but where, as is usually the case, the representatives have together administered the estate and together trans- acted its business, each having a knowledge of what the other was doing, or of sufficient facts to give him notice, a surety on the bond of one is liable for the principal on the other bond, because his principal par- ticipated in them and contributed to the loss. 19 is L. 0. L., 1161, 1162. 16 Scofield v. Churchill, 72 N. Y. 565; Brown v. State, 23 Kan. 235; Lingle v. Cook's Admrs., 32 Gratt. (Va.) 262. IT Rudolf v. Malone, 104 Wis. 470, 80 N. W. 743; Thompson T. Dekum, 32 Or. 506, 52 Pac. 517. 18 McKim v. Aulbach, 130 Mass. 481. i Clark v. State, 6 Gill & J. (Md.) 288; Cameron v. Justice of Inferior Court, Richmond Co., 1 Ga. 36. See, also, In re Irvine's Estate, 203 Pa. 603, 53 Atl. 502; In re Niles' Estate, 113 N. Y. 547, 21 N. E. 687. See 426, supra. .(765) 453 PROBATE AND ADMINISTKATION. [Chap. 34 If he did not participate in the wrongful acts of his associate, or having knowledge of such acts did not acquiesce in them, he is liable as a surety for his as- sociate, but his sureties are not liable. 20 The sureties on a joint bond of coexecutors or coad- ministrators are liable for the acts or defaults of either or any of them. The principals are jointly lia- ble as sureties for the acts and defaults of each other and are jointly liable to a surety who has been com- pelled to make any payment on account of the neglect or default of either. 21 The liability of the obligors, as between themselves, is as joint principals, and not as sureties, when the property sought to be recovered was received by them jointly, was jointly receipted for by them, or they jointly participated in a devastavit. 22 458. Who can bring suit on probate bond. An action may be brought on the bond of an execu- tor or administrator by any creditor when the amount due him has been ascertained and ordered paid, if the executor or administrator shall neglect to pay the same when demanded, 23 which would include the holder of a judgment lien on realty which has been sold by the administrator by order of court, subject, of course, to the lien, and the proceeds applied in payment of 20 Sutherland v. Brush, 7 Johns. Ch. (N. Y.) 17; Monell v. Monell, 5 Johns. Ch. (N. Y.) 283; Manahan v. Gibbons, 19 Johns. (N. Y.) 427. 21 Moore v. State, 49 Ind. 558; Ames v. Armstrong, 106 Mass. 15; Hannum v. Day, 105 Mass. 33; Dobyns v. McGovern, 15 Mo. 662; Boyd v. Boyd, 1 Watts (Pa.), 365. 22 Lenoir v. Winn, 4 Desaus. (S. C.) 65; Clark v. State, 6 Gill & J. (Md.) 288. 23 Eev. Stats., c. 17, 252, [1515]. (766); Chap. 34] ENFORCEMENT OF PROBATE BONDS. 459 the general creditors of the estate, 24 by any person as next of kin to recover his share of the personal estate, after the entry of a decree of the court declaring the amount due to him, if the executor or administrator shall fail to pay the same on demand, 25 and by any creditor, legatee, distributee or other person interested in the estate who has sustained a loss on account of the failure of the executor or administrator to per- form any order or decree made by a county court hav- ing jurisdiction, for rendering of any account, for the settlement of an account, for the payment of debts, legacies or distributive shares, for the delivery of specific legacies, or by reason of any maladministra- tion of the personal representative. 26 459. Proceedings necessary in order to sustain an action on a probate bond. It is a rule of law, so well settled by the older judicial decisions as to seldom, if ever, be raised in the courts at the present time, that, before an action upon a pro- bate bond can be sustained, the liability of the estate to the would-be plaintiff must be fully determined, the personal representative must have refused to perform his legal duty, and leave of the court which approved the bond and issued the letters had and obtained. 27 The liability, therefore, cannot well be determined 24 State v. Brown, 80 Ind. 425. 25 Rev. Stats., c. 17, 253, [1516]. 26 Rev. Stats., c. 17, 254, 255, [1517], [1518]. 27 Adams v. Petrain, 11 Or. 304, 3 Pac. 163; Probate Court v. Kim- ball. 42 Vt. 320; State v. Stafford, 73 Mo. 658; Commonwealth v. Wenrick, 8 Watts (Pa.), 159; Commonwealth v. Fretz, 4 Pa. 347; Com- monwealth v. Moltz, 10 Pa. 527. (767) 459 PROBATE AND ADMINISTRATION. [Cliap. 34 until the debts are allowed, and the administration of the estate nearly, if not entirely, completed. The duty of a personal representative of a decedent to pay the debts, legacies, allowances and costs of ad- ministration does not become absolute and operative until an order of the court has been made requiring him to pay them, and such payment must be demanded. "The liability of a surety is contingent, * * * an( j therefore, before suit can be brought against him, the party in interest, whether creditor, legatee, heir or dis- tributee, must proceed against the executor or adminis- trator," and determine the amount owing by him in his official capacity to such party. 28 Except in the case of residuary legatees, the liability of the bondsmen only attaches when the debt, claim or demand, whether of creditor, heir or legatee, is a proper demand against the estate, and the principal has received sufficient assets of the estate to pay it either in whole or in part, and has wasted or converted them, or refuses to apply them in payment; and no action can be maintained against the sureties unless the amount of the debt, the liability of the estate therefor, the sufficiency of the assets, the fact of waste or conversion, and the consequent liability of the prin- cipal has been first established by the judgment or decree of a competent court in a proper proceeding duly prosecuted against such principal. 29 Under the common law, the following steps were held necessary in order to reach the sureties on an adminis- 28 Commonwealth v. Fretz, 4 Pa. 347. 29 May v. Kelly, 61 Ala. 489; Henderson v. Levy, 52 Ga. 35; Thomp- son v. Bondurant, 15 Ala. 346, 50 Am. Dec. 136; Cameron v. Justice* of Inferior Court, Richmond Co., 1 Ga. 36. (768), Cliap. 34] ENFORCEMENT OF PROBATE BONDS. 460 tration bond, and render them liable for the debts of the estate: First, a suit against the executor or ad- ministrator in his representative capacity, with a judg- ment de bonis testatoris or de bonis intestatis, and a re- turn of nulla bona on an execution thereon; second, an action on the bond founded upon the judgment. 30 Formerly, after the first judgment was obtained, an ac- tion of debt on that judgment, suggesting a devastavit against the executor or administrator personally and a judgment de propriis, was necessary. 31 460. Fixing liability of bondsmen, Statutes like those in this state requiring claims against decedent's estates to be allowed and ordered paid by the county court, and the shares of the dis- tributees and legatees to be determined by order of court, are substituted for the common-law method of fixing the liability. An order for their payment must be made before suit can be brought on the bond, 32 and a noncompliance with the order of payment is sufficient to sustain the action on the bond without any judgment establishing the devastavit. 33 In such ac- tion, actual proof of a devastavit, except, of course, 30 Dean v. Portis, 11 Ala. 104; Hobbs v. Middleton, 1 J. J. Marsh. (Ky.) 189; People v. Dunlap, 13 Johns. (N. Y.) 437; Dobbins v. Half- acre, 52 Miss. 561. 31 Stewart v. Champaign County Treasurer, 4 Ohio, 98; Catlett v. Carter's Exrs., 2 Munf. (Va.) 24; Justices of Inferior Court, Irwin County, v. Sloan, 7 Ga. 31. 32 Lydick v. Chaney, 64 Neb. 288, 89 N. W. 801; First Nat. Bank of St. Paul v. How, 28 Minn. 150, 9 X. W. 626; State v. Stafford, 73 Mo. 658; Probate Court v. Kent, 49 Vt. 380; Hood v. Hood, 85 N. Y. 561. 33 Warren v. Powers, 5 Conn. 373; Weber v. Noth, 51 Iowa, 375, 1 N. W. 652; Brewster v. Balch, 9 Jones S. (N. Y.) 63. 49 Pro. Ad. (769) 461 PROBATE AND ADMINISTRATION. [Chap. 34 where the action is brought against the representative for a conversion, is not necessary, for the county court, in making the order requiring the payment to be made, in effect passes upon the question, and such order is final and conclusive unless an appeal be taken there- from. It must appear that all steps required have been taken to enforce the order of the county court, but without avail. 34 A decree or order of the county court ascertaining the shares of the legatee or distributee is a sufficient determination of the liability of the executor or ad- ministrator in an action brought upon the bond. 35 Until such decree or order has been made and entered, and there has been a failure to comply therewith, the nonpayment of a legacy or distributive share will not support an action on the bond. 36 It has been held not necessary for the court to ascertain the actual share of the distributee or creditor, if the records show a decree due from the personal representative to the creditors, heirs or legatees, and, if the same is not paid, an action has been maintained on the bond for the benefit of all those interested. 37 461. What constitutes a breach of the bond. A conversion, waste or misappropriation of the assets of the estate is, of course, a violation of the conditions 34 Hamlin v. Kinney, 2 Or. 91; Adams v. Petrain, 11 Or. 304, 3 Pac. 163. 35 Judge of Probate v. Fillmore, 1 D. Chip. (Vt.) 420; Common- wealth v. Wenrick, 8 Watts (Pa.), 159; United States v. King, 1 McArth. (D. C.) 499. 36 Pickett v. Gilmer, 32 La. Ann. 991; Judge of Probate v. Adams, 49 N. H. 150; Dawson v. Dawson, 25 Ohio St. 443; Municipal Court v. Henry, 11 R. I. 563; Thornton v. Glover, 25 Miss. 132. 37 Ordinary v. Mortimer, 4 Rich. (S. C.) 371. (770) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 461 of the bond, and the one for which actions are most frequently brought. It may have taken place before the inventory was filed, and be of property received before the bond was executed, if such conversion or misappropriation occurs afterward. 38 The bondsmen are also liable for the failure of their principal to resist unjust and unfounded claims against the estate to the amount of such claims; 39 for his failure to reduce to possession known assets of the estate, or for delay and negligence in reducing them to possession, whereby a loss resulted; 40 for delay in rendering his accounts, whereby a loss was sustained by the estate for the use of money lying idle in his hands; 41 for delay or failure to file the inventory (but for this particular breach nominal damages only can be recovered unless some actual loss to the estate is established). 42 The failure of an executor or administrator with the will annexed to administer the estate according to the terms of the will constitutes a breach of the bond for which an action will lie against the sureties, as where the will directed that certain property be invested in a certain manner, and the personal representative neg- lected to make the investment, whereby a loss resulted, or a residuary legatee used the assets of the estate for his own personal ends, and left the debts unpaid. 43 38 State v. Scott, 12 Ind. 529; Bellinger v. Thompson, 26 Or. 338, 37 Pac. 714. 3 Smith v. Cuyler, 78 Ga. 654, 3 S. E. 406. 40 Bourne v. Stevenson, 58 Me. 499. 41 McKim v. Bartlett, 129 Mass. 226; Ordinary v. Barcalow, 36 N. J. L. 15; Commonwealth v. Bryan, 8 Serg. & R. (Pa.) 128. 42 People v. Hunter, 89 111. 392; State v. Smith, 52 Conn. 557. 43 Edmunds' Admr. v. Scott, 78 Va. 720; Probate Court v. Angell, 14 R. I. 495; Judge of Probate v. Claggett, 36 N. H. 381; United States v. Barker, 2 McArth. (D. C.) 444. (771) 462 PROBATE AND ADMINISTRATION. [Chap. 34 462. What constitutes a breach of the bond Con- cluded. Nonpayment of a legacy is a breach of the bond when the amount due and the order of payment have been duly determined in the manner provided in the preced- ing sections, 44 and it is immaterial whether the legacy grows out of realty or personalty, if the executor is chargeable with it; 45 but where an administrator with the will annexed gave an ordinary- administrator's bond, instead of the bond required by statute, the court held his bondsmen could not be compelled to pay a legacy, as the obligation they executed contained no reference whatever to any will. 46 A failure to comply with any order or decree of the county or dis- trict court in reference to his duties, whereby a loss occurs to the estate, will render his bondsmen liable. 47 Where an administrator applies the proceeds of the sale of lands made by order of court, upon which there are judgment liens, for the payment of other indebted- ness, the holders of such judgment liens may bring an action on the bond for the amount of their demands. 48 But where the administrator in good faith, and under the order of the court, pays other encumbrances out of the proceeds of the sales of such lands sold, no action will lie therefor on his bond. 49 44 Appeal of American Board of Commrs., 27 Conn. 344; Ruby v. State, 55 Md. 484; Gandolfo v. Walker, 15 Ohio St. 251. 45 Moore v. Waller's Heirs, 1 A. K. Marsh. (Ky.) 488. 46 Fulcher v. Commonwealth, 3 J. J. Marsh. (Ky.) 592. 47 Hancock v. Hubbard, 19 Pick. (Mass.) 167; State v. James, 82 Mo. 509; O'Gorman v. Lindeke, 26 Minn. 93, 1 N. W. 841. 48 State v. Brawn, 80 Ind. 425. 49 State v. Schileiffarth, 9 Mo. App. 431. (772) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 463 When the personal liability of the executor or admin- istrator has been determined in the manner provided in the preceding section, the nonpayment of a debt which has been allowed as proper demand against the estate, when the personal representative has received suffi- cient assets which are appropriate for its payment, constitutes a breach of the bond. 50 This applies to any claim which has been allowed by the court, the order allowing which still remains in full force and effect, even though it subsequently appears that the claim was barred by the statute, and should have been rejected. 51 463. Losses not covered by bond. The bondsmen are not liable for services rendered the executor or administrator by a third party in the course of administering the estate, because, although the payment is one properly payable from the assets of the estate, it is the personal representative who in- curred the debt; 52 but where an administrator brought replevin for goods which he claimed belonged to the estate, and, failing in the action, the surety on the replevin bond was compelled to pay, the judgment was held to be a debt of the estate for which the sureties upon the administration bond were liable. 53 The non- payment of a note belonging to the estate, and trans- ferred to a creditor thereof in settlement of his claim, does not render the bondsmen liable for it. 54 Nor can 50 Mortenson v. Bergthold, 64 Neb. 208, 89 N. W. 742. 51 Weber v. Noth, 51 Iowa, 375, 1 N. W. 652. 52 Baker v. Moor, 63 Me. 443; Taylor v. Mygatt, 26 Conn. 184. 63 State v. Dailey, 7 Mo. App. 549. 64 Rawson v. Piper, 34 Me. 98. (773) 464,465 PROBATE AND ADMINISTRATION. [Chap. 34 they be held liable for the failure of their principal to procure a license for the sale of lands for the purpose of obtaining funds with which to pay plaintiff's claim. 55 464. Residuary legatee's bond. The bond of a residuary legatee stands on a differ- ent footing than the usual executor's bond. For the reason that he is not required to file an account it has been held that a legatee need not obtain an order from the court for the payment of his legacy before bring- ing suit. 56 The claim of a creditor must be allowed before he can bring suit. The bond being conditioned to pay all the debts and legacies of the testator, it will be conclusively pre- sumed that the executor has in his possession suffi- cient assets to pay them, and many of the usual de- fenses in cases on administration bonds are thus cut off. 57 465. Suit by administrator de bonis non. An administrator de bonis non has power to bring an action on the bond of the former executor or ad- ministrator for any damages sustained by reason of his neglect, or the neglect or refusal of his representa- tives, to turn over to such new administrator, pursuant to the order and decree of the county court, or accord- ing to law, any estate remaining unadministered. 58 55 Hawkins v. Carpenter, 88 N. C. 403. 56 Smith v. Lambert, 30 Me. 137. 57 Buel v. Dickey, 9 Neb. 285, 2 N. W. 884; Col well v. Alger, 5 Gray (Mass.), 67; Jones v. Richardson, 5 Met. (Mass.) 24,7. 58 Rev. Stats., c. 17, 257, [1521]. (774) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 46G Before such suit can be brought a hearing must be had in the county court, and the liability of the original representative or, in case of his death, of his personal representatives, to the estate determined, 59 and an order of the court made thereon directing him or his representatives to deliver to the administrator de bonis non the unadministered assets and to pay to him the balance, if any found due, on account of the neglect or wrongful act of the original representative. 80 466. Authority to bring suit on bond. An action upon the executor's or administrator's bond must be brought in the name of the party au- thorized by the county judge to bring the same, or in the name of the guardian of such party, and in such action the plaintiff shall be entitled to recover such damage as he may have sustained, to the amount of the bond, and no more, and a judgment in favor of a party for one delinquency shall not preclude the same or another party for an accounting on the same bond for other delinquencies, but the aggregate of all the re- coveries on such bond shall not exceed the amount for which the bond was given. Permission must be ob- tained from the county judge to prosecute the action, and upon granting the same, he is required to furnish the applicant, on payment of the legal fee, a certified copy of the bond, together with a certificate that per- mission has been granted to prosecute, and the name 59 Brown v. Jacobs, 24 Neb. 712, 40 N. W. 137; Adams v. Petrain, 11 Or. 304, 3 Pac. 163. 60 Kutenic v. Hamakar, 40 Or. 263, 67 Pac. 196; United States v. Cox, 18 How. (U. S.) 100; Beall v. New Mexico, 16 Wall. (U. S.) 535; Campbell v. State, 62 Md. 1; In re Connelley's Estate, 73 Cal. 423. (775) 466 PROBATE AND ADMINISTRATION. [Chap. 34 and residence of the applicant. 61 The application may be made by a creditor, legatee or distributee or other person interested in the estate. 62 It should be by peti- tion under oath and the order may be entered by the court without notice. 63 Form No. 202. APPLICATION FOB PERMISSION TO BRING SUIT ON A PRO- BATE BOND. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that he is a resident of the village of , Nebraska; that on the day of , 19 , letters of administration upon the estate of said A. B., deceased, were issued out of and under the seal of said court to one C. D.; that on the day of , 19 , your peti- tioner filed a claim against said estate with said court; that on the day of , 19 , said claim was allowed by said court in the sum of dollars ($ ); that on the day of , 19 , a decree was duly entered by said court requiring said C. D., administrator as aforesaid, to pay to your petitioner the said sum of dollars ($ ), which said sum your petitioner then and there demanded of said C. D., administrator, and that said C. D., administrator, has neglected and refused to pay the same. Your petitioner therefore prays that permission may be granted him to bring suit upon the bond of said C. D., administrator of the said estate of A. B., deceased. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] 61 Rev. Stats., c. 17, 256, [1520]. 62 Section 458, supra. 63 Roberts v. Weadock, 98 Wis. 400, 74 N. W. 93; Richardson v. Hazleton, 101 Mass. 108; Bennett v. Overing, 16 Gray (Mass.), 267. (776), Chap. 34 J ENFORCEMENT OF PROBATE BONDS. 466 Form No. 203. APPLICATION OF ADMINISTRATOR .DE BONIS NON FOR LEAVE TO BRING SUIT ON BOND OF HIS PREDECESSOR. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that on the day of , 19 , letters of administration de bonis non upon the estate of said A. B., deceased, were issued to him out of and under the seal of this court; that on the day last aforesaid said court made an order requiring G. I., the original administrator of said estate, to turn over to your petitioner all the assets of said estate then re- maining in his hands unadministered, and your petitioner thereupon demanded of said C. D. said assets of said estate, and said C. D. has neglected and refused to deliver said assets to your petitioner. Your petitioner therefore prays that leave may be granted him to bring suit upon the bond of said C. D., the original administrator of said estate. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] Form No. 204. ORDER GRANTING PERMISSION TO BRING SUIT ON BOND. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing on the petition, duly verified, of E. F., for permission to bring suit upon the administration bond of C. D., administrator of said estate, and was submitted to the court. Upon consideration thereof, it is ordered and adjudged by me that said E. F., of the village of , county, Nebraska, be and he hereby is granted permission to bring suit upon the bond of C. D. as administrator of the estate of A. B., deceased, and that a certified copy of said bond be delivered to said E. F. (Signed) J. K., County Judge. (777) 467 TEOBATE AND ADMINISTRATION. [Chap. 34 Form No. 205. CERTIFICATE OF PEBMISSION TO BEING SUIT ON BOND. State of Nebraska, i County, as. I, J. K., county judge of said county, do hereby certify that the within and foregoing is a true copy of the bond of C. D., adminis- trator of the estate of A. B., deceased, now on file in the county court of said county; and I do further certify that on the - day of , 19 , permission was granted by said court to E. F., of the village of , said county, to prosecute said bond. In witness whereof, I have hereunto set my hand and caused the seal of said court to be affixed this day of , 19 . [Seal] (Signed) J. K., County Judge. The Oregon statute does not require that permission be first obtained from the county court before bringing suit on the bond, as is the case in many states. The object of such statutes is to prevent such suits being brought prematurely. When permission is not a statu- tory requirement and there are no special proceedings for enforcing probate bonds, an order granting leave is not necessary. 64 467. Time within which the action may be brought. An action on the bond of an executor or adminis- trator may be brought within any time within ten years after the cause of action accrued. 65 It accrues when the party has the right to apply to the county court for permission to bring the action. Obtaining leave to sue on the bond is no part of the cause of ac- tion thereon, and delay in obtaining such leave does not affect the running of the statute. 66 The suit may 64 Bartels v. Grove, 4 Wash. 632, 30 Pac. 675; State v. Wilson, 38 Md. 338. 5 Code Civ. Proc., 12; Bently v. Baker, 61 Neb. 92, 64 N. W. 603. 66 Ganser v. Ganser, 83 Minn. 199, 86 N. W. 18. (778) . 34] ENFORCEMENT OF PROBATE BONDS. 468 therefore be brought at any time within ten years after the executor or administrator has failed to pay the creditors, legatees or distributees, or comply with the order of the court. 67 In Oregon the limitation is six years. 68 468. Liability of sureties. The liability of the sureties on an executor's or ad- ministrator's bond is limited to the terms of the instru- ment, and cannot be extended by operation of law or by implication. 69 They are only liable for a breach of the conditions of the instrument they actually sign. They are responsible for all the assets of the estate which have come into the official possession of the per- sonal representative within this state, 70 and for the proceeds of assets in another state which have been transmitted to him, and with which he has been prop- erly charged; 71 but the sureties of an ancillary ad- ministrator appointed in this state are not liable for the assets of the estate in another state. Their lia- bility is limited to the assets within the jurisdiction in which their principal received his appointment. 72 The bond is retrospective, and therefore covers assets 67 Williams v. State, 68 Miss. 680, 10 South. 52; Kennedy v. Crom- well, 108 N. C. 1, 13 S. E. 135. 68 L. O. L., 6. 69 Warfield v. Brand's Admr., 13 Bush (Ky.), 77; White v. Ditson, 140 Mass. 351, 4 X. E. 606. 70 Gregg v. Currier, 36 X. H. 200; Fletcher's Admr. v. Sanders, 7 Dana (Ky.), 345; Governor v. Williams, 25 N. C. 152; Verret v. Bel- anger, 6 La. Ann. 109; Goode v. Buford, 14 La. Ann. 102; Bowling v. Feeley, 72 Ga. 557. 71 Judge of Probate v. Heydock, 8 X. H. 491. 72 Fletcher's Admr. v. Sanders, 7 Dana (Ky.), 345. (779) 468 PROBATE AND ADMINISTRATION. [Chap. 34 which may have come into the representative's posses- sion before its execution, such goods being properly included in the inventory. 73 Should an executor be appointed trustee by the will, he should give a bond as trustee in addition to his bond as executor, the duties of the two offices being entirely distinct and separate. 74 Should he neglect to give a bond as trustee, he is chargeable on his executor's bond with the amount of the trustee property in his hands, the clause of the bond, "to administer according to the will of the testator," making his sureties liable for the assets should he convert or misappropriate them. 75 The liabilities of the sureties on the executor's bond, when he is also trustee, continue until he shall account as executor and qualify as trustee. There must be some open and notorious act done by him, whereby it is known that the line has been crossed which separates the capacity of executor from that of trustee. 76 Should an executor, after the setting aside of the will, con- tinue in charge of the estate as administrator without giving any other bond than his executor's bond, the sureties on such bond will be liable for the faithful per- formance of his duties as administrator. 77 If he has distributed the assets in good faith, pursuant to the 73 Scofield v. Churchill, 72 N. Y. 565; Choate v. Arrington, 116 Mass. 552; State of Creusbauer, 68 Mo. 254; Brown v. State, 23 Kan. 235. 74 Groton v. Ruggles, 17 Me. 137; Wyman v. Hubbard, 13 Mass. 234. 75 Hall v. Cashing, 9 Pick. (Mass.) 397; Briggs v. Baptist Church (Me.), 8 Atl. 257; Newcomb v. Williams, 9 Met. (Mass.) 525. 76 Joy v. Elton, 9 N. D. 428, 83 N. W. 875; In re Higgins' Estate, 15 Mont. 474, 39 Pac. 506; Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714; Newcomb v. Williams, 9 Met. (Mass.) 525; State v. Branch, 134 Mo. 592, 36 S. W. 226. 77 Bell v. People, 94 111. 230. (780) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 468 directions of the court, in the payment of debts and legacies, the subsequent annulment of the will will not render the sureties liable for the payments so made. 78 Where letters of administration were granted upon the estate of a person supposed to be dead, but who was in fact living, and the administrator disposed of the estate to the creditors and heir apparent, it was held that his bondsmen were liable to the supposed decedent for his property which the administrator had dis- posed of. 79 The liability of the bondsmen for the debt of an in- solvent representative to the estate is measured by his liability. They cannot be called upon to pay a debt which would be wholly or partially uncollectible were he not such representative, 80 nor are they released from paying such portion as he had the means to pay during administration, 81 and if he has charged himself with the full amount of his debt, equity will relieve his sureties to the extent of his inability to pay. 82 Under the Oregon practice, the liability of the bonds- men in such cases in an action by a creditor covers the full amount of the indebtedness, and fraud of the executor in concealing from them the knowledge of his insolvency is no defense. 83 78 Jones' Exr. v. Jones, 14 B. Mon. (Ky.) 373. 79 Williams v. Kiernan, 25 Hun (N. Y.), 355. 80 Baucus v. Barr, 5 Hun (N. Y.), 582; McCarty v. Frazer, 62 Mo. 263. 81 Kader v. Yeargin (Tenn.), 3 S. W. 178; Judge of Probate v. Sul- loway, 68 N. H. 511, 44 Atl. 720. 82 Harker v. Trick, 10 N. J. Eq. 369. 83 United Brethren v. Aikin, 45 Or. 247, 77 Pac. 248. (781) 469,470 PROBATE AND ADMINISTRATION. [Chap. 34 469. Liability in regard to real estate. As the personal representative is entitled to posses- sion of real estate pending administration, when he takes charge of it, the bondsmen would become liable for the rents and profits received therefrom by him, 84 and for failure to rent the property and keep the build- ings in repair. 85 They are not liable for rents collected by him after his removal from office. 86 The bondsmen of executors and administrators de bonis non with the will annexed are liable for moneys arising from sales of real estate made pursuant to the terms of wills, 87 on the principle that whatever is re- quired to be converted into personalty is considered as personalty and must be so accounted for. 88 In Rhode Island his bondsmen are not liable. 89 The bondsmen have been held liable for a loss sus- tained by the estate caused by a needless delay in mak- ing a sale of real estate for payment of debts under order of the court. 90 470. Liability for proceeds of sales of real estate under order of court. The special bond which the district court may re- quire of an executor or administrator on sale of lands for payment of debts is subsidiary to the first, and 84 May v. Kelley, 61 Ala. 489; Strong v. Wilkson, 14 Mo. 116. 85 See 219, supra. 86 Brooks v. Jackson, 125 Mass. 307. 87 Zeigler v. Sprenkle, 7 Watts & S. (Pa.) 178; Commonwealth v. Forney, 3 Watts & S. (Pa.) 356; Simpson v. Kelao, 8 Watts (Pa.), 252. 88 Craig v. Leslie, 3 Wheat. (U. S.) 563. 89 Probate Court v. Hazard, 13 R. I. 3. so Stratton v. McCandless, 27 Kan. 296. (782) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 471 limits the liability of its sureties to the proceeds of the sale. 91 As far as such proceeds are concerned, it is a cumulative bond. 92 For failure to account for such proceeds the rule is that an action will lie on either or both bonds, and that it is not necessary to first exhaust the administra- tion bond before bringing action on the second bond. 93 471. Action on the bond. The petition on the bond of an executor or adminis- trator must set up its execution and approval, 94 all the steps taken to fix the liability of the principal, his neglect or refusal to comply with the judgment or order of the court, and the granting of permission by the county judge to bring the action. 95 An objection that permission of the county court was not obtained may be taken advantage of by plea in abatement. 96 The bondsmen are bound by the recitals in the bond. 97 They are estopped from denying the legality of the appointment of their principal and from setting up any defense which is in the nature of an objection 1 Worgang's Admr. v. Clipp, 21 Ind. 119. 2 White v. Schaberg, 131 Mich. 319, 91 N. W. 168. 93 White v. Schaberg, 131 Mich. 319, 91 N. W. 168; Durfee v. Joslyn, 92 Mich. 211, 52 N. W. 626. The Michigan and Nebraska statutes on this matter are the same. 94 Jeffree v. Walsh, 14 Nev. 143. 95 Stratton v. McCandless, 27 Kan. 296; Slagle v. Entrekin, 44 Ohio St. 637, 10 N. E. 675; Tucker v. People, 87 111. 76; Johannes v. Youngs, 45 Wis. 445. 96 Johannes v. Youngs, 45 Wis. 445. 97 Thompson v. Rush, 66 Neb. 758, 92 N. W. 1060; Fridge v. State, 3 Gill & J. (Md.) 114. (783) 471 PKOBATE AND ADMINISTRATION- [Chap. 34 to their own acts. 98 Their liability is coextensive with that of their principal. As long as there remains any duty which he is legally liable to perform, so long the obligation of the bond remains." They are in privity with their principal, bound by any decree of the court which binds him and estopped from questioning the order directing payment to a creditor, heir or legatee of the amount due him, 100 un- less the court was without jurisdiction in making the order. 101 The liability does not end with the discharge of the executor or administrator. If the decree approving his final account is set aside for fraud or other cause, the liability of the bondsmen is revived and the bonds- men held as though no discharge had been entered. 102 If the preliminary proceedings have been regular and in compliance with the law, about the only de- fense open to the bondsmen is fraud. They may show 98 Johnson v. Smith, 25 Hun (N. Y.), 171; Williamson v. Woodman, 72 Me. 163; Nash v. Sawyer, 114 Iowa, 742, 87 N. W. 707; State v. Mills, 82 Ind. 126. 9 Wattles v. Hyde, 9 Conn. 19; Alexander v. Bryan, 110 U. S. 414, 4 Sup. Ct. Rep. 107. 100 Stovall v. Banks, 10 Wall. (U. S.) 583; Irwin v. Backus, 25 Cal. 114; Casoni v. Jerome, 58 N. Y. 315; Deobold v. Oppermann, 111 N. Y. 531, 19 N. E. 94; Towle v. Towle, 46 N. H. 431; Weber v. Noth, 51 Iowa, 375, 1 N. W. 652; Garber v. Commonwealth, 7 Pa. 265; Hobbs v. Middleton, 1 J. J. Marsh. (Ky.) 177; Scofield v. Churchill, 72 N. Y. 565; Ealston v. Wood, 15 111. 159. 101 Bobbins v. Burridge, 128 Mich. 25, 87 N. W. 93. 102 Tucker v. Stewart, 147 Iowa, 294, 126 N. W. 183. In the above case a final decree was set aside for fraud fourteen years after it was entered. The judgment of the lower court was for the bondsmen, and it was reversed by the supreme court. A bondsman cannot be sure that he is released from liability until the statute of limitations has run. (784) Chap. 34] ENFORCEMENT OF PBOBATE BONDS. 471 that their signatures were obtained by means of fraud- ulent acts, misrepresentations or devices on the part of their principal, 103 provided they have not, by their own negligence, become estopped from denying the execu- tion or validity of the bond as against the creditors or other beneficiaries of the estate. 104 They may also show that the decree or order of the county court fix- ing their liability was obtained by fraud or collu- sion; 105 or that the liability which the bond was in- tended to secure was itself barred by the statute of limitations. 106 The recovery of the plaintiff is limited to the amount which the court found to be due him from the executor or administrator, and which the court ordered paid. 107 Form No. 206. PETITION BY CREDITOR AGAINST SURETIES ON EXECUTOR'S BOND. In the District Court of County, Nebraska. L. M., Plaintiff, vs. C. D., E. F., and G. H., Defendants. The plaintiff complains of the defendants, and for cause of action alleges, that on the day of , 19 , said defendant C. D., as principal, and E. F. and G. H., as sureties, executed and delivered to the county judge of said county their certain bond in the words and figures following [insert copy of bond]; that on the day of , 19 , said bond was approved by said county judge, and 103 Campbell v. Johnson, 41 Ohio St. 538. 104 Engstad v. Syverson, 72 Minn. 188, 75 N. W. 125. 105 Williamson v. Howell, 4 Ala. 693; Weber v. Noth, 51 Iowa, 375, 1 N. W. 652; Irwin v. Backus, 25 Cal. 214; Heard v. Lodge, 20 Pick. (Mass.) 53; Stovall v. Banks. 10 Wall. (U. S.) 583. 106 Biddle v. Wendell, 37 Mich. 452. 107 Harrison v. Clark, 87 N. Y. 572; Casoni v. Jerome, 58 N. Y. 315; Sea well v. Buckley's Distributees, 54 Ala. 592; State v. Holt, 27 Mo. 340; Probate Court v. Matthews, 6 Vt. 269. 50 Pro. Ad. 471 PROBATE AND ADMINISTRATION. [Chap. 34 filed in said county court, and thereupon letters testamentary upon the estate of said A. B., deceased, issued out of and under the seal of said court to said C. D., appointing him executor of the estate of said A. B., deceased. Second. That on the day of , 19 , plaintiff filed a claim against said estate of said A. B. with the county judge of said county, and which said claim or demand was on the day of , 19 , allowed by said county judge in the sum of dollars ($ ) ; that on the day of , 19 , a decree of said court was entered ordering and directing said C. D., executor as afore- said, to pay to plaintiff said sum of dollars ($ ), and that plaintiff thereupon and on the date last aforesaid demanded of said C. D., as executor as aforesaid, said" sum of dollars ($ ), and the said C. D. refused to pay the same, and no part of said sum has been paid to this plaintiff. Third. That on the day of , 19 , plaintiff made ap- plication to the county court of said county for leave to bring an action on the bond of said C. D., as executor, and that on the date last aforesaid a certified copy of such bond, with a certificate of per- mission to bring suit indorsed thereon in the words and figures fol- lowing [copy certificate], was delivered to plaintiff. Fourth. That there is therefore now due from the defendants to the plaintiff the sum of dollars, with interest thereon from the day of , 19 [date of allowance of claim or order of payment in case no interest was to be paid on claims from date of their allowance]. Plaintiff therefore prays judgment against the defendants for the sum of dollars ($ ), with interest thereon from the day of , 19 , and costs of suit. (Signed) L. M., By E. J. S., His Attorney. [Add verification, Form No. 5.] Form No. 207. PETITION FOB CONVERSION. In the District Court of County, Nebraska, L. M., Plaintiff, vs. C. D., E. F., and G. H., Defendants. The plaintiff complains of the defendants, and for cause of action alleges, that A. B., late of county, Nebraska, departed this life in said county on the day of , 19 , intestate; that (786) Chap. 34] ENFORCEMENT OF PROBATE BONDS. 472 on the day of , 19 , said C. D., as principal, and E. F. and G. H., as sureties, executed and delivered to the county judge of said county their certain bond in the words and figures following [insert copy of bond] ; that on the day of , 19 , said bond was approved by said county judge and filed in said county court, and thereupon letters of administration upon the estate of said A. B., deceased, issued out of and under the seal of said court to said C. D., appointing him administrator of the estate of said A. B., deceased. Second. That said C. D. thereupon entered on his said administra- tion, and collected a large amount of assets belonging to said estate. Third. The following described goods and chattels: One promissory note executed by X. Y. to said A. B. for the sum of dollars, dated , 19 , due , 19 ; twenty-four head of three-year- old steers, branded "V" on right shoulder, said brand being registered in the office of the county clerk of county, Nebraska, as the brand of said A. B. [describe as particularly as possible all the goods, chattels, credits, and effects of the estate which plaintiff claims came into the possession of the administrator, and which are not included in the inventory], belonging to said estate, came into the possession of the said C. D., administrator, which said above-described assets the said C. D., administrator, neglected and refused to return in the in- ventory of property belonging to said estate, but has converted the same to his own use, and has wholly neglected and refused to account for the same, either in his accounts or settlement in said county court. Fourth. That plaintiff is one of the legal heirs and distributees of said estate. Fifth. That on the day of , 19 , plaintiff made ap- plication to the county court of said county for leave to bring an action on the bond of said C. D., administrator, and that on the date last aforesaid a copy of said bond, with the certificate of permission in- dorsed thereon, was delivered by said county court to this plaintiff. The following is a copy of said certificate: [Copy certificate.] Sixth. That plaintiff has sustained damages by reason of the wrong- ful conversion of said property in the sum of dollars. [Add prayer for relief as in Form No. 206.] 472. Action When barred. Whenever an action is rightfully brought by any creditor, heir at law, next of kin or legatee pursuant to the provisions of the statutes regulating suits on .(787) 472 PEOBATE AND ADMINISTRATION. [Chap. 34 executors' and administrators' bonds, the same shall, so far as the causes of action therein are concerned, be a bar to any other cause of action which might have accrued under the statutes regulating suits on bonds, but no further; nor shall such bar arise from the failure of any creditor, heir at law, next of kin, legatee or devisee to bring an action after the same shall have accrued, and before the appointment of an adminis- trator. 108 108 Eev. Stats., c. 17, 261, [1525], (788) i CHAPTER XXXV. APPEALS AND PROCEEDINGS IN ERROR. 473. Review of Judgments and Decrees. 474. Parties to Appeal or Proceedings in Error. 475. Appealable Orders. 476. Appeals by Personal Representatives. 477. Appeals by Other Parties. 478. Appeals by Other Parties from Decrees Adverse to the Estate. 479. Transcript. 480. Administration Pending Appeals. 481. Proceedings in Appellate Court. 482. Failure to Perfect Appeals. 483. Order or Decree of District Court. 484. Writs of Error. 485. Procedure. 486. Supersedeas Bond. 487. Summons in Error. 488. Hearing in District Court. 489. Judgment of District Court in Error Proceedings. 473. Review of judgments and decrees. Final orders, judgments and decrees of the county court in probate and guardianship proceedings may be appealed to the district court of the county in which the decision was rendered. 1 A writ of error also lies to the district court to bring to that court for review jurisdictional or prejudicial errors appearing on the face of the record. 2 The procedure on probate appeals is -governed by statutes differing largely from the sec- tions of the code governing appeals to a higher court. As in the case of appeals from justice court, the case or proceeding is tried anew on substantially the same pleadings as in the county court. 1 Rev. Stats., c. 17, 262, [1526]. 2 Civ. Code, 617; Rogers v. Reddick, 10 Neb. 352, 6 N. W. 413. (789) 474 PROBATE AND ADMINISTRATION. [Chap. 35 In Oregon appeal lies from the county, to the cir- cuit court on all final decisions of the court of pro- bate, 3 as does also the writ of review, which is sub- stantially the same as the Nebraska writ of error, or certiorari at common law. 4 The general provisions of the code, chapter V or title VII, for appeals from a lower to a higher court, govern appeals to the circuit court, with the exception that appeals from judgments are tried anew before a jury, and those from orders and decrees are heard on the transcript and the evi- dence before the lower court. 6 There are a number of matters of practice which are confined to appeals from the county to the circuit court. 474. Parties entitled to appeal or to proceedings in error. Many of the decisions of the county court in probate and administration matters are strictly in rem, with no adverse party, so that the rule governing the right of a party to a civil action to appeal does not apply. Any person affected by the order, judgment or decree com- plained of is a proper appellant or plaintiff in error. The test of the right is, does the order or decree complained of operate directly upon the vested or con- tingent rights of the party; does it, in any manner, increase or diminish the value of his right or interest in any part of the estate. 6 Under this rule the sur- 3 L. O. L., 945. 4 Garnsey v. County Court, 33 Or. 205, 54 Pac. 1089; Farrow v. Nevin, 44 Or. 496, 75 Pac. 711. 5 L. O. L., 945. Cowherd v. Kitchen, 57 Neb. 426, 77 N. W. 1107; Edney v. Baum, 59 Neb. 147, 80 N. W. 502; Missouri Pac. Ry. Co. v. Jay, 53 Neb. 747, 74 N. W. 259; Deering v. Adams, 34 Me. 401; Bryant v. Thompson, 128 N. Y. 426, 28 N. E. 522; In re Estate of Wright, 49 Cal. 550. (790) Chap. 35] APPEALS AND PROCEEDINGS IN ERROB. 475 viving husband or wife, an heir, legatee or devisee, an executor or administrator, may appeal from any judgment or order which is adverse to the estate, 7 and a creditor from the order allowing the demand of another creditor. 8 An executor or administrator is a proper appellant in his representative capacity only from such final decisions as affect the estate as a whole, and not those which only reach the right or interest of a person or class. If property is given him in trust, he has such an interest in it as makes him a proper appellant from any order which the court may make concerning it. 9 He is not a proper appellant from a final order of dis- tribution. 10 Legatees cannot appeal from an order which does not affect their interests, 11 nor can any party from a matter to which he expressly consented in open court. 12 475. Appealable orders. Any judgment or order or decree of the county court which is a final decision on actual, vested or contingent interests is subject to appeal to the district court. 13 7 Rev. Stats., c. 17, 264, [1528], 263, [1527]. 8 Rev. Stats., c. 17, 271, [1535]. In re Creighton's Estate, 91 Neb. 654; 136 N. W. 1001. 10 Merrick v. Kennedy, 46 Neb. 264, 64 N. W. 989. 11 Cowherd v. Kitchen, 57 Neb. 426, 77 N. W. 1107. 12 In re Whitom's Estate, 86 Neb. 367, 125 N. W. 606. As to who are entitled to appeal from a decree admitting or refusing to admit a will to probate, see 84, supra. 13 In re Estate of Gilbert, 104 N. Y. 200; Ferguson's Admr. v. Car- son's Admr., 86 Mo. 673; Peeper v. Peeper, 53 Wis. 507, 10 N. W. 604; Spitley v. Frost, 15 Fed. 299. (791) 475 PROBATE AND ADMINISTRATION. [Chap. 35 Interlocutory orders are not appealable, but may be questioned in the appeal from the final order to which they led. 14 An order appointing a special administrator is not subject to review, 15 for to do so would defeat the pur- pose of the appointment, but an order removing a special administrator and appointing another in his place is appealable. 16 An order determining that a certain payment was not a gift causa mortis and directing the party claim- ing as donee and who was a former administrator to turn over the same to his successor is final, 17 as is also the decree or order entered in the hearing on a petition to set aside an order barring claims against an estate, 18 or an order refusing to reopen the decree allowing the final account. 19 There are many other orders or decrees of the county court which are subject to review by a higher court and have been mentioned in former chapters. Orders extending the time for the payment of debts or presentation of claims, granting or refusing to grant a continuance of any hearing, are interlocutory in their character, matters of discretion, and are not considered subject to either appeal or error. 14 Webb v. Stillman, 26 Kan. 371; Lutz v. Christy, 67 Cal. 457, 8 Pac. 39; Hodges v. Thacher, 23 Vt. 455; Felton v. Sowles, 57 Vt. 382. 15 Cadman v. Richards, 13 Neb. 384. i In re Estate of Pope, 75 Neb. 550, 106 N. W. 659; 17 Foster v. Murphy, 76 Neb. 576, 107 N. W. 843. 18 Ribble v. Furmin, 69 Neb. 38, 94 N. W. 967. i Martin v. Long, 53 Neb. 694, 74 N. W. 43. (792) Chap. 35] APPEALS AND PROCEEDINGS IN EBROB. 476 476. Appeal by a personal representative. All appeals must be taken within thirty days after the decision complained of is made. 20 An executor, administrator, guardian or guardian ad litem appeals by filing notice thereof within the required time in the county court and paying the fee for a transcript. No bond is required of them, 21 and no notice to the adverse party need be given. 22 The district court has jurisdic- tion to determine whether the appellant should give bonds and if it finds that the appeal was taken by the representative in his personal capacity, it should be dis- missed. 23 No bond is required of an executor who has given a bond as residuary legatee. 24 Form No. 208. NOTICE OF APPEAL BY EXECUTOR OR ADMINISTRATOR. [Title of Cause and Court.] Notice is hereby given that C. D., administrator of the estate of said A. B., hereby appeals to the district court of said county from an order of said county court made and entered on the day of , 19 , allowing a claim against said estate in the sum of $ , and requests that a transcript of the proceedings of the court in said matter be filed in said district court within the time provided by law. Dated this day of , 19 . (Signed) C. D., Administrator of Estate of A. B. Under the Oregon practice, a party desiring to ap- peal to the circuit court may give notice in open court, or before the judge thereof if at chambers, that he ap- 20 Rev. Stats., c. 17, 263, [1529] ; L. O. L., 550, subd. 5. 21 Rev. Stats., c. 17, 264, 266, [1528], [1529]. 22 Bazzoo v. Wallace, 16 Neb. 293, 20 N. W. 314. 23 Rhea v. Brown, 4 Neb. Unof. 461, 94 N. W. 716. 24 Thompson v. Pope, 77 Neb. 338, 109 N. W. 498. (793) 476 PROBATE AND ADMINISTRATION. [Chap. 35 peals from the decision, order, judgment or decree to the circuit court of the county, at the time the same is entered. Such notice must be entered on the records of the court. If notice is not given at the time the order or decree is made, the appellant may, within thirty days from its entry, serve a notice on the adverse party or parties, or his or their attorney, at any place in the state. Such notice must contain the title of the cause, the names of the parties, and notify the adverse party or his attorney that an appeal is taken to the circuit court from the judgment, order or decree, or some part thereof. 25 It is not necessary to set out the decree in full or even its substance, but it must be sufficient to advise the adverse party of the particular act of the court from which the party appeals. 26 Notice, either made orally on the date of the entry of the judgment or order, 27 or in writing, in due form and served on the adverse party or his attorney, is necessary to give the circuit court jurisdiction. It cannot be waived by stipulation. 28 The county court or judge thereof, may in his dis- cretion permit an appeal by an executor, administrator or guardian without the giving of an undertaking or merely giving an undertaking for the costs. All other appellants are required, within ten days from the giv- ing of notice or service of notice of appeal, to cause to be served on the adverse party an undertaking with one or more sureties to pay all damages, costs and dis- bursements awarded against him on the appeal, and in order to operate as a stay it must further provide that he will satisfy any judgment or decree rendered 25 L. O. L., 550, subd. 1. 26 Christian v. Evans, 5 Or. 254; Crawford v. Wist, 26 Or. 596, 39 Pac. 218. 27 Barde v. Wilson, 54 Or. 68, 102 Pac. 301; Crawford's Estate, 51 Or. 76, 90 Pac. 147, 93 Pac. 820. 28 Oliver v. Harvey, 5 Or. 360; Shirley v. Burch, 16 Or. 1, 18 Pac. 351. (794) Chap. 35] APPEALS AND PROCEEDINGS IN EBROE. 477 against him and obey the decree of the appellate court. 29 Within such ten days the original undertak- ing with the proof of service indorsed thereon must be filed with the clerk of the court. The amount of the undertaking is fixed by the court. 30 The appellee has five days from date of service of the undertaking in which to object to the sufficiency of the sureties, and if objections are filed, they must justify in like manner as in bail on arrest. 31 The appeal is deemed perfected from the expiration of the time for exception to sufficiency of the sureties or from the justification thereof, but where the party in good faith, after due notice of his appeal, omits through mistake to do any other act, including filing of an undertaking, necessary to perfect the appeal or stay proceedings, the lower court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just. 32 477. Appeals by other parties. Any other party against whom an adverse order or decree has been entered by the county court desiring to appeal from the same shall give bond in such sum as the court may direct, within thirty days, signed by two or more sureties to be approved by the court, con- ditioned that the appellant will prosecute such ap- peal to effect, without unnecessary delay, and pay all costs that may be adjudged against him. 33 29 L. O. L., S 550, subd. 2, 551. 30 L. O. L., 550. 31 L. O. L., 550, subd. 3. 32 L. 0. L., 550, subd. 5. 33 Rev. Stats., c. 17, 264, [1528]; In re Powers' Estate, 79 Neb. 680, 113 N. W. 198; Jones v. Piggott, 68 Neb. 140, 93 N. W. 1000. (795) 477 PROBATE AND ADMINISTRATION. [Chap. 35 The bond should run to the county judge. It is not void if it runs to the state of Nebraska as obligee. If objections are made, the appellate court should re- quire appellant to file a new bond. 34 If the records do not show an order of the court fix- ing its amount, and it appears to have been approved by the county court and filed within the thirty days, it will be presumed to have fully conformed to the court's orders. 35 If it is defective for any reason, as being signed by but one surety, 36 or failing to contain all the statutory conditions, the court will not be de- prived of jurisdiction. A new one may be filed which does comply with the law. 37 A bond which is defective because a part of the necessary conditions are omitted does not operate as a supersedeas, and the county court may proceed in the matter the same as if no bond were filed. 38 Form No. 209. BOND OF APPELLANT. [Title of Cause and Court.] Know all men by these presents, that we, E. F., as principal, and G. H. and L. M., as sureties, all of said county, Nebraska, are held and firmly bound unto the county judge of said county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby jointly and severally bind 34 In re Gannon's Estate, 64 Neb. 220, 89 N. W. 1028. 35 Jacobs v. Morrow, 21 Neb. 233, 31 N. W. 739. 36 Casey v. Pebbles, 13 Neb. 7, 12 N. W. 840. 37 O'Dea v. Washington County, 3 Neb. 122. 38 In re Jones' Estate, 83 Neb. 841, 120 N. W. 839. (796) Chap. 35] APPEALS AND PROCEEDINGS IN ERROB. 478 ourselves, our heirs, executors, administrators, and assigns by these presents. Dated this day of , 19 . Whereas, on the day of , 19 , in the county court of county, Nebraska, an order was entered by said court allow- ing the final account of C. D. as administrator of said estate, and said E. F., an heir of said A. B., desires to appeal from the order of said court allowing said account to the district court of county, Nebraska: Now, therefore, the condition of this obligation is such that, if the said E. F. shall prosecute said appeal to effect without unnecessary delay, and pay all debts, damages, and costs that may be adjudged against him, then these presents to be null and void; otherwise to be and remain in full force and effect. (Signed) E. F. G. H. L. M. I hereby approve of the foregoing bond, both as to form and suffi- ciency of sureties, this day of , 19 . (Signed) J. K., County Judge. 478. Appeals by other parties from decrees adverse to the estate. A creditor, heir, devisee, legatee or distributee may appeal from an order or decree of the county court which is adverse to the estate. 39 The right of such party to take the matter to a higher court does not depend on the failure of the executor or administrator to appeal. 40 Such parties are required to make a written applica- tion to the county court to fix the amount of the appeal bond. Such bond, aside from the usual conditions 3 Rev. Stats., c. 17. 271, [1535]. 40 Eibble v. Furmin, 71 Neb. 108, 98 N. W. 420. (797) 478 PROBATE AND ADMINISTRATION. [Chap. 35 contained in appeal bonds of other parties, must be given to also secure the intervening damages and costs to the adverse party. 41 It must be filed within thirty days. 42 Form No. 210. BOND OF CEEDITOR ON APPEAL FROM ALLOWANCE OF CLAIM OF ANOTHER CREDITOR. [Title of Cause and Court.] Know all men by these presents, that we, E. F., as principal, and G. H. and L. M., as sureties, all of county, Nebraska, are held and firmly bound unto the county judge of county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators and assigns. Dated this day of , 19 . Whereas, on the day of , 19 , an order was entered in the county court of county, Nebraska, allowing a certain demand of dollars against said estate and in favor of X. Y., and said E. F., as a creditor of said estate, and for the reason that said estate is insolvent, is desirous of appealing from said order to the district court of said county: Now, therefore, the condition of this obligation is such that, if the said E. F. shall save said estate harmless from all damages and costs, and said X. Y. from intervening damages and costs, and will prosecute this appeal to effect without unnecessary delay, and pay all debts, damages, and costs that may be adjudged against him, then 41 Rev. Stats., e. 17, 271, [1535]; Drexel v. Rochester Loan Co., 65 Neb. 231, 91 N. W. 254. 42 Bazzo v. Wallace, 16 Neb. 290, 20 N. W. 315; Malick v. McDer- mot's Estate, 25 Neb. 268, 41 N. W. 157; Davis v. Davis, 27 Neb. 859, 44 N. W. 40; Drexel v. Rochester Loan Co., 65 Neb. 231, 91 N. W. 254. The cases above cited all hold that that portion of section 1535 of the Revised Statutes giving an interested party ten days' time after the expiration of the time given an executor to appeal was repealed by section 263 et seq., being sections 1, 2 and 3 of the act of February 28, 1881, and that the thirty day limit for taking an appeal from any order or decree of the county court applied in all cases. (798) Chap. 35] APPEALS AND PROCEEDINGS IN ERROR. 479 these presents to be null and void; otherwise to be and remain in full force and effect. (Signed) E. F. G. H. L. M. 479. Transcript. It is the duty of the county judge, within ten days after the filing and approval of the bond, and on pay- ment of his fees, or within ten days after receiving notice of appeal by a personal representative, to make a certified transcript of the record of the proceedings relative to the matter appealed from, and transmit the same to the clerk of the district court. 43 It should contain a copy of the pleadings filed and proceedings had in the particular matter appealed from, and the order or decree complained of. The duty of the court to transmit it is ministerial. 44 The district court acquires jurisdiction of the appeal only where the transcript and bond are filed within forty days from the date of the order and within ten days from the date the bond was filed in the county court. 45 If the transcript and bond are filed after the time, the adverse party, by appearing generally and plead- ing to the issue or applying for continuance, waives his right to move to dismiss. 46 If the appeal is not docketed in time on account of the neglect of the county judge, and the appellant is 43 Rev. Stats., c. 17, 266, [1530]. 44 In re Estate of McShane, 84 Neb. 70, 120 N. W. 1018. 45 In re Estate of Powers, 79 Neb. 680, 113 N. W. 198; Jones v. Piggott, 68 Neb. 140, 93 N. W. 1000; Rhea v. Brown, 4 Neb. Unof. 461, 94 X. W. 716. 46 Stevens v. Nebraska & Iowa Ins. Co., 29 Neb. 187, 45 N. W. 284. (799) 479 PROBATE AND ADMINISTRATION. [Chap. 35 free from fault, lie cannot be deprived of his rights. 47 In such case the appeal should be docketed and heard the same as if filed within the proper time. 48 In pro- bate appeals it is the duty of the judge to transmit the records to the clerk of the district court; in civil cases, the attorney for the appellant. Under the Oregon practice, it is the duty of the ap- pellant to file a transcript of the record of the proceed- ings in the lower court with the circuit court within thirty days from the date of perfecting the appeal. Proof of service of the notice of appeal and the under- taking, when one is required of the appellant, and the original pleadings, etc., in the judgment or matter ap- pealed from, should also be included. 49 If the appeal is from a decree, the evidence taken in the lower court, duly certified, must also accompany the transcript. 50 If the transcript is not filed within the time pro- vided, the appeal shall be deemed abandoned and the effect thereof terminated, but either the trial or ap- pellate court may upon such terms as may be deemed just enlarge the time for filing the same but cannot extend it beyond the term of the appellate court next following the appeal. 51 The filing of the notice of ap- peal with proof of service, where notice was not given in the entry of the judgment or decree, of the under- taking when the appeal was not taken by the personal representative, and of the evidence in case of a decree, are necessary to give the circuit court jurisdiction. The parties cannot by their appearance confer juris- 47 Continental B. & L. Assn. v. Mills, 44 Neb. 136, 62 N. W. 478; Omaha Coal & Coke Co. v. Fay, 37 Neb. 68, 55 N. W. 211; Stewart v. Eaper, 85 Neb. 816, 125 N. W. 472. 48 Dobson v. Dobson, 7 Neb. 296. 4 Laws 1913, p. 617. M In re Plunkett's Estate, 33 Or. 417, 54 Pac. 152. M Laws 1913, p. 619. (800) Chap. 35] APPEALS AND PROCEEDINGS IN ERROB. 480 diction upon the appellate court, and in the absence of such jurisdictional papers, the proceedings must be dismissed. 52 480. Administration pending appeals. The filing of a bond, when the appeal is taken by other parties than an executor or administrator, and perfecting the appeal operate as a supersedeas of the order or decree from which the appeal was taken. 53 It does not suspend administration. The court retains jurisdiction over the estate and all matters connected therewith not legitimately a part of the matter in controversy. 54 Perfecting an appeal from the order admitting or refusing to admit a will to probate, or granting or refusing letters testamentary or of administration, does not suspend the administration of the estate. If the circumstances and conditions demand, and applica- tion is made therefor, letters of special administration will issue, if they have not already been granted. The rights of creditors are independent of, and should not be affected by, any controversy between the heirs, legatees, or devisees as to the validity of the will, or as to who should administer the estate. The court may give notice to creditors, and proceed with the hearing of claims, and the special administrator has authority to represent the estate on such hearings, and interpose any proper defense or counterclaim. 55 52 In re Plunkett's Estate, 33 Or. 417, 54 Pac. 152. 53 Rev. Stats., c. 17, 265, [1529]; Kerr v. Lowenstein, 65 Neb. 43, 90 X. W. 931. 54 Green v. Clark, 24 Vt. 136; Hicks v. Hicks, 12 Barb. (N. Y.) 322. * Cadman v. Richards, 13 Neb. 384, 14 N. W. 159. 51 Pro. Ad. (801) 481 PROBATE AND ADMINISTRATION. [Chap. 35 Perfecting an appeal from an order removing an executor or administrator does not have the effect of continuing him in office pending the same. His powers terminate with the date of his removal. A coexecutor or coadministrator, if there be one, otherwise an ad- ministrator de bonis non, take charge of the estate. 56 When an appeal has been taken from the order allowing or rejecting claims, an accounting can be had and the administration completed, excepting only the claim in dispute. 57 481. Proceedings in appellate court. Upon filing the transcript the appellate court ob- tains jurisdiction to hear, try and determine the mat- ter the same as on appeal from the judgment of the county court in civil cases. 58 The sufficiency of the transcript can be raised only by motion, supported by affidavit, which must be filed before any action is taken by the appellee. By appearing and moving for any order or filing any pleading, the appellee is estopped from questioning its sufficiency. 59 It may be amended under the general rule regarding amendments of tran- scripts in appeals. 60 The right of a party to appeal without giving the statutory bond or undertaking may be raised by 56 Knight v. Hamakar, 33 Or. 154, 54 Pac. 227, 659; Day v. Holland, 15 Or. 364, 15 Pac. 855; Dutcher v. Culver, 23 Minn. 415. 57 Section 412, supra. 58 Rev. Stats., c. 117, 267, [1531]. B In re Estate of Creighton, 88 Neb. 107, 129 N. W. 181. See L. O. L., 555. 60 Fulton v. Ryan, 33 Neb. 456, 50 N. W. 430; Worley v. Shong, 35 Neb. 311, 53 N. W. 72; L. O. L., 555. (802) Chap. 35] APPEALS AND PROCEEDINGS IN ERROR. 481 motion, and if the court finds that the judgment or order appealed from affects the personal rather than the official rights of the representative, the appeal should be dismissed. 61 The personal representative by appeal waives irregularities, if any, antecedent to the date of the judgment or order appealed from, pro- vided they are not jurisdictional. 62 The general rule is that all judgments or proceedings appealed to the higher court must be tried on the same issues as in the county court, a liberal construc- tion being given to the pleadings. 63 It may be tried on the same pleadings as below or new pleadings filed, the matter being largely in the discretion of the appel- late court. 64 There is one exception to the rule. On an appeal from a decree of distribution, a party who did not appear in the county court may file a petition for intervention. 65 Under the Oregon practice, an appeal from a judg- ment of the county court in a probate matter, such as the judgment allowing or rejecting a claim, under the special proceedings for trial of demands against an estate, is tried in the same manner as an appeal in a civil action. 66 Other final orders of tha county court in probate matters are regarded as in the nature of decrees in equity, and are tried in the circuit court on 61 Rhea v. Brown, 4 Neb. Unof. 461, 94 N. W. 716. 62 Dredla v. Baache, 60 Neb. 655, 83 N. W. 916. 3 Graham v. Townsend. 62 Neb. 364, 87 N. W. 169; Estate of Fitz- gerald v. First Nat. Bank, 65 Neb. 97. 90 N. W. 994; L. O. L., 556. 4 Estate of Fitzgerald v. First Nat. Bank, 65 Neb. 97, 90 N. W. 994. 65 In re Creighton's Estate, 91 Neb. 654, 136 N. W. 1001. 66 Johnson v. Schofner, 23 Or. 115, 31 Pac. 254; Wilkes v. Cornelius, 21 Or. 341, 31 Pac. 245. (803) 482 PROBATE AND ADMINISTRATION. [Chap. 35 appeal anew on the pleadings, and evidence given in the lower court. 67 In many cases of probate appeals the evidence is largely of a documentary character, but in case of the probate of wills, removal of personal representatives for misconduct and some final accounts, the questions of fact are determined by oral evidence. The decision of the county judge who heard such witnesses is en- titled to great weight, and will usually be upheld, unless the appellate court is of the opinion that the weight of the testimony is the other way. 68 The right to a jury trial depends upon the character of the issue. If equitable, or involving a matter of judicial discretion, like the competency of a person seeking the appointment as executor or administrator, the trial should be to the court as in an action in equity, 69 but if an appeal from the order on the hearing for the probate of a will, or a claim against an estate, or where a question of fact is put in issue, either party is entitled to a jury. 70 All cases being tried de novo, the burden of proof is the same as in the county court. Under the Oregon practice, probate appeals are heard in the circuit court by the court without a jury. 71 482. Failure to perfect appeals. If any claimant appealing from the disallowance of his claim shall fail to prosecute his action in the dis- 7 In re Plunkett's Estate, 33 Or. 416, 54 Pac. 152; Morrison's Es- tate, 48 Or. 614, 87 Pac. 1043; In re Roach's Estate, 50 Or. 189, 92 Pac. 118. 68 In re Dart's Will, 34 Or. 66, 54 Pac. 947. 69 in re Scott's Estate, 76 Neb: 28, 106 N. W. 1003. 70 Sheedy v. Sheedy, 36 Neb. 373, 54 N. W. 560. 71 Stevens v. Meyers, 62 Or. 407, 126 Pae. 39. (804) Chap. 35] APPEALS AND PROCEEDINGS IN ERROR. 482 trict court, such court may dismiss the appeal, or a certificate may be filed in the county court, as the case may require, the same as in the case of appeals from a justice of the peace, and thereupon such claim shall be forever barred, and the county court shall proceed in the same manner as if no appeal had been taken; 72 and the same is true where a person objecting to the allowance of some other person's claim shall appeal from such allowance. In this case, upon motion of the adverse party, and upon his producing an attested copy of the record and papers showing such appeal, the district court shall cause the appeal to be docketed, affirm the allowance appealed from, and enter judg- ment for costs against the appellant. 73 It may be stated as a general rule that when the district court dismisses an appeal, for whatever cause, the effect of the dismissal is to revive the original order, judgment, or decree, and give it the same force as if no appeal had been taken. 74 If it appears that the appeal was taken vexatiously or for delay, the court shall adjudge that the appellant pay the costs thereof, including an attorney's fee, to the adverse party, the court to fix the amount, and the bond is liable therefor in cases where it is required. 75 72 Eev. Stats., c. 17, 269, [1533]. 73 Rev. Stats., c. 17, 290, [1534]. 74 Bell v. Walker, 54 Neb. 222, 74 N. W. 617; Cleveland v. Quilty, 128 Mass. 578. 75 Rev. Stats., c. 17, 264, [1528]. This section covers vexatious appeals by an executor or administrator. See 477, supra. 1(806) 483,484 PROBATE AND ADMINISTRATION. [Chap. 35 483. Judgments and decrees of the district court on appeal. All probate appeals being tried de novo in the dis- trict court, the judgment or decree entered is final. 76 It is not a modification of the decision of the lower court, but a judgment or decree of the appellate court. 77 If in favor of the estate, it is enforceable by district court process. In other cases, it must be certi- fied to the county court and its provisions complied with under the process or order of that court. The district court cannot issue an execution against an executor or administrator in his representative capacity. 78 It may be taken to the supreme court in the same manner as other final decisions of the district court, 79 except that a personal representative may appeal with- out giving bond. 80 Any other appellant must give the statutory undertaking. 81 484. Writ of error. Where manifest error affecting the jurisdiction ap- pears on the record, or where the court has exercised functions erroneously to the manifest prejudice of a party, the proceedings may be reviewed by error to the district court. The repeal of the statute regulating 76 Kibble v. Furmin, 69 Neb. 38, 94 N. W. 967; Williams v. Miles, 73 Neb. 193, 102 N. W. 402. 77 In re Roach's Estate, 50 Or. 189, 92 Pac. 118. 78 Bennett v. Taylor, 4 Neb. Unof. 800, 96 N. W. 669. 79 Williams v. Miles, 73 Neb. 193, 102 N. W. 402, 105 N. W. 181, 106 N. W. 769. 80 Kerr v. Lowenstein, 65 Neb. 43, 90 N. W. 931. 81 In re John's Will, 30 Or. 522, 47 Pac. 341. (806) Chap. 35] APPEALS AND PROCEEDINGS IN ERROB. 485 the taking of cases to an appellate court by writ of error 82 applies to the removal of cases from the district to the supreme court. 83 It is a question whether such right actually exists under the code, but as was said in the case last cited, "the practice heretofore used may be adopted so far as may be necessary to prevent a failure of justice." Previous to the act of 1905, the right was expressly recognized in a number of probate cases. 84 Under the Oregon practice, the writ of review, which is identical with the common-law writ of certiorari,* 5 may issue to the county court in all probate cases where such court has exercised its functions erro- neously, or has exceeded its jurisdiction, to the injury of some substantial right of a party. 86 It is the usual remedy for prejudicial errors appearing on the face of the record, not based on the rulings of 'the lower court, on the law and the evidence and the application of the law to the facts, or where the record shows that the court was without jurisdiction. 87 485. Procedure. The district court of the county within which the administration is had acquires jurisdiction of error proceedings by the filing of a petition in error within six months from the entry of the order or decree com- 82 Laws 1905, c. 174, p. 657. 83 Engles v. Morgenstern, 85 Neb. 51, 122 N. W. 688. 84 Rogers v. Redick, 10 Neb. 322, 6 N. W. 413; Herman v. Beck, 68 Neb. 566, 94 X. W. 512; Dredla v. Baache, 60 Neb. 655, 83 N. W. 916, 85 L. O. L., 602. 86 Garnsey v. County Court, 33 Or. 295, 54 Pac. 1089; Malone v. Cornelius, 34 Or. 194, 55 Pac. 536. 87 Garnsey v. County Court, 33 Or. 295, 54 Pac. 1089; Farrow v. Nevin, 44 Or. 496, 75 Pae. 711. (807) 485 PROBATE AND ADMINISTRATION. [Chap. 35 plained of, except where a party is an infant or of un sound mind, or imprisoned, in which case he is allowed one year, exclusive of the time of his* disability, 88 which petition should set out the specific errors com- plained of by formal allegation. 89 There are no code provisions for settling and signing a bill of exceptions in probate proceedings in the county court, but the right to the same has been im- pliedly recognized. 90 Removal of a case to the district court by error is therefore an available remedy only when the juris- dictional defects appear on the face of the record, and the practice is substantially the same as on error to the district court from a justice of the peace. Form No. 211. PETITION IN EREOE. In the District Court of County, Nebraska. E. F., Plaintiff in Error, vs. C. D., Administrator of the Estate of A. B., Deceased, Defendant in Error. The plaintiff complains of the defendant for that on the - day of , 19 , in a proceeding before the county court of said county, in the matter of the estate of A. B., deceased, said court entered an order dismissing the petition of plaintiff for the revoca- tion of the probate of the last will and testament of the said A. B. A transcript of the proceedings is hereto attached. The plaintiff alleges that there is error in said proceedings and order, in this: (1) State specifically each and all the errors relied on. (2) Said court erred in sustaining the motion of said C. D., admin- istrator, to dismiss said petition, and in dismissing the same. The plaintiff therefore prays that said order may be reversed, and a new hearing granted in said action, and for such other relief as may be just and equitable. (Signed) E. F. 88 Civ. Code, 616, 644. 89 Dredla v. Baache, 60 Neb. 655, 83 N. W. 916. Herman v. Beck, 68 Neb. 566, 94 N. W. 512. (808) Chap. 35] APPEALS AND PROCEEDINGS IN ERROR. 485 A transcript of the proceedings containing the final order, judgment or decree sought to be reversed, vacated or modified must be filed with the petition. 91 The petition need not be verified. 92 Under the Oregon practice, the writ is allowed by the circuit court, or a judge thereof, of the county wherein the decision or determination sought to be made was entered. The petition must describe with sufficient certainty the decision complained of and set out specifically the errors therein, 93 and must be signed by the plaintiff or his attorney, and verified by the certificate of an attorney of the court, to. the effect that he has examined the process or proceeding, and the decision or determination therein, and that the same is erroneous as alleged in said petition. 94 It should set up the facts showing the illegal action of the lower court and the consequent injury, and not conclusions therefrom. 95 The party applying for the writ is denominated the plaintiff and the other parties defendants. Form No. 21 la Oregon. PETITION FOE WRIT OF REVIEW. [Title of Cause and Court.] C. D., plaintiff herein, respectfully represents that on the day of , 19 , letters testamentary upon the estate of A. B., deceased, were issued to him out of and under the seal of the county court of said county; that on the day of , 19 , one E. F. presented to plaintiff a certain demand against said estate, the same being a promissory note for the sum of $ , which said alleged si Civ. Code, 620. 82 Newlove v. Woodward, 9 Xeb. 505, 4 X. W. 237. 93 L. O. L., 6t)4; Farrow v. Xevin, 44 Or. 498, 75 Pac. 711; Curran v. State, 53 Or. 154, 99 Pac. 421. 94 L. O. L., 604. 95 Southern Oregon Co. v. Coos County, 30 Or. 250, 47 Pac. 852; Southern Oregon Co. v. Gage, 31 Or. 590, 47 Pac. 1101. (809) 486 PROBATE AND ADMINISTRATION. [Chap. 35 claim was on the said day of , 19 , examined and re- jected by said plaintiff as the same appeared on the face thereof to be barred by the statute of limitations, more than five years having elapsed since the same became due and since any payments have been made thereon; that said E. F. filed said claim in the county court of said county and gave notice to plaintiff in due form of his application for hearing thereon before said court, and said court on the day of , 19 , entered an order allowing said claim in the sum of $ , and that said court acted without jurisdiction in allowing said claim. Plaintiff therefore prays that a writ of review issue out of and under the seal of said district court to the said county court of said county. Dated this day of , 19 . (Signed) C. D. State of Oregon, County of , ss. I, C. M. W., an attorney of the circuit court of said county, do hereby certify that I have examined the proceedings in said county court of said county in the matter of the special proceedings in regard to the claim of E. F. against the estate of A. B., deceased, and the judgment of said county court thereon, and that proceedings and judgment are erroneous as alleged in said petition. Witness my hand this day of , 19 . C. M. W., Attorney. 486. Supersedeas bond. The district court acquires jurisdiction by the filing of the petition in error, 96 but proceedings in error do not operate as a stay unless the clerk of the district court shall take a written undertaking to the defend- ant in error, executed on the part of the plaintiff in error with one or more sufficient sureties, to the effect that the plaintiff will pay all costs that may accrue on such proceedings in error, together with the amount of any judgment that may be rendered against such 96 Welton v. Beltezore, 17 Neb. 401, 23 N. W. 1. (810) Chap. 35] APPEALS AND PROCEEDINGS IN ERROK. 486 plaintiff in error, either on the further trial of the case after the judgment has been reversed or set aside, or upon and after affirmation thereof in the district court. 97 Under the Oregon practice, an undertaking, in the sum of not less than fifty nor more than one hundred dollars, to be fixed by the court, conditioned for the payment of all costs and disbursements that may be adjudged to the defendant on review, is required be- fore the writ issues. 98 The undertaking does not oper- ate as a stay unless the court so directs in the writ, and in such case it should be fixed by the court at an ad- equate amount. 99 Form No. 212. BOND OF PLAINTIFF IN ERROR. Know all men by these presents, that we, E. F., as principal, and G. H. and L. M., as sureties, all of county, Nebraska, are held and firmly bound unto C. D., executor of the estate of A. B., deceased, in the penal sum of dollars, for which payment well and truly to be made we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Dated this day of , 19 . Whereas, on the day of , 19 , E. F. filed in the office of the district court of county, Nebraska, a petition in error to obtain a reversal of an order rendered by the county court of said county, Nebraska, on the day of , 19 , dismiss- ing the petition of the said E. F. for the revocation of the order admit- ting to probate the will of the said A. B., theretofore made in said proceeding, and taxing the costs in the sum of dollars against said E. F., plaintiff in error: Xow, therefore, the condition of this obligation is such that if the said E. F. shall save said estate harmless, and pay all costs that may be taxed against him in the further prosecution of these error pro- 97 Civ. Code, 622. 8 L. 0. L., 606; Gaston v. Portland, 48 Or. 84, 84 Pac. 1040. 99 L. O. L., 608; Feller v. Feller, 40 Or. 76, 66 Pac. 468. (811) 487 PROBATE AND ADMINISTRATION. [Chap. 35 ceedings, then these presents to be null and void; otherwise to be and remain in full force and effect. (Signed) E. F. G. H. L. M. The foregoing undertaking hereby approved, both as to form and sufficiency of sureties, this day of , 19 . (Signed) J. M. C., Clerk District Court. 487. Summons in error. The plaintiff in error is required to file a praecipe, whereupon a summons issues under the seal of the district court to the sheriff of the county in which the defendant in error or his attorney of record may be. It must be made returnable on or before the first day of the next term of the district court if made in vacation, and twenty days before the commence- ment of the term; if issued in term time, or within twenty days before the commencement of the term, it shall be returnable on a day named in the summons. 100 It may be served on the defendant in error or his at- torney of record. 101 An attorney of record for a defendant in error may waive issue and service of the summons after the tran- script and petition are filed. 102 100 Civ. Code, 618, 619. 101 Civ. Code, 618; Link v. Reves, 63 Neb. 424, 88 N. W. 670. 102 Dakota County v. Bartlett, 67 Neb. 62, 93 N. W. 192. (812) Chap. 35] APPEALS AND PROCEEDINGS IN ERROR. 487 Form No. 213. PRAECIPE FOR SUMMONS IN ERROR. In the District Court of County, Nebraska. E. F., Plaintiff in Error, vs. C. D., Administrator of the Estate of A. B., Deceased, Defendant in Error. To J. M. C., Clerk of Said Court: Issue summons in error in the above-entitled cause, directed to the sheriff of county, Nebraska, and returnable on the day of , 19. Dated this day of , 19. (Signed) E. F., Plaintiff in Error, By F. D., His Attorney. Under the Oregon practice, on the presentation to the circuit court or a judge thereof of a petition which shows, prima facie, that the county court has acted without jurisdiction, or exercised its functions erro- neously to the prejudice of substantial rights of the plaintiff, 103 and the filing of a proper bond, it is the duty of the court to order the issue of a writ of review directed to the clerk of the county court, requiring him to return said writ to the circuit court at a time therein fixed, which may be either at the next term or in vaca- tion, with a certified copy of the record or proceedings annexed thereto, that the same may be reviewed by such circuit court. The court may in its discretion also order that further proceedings be stayed pending decision on the writ. 104 The only questions before the judge at this time are the sufficiency of the petition, 105 and the right of the plaintiff to a stay. 106 The order allowing the writ, fixing the date of its return and staying proceedings may be indorsed upon 103 Holmes v. Cole, 51 Or. 486, 94 Pac. 964; Raper v. Dunn, 53 Or. 203, 99 Pac. 889. 104 L. 0. L., 607, 608. 105 Holmes v. Cole, 51 Or. 486, 94 Pac. 964. io Feller v. Feller, 40 Or. 76, 66 Pac. 468; L. O. L., 608. (813) 487 PKOBATE AND ADMINISTRATION. [Chap. 35 the petition. The writ is then issued by the clerk of the circuit court on the filing of the petition, order and undertaking. Form No. 214. SUMMONS IN ERROR. State of Nebraska, County, ss. To the Sheriff of Said County: You are hereby commanded to notify C. D., executor of the estate of A. B., deceased, that E. F. has filed a petition in error in the dis- trict court of county, Nebraska, to obtain a reversal of the order entered in the county court of said county on the day of , 19 , in the proceedings entitled, "In the Matter of the Estate of A. B., Deceased," dismissing the petition of said E. F. for the revo- cation of the probate of the will of said A. B. You will make due return of this summons on the day of , 19. In witness whereof, I have hereunto set my hand and affixed the seal of said court this day of , 19 . fSeal] (Signed) J. M. C., Clerk of District Court. Form No. 214a Oregon. WRIT OF REVIEW. [Title of Cause and Court.] To G. H., Clerk of the County Court of , County, Oregon. Whereas, on this day of , 19 , an order was duly made by the Honorable J. L. S., a judge of the circuit court of said county, on the petition of C. D., plaintiff herein, for a writ of review to said circuit court of a certain decree of the county court of county, Oregon, in a proceeding pending therein, entitled "In the Matter of the Estate of A. B., Deceased," wherein it was ordered and adjudged by said county court [state judgment or decree as in the petition], for the reason that said county court acted with- out jurisdiction in entering said decree, and exercised its functions as a court erroneously, directing that a writ of review issue out of and under the seal of said circuit court to the end that said decree [judgment] of said county court may be reviewed by this court: (814) Chap. 35] APPEALS AND PROCEEDINGS IN ERROR. 488 You are hereby commanded to return this writ to the circuit court of county, Oregon, on or before the day of , 19 , with a certified copy of the records of the county court concerning said decree. In testimony whereof, I, E. F., clerk of said circuit court, have hereunto subscribed my name and affixed the seal of said court this - day of , 19. [Seal] (Signed) E. F., Clerk Circuit Court. Service of the writ is had by delivery of the original to the clerk of the county court by any officer or per- son authorized to serve a summons and by a service of a certified copy by delivery to the opposite party at least ten days before the return of the original writ, 107 but on a writ of review of an order in a contest over probating a will, there are no adverse parties, and no one is entitled to service as a matter of right. 108 488. Hearing in the district court. A probate proceeding brought to the district court by writ of error is tried on the questions of law set out in the petition in error and appearing on. the tran- script. If the decision of the lower court is sustained, the court renders judgment against the plaintiff in error for costs, and certifies its decision in the premises to the county court in order that it may be carried into effect. 109 If the lower court is reversed, the case is retained for trial in the district court, where it is tried on the same issues as in the lower court and in the same man- ner as though originally brought to the district court 107 L. o. L., s 609. 108 Malone v. Cornelius, 34 Or. 195, 55 Pac. 536; Hubbard v. Hub- bard, 7 Or. 42. 109 Civ. Code, 624. (815) 488 PROBATE AND ADMINISTRATION. [Chap. 35 on appeal, 110 and the judgment certified to the county court. 111 Form No. 215. JUDGMENT AFFIRMING ORDER OF COUNTY COURT. Now, on this day of , 19 , this cause came on for hearing upon the petition in error and the transcript of the pro- ceedings and the final order of the county court of county, Nebraska, and was submitted to the court. On consideration whereof, the court finds that no error appears in said proceeding or order. It is therefore considered by said court that said order be and the same is hereby affirmed, and that the de- fendant recover his costs herein expended, taxed at $ . It is further ordered that the clerk of this court certify this judgment to the said county court, that the judgment or order affirmed may be enforced, as if proceedings in error had not been taken. Form No. 216. JUDGMENT REVERSING ORDER OF COUNTY COURT. Now, on this day of , 19 , this cause came on for hearing upon the petition in error and the transcript of the proceed- ings and the final order or decree of the county court of county, Nebraska, and was submitted to the court. On consideration whereof, the court finds that there is error in said proceedings and order or decree. It is therefore considered by the couri that said order or decree be and the same hereby is reversed at the costs to the present time of the defendant in error, and that said cause be retained in this court for trial and final judgment, plead- ings to be filed as in cases of appeals. The hearing on a writ of review brings up solely questions of law arising on the record of the county court. The return is the only pleading on the part of the defendant thereby raising all objections and de- fenses. The writ presents questions of law only. Questions of fact, or matters outside the record, can- no Civ. Code, 625. ill Rev. Stats., c. 17, 268, [1532]. (816) Chap. 35] APPEALS AXD PROCEEDINGS IX ERROR. 489 not be considered. 112 The sufficiency of the petition may be raised by motion. 113 If the return is incom- plete, the court may order a further return to be made. 114 The writ is concurrent with the right of appeal, 115 and though proceedings for both may be commenced, prosecuting one to a hearing is an abandonment of the other remedy. 116 Upon the review the circuit court has power to af- firm, modify, reverse or annul the decision reviewed, to award restitution to the plaintiff, or by mandate direct the lower court to proceed in the matter reviewed ac- cording to its decision. Appeal from a judgment on a writ of review lies to the supreme court the same as in action brought in the circuit court. 117 489. Judgment of district court in error proceed- ings. The district court is without jurisdiction to enforce by process issued under its seal its judgment affirming the decision of the lower court, except that it may is- sue execution against a plaintiff in error not an execu- tor or administrator. The judgment or decree is of the lower court, and enforceable by it alone. 118 The order reversing the lower court is a final one, and may be taken to the supreme court before the 112 Gaston v. Portland, 48 Or. 85, 84 Pac. 1040; Hall v. Dunn, 52 Or. 479, 97 Pac. 811. 113 Holmes v. Cole, 51 Or. 487, 94 Pac. 964. 114 L. 0. L., 610. 115 L. O. L., 605. lie Feller v. Feller, 40 Or. 77, 66 Pac. 468. in L. O. L., 611. us Civ. Code, 624; Rev. Stats., c. 17, 628, [1532]; Bennett's Es- tate v. Taylor, 4 Neb. Unof. 900, 96 N. W. 669. 52 Pro. Ad. (817) 489 PROBATE AND ADMINISTRATION. [Chap. 35 case itself is tried by the district court. 119 The judg- ment entered on trial of the case after reversal of the lower court is final, and may be appealed to the supreme court. 120 H9 Banks v. Uhl, 5 Neb. 240; Tootle, Hosea & Co. v. Jones, 19 Neb. 588, 27 N. W. 635. 120 Eibble v. Furmin, 69 Neb. 38, 94 N. W. 967. (818) CHAPTER XXXVI. APPOINTMENT AND REMOVAL OF GUARDIANS. 490. Guardians Definition. 491. Powers, Rights and Duties of Natural Guardians. 492. Testamentary Guardians. 493. Appointment of Guardian of a Minor. 494. Guardians of Minors Who have No Estate. 495. To Whom Letters may Issue. 496. Procedure for Appointment of Guardian of a Minor. 497. Hearing. 498. Appointment of Guardian for Insane or Incompetent Person. 499. Temporary Guardian. 500. Hearing. 501. Guardian for Spendthrift. 502. Contracts of Spendthrift Pending Appointment of Guardian. 503. Nature of Order Appointing or Eefusing to Appoint a Guard- ian. 504. Guardian's Bonds. 505. Joint Guardians. 506. Guardian of Nonresidents. 507. Eemoval of Guardians. 508. Notice to Guardian. 509. Appointment of Successor. 490. Guardians Definitions. A guardian is a person to whom is legally intrusted the care, custody, education and management of the person or property, or both, of a minor, or of any per- son who by reason of insanity, mental incompetency or being a spendthrift is adjudged by a court of com- petent jurisdiction to be incapable of looking after his wants and managing his business affairs. 1 At common law guardianship of minors was the only kind recog- nized. 2 1 2 Kent, Com., 224. 2 2 Kent, Com., 221. (819) 491 PROBATE AND ADMINISTRATION. [Chap. 36 Minors include all male children under twenty-one years of age and all female children under eighteen, except that when a female marries between the ages of sixteen and eighteen her minority ends. 3 Under the Oregon statutes all persons under twenty- one years of age are minors, except that the marriage of a female terminates her minority. 4 Guardians may be divided into three classes: Guardians by nature, those to whom the laws of humanity give the custody and control of the child; guardians by nurture, those to whom the custody and control of the person only of the child has been given by its parents or others; and statutory guardians, or guardians in socage. The latter class are either ap- pointed by the county court or designated by will and the nomination approved by the court. 5 491. Powers, rights and duties of natural guard- ians. At common law the father was the natural guardian of his children and intrusted with their custody, con- trol and education. At his death such right passed to the mother. 6 The father and mother are the natural guardians of their minor children, and are equally entitled to their 3 Rev. Stats., c. 18, 88, [1627]; Kiplinger v. Joslyn, 93 Neb. 40, 139 N. W. 1019; Parker v. Starr, 21 Neb. 680, 33 N. W. 424; Ward v. Laverty, 19 Neb. 429, 27 N. W. 393. 4 L. O. L., 7097, 7099. 5 Rev. Stats., c. 18, 89, 93, 98, [1628], [1632], [1637]; L. O. L., 1310, 1319, 1322. 6 Taylor v. Jeter, 33 Ga. 195; In re Scarrett, 76 Mo. 565; Freto v. Brown, 4 Mass. 675. (820) Chap. 36] GUARDIANSHIP. 491 custody and to care for their education, being them- selves competent to transact their own business and not otherwise unsuitable. 7 The mother is the natural guardian of her illegitimate minor child. 8 In the case of a divorce the court awards the custody of the children to the parent best qualified to care for them, regard being had to the interests of the child. 9 The powers of a natural guardian are confined to the care and custody of the person of the child, and to his wages, unless he has been emancipated. 10 It is the duty of natural guardians to support their chil- dren. 11 This duty rests primarily upon the father, 12 but in case of his death upon the mother. 13 The rights of a natural guardian do not extend to any property which the minor may receive by descent, devise, gift, or which he may have in his own right. 14 He can sell no property belonging to his child, 15 nor can he bind the estate of his child by any contract or agreement, or make any lease of his realty or collect I Rev. Stats., c. 18, 93. [1632] ; L. O. L., 7057; Tiffany v. Wright, 79 Xeb. 19, 112 X. W. 311; Terry v. Johnson, 73 Xeb. 653, 103 N. W. 319. 8 Xine v. Starr, 8 Or. 49; Town of Hudson v. Hills, 8 N. H. 417; Alfred v. Makay, 36 Ga. 440. Rev. Stats., c. 18, 38, [1577]; L. O. L., 512, 513. 10 Clemens v. Brillhart, 17 Neb. 335, 22 X. W. 779; Hammond v. Corbett, 50 X. H. 501. II Courtright v. Courtright, 40 Mich. 633; Cooper v. MeXamara, 92 Iowa, 243, 60 X. W. 522; Trow v. Thomas, 70 Vt. 580, 41 Atl. 652. 12 Porter v. Powell, 79 Iowa, 151, 44 X. W. 295; Alvey v. Hartwig (Md.), 67 Atl. 132. 13 Missouri Pac. R. R. Co. v. Palmer, 55 Xeb. 559, 76 X. W. 169. 14 Myers v. McGavock. 39 Neb. 843, 58 X. W. 522. 15 Wells v. Steckleberg, 50 Xeb. 670, 70 N. W. 242. (821) 492 PROBATE AND ADMINISTRATION. [Chap. 36 the rents and profits therefrom. 16 He may accept the delivery of a deed to his child. 17 492. Testamentary guardians. A testamentary guardian is one appointed by the last will and testament of a surviving parent for any of their minor children, whether born at the time of the making of the will or afterward. If the parents have been divorced, the one to whom is granted the custody of the children can appoint a testamentary guardian during the lifetime of the surviving parent. 18 Like an executor, he derives his authority from the will, but his appointment must be approved by the court, and he must be a suitable person. 19 The ap- pointment may be made by implication as well as by directly designating or nominating the party. 20 The right to such appointment cannot be assigned. 21 If more than one person is appointed, on the death of one the guardianship passes to the survivor. 22 A testamentary guardian has the same powers and performs the same duties as a statutory one. 23 He is required to give a bond in like manner and with like conditions as is required of a guardian appointed by the court, but if the testator, in his will appointing 18 Jones v. Jones, 46 Iowa, 466; Fonda v. Van Home, 15 Wend. (N. Y.) 631; Jackson v. Combs, 7 Cow. (N. Y.) 36. I? Hall v. Cardell, 111 Iowa, 206, 82 N. W. 503. is Wilkinson v. Deming, 80 111. 342; L. O. L., 1316. 19 In re La Plant, 83 Minn. 366, 86 N. W. 351. 20 Balch v. Smith, 12 Neb. 437; Capps v. Hickman, 97 111. 429; Desribes v. Wilmer, 69 Ala. 25. 21 Balch v. Smith, 12 Neb. 437. 22 Eywe v. Shaftsbury, 2 P. Wms. 102. 23 Eev. Stats., c. 18, 98, [1637]; L. O. L., 1316. (822) Chap. 36] GUARDIANSHIP. 493 him, shall have ordered or requested that such bond shall not be given, none shall be required unless from a change in the situation or circumstances of the guardian, or from other sufficient cause, the court thinks it proper to demand it. 24 493. Appointment of guardian of a minor. The county court in each county, when it shall ap- pear necessary or convenient, may appoint guardians to minors and others, being residents and inhabitants of the same county, and also to such as shall reside without the state and have an estate within the same. 25 Except in the case where the application is for the appointment of a guardian of a nonresident who has property in this state, it is necessary, in order to give the court jurisdiction, that the residence of the minor be within the county in which the application is made. 26 The residence of the parents or of those standing in loco parentis is presumptively the residence of the minor, though he may be actually in another county or state when the application is made. 27 24 Eev. Stats., c. 18, 99, [1638]; L. O. L., 1317. 25 Rev. Stats., c. 18, 90, [1629]; L. O. L., 1311; Monastes v. Catlin, 6 Or. 122. 26 Connell v. Moors, 70 Kan. 88, 78 Pac. 164; In re Connor, 93 Neb. 118, 139 N. W. 834. 27 In re Johnson, 87 Iowa, 130; Modern Woodmen v. Hester, 66 Kan. 129, 71 Pae. 279; Darden v. Wyatt, 15 Ga. 414. There is au- thority to the effect that a minor who has no parents or near relatives may have a guardian appointed in the county in which he is last found. Dampier v. McCall, 78 Ga. 607, 3 S. E. 563. (823) 494,495 PROBATE AND ADMINISTRATION. [Chap. 36 494. Guardians of minors who have no estate. Whenever a parent has been convicted in a county court of the offense of ill-treating or abusing his child, or when any child under the age of fourteen years, by reason of orphanage, or of the neglect, crime, drunken- ness or other vice of the parents, is growing up with- out education or salutary control, or in circumstances exposing such child or children to lead a dissolute or vicious life, the court may order such child or children to be committed to the custody of any legally incor- porated humane society or society for prevention of cruelty to children, and such society is authorized to receive such child or children into its custody and to provide care and education in some suitable family or institution of instruction. 28 Under the above statute notice to the parents must be given, and pending the hearing the court may order the child temporarily removed from the charge of the parent. 29 It is the duty of peace officers to cause to be re- moved from houses of ill-fame any minors who are harbored, maintained or kept therein, though children of the inmates. 30 The children so removed may be placed by the county court in the control of a humane society or other discreet and suitable person. 31 495. To whom letters may issue. A minor over fourteen years of age has a right to nominate a guardian, who, if approved by the court, 28 Rev. Stats., c. 18, 132, [1671]. 29 Eev. Stats., c. 18, 133, [1672]. so Crim. Code, 222. si Crim. Code, 223. (824) Chap. 36] GUARDIANSHIP. 495 may be appointed accordingly, 32 but if his nominee is not approved by the court, or if after being cited he neglects to nominate a suitable person, or if he is under fourteen years of age, or a nonresident of the state, the court may issue letters to any suitable and competent person. 33 A minor over fourteen years of age had a clear right at common law to nominate a guardian, 34 and where he is under that age, the court may properly consult his wishes, but is not required to give them the weight they would be entitled to if he was older. 35 The nominee should be appointed unless the court finds that he is not a suitable and competent person to perform the duties of the trust. The court is given no discretion in the matter except as to the suitable- ness or unsuitableness of the party nominated by the minor over fourteen years of age. 36 The natural guardians, other things being equal, are usually considered as entitled to the appointment. 37 They may consent to the appointment of a third party. 38 But if they ask for the appointment, it should be granted them, unless it appears that the best interests of the child demand that they issue to some- one else. 39 However, a parent's wishes are always 32 Rev. Stats., c. 18, 90, [1629]. 33 Rev. Stats., c. 18, 91, [1630] ; L. O. L., 1312. 84 Sherman v. Ballou, 8 Cow. (N. Y.) 304; Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. Dec. 41. 35 Walton v. Twiggs, 91 Ga. 90, 16 S. E. 313. 36 Lunt v. Aubens, 39 Me. 392; Arthur's Appeal, 1 Grant (Pa.), 55. 37 Weldon v. Keen, 37 N. J. Eq. 251; People v. Wilcox, 22 Barb. (N. Y.) 178; Johnson v. Kelley, 44 Ga. 485; L. O. L., 1310. 38 Wirsig v. Scott, 79 Neb. 322, 112 N. W. 655. 30 In re McChesney, lOU Wis. 315, 82 JI. W. 149; In re Welch, 74 N. Y. 290. (825) 495 PROBATE AND ADMINISTRATION. [Chap. 36 properly considered by a court in determining to whom letters may issue. 40 Though no one outside of parents have any prefer- ence, letters of guardianship of an orphan should issue to some near relative who is otherwise competent. 41 In Oregon the nearest relative is given preference. 42 A nonresident may be appointed, but such appoint- ment, however may not be a wise one, as he is without the jurisdiction of the court, and difficulty may be met with in enforcing orders and decrees. 43 At common law a corporation was not a competent guardian. 44 By statute a legally incorporated humane society, or society for the prevention of cruelty to children, is empowered to become guardian of minor children in accordance with the general provisions of law applicable to the guardianship of minors. The powers and duties of such society as guardian are exercised by its officers, 45 and a trust company author- ized by its articles of incorporation may act as guardian of parties under letters issued from the county court of the county in which it has its principal office. 46 In Oregon any authorized trust company may be ap- pointed. 47 40 Page v. Hodgdon, 63 N. H. 53; Succession of Le Blanc, 37 La Ann. 546; Cowles v. Cowles, 8 111. 435. 41 Goss v. Stone, 63 Mich. 319, 29 N. W. 735; Woodruff v. Snoover (N. J. Eq.), 45 Atl. 980. 42 L. O. L., 1310. 43 Finney v. State, 9 Mo. 227; Berry v. Johnson, 53 Me. 401. 4* In re Eice, 42 Mich. 528, 4 N. W. 284. 45 Rev. Stats., c. 18, 131, [1670]. 46 Eev. Stats., c. 14, 195, subd. 6, [743]. 47 Laws 1913, p. 723. (826) Chap. 36] GUARDIANSHIP. 496 The granting of letters of guardianship to an execu- tor or administrator of an estate in which the ward has a beneficial interest, unless the former is designated as a testamentary guardian, is not to be commended, and in many states is prohibited by statute. In some cases it might be for the best interest of the ward, but in others conflicting interests make it desirable that the same person should not act in two capacities. There is no duty devolving upon the county court of greater importance than the appointment of a suitable person as guardian of a minor. In case both his par- ents are dead, his welfare, and his success or failure in life largely depend on the character and ability of the person appointed to take charge of his person and business affairs. The act of the court in issuing let- ters will not be disturbed on the ground that some other person should be appointed, unless there is an obvious abuse of authority. 48 496. Procedure for appointment of guardian of minor. The county court acquires jurisdiction over a guard- ianship matter by the filing of a petition; if the minor is over fourteen years of age, he may file it himself, designating the person whom he desires to have ap- pointed, and reciting the necessary facts which make an appointment necessary. 49 If he is under fourteen, it is usually made by some competent interested person, though the court acquires jurisdiction if signed in his name. 50 A third party 48 White v. Pomeroy, 7 Barb. (N. Y.) 640. 49 Kev. Stats., c. 18, 89, 90, [1628], [1629]. 50 Seward v. Didier, 16 Neb. 59, 20 N. W. 12. (827) 496 PROBATE AND ADMINISTRATION. [Chap. 36 may make the application if the minor is over fourteen, and if the minor resides more than ten miles from the place of holding court, he should sign a written nomi- nation of guardian before a justice of the peace, which is certified to the county judge and has the same effect as if made in the presence of the court. 51 The application for the guardianship of a nonresi- dent minor may be made by any person interested in his estate, in expectancy or otherwise, and should set out the existence of an estate requiring the care of a guardian. 52 Form No. 217. NOMINATION OF GUAKDIAN. To the County Judge of County, Nebraska: I, C. D., a minor of the age of fifteen years, hereby nominate C. D., of the village of , of said county, for guardian of my estate, and request that letters of guardianship issue to him. Dated this day of , 19. (Signed) A. B. >tate of Nebraska, County, an. I, E. F., a justice of the peace in and for township, in said county, do heieby certify that the foregoing instrument was executed by the said A. B. in my presence, and acknowledged by her as her free act and deed. Dated this day of , 19 . (Signed) E. F., Justice of the Peace. Form No. 218. PETITION FOR APPOINTMENT OF GUARDIAN OF AN ORPHAN UNDER FOURTEEN. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that A. B. is a resident of said county and an orphan, his father, C. B., 51 Rev. Stats., c. 18, 92, [1631]; L. O. L., 1312. 52 Rev. Stats., c. 18, 122, [1661]; L. O. L., 1336. (828) Chap. 36] GUARDIANSHIP. 496 having died on the day of , 19 , and his mother, E. B., on the day of , 19 ; that said A. B. is three years of age, and is possessed of personal estate of the value of dollars, consisting of [describe character of personalty], and real estate of the value of dollars, as follows [describe real estate] ; that it is necessary that a suitable and competent person be appointed guar- dian of the person and estate of said A. B. during his minority; that G. H. is a suitable and competent person to act as guardian of said infant, and has consented to act as such guardian if appointed. (Signed) C. D. [Add verification.] Form No. 219. PETITION FOR APPOINTMENT OF OTHER PERSON THAN PARENT AS GUARDIAN WHILE PARENT IS LIVING. [Title of Cause and Court.] Your petitioner respectfully represents unto the court that A. B. is a resident of said county, and a minor under the age of fourteen, to wit, of the age of ten years; that said A. B. is possessed of the following described personalty [describe personalty], of the value of dollars, and is seised in her own right of the following de- scribed real estate [describe real estate], of the value of dollars; that the residence of D. B., the father of said minor, is unknown, and he has not resided with or supported his family for the period of five years last past; that C. B., the mother of said A. B., is a woman of bad reputation for chastity, and is now an inmate of a house of prostitution in said county, and is not a suitable person- to have charge of the estate or the custody of the person of said minor, and the best interests of said minor demand that a suitable and competent person be appointed guardian of her person and estate, and that she be entirely removed from the custody and control of her mother, said C. B. That G. H., of said county, is a suitable and competent person to act as such guardian, and has consented to act as such if appointed. Your petitioner therefore prays that a day may be set for the hearing of said petition, and notice given to said C. B., and that upon the hearing thereof, said G. H. may be appointed guardian of said minor. Dated this day of , 19 . (Signed) C. D. [Add verification.] (829) 497 PROBATE AND ADMINISTRATION. [Chap. 36 Form No. 220. PETITION BY MINOR OVER FOURTEEN YEARS OF AGE FOR APPOINTMENT OF GUARDIAN. [Title of Cause and Court.] Your petitioner, A. B., respectfully represents nnto the court that he is a resident of the county and state aforesaid, and is sixteen years of age, and a son of F. B., late of said county, deceased; that your petitioner is possessed of personal estate of the value of - dol- lars, and is seised in his own right of real estate of the value of dollars, described as follows: [Describe real estate.] Your petitioner is desirous of the appointment of a guardian of his property during his minority, and hereby nominates his mother, C. B., of said county, for such guardian; that said C. B. is a suitable and competent person to act as such guardian, and has consented to act as such if appointed. Your petitioner therefore prays for the appointment of said C. B. as guardian. Dated this day of , 19. (Signed) A. B. [Add verification.] 497. Hearing. The appointment of a guardian is a proceeding in rem. 53 In case of a nonresident, notice is required to be given to all persons interested as the court may direct. 54 In other cases no notice is required by stat- ute. If the appointment of some other party than a parent is sought, the law clearly contemplates that notice should be given the natural guardian and an opportunity be afforded him to defend the implied charge that he is unfitted to take charge of his child's property. 55 53 In re Thomsen, 1 Neb. Unof. 751, 95 N. W. 805. 54 Rev. Stats., c. 18, 122, [1661]; L. 0. L., 1336. 55 Witasig v. Scott, 79 Neb. 322, 112 N. W. 655; Tong v. Marvin, 26 Mich. 35; Senseman's Appeal, 21 Pa. 331. (830) Chap. 36] GUARDIANSHIP. 497 In the case of both residents and nonresidents, a hearing should be had and evidence introduced show- ing the necessity for the grant of letters. It must be shown that the domicile of a minor, unless he be a non- resident, is within the county where the petition is filed. The presumption of law that the residence of the parent is the residence of the child is not conclu- sive, and may be overcome by proof of facts and cir- cumstances showing a different condition. 56 If it appears that the minor is over fourteen years of age and has not nominated a guardian, he should be given such opportunity, and should also be allowed to do so in case his nominee refuses to accept or is found unsuitable. Though not required by statute, the minor ought to be personally present in court, and this seems to be imperative where he is over fourteen and has not nominated a guardian. Form No. 221. ORDER FOR APPOINTMENT OF GUARDIAN OF A MINOR. [Title of Cause and Court.] Xow, on this day of , 19 , this cause came on for hearing upon the petition of C. D. for the appointment of G. H. as guardian of the person and estate of A. B., a minor under fourteen years of age, whose parents are both dead; and it satisfactorily appearing to the court that G. H. is a resident of said county, and a proper person to have the care and custody of the person and estate of the said A. B., and that it is necessary that a guardian should be appointed for him: It is therefore ordered by the court that the said G. H. be and he hereby is appointed guardian of the said A. B. upon his giving bond in the sum of dollars, with two sureties, in manner and form as provided by law, and subject to the approval of the court. 56 McNish v. State, 74 Neb. 261, 104 N. W. 186; Wirsig v. Scott, 79 Neb. 322, 112 N. W. 655. (831) 498 PEOBATE AND ADMINISTRATION. [Chap. 36 498. Appointment of guardian of an insane or in- competent person. When the relatives or friends of an insane person, or of any person who by reason of extreme old age or other cause is mentally incompetent to take charge of himself and his property, shall apply to the county court to have a guardian appointed for him, the court shall cause a notice to be given to the supposed insane or incom- petent person of the time and place fixed for the hear- ing of the proceeding, not less than fourteen days from the time appointed. 57 Ten days' notice is required in Oregon. If a person has been declared insane by the commis- sioners of insanity and no one applies to have a guardian appointed for him for thirty days thereafter, it is the duty of the clerk of the district court to make application to the county court of his county to ap- point a guardian for such insane person. 58 A suitable person or a trust company which is duly authorized to act as such may be appointed guardian of an incompetent person. Form No. 222. PETITION FOB APPOINTMENT OF GUARDIAN OF AN INSANE OE INCOMPETENT PEESON. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that A. B. is a resident of said county, and of the age of years; that petitioner is a daughter of said A. B. ; that said A. B. is pos- sessed of personal property consisting of [state nature of personalty], of the value of dollars, and is seised of real estate described as follows, and of the value of dollars; that by reason of 67 Eev. Stats., c. 18, 101, [1640]; L. O. L., 1319, 1320. 58 Eev. Stats., e. 18, 102, [1641]. (832) Chap. 36] GUARDIANSHIP. 498 advanced age and mental and physical weakness, said A. B. is not competent to take charge of and manage said property; [that said A. B. was on the -> day of , 19 , by the commissioners of insanity of said county, duly adjudged an insane person, and is now and ever since said date has been insane and mentally incom- petent to manage and control his estate]. That G. H., of said county, is a suitable and competent person to act as guardian of said A. B., and has consented to act as such guard- ian if appointed. Your petitioner therefore prays that a day may be set for the hearing of said petition, and notice thereof given the said A. B., and, upon the hearing thereof, said G. H. be appointed guardian of said incompetent person. Dated this day of , 19 . [Add verification, Form No. 5.] Form No. 223. ORDER FIXING DATE OF HEARING. [Title of Cause and Court.] On reading and filing the petition, duly verified, of C. D., praying for the appointment of a guardian of A. B. for the reason that said A. B. is an incompetent person, it is ordered that said petition be heard at the county court room in the city of , in said county, on the day of , 19 , and that notice of said hearing be personally served on the said A. B., as required by law. Dated this day of , 19. (Signed) J. K., County Judge. Form No. 224. NOTICE OF HEARING PETITION FOR APPOINTMENT OF GUARDIAN. State of Nebraska, County, ss. To A. B.: You are hereby notified that on the day of , 19 , C. D. filed his petition in the county court of said county praying for the appointment of a guardian of your person and estate for the reason that you are an incompetent person. You are further notified 53 Pro. Ad. (833) 499,500 PKOBATE AND ADMINISTRATION. [Chap. 33 that said petition will be heard at the county court room in the city of , in said county, on the day of , 19 . Dated this day of , 19. (Seal) (Signed) J. K, County Judge. 409. Temporary guardian. When application is made for the appointment of a guardian of an incompetent person, and it appears to the court that special reasons exist making it neces- sary for someone to look after the estate immediately, the court may appoint a temporary guardian without service of notice. His duties are to collect and con- serve the assets until the regular appointment is made. 59 500. Hearing. The county court acquires jurisdiction of the pro- ceedings for the appointment of a guardian of an in- competent or insane person by the filing of a proper petition and service of notice. 60 He cannot waive notice of hearing, 61 and even though he be personally present in court, unless it appears that notice has been served on him, the court is without jurisdiction to ap- point a guardian. 62 If the party has been previously adjudged insane, irregularities in the proceedings in which he was so adjudged cannot be raised in the proceeding for the appointment of a guardian. 63 59 Bumpus v. French, 179 Mass. 131, 60 N. E. 414. 60 North v. Joslin, 59 Mich. 624, 26 N. W. 810; Winslow v. Troy, 97 Me. 130, 53 Atl. 1008. 61 Prante v. Lompe, 77 Neb. 377, 109 N. W. 496. 62 Winslow v. Troy, 97 Me. 130, 53 Atl. 1008. 63 Sprigg v. Stump, 8 Fed. 207. (834) Chap. 36] GUARDIANSHIP. 500 The party is entitled to a full hearing. The next of kin or relatives may appear and contest the applica- tion, or take such part as they believe to be for his interests and the conservation of his estate. 64 Where he does not personally appear, or is not represented by counsel, it is proper for the court to appoint a guardian ad litem to look after his interests. 65 There are two classes of cases where a guardian of an adult may be appointed. One comprises the insane and the other those mentally incompetent from other causes. Except in cases where unquestioned insanity exists, a court should act cautiously in taking the custody and control of a man's property out of his hands and plac- ing it, together with the custody of his person, in the hands of another. It is not necessary that the party be either an imbecile or idiot, nor is the court justified in making the appointment where the only showing is that he has exhibited poor judgment. If it appears that he is in need of care and protection and is men- tally incapable of acting with fair and provident management, and is thus liable to be robbed of his estate, his mental incapability calls for the same pro- tection as insanity. 66 64 Prante v. Lompe, 77 Neb. 377, 109 N. W. 496 ; Tierney v. Tierney, 81 Neb. 894, 115 N. W. 764. 65 See Boden v. Mier, 71 Neb. 191, 98 N. W. 701; Laws 1913, p. 595. 66 l n re Streiff, 119 Wis. 566, 97 N. W. 189; Schick v. Stuhr, 120 Iowa, 396, 94 N. W. 915; In re Estate of Leonard, 95 Mich. 295, 54 N. W. 1082. ,(835) 501 PEOBATE AND ADMINISTRATION. [Chap. 36 Form No. 225. ORDEE FOE APPOINTMENT OF GUARDIAN OF AN INCOM- PETENT PERSON. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the petition of C. D. for the appointment of G. H. as guardian of A. B., an incompetent person, and the evidence, and was submitted to the court; and it appearing to the court that personal service of the time and place of the hearing of said petition, within the time required by law, has been had upon the said A. B., and it further appearing that said A. B. is not possessed of sufficient mental capacity to have the care, custody, and control of his person and estate, and that the best interests of said A. B. require that a guardian be appointed for him: It is therefore [balance as in Form No. 221]. 501. Guardian for spendthrift. When any person by excessive drinking, or by gambling, idleness or debauchery of any kind, shall so spend, waste or lessen his estate as to expose him- self or family to danger of want or suffering, or the county to the charge or expense for the support of himself or family, any officer having charge of the poor of the county, or justice of the peace of the county in which the spendthrift resides, may present a complaint to the county court, setting forth the facts and circumstances of the case and praying to have a guardian appointed for him. 67 The object in making the appointment is for the benefit and protec- tion of the party and his family, and the prospective liability of the county for his support is only sec- ondary. 68 67 Rev. Stats., c. 18, 104, 105, [1643], [1644]; L. O. L., 1322. 68 Cushing v. Hale, 8 Vt. 38. The statute is sometimes resorted to for the purpose of placing a restraint on the expenditures of a party who has come into the possession of a considerable sum and (836) Chap. 36] GUARDIANSHIP. 501 Personal notice must be given the alleged spend- thrift at least ten days before the date set for the hearing. 69 If on the hearing the court finds that the case comes within the statute, letters should issue, whether the alleged spendthrift personally appears or not. 70 Form No. 226. COMPLAINT FOB SPENDTHRIFT. State of Nebraska, County, ss. The complaint of C. D., a justice of the peace in and for said county, taken on oath before me, J. K., county judge of said county, who, being first duly sworn, oh oath says that one A. B., a resident of said county, is possessed of personal estate of the estimated value of dollars, and is seised of the following described real estate [describe real estate], which is of the value of dollars; that during the six months last past the said A. B. has become addicted to the habit of gambling and drinking intoxicating liquors to excess, and is wasting and squandering his estate by gambling and betting, and devotes no time whatever to his business and the care and pres- ervation of his estate, and is so spending and lessening his estate as to expose himself and his family, which family consists of his wife, C. B., and two minor children, F. B., aged 5 years, and M. B., aged 9 years, to danger of want or suffering, or the county to a charge or expense for the support of him, said A. B., and his said family; that the best interests of him, said A. B., and of said county of , demand that some suitable person be appointed guardian of him, said A. B. That G. H. is a resident of said county, and a suitable and compe- tent person to act as such guardian, and has consented to act as such if appointed. (Signed) C. D. is wasting it by "fast living," though he have no one dependent on him for support. 69 Eev. Stats., c. 18, 106, [1645]; L. O. L., 1323. 70 Eev. Stats., c. 18, 106, [1645]; L. O. L., 1323; Young T. Young, 87 Me. 44, 32 Atl. 782. (837) 502 PROBATE AND ADMINISTRATION. [Chap. 36 Subscribed in my presence and sworn to before me this day of , 19 . (Seal) (Signed) C. F. D., Notary Public. [For order for notice, and notice, see Forms Nos. 223 and 224.] Form No. 227. ORDER FOR APPOINTMENT OF GUARDIAN FOR SPEND- THRIFT. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing upon the complaint of A. B. H., a justice of the peace in and for the city of , in said county, alleging that one A. B., of said county, is a spendthrift, and the evidence, and was submitted to the court. Upon consideration whereo'f, the court finds that per- sonal notice of the time and place set by the court for the hearing on said complaint was given to said A. B. as required by law; and it further appearing to the court that the said A. B. is so wasting his estate by gambling and debauchery as to expose himself and his family to danger of want and suffering, or the said county of - to a charge and expense for the support of himself and his family, and that the best interests of the said A. B. demand that a guardian be appointed for him: It is therefore [balance as in Form No. 221]. 502. Contracts of spendthrifts pending appoint- ment of guardians. " After the order for notice has been issued, the com- plainant may cause a copy of the complaint, with the order for such notice, to be filed in the office of the county clerk of the county, and a minute thereof be entered on the lien book of said office; and if a guardian shall be appointed on such application, all contracts, except for necessaries at reasonable prices, and all gifts, sales, or transfers of real or personal estate, made by such spendthrift, after the filing of a copy of such complaint and order, as aforesaid, and (838) Chap. 36] GUARDIANSHIP. 503,504 before the termination of the guardianship, shall be utterly void." 71 503. Nature of order appointing or refusing to ap- point a guardian. It is a question of some doubt whether the order of the county court appointing or refusing to appoint a guardian for a minor is subject to appeal to the dis- trict court. In a number of states it has been held that appeal does not lie. 72 The only cases where ap- peals are allowed appear to be where it is permitted by statute. In the case of an incompetent person or spendthrift the person for whom a guardian is appointed may take an appeal from the order, and an heir apparent or presumptive may have the matter reviewed by the district court by appeal or writ or error. 73 504. Guardian's bond. Every guardian, whether having the custody of the estate of a minor, incompetent person or spendthrift, is required to give a bond with surety or sureties in such sum as the court shall order, with condition as follows : 71 Rev. Stats., c. 18, 107, [1646] ; L. 0. L., 1324. 72 Adams v. Specht, 40 Kan. 377, 19 Pac. 812; Ramsay v. Thomp- son, 71 Md. 315, 18 Atl. 592; Cramer v. Corbis, 31 111. 259. 73 Prante v. Lompe, 77 Neb. 377, 109 N. W. 496; Tierney v. Tierney, 81 Neb. 193, 115 N. W. 764. In the latter case, which was an appeal from an order refusing to appoint a guardian for an alleged incom- petent, it was held that section 1526, Revised Statutes, applied to guardianship matters, and that consequently the heirs presumptive had a right to appeal as aggrieved parties. Under the same reasoning it would look as though an appeal would lie from the appointment of a guardian for a minor. (839) 504 PROBATE AND ADMINISTRATION. [Chap. 36 First. To make a true inventory of all the real and personal estate of the ward that shall come into his possession or knowledge, and to return the same into court as the law directs. Second. To dispose of and to manage all such es- tate and effects according to law, and for the best in- terests of the ward, and to faithfully discharge his trust as such guardian. Third. To render an account of the property of the ward in his hands, including the proceeds of the real estate that may be sold by him, and of the manage- ment and disposition of such property, within one year after his appointment, and at such other times as the court shall direct. Fourth. At the expiration of his trust, to settle his accounts with the court, or with the ward or his legal representatives, and to pay over and deliver all the estate and effects remaining in his hands or due from him on such settlement to the person or persons who shall be lawfully entitled to receive them. 74 In Oregon the bond runs to the state. A testamentary guardian is not required to give a bond when the testator in the will shall have ordered or requested that such bond be not given, except, owing to a change in the circumstances or situation of the guardian, or for other sufficient cause, the court shall think proper to require it. 75 No bond is required of a natural guardian. 76 The courts are very liberal in the construction of a guardian's bond, so as to bring 74 Rev. Stats., e. 18, 96, [1635] ; L. O. L., 1315. 75 Rev. Stats., c. 18, 98, [1637]; L. O. L., 1317. 76 Westbrook v. Comstock, Walk. (Mich.) 314. (840) Chap. 36] GUARDIANSHIP. 504 it within the requirements of the statute. A failure to give the ward's name in full, 77 failure to insert a penalty, 78 and a failure to set out the facts that the guardian has been duly appointed, 79 have been held not to invalidate guardians' bonds. The substitution of an executor's or administrator's bond for that of a guardian's, inserting the name of the ward for the deceased, has been held in effect no bond at all. 80 A guardian must also, before entering upon the duties of his trust, take the official oath. 81 Form No. 228. GUARDIAN'S BOND. Know all men by these presents, that we, A. B., of the county of -, and state of Nebraska, as principal, and C. D. and E. F., of the same place, as sureties, are held and firmly bound unto the county judge of county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby bind our- selves, our heirs, executors, administrators, and assigns, jointly and severally, by these presents. Dated this day of , 19 . Whereas, said A. B. has been appointed by said court guardian of N. M., a minor of the age of years [an incompetent person; or, spendthrift], and has signified his acceptance of his said trust: Now, therefore, the condition of this obligation is such that, if the above-bound A. B. shall make a true inventory of all the real and personal estate of the said C. D. which shall come into his possession or knowledge, and return the same to the county court of county within thirty days from this date, and shall dispose of and manage all such estate and effects of said C. D. according to the law and the best interests of said ward, and faithfully discharge his trust 77 Turner v. Alexander, 41 Ark. 254; State v. Eichardson, 29 Mo. App. 595. 78 State v. Britton, 102 Ind. 214, 1 N. E. 617. 79 Pratt v. Wright, 13 Gratt. (Va.) 175. 80 Hayden v. Smith, -49 Conn. 83. 81 Rev. Stats., c. 18, 114, [1653]. (841) 504 PROBATE AND ADMINISTRATION. [Chap. 36 as such guardian, and render an account, on oath, of the property in his hands, including the proceeds of all real estate that may have been sold by him, and of the management and disposition of such property, within one year after his appointment, and at such other times as the court shall direct, and, at the expiration of his trust, settle his accounts with the court or with the ward or his legal representa- tives, and pay over and deliver all the estate and effects remaining in his hands or due from him on such settlement to the person or persons who shall be lawfully entitled thereto, then this obligation to be null and void; otherwise to be and remain in full force and effect. (Signed) A. B. C. D. E. F. I hereby approve the foregoing bond, both as to form and sufficiency of sureties. (Signed) J. K., County Judge. Form No. -229. OATH OF GUAKDIAN. I, C. D., do solemnly swear that I will well and faithfully perform the duties required of me as guardian of the estate of A. B., a minor, according to law and the best of my ability. So help me God. (Signed) C. D. Form No. 230. LETTERS OF GUARDIANSHIP. State of Nebraska, County. In the Matter of the Guardianship of A. B. To C. D.: Whereas, application in due form has been made to me for your appointment as guardian of the person and estate of A. B., a minor, and an orphan of the age of years [an incompetent person; or, a spendthrift], residing in said county, and relying upon your care and fidelity, I hereby constitute and appoint you guardian of the said minor during his minority [incompetent person during the continuance of his disability; or, spendthrift until discharged by the court], with full power to receive, demand, and collect, by process of law, all the real estate and chattels, rights, credits, and effects belonging to said A. B., and to make a true and perfect inventory of all the prop- erty of the said A. B. within this state, and return the same to this (842) Chap. 36] GUARDIANSHIP. 505 court on or before the day of , 19 . You will also care for and manage the property of the said A. B. according to law and the best interests of the said A. B. "Within one year from this date, and yearly thereafter, and at any time that may be required by this court, you will render a true account of all the money and property of the said A. B. in your hands, and you will render an account of all the money and property received by you, and of your guardianship, whenever you are required so to do by any court having jurisdiction in the premises. In testimony whereof, I have hereunto set my hand and caused the seal of the court to be affixed this day of , 19 . (Seal) (Signed) J. K, County Judge. 505. Joint guardians. Two or more persons may be appointed joint guard- ians of the same ward,. either by a last will or the order of the county court. The trust is conferred upon them both jointly and severally. They are jointly liable for their joint acts, and severally liable for their separate acts. 82 If one declines to act, all the duties of the trust devolve upon the other; and the same is true where one of them dies after the issue of letters. 83 The statute contains no provisions in regard to their bond, as to whether it should be a joint bond with sureties or separate bonds with sureties. A joint bond is usually given. Each guardian is responsible only for that portion of the property which he receives. 84 The sureties are liable for the joint and several acts of each, and the discharge of one will not release them for the acts of the other. 85 82 Blake v. Pegram, 101 Mass. 392. 83 In re Reynolds, 11 Hun (X. Y.), 41. 84 Jones' Appeal, 2 Watts & S. (Pa.) 143. 85 Hocker v. Woods' Exrs., 33 Pa. 466; Pirn v. Downing, 11 Serg. & R. (Pa.) 66. (843) 506 PROBATE AND ADMINISTRATION. [Cliap. 36 506. Guardian of nonresident. A guardian may be appointed for a nonresident minor or other person liable to be placed under guard- ianship, according to the laws of this state, who is seised of realty in this state. 86 The procedure is the same as in other cases, except that notice is required to be given to all persons interested in such manner as the court may require. There is no provision in the statutes for the appointment of a guardian of a nonresident who has no property in this state except personalty. The guardian appointed at the residence of the minor is a proper person to make the application, and should he desire it, may receive the appointment. 87 The court may, however, issue letters to such other person as may be deemed suitable. 88 Guardianship of a nonresident first lawfully granted within this state extends to all the estate of the ward within the state, and excludes the jurisdiction of the county court of every other county. 89 The guardian is required to give a bond with the same provisions as apply to other guardians, except that the provisions relating to the inventory and disposal of the effects is confined to such property as may come into his hands in this state. 90 His powers and duties are limited to this state, but within such limit are the same as though his ward lived here, and should his ward remove to this state, he is entitled to his custody in the same 8 Rev. Stats., c. 18, 122, [1661]; L. O. L., 1336. 87 Hoyt v. Sprague, 103 U. S. 613. 88 Earl v. Dresser, 30 Ind. 11. 89 Rev. Stats., c. 18, 125, [1664]; L. O. L., 1339. Rev. Stats., c. 18, 124, [1663] ; L. O. L., 1338. (844) Chap. 36] GUARDIANSHIP. 507 cases as guardians of residents. 91 His appointment is principally for the purpose of bringing actions in regard to real estate or looking after the same. 507. Removal of guardians. The county court has power to accept the resignation of a guardian and revoke his letters. 92 Such resigna- tion will not be considered as a judgment that a full accounting has been made by him. 93 A guardian may be removed from his trust if the court finds that he is insane, incapable of discharging his trust, or evidently unsuitable therefor. 94 Incapa- bility which is a ground for removal may be defined as a gross ignorance of duty, 95 or physical or mental incapacity to attend to the business of the estate. 96 The term "unsuitable" covers a good many delin- quencies. It includes corrupt morals, such as are likely to have an injurious influence on the character of the ward, especially when the guardian has custody of his person; 97 becoming an habitual drunkard; 98 re- fusing to support his ward when the ward is unable to support himself and he has ample funds for that purpose; 99 committing waste 100 knowingly permitting 91 Rv. Stats., c. 18, 123, [1662]; L. O. L., 1339. 92 Rev. Stats., c. 18. 116, [1655] ; L. O. L., 1331. 93 King v. Hughes, 52 Ga. 600. 94 Rev. Stats., c. 18, 116, [1655] ; L. O. L., 1331. 95 Wood v. Black, 84 Ind. 279; Nicholson's Appeal, 20 Pa. 50. 96 Damarell v. Walker, 2 Redf. Sur. (N. Y.) 198. 97 Ruohs v. Backer's Next Friend, 6 Heisk. (Tenn.) 395; Badenhoof v. Johnson, 11 Nev. 87. 98 Kettletas v. Gardner, 1 Paige Ch. (N. Y.) 488. 99 In re Swift, 47 Cal. 629. 100 Dickerson v. Dickerson, 31 N. J. Eq. 652. (845) 507 PEOBATE AND ADMINISTRATION. [Chap. 36 unlawful claims against the estate to be paid; 101 using the personal property for his own benefit and collecting entirely inadequate rents from the realty; 102 criminal neglect or ill-treatment of his ward; 103 failure to give a new bond when ordered by the court; 104 and becom- ing insolvent. 105 It is not necessary to show that he has been corrupt or guilty of malfeasance in office; it is sufficient if it appears that he has neglected to prop- erly protect his ward's interests. 106 A minor cannot, on arriving at the age of fourteen years, nominate a guardian to succeed the one already serving, unless the former appointee resigns or is re- moved for cause. 107 A failure to render an account, if the neglect does not work an injury to the estate, is not a sufficient ground for removal, 108 the rule of law being that, where the statute enumerates the causes for removal, the court can remove the guardian for no other causes. 109 Form No. 231. PETITION FOE EEMOVAL OF GUARDIAN. [Title of Cause and Court.] Your petitioner, E. F., respectfully represents unto the court that on the day of , 19 , letters of guardianship on the estate of A. B., a minor, were issued out of and under the seal of 101 Crocker v. Smith, 47 Neb. 102, 66 N. W. 19; Wood v. Black, 84 Ind. 279. 102 Robertson v. Epperson, 78 Neb. 279, 110 N. W. 540. 103 Rev. Stats., c. 18, 118, 120, [1657], [1659]. 104 Rev. Stats., c. 16, 82, [1209]. 105 Baldridge v. State, 69 Ind. 166. 106 Crooker v. Smith, 47 Neb. 102, 66 N. W. 19. 107 Gray's Appeal, 96 Pa. 243; Dibble v. Dibble, 8 Ind. 307. 108 Gott v. Culp, 45 Mich. 265, 7 N. W. 767. 109 Kahn v. Israelson, 62 Tex. 221. (846) Chap. 36] GUARDIANSHIP. 508 said court to one C. D., and that said C. D. is now the guardian of the said A. B.; that said C. D. has become and now is unsuitable to perform the duties of guardian of said A. B., for that said C. D. has paid from the estate of said A. B. the sum of dollars in satisfaction of a debt for which said A. B. and his said estate was not liable; that said C. D., on account of his advanced age and irascible temperament, is not a suitable person to act as said guardian [set out in full specific charges against the guardian]. Your petitioner prays that a time and place be fixed for the hear- ing on said petition, that notice thereof be given the said G. H., and that, upon the hearing of said proceedings, an order be entered re- moving said C. D. from his trust, and for the appoinment of some suitable and competent person to be guardian of the said A. B. Dated this day of , 19 . (Signed) E. F. [Add verification, Form No. 5.] 508. Notice to guardian. Notice of the hearing on the petition for removal must be given the guardian and all persons inter- ested. 110 The county court cannot hear, try and de- termine the alleged insanity, incapability or unsuit- ableness of the guardian, without his having an opportunity to be heard in his defense. A failure to serve notice upon him deprives the court of juris- diction, unless, of course, he enter a voluntary appear- ance. 111 The court has no authority to appoint a new guardian until the authority of the former one has been terminated. 112 When a guardian is arrested and brought to trial on the charge of criminal neglect and abuse of his ward, HO Rev. Stats., c. 18, 116, [1655]. in Crooker v. Smith, 47 Neb. 102, 66 N. W. 19; Brodribb v. Tibbits, 63 Cal. 80; Copp v. Copp, 20 N. H. 284; McCloskey v. Plantz, 76 Minn. 323, 79 N. W. 176; Lee v. Ice, 22 Ind. 384. 112 Copp v. Copp, 20 N. H. 284; Robinson T. Zollinger, 9 Watts (Pa.), 169. .(847) 508 PROBATE AND ADMINISTRATION. [Chap. 36 the county judge before whom the case was tried may remove him, after hearing the evidence on the trial, without further notice. 113 In all other cases notice must be served. Form No. 232. NOTICE OF HEARING ON PETITION FOR REMOVAL OF GUARDIAN. [Title of Cause and Court.] To C. D., Guardian of said A. B., and All Persons Interested in the Estate of said A. B.: You are hereby notified that E. F. has filed his petition in said court praying for your removal from your trust as guardian of said A. B., a minor, for the reason [state causes for removal as alleged in the petition]. You are further notified that a hearing on said petition will be had at the county court room in said county on the day of , 19 , at the hour of 9 o'clock A. M. Dated this day of , 19. (Seal) (Signed) J. K., County Judge. Form No. 233. ORDER REMOVING GUARDIAN FOR CRIMINAL NEGLECT AND ABUSE OF WARD. [Title of Cause and Court.] It appearing to this court that on the day of , 19 , E. F., filed his complaint under oath against C. D., guardian of A. B., an incompetent person, for neglecting to clothe and feed said A. B., and for ill-treatment of said A. B.; that a warrant was thereupon issued for the arrest of said C. D., and the same was delivered to J. N., sheriff of said county, who made return thereof on the - day of , 19 , as follows [copy return], and that said C. D. entered plea of not guilty: The court thereupon proceeded with the trial of said complaint. E. F. and G. H. were sworn and testified as witnesses for the complainant, and C. D. in his own behalf. Upon consideration of the evidence, the court found C. D. guilty in manner and form as alleged in said complaint. us Rev. Stats., c. 18, 133, [1672]. (848) Chap. 36] GUARDIANSHIP. 508 Now, therefore, it appearing to the court from the proceedings aforesaid that the said C. D. is not a fit and suitable person to have the custody of said minor, and the condition of said minor will be ameliorated by his removal from said trust, it is therefore ordered by me that the said C. D. be and he hereby is removed from his trust as guardian of said A. B., and is hereby ordered to file his account as such guardian within ten days from this date. And it further appearing that L. M. is a suitable and competent person to act as guardian of said minor, and said L. M. having signi- fied his willingness to accept said trust should it be granted him, it is further ordered and decreed that said L. M. be appointed guardian of the said A. B., a minor, upon his filing his bond as required by law in the penal sum of dollars. Dated this day of , 19 . (Signed) J. K., County Judge. Form No. 234. ORDER REMOVING GUARDIAN. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing on the petition of E. F., praying for the removal of C. D. as guardian of said A. B., a minor, for [state causes], the objections of C. D., and the evidence, and was submitted to the court; and it appearing to the court that due notice has been given said C. D., guardian, of the pendency of said petition, as appears by the return of J. M., sheriff of said county, on file herein; and it further appear- ing to said court that the said C. D. is [state findings which are causes for removal] : It is therefore ordered and decreed that the said C. D. be and he hereby is removed from his trust as guardian. It is further ordered that said C. D., within ten days from the date of this deem file his final account as guardian. And it appearing to the court that L. M. is a suitable person to act as guardian of the estate of said A. B., and the said L. M. having signified his willingness to accept said guardianship, the same is conferred upon him. It is therefore ordered that letters of guardianship on the person and estate of A. B. issue to the said L. M. upon the filing of a bond in this court in the penal sum of dollars. (Signed) J. K., County Judge. 54 Pro. AJ. (849) 509, 509a PROBATE AND ADMINISTRATION. [Chap. 36 509. Appointment of successor. Whenever any guardian shall die, be removed from his trust, or the court accept his resignation, pend- ing the disability of his ward, a successor may be ap- pointed. The new guardian is given authority to bring an action upon the bond of the former guardian for any damages sustained by his neglect or refusal, or the neglect or refusal of his representatives, to turn ever to the new guardian, according to the order or decree of the county court or according to law. 114 He must turn over money or good securities, 115 but a receipt of the same does not release him from liability for mismanagement, 116 and a collusive or fraudulent settlement between the two can be set aside. 117 He may follow the assets into the hands of third parties, to whom they were unlawfully transferred by his predecessor. 118 509a. Transfer of guardianship. The county judge has power, whenever the interest of the ward and convenience of the ward require, to transfer the guardianship to any other county in the state. A petition for this purpose must be filed setting forth the reasons for such change of venue, and if satisfied the same are sufficient, the judge shall make the order of removal and therein shall direct that certified copies of the record of the guardianship and the original bond filed by the guardian be transmitted to the clerk of the county to which such transfer is 114 Rev. Stats., c. 18, 117, [1656]. lie Skidmore v. DavL,,, 10 Paige (N. Y.), 316. lie Lamar v. Micou, 112 U. S. 452. 117 Ellis v. Scott, 75 N. C. 108. 118 Fox v. Kerper, 51 Ind. 148. (850) Chap. 36] GUARDIANSHIP. 509a made, there to be filed. The filing of the transcript and bond in the court of the other county gives the county court of that county complete jurisdiction over the matter, and all further proceedings therein must be begun in that county. 119 ll L. O. L., 1343-1345. (851) CHAPTER XXXVII. POWERS AND DUTIES OF GUARDIANS. { 510. Inventory and Appraisement. 511. Custody of Person of Ward. 512. Support of Minor Ward. 513. Support of Incompetent or Spendthrift. 514. Labor and Services of Ward. 515. Collection of Assets. 516. Action Against Ward. 517. Contracts of Guardians. 518. Payments of Debts of Ward. 519. Powers and Duties in Eegard to Real Estate. 520. Investment and Management of Personal Estate. 521. Investment and Management of Personal Estate Concluded. 522. Liability of Guardian for Negligence. 523. Liability for Ill-treatment of Ward. 524. Rights of Foreign Guardian in This State. 525. Additional or Cumulative Bond. 510. Inventory and appraisement. A guardian, like an executor or administrator, is required, within three months after his receipt of letters, to make and file under oath a true and perfect inventory of all the property of his ward in this state which shall have come into his possession or knowl- edge. It must be appraised in the same way as that of a decedent. 1 As in the case of a decedent, it is not conclusive of the existence of assets or of their value, and either party may show that it contains errors of omission or commission. 2 1 Eev. Stats., c. 18, 114, [1653]; L. O. L., 1329. See 172, supra. 2 Green v. Johnson, 3 Gill & J. (Md.) 389; Martin v. Sheridan, 46 Mich. 93, 8 N. W. 722. (852) Chap. 37] POWERS AXD DUTIES OF GUARDIANS. 511 If a guardian is indebted to the ward when he as- sumes the duties of his trust, such indebtedness be- comes assets in his hands, to be inventoried and ac- counted for as other property. 3 511. Custody of person of ward. The guardian of an insane or incompetent person, or of a spendthrift, 4 or of a minor whose parents are both dead, always has the custody of his ward. 5 The general rule is that if one or both of the parents are living, the guardian has charge of the property of the minor and is not entitled to his custody. 6 If the par- ent is not a suitable person to take charge of his child, the right exists, both at common law and under the statutes, to place his control in the hands of a guard- ian or of some other suitable person. 7 A minor cannot be removed from the custody of a parent unless it affirmatively appears that the habits, character or oc- cupation of the parent are such that he is not a suitable person to look after his offspring, or that the circum- stances, surroundings and conditions under which he 3 Xeill v. Neill, 31 Miss. 36; Hoile v. Bailey, 58 Wis. 434, 17 N. W. 322; Martin v. Davis, 80 Wis. 376, 50 N. W. 172; Winship v. Bass, 12 Mass. 203. For forms for inventory and appraisement, see Nos. 75, 79 and 80, pages 265, 270. * Bev. Stats., c. 18, 103, 109, [1642], [1648]; L. O. L., 1321, 1326. 5 Eev. Stats., c. 18, 94, [1633]; L. O. L., 1314; Jenkins v. Clark, 71 Iowa, 522, 32 N. W. 504; Burges v. Frakes, 67 Iowa, 460, 25 N. W. 735. 6 Ramsay v. Potter, 20 Wis. 507; Lord v. Hough, 37 Cal. 657. " Rev. Stats., c. 18, 132, [1671]; Badenhoof v. Johnson, 11 Nev. 87; Luphie v. Winans, 37 N. J. Eq. 345. (853) 511 PROBATE AND ADMINISTRATION. [Chap. 3? is being brought up cannot but exert an evil influence upon him. 8 Before the custody of a child can be permanently taken from its parents, they have a right to be heard. If notice of the application is given them, there is no reason why the question of their being suitable per- sons cannot be decided on such hearing, but unless it has been so determined, the letters do not give the guardian the right of custody. 9 The rule which should govern in determining the right of custody is the same as in habeas corpus. The welfare and best interests of the child is the principal matter to be considered, but the court will not remove the child from the control of the parent unless such parent is an unsuitable person to bring up a child and the future welfare of the child require him to be placed in different surroundings. 10 A guardian who also has the custody of his ward fixes the residence of his ward. He may remove from the county in which he was appointed to another, 11 or to another state, 12 8 Clarke v. Lyon, 82 Neb. 625, 118 N. W. 472; Terry v. Johnson, 73 Neb. 653, 103 N. W. 319; Norval v. Zinsmaster, 57 Neb. 158, 77 N. W. 373. In re Thomsen, 1 Neb. Unof. 751, 95 N. W. 805; Clarke v. Lyon, 82 Neb. 625, 118 N. W. 472. 10 Schroeder v. State, 41 Neb. 745, 60 N. W. 89; Sturtevant v. State, 15 Neb. 459, 19 N. W. 617; Norval v. Zinsmaster, 57 Neb. 157, 77 N. W. 373; Terry v. Johnson, 73 Neb. 653, 103 N. W. 319; Clarke v. Lyon, 82 Neb. 625, 118 N. W. 472. 11 Holyoke v. Haskins, 5 Pick. (Mass.) 20; Anderson v. Estate of Anderson, 42 Vt. 350. 12 Pedan v. Robb, 8 Ohio St. 227; Townsend v. Kendall, 4 Minn. 412 (Gil. 315). (854) Chap. 37] POWERS AND DUTIES OF GUARDIANS. 512 512. Support of minor ward. The guardian of a minor whose father is living is not obliged to devote the funds of the estate to the support of his ward, the general rule being that it is the duty of a parent to support his infant children whether they have estates of their own or not. 13 This rule is usually relaxed in the case of a mother, and if the child has property of his own, she may obtain leave of the court to apply such part of his estate as is desirable for that purpose. 14 Where no formal ap- plication was made, but the amount claimed appears reasonable and the circumstances were such as would justify the court in granting it, it may be adjusted on the hearing on the final account. 15 Both under the statute 16 and at common law, if the means of the father are limited, and the minor is possessed of an estate the income from which will support and maintain him in a more expensive manner than his father can reasonably afford, regard being had to the situation of the father's family, and to all the circumstances of the case, either the whoLe or a part of the expenses of the education and maintenance of such minor may be defrayed from his separate es- tate, as may be directed by the court, and the charges may be allowed accordingly in the settlement of such guardian. 17 13 2 Kent, Com., 191; In re Besondy, 32 Minn. 285, 20 N. W. 366. 14 Ellis v. Soper, 111 Iowa, 431, 82 N. W. 1041; In re Carter, 120 Iowa, 215, 94 X. W. 488. 15 Welch v. Burris, 29 Iowa, 186; Latham v. Meyers, 57 Iowa, 519, 10 N. W. 924. 16 Rev. Stats., c. 18, 97, [1636]. 17 Kinsey v. State, 71 Ind. 72; Welch v. Burris, 29 Iowa, 186. (855) 512 PEOBATE AND ADMINISTRATION. [Chap. 37 If the father is dead or wholly unable to support the minor children^ it is the duty of their guardian to see that they are suitably supported, maintained and educated at the expense of the income or body of the estate, as their circumstances and the condition of the estate will warrant. 18 It is an old rule that a minor wholly dependent upon his own property for support should be maintained, educated and supported in the same manner as those cf his social standing, considering the amount and condition of his estate. 19 Before any part of the principal of a ward's estate is expended for his support and maintenance, a formal application for that purpose should be presented to the county court and an order made for that purpose. 20 Such permission is not absolutely necessary. If the circumstances warrant it, and the condition of the estate permits, payments from the principal will be allowed, and held a proper charge in the settlement of the final account, though no leave of the court has been had and obtained. 21 All payments for a ward's maintenance and education should be made by the guardian himself, or by and under his express direc- tion. It is not a power he can delegate to anyone. 18 State v. Roche, 94 Ind. 372; Bond v. Lockwood, 33 111. 212; In re Mells, 64 Iowa, 391, 20 N. W. 486; Chubb v. Bradley, 58 Mich. 268, 25 N. W. 186. w Wallis v. Neale, 43 W. Va. 529, 27 S. E. 227; Jones v. Parker, 67 Tex. 76, 3 S. W. 222; Stumph v. Goepper, 76 Ind. 323. 20 Foteaux v. Le Page, 6 Iowa, 123; Prebble v. Longfellow, 48 Me. 279; Johnson v. Haynes, 68 N. C. 514. 21 Wilson's Guardianship, 40 Or. 358, 68 Pac. 393, 69 Pac. 439; In re Besondy, 32 Minn. 385, 20 N. W. 366; Gott v. Gulp, 45 Mich. 265, 7 N. W. 767; Karney v. Vale, 56 Ind. 542. (856) Chap. 37] POWERS AND DUTIES OF GUARDIAXS. 513 An apparent exception exists where the guardian, hav- ing sufficient assets applicable therefor, fails to supply his ward with necessaries. In this case, the ward him- self or a competent third party may purchase suit- able necessaries, and the guardian will be held liable therefor. 22 513. Support of incompetent or spendthrift. An incompetent or spendthrift under guardianship is entitled to reimbursement for expenses incurred in resisting the application for his guardian's appoint- ment. 23 He is also entitled to such support from his estate as its condition will permit. In the case of a person confined in a public asylum for the insane in this state, all costs and charges are defrayed by the county, 24 Costs of clothing should be paid by the guardian. In the case of an insane person not confined in a public asylum, or one otherwise incompetent, the guardians may make a contract on behalf of the estate for his ward's support. 25 He should obtain an order of the court for that pur- pose. In fixing the amount the court should consider the interests of the unfortunate rather than those of his presumptive heirs, and award such a sum as will, as far as possible, support him in the manner he formerly lived. 26 22 Gwalty v. Cannon, 31 Ind. 227; Hastings v. Bachelor, 27 Tex. 259. 23 Bev. Stats., c. 18, 108, [1647]; L. O. L., 1325. 24 Rev. Stats., c. 74, 94, [7271a]. ^"> Masters v. Jones, 158 Ind. 647, 64 N. E. 213; Creagh v. Tun- stall, 98 Ala. 249, 12 South. 713i -'<> Matter of Saulsbery, 2 Johns. Ch. (N. Y.) 347; Hambleton's Appeal, 102 Pa. 50. (857) 514 PROBATE AND ADMINISTRATION. [Chap. 37 The duties of the guardian of a spendthrift in look- ing after the support of his ward are substantially like those of the guardian of an incompetent. 27 514. Labor and services of ward. It is not the policy of the law to permit a minor who has no parents to remain idle and consume the princi- pal of his estate for his support, where he Has suffi- cient age and ability to earn money for himself. 28 If he lives in the family of his guardian and his services exceed the value of his board, he should receive the difference, 29 or if less, the guardian's claim for his board should be reduced by their value. 30 If he works for another party, the guardian may permit him to use the money for his own purposes. 31 A guardian should never compel his ward to work at the expense of an education which his age, ability and natural inclinations demand and the condition of his estate permits. He stands in loco parentis, and the duties devolving upon him should receive the same diligent attention as though his ward were his own child. 27 Rev. Stats., c. 18, 109, [1648]; Sturgis v. Sturgis, 51 Or. 19, 93 Pac. 696. Where the ward is possessed of a large estate, the court should provide liberally for his welfare. The guardian of a Michigan spendthrift was for years authorized by the probate court to pay his ward's board at a fashionable club, clothing, jewelry, feed and care for a team of horses and a carriage, and ten dollars per month spend- ing money, in all not exceeding three thousand dollars per year. 28 Brown v. Yaryan, 74 Ind. 305. 29 Denison v. Cornwell, 17 Serg. & B. (Pa.) 374. 30 Boardman v. Ward, 40 Minn. 39?, 42 N. W. 202. 31 Shurtleff v. Rile, 140 Mass. 213, 4 N. E. 407. (858) Chap. 37] POWERS AND DUTIES OF GUARDIANS. 515 515. Collection of assets. The right to the possession of the estate of a ward passes to his statutory guardian on his receipt of letters. 32 He should use the same diligence in collect- ing them that the ordinary business man would in the management of his own affairs, and is liable for neg- ligence in failing to collect. 33 He should commence and prosecute all suits which may be necessary for that purpose, 34 including actions for property fraudu- lently obtained from his ward before the issue of letters. 35 He should collect and reduce to possession property coming to his ward by descent or devise, 36 and may follow assets into the hands of third parties with notice. 37 If the ward is entitled to a pension or has a claim against the federal government, he should prosecute the application. 38 The code permits him to bring an action without joining with him the person for whose benefit it is prosecuted. 39 As a general rule, he should accept nothing but money in settlement of demands of the estate, 40 but if he has acted with prudence and accepts other property, 32 Rev. Stats., c. 18, 111; L. O. L., 1314; Cohoe v. State, 79 Neb. 811, 114 N. W. 286. 33 In re Shandoney, 83 Cal. 387; Covington v. Leak, 65 N. C. 594. 34 Shepherd v. Evans, 9 Ind. 260. 35 Bennett v. Bennett, 65 Neb. 432, 91 N. W. 489; Somes v. Skinner, 16 Mass. 348. 36 Willis' Appeal, 22 Pa. 325; Covington v. Leak, 65 X. C. 594; Walter v. Walla, 10 Neb. 123, 4 N. W. 938. 37 Fox v. Kerper, 51 Ind. 149. 38 Boaz's Admr. v. Milliken, 83 Ky. 634. 39 Civ. Code, 26. 40 Brenham v. Davidson, 51 Cal. 352; State v. Greensdale. 106 Ind. 364, 6 N. E. 926. (859) 515 PROBATE AND ADMINISTRATION. [Chap. 37 and such settlement appears to have resulted in a benefit to the estate, it should be approved. 41 At common law, a guardian had a right to com- promise debts due his ward whenever he deemed it for the best interests of the estate. 42 Our statutes pro- vide that he may compromise claims with the appro- bation of the county court. 43 It is not clear whether such right exists independent of the statute, but it would seem that the same rule ought to apply as in case of executors and administrators, and the com- promise upheld if it appears to have been in the in- terest of the estate. 44 He has the same right as an executor or adminis- trator to institute special proceedings for the recovery of any money, goods, effects, written instruments or ether property belonging to the estate of the ward alleged to have been concealed, embezzled or conveyed away by any party, and such proceedings may also be instituted by the ward, or any person interested in the estate, or person having a prospective interest as heir or otherwise, or by a creditor. 45 Property of a ward in the hands of his guardian is in the custody of the law, and not subject to attach- ment or execution. Deriving his powers from the 41 Mason v. Buchanan, 62 Ala. 112. 42 Schee v. McQuilliken, 59 Ind. 269; Graham v. Hester, 15 La. Ann. 148. 43 Eev. Stats., c. 18, 111, [1650]; L. O. L., 1327. For forms for petition and order, see Nos. 91, 92, p. 306. 44 Hagy v. Avery, 69 Iowa, 434, 29 N. W. 409; Torrey v. Black, 58 N. Y. 185. 45 Rev. Stats., c. 18, 121, [1660]. For forms and procedure, see 197, page 291 et seq. (860) Chap. 37] POWERS AXD DUTIES OF GUARDIANS. 516 court, the guardian is subject to the control of the court in its management. 46 516. Actions against ward. It is the duty of a guardian to appear and represent his ward in all suits and proceedings to which he has been made a party defendant, unless another person has been appointed for that purpose as guardian ad lit em.* 1 The personal liability of the ward, as in an action for a tort, will not support a suit against the guardian. The w-ard alone is liable. 48 The guardian may be joined with the ward in an action brought against the ward for divorce. The court has no power to make an order for the payment of alimony or suit money which will bind the guardian. The enforcement of such decree can only be through the county court. 49 The defense in cases against minors and incompe- tents is frequently conducted exclusively by a guard- ian ad litem, whose duties are confined to the pro- tection of the interest of the ward in the particular matter, 50 and a judgment or decree rendered against a minor not represented by guardian or guardian ad litem is voidable, but one so rendered against an incom- petent ward is merely erroneous. 51 In the latter case, 46 Sections 520, 521, post; Sturgis v. Sturgis, 51 Or. 19, 93 Pac. 696. 47 Laws 1913, p. 595. 48 Garrigus v. Ellis, 95 Ind. 598. 49 Sturgis v. Sturgis, 51 Or. 20, 93 Pac. 696. 50 In re Estate of Robertson, 86 Neb. 490, 125 N. W. 1093. 51 McCallister v. Lancaster County Bank, 15 Neb. 295, 18 N. W. 57; McCormick v. Paddock, 20 Neb. 486, 30 N. W. 602; Parker v. Starr, 21 Neb. 690, 33 N. W. 424. (861) 517 PROBATE AND ADMINISTRATION. [Chap. 37 where there was nothing to show that the defendant was under guardianship and that there was a good defense, the judgment can be avoided by a suit in equity. 52 Persons under disability who are represented in ac- tions against them by guardians are bound by the same rules of law and procedure in the matter in which they are so represented as are other persons. 53 517. Contracts of guardians. Contracts made by guardians with third parties in reference to the property of their wards differ from like contracts made by executors or administrators. A guardian has power to bind the estate of his ward by contract for the performance of any services neces- sary for the preservation and management of the estate, provided the same is reasonable in its terms. A person performing services pursuant to such con- tract may proceed directly against the estate. 54 Contracts for the education and maintenance of the ward or for necessaries are binding on the guardian personally and not on the estate. He is entitled to reimbursement out of the estate, if they are just and proper, for payments made on account of them. 55 In Oregon all contracts of a guardian come under the latter rule. 56 52 Spence v. Miner, 90 Neb. 108, 132 N. W. 942. 53 Allyn v. Cole, 3 Neb. TInof. 235, 91 N. W. 505* 54 McCoy v. Lane, 66 Neb. 847, 92 N. W. 1010; Bailey v. Garrison, 68 Neb. 679, 94 N. W. 990. 55 Reading v. Wilson, 38 N. J. Eq. 446; Sperry v. Fanning, 90 111. 1371; Shephard v. Hanson, 9 N. D. 249, 83 N. W. 20; McKinnon v. McKinnon, 81 N. C. 201. 56 Sturgis v. Sturgis, 51 Or. 19, 93 Pac. 926. (862) Chap. 37] POWERS AXD DUTIES OF GUARDIANS. 518 518. Payment of the debts of the ward. It is the duty of the guardian to pay all the debts of his ward existing at the date of his letters from the personal estate and the income from the real es- tate, 57 but if such assets prove insufficient, he may obtain a license from the court and sell real estate for that purpose. 58 There are no statutory proceedings for the allowance and adjustment of claims against a warjd. It is the duty of the guardian to pay such demands as he believes to be just and lawful. He has power, with the consent or approval of the court, to enter into a stipulation compromising a claim against his ward, whether a suit be pending on the same or not, and such stipulation will be as binding on^ him as though he were of lawful age. 59 An action may be brought against the guardian in his official capacity, or against the ward himself, if an adult, and the judgment in such cases is enforceable c gainst the ward's property in the guardian's posses- sion. 60 He has no power to borrow money for the purpose of paying debts. 61 519. Powers and duties in regard to real estate. The duties of a guardian require him to take charge of all the real estate of his ward, and his rights over 57 Bev. Stats., c. 18, 110, [1649] ; L. O. L., 1327. 58 Chapter XXXVIII. 59 Savage v. McCorkle, 17 Or. 48, 21 Pac. 444. 60 Bently v. Torbert, 68 Iowa, 122, 25 N. W. 939; Inhabitants of Kaymond v. Sawyer, 37 Me. 406; Brown v. Chase, 4 Mass. 436; Morris v. Garrisson, 27 Pa. 226. 81 Trutch v. Bunnell, 11 Or. 58, 4 Pac. 588. (863) 519 PROBATE AND ADMINISTRATION. [Chap. 37 the same are much more extensive than those of an executor or administrator over the estate of his de- cedent. The law demands that his management be such as to obtain as much income as possible, 62 and at the same time keep the buildings and improvements in as good condition as the character and amount of the estate and the circumstances of the ward permit. 63 Ordinary repairs, such as merely keeping the property in tenantable condition, may be made without first obtaining permission from the court. Improvements in the way of erecting new buildings or extensive al- teration of old ones can only be made after first obtain- ing an order of the court therefor. 64 If he neglects to obtain such order, the estate of the ward cannot be held liable therefor. 65 The costs of repairs and im- provements are defrayed from the income of the real estate or from the personal property, though the pro- ceeds of the sale of other real estate may, under order of the court, be used for the erection of improvements. He has power to execute a lease of his ward's lands, which in all cases ends with the termination of his trust. In case of his death, resignation, or removal during the existence of the disability of the ward, it will remain valid for the term unless his successor expressly disaffirms it. 66 Where the term of the lease extends beyond the date of the removal of the dis- 62 Thackary's Appeal, 75 Pa. 132. 63 Smith v. Gummere, 39 N. J. Eq. 27; Williams v. Fox, 25 Wis. 646. 64 Kobinson v. Hersey, 80 Me. 225; Murphy v. Walker, 131 Mass. 341; Frankenf eld's Appeal, 102 Pa. 589. 65 Gerber v. Bauerline, 17 Or. 115, 19 Pac. 849. 66 in re Stafford, 3 Misc. Rep. (N. Y.) 106. (864) Chap. 37] POWERS AND DUTIES OF GUARDIANS. 520 ability, such event, per se, terminates such lease, 67 and the former ward may at once avoid the unex- pired term. 68 He may redeem his ward's lands from mortgage liens, 69 foreclose mortgages and bid in the property for his ward, 70 sign in the capacity of "owner" a petition for paving a street, 71 join in and assent to partition of the real estate of his ward, and it has also been held that he may bid in the property for his ward at parti- tion sale. 72 It is a general rule, however, that he can- not invest his ward's property in real estate without leave of the court. 73 It is also held that a guardian may maintain a suit for partition in behalf of his ward. 74 520. Investment and management of personal es- tate. The estate of any person under guardianship should always, when practicable, be so invested as to bring in the largest possible income consistent with good 6T Field v. Schiefflin, 7 Johns. Ch. (X. Y.) 150; Alexander v. Buffing- ton, 66 Iowa, 360, 23 N. W. 754; Richardson v. Richardson, 49 Mo. 29; Watkins v. Peck, 13 N. H. 360. 68 Jackson v. O'Rorke, 71 Neb. 418, 98 N. W. 1069. 69 Wright v. Comly, 14 111. App. 551; Marvin v. Schilling, 12 Mich. 356; Witt v. Mewhirter, 57 Iowa, 545, 10 N. W. 890. 70 Walter v. Walla, 10 Neb. 123, 4 N. W. 398. 71 Chan v. City of South Omaha, 85 Neb. 434, 123 X. W. 464. 72 Bowman's Appeal, 3 Watts (Pa.), 369. 73 2 Kent, Com., 228, 230; Woods v. Boots, 60 Mo. 546; Holbrook v. Brooks, 33 Conn. 347; In re Petition of Dorr, Walk. Ch. (Mich.) 145; Davis' Appeal, 60 Pa. 118. 74 Bowen v. Swander, 121 Ind. 164, 22 N. E. 725; Goudy v. Shank, 8 Ohio St. 415; Tate v. Bush, 62 Miss. 145; Thornton v. Thornton, 27 Mo. 302. *5 Pro. Ad. (865) 520 PKOBATE AND ADMINISTRATION. [Chap. 37 security. A guardian should always keep the funds of the estate separate and distinct from those of his own. He should never deposit the cash of the estate in a bank in his own name, but in his official capacity as guardian. All sums belonging to the estate should, as soon as possible after their receipt by him, be in- vested in good interest-bearing securities, he only re- taining in his possession sufficient to pay current expenses. 75 The county court, on application of the guardian, or of any person interested in the estate of any ward, after such notice to all persons interested therein as the court shall direct, may authorize or require a guard- ian to sell or transfer any stock in public funds, or in any bank or corporation, or any other personal es- tate or effects held by him as guardian, and to invest the proceeds of such sale, and also any other money in his hands, in real estate, or in any other manner that shall be most for the interest of all concerned therein, and the said court may make such further orders and give such directions as the case may require for manag- ing, investing and disposing of the effects of the estate in the hands of the guardian. 76 The guardian has no authority to dispose of any of the ward's property without first submitting the matter to the proper county court, and obtaining its order therefor. No sale or transfer of the property of the ward can be had without the authorization of the court. 77 75 Knowlton v. Bradley, 17 N. H. 458. 76 Rev. Stats., c. 18, 115, [1654]; L. O. L., 1330. 77 Kendrix v. Richards, 57 Neb. 794, 78 N. W. 378; Slusher v. Ham- mond, 94 Iowa, 512, 63 N. W. 185; McDuffie v. Mclntyre, 11 S. C. 551, 32 Am. Rep. 500; Gentry v. Bearss, 82 Neb. 787, 118 N. W. 1077. (866) Chap. 37] POWERS AXD DUTIES OF GTJABDIANS. 520 The statute above cited is mandatory, and is strictly construed. In order to relieve himself from personal liability, he must file a formal petition in the county court; notice must be given, a hearing had and order made and entered. 78 The method of service rests in the discretion of the court. The ward may appear by next friend or guard- ian ad litem. Evidence must be taken showing the desirability of making loans and the character of the security offered. The court should see that no doubt- ful notes, bonds or mortgages are palmed off on to the estate, safety being of greater importance than a high rate of interest. 79 Where investments are made without leave of the court, he will be held liable for the lawful interest thereon, irrespective of what he may have received as profits from them. 80 It is not the intention of the law that he make any profit from his trust except the compensation which the court gives him, and if he occupies his ward's real estate, he should be charged with its reasonable rental value. 81 78 In re O'Brien's Estate, 80 Neb. 125, 113 N. W. 1001; Gentry v. Bearss, 82 Neb. 787, 118 N. W. 1077. 7 In re O'Brien's Estate, 80 Neb. 125, 113 N. W. 1001; In re Grand- strand, 49 Minn. 438, 52 N. W. 41. In the O'Brien case the county judge practically acted as agent, guardian and county judge without any application whatever being on file. Later, in his judicial capacity, he formally approved his acts. The court held such formal approval was no defense to an action against the guardian. A judge guilty of such conduct would probably be impeached were charges preferred against him. 80 Wilson v. Wilson, 90 Neb. 353, 133 N. W. 447. 81 Royston v. Royston, 29 Ga. 82; Fox v. Willis, 25 Wis. 646; Wilson V. Wilson, 90 Neb. 353, 133 N. W. 447. (867) 521 PEOBATE AND ADMINISTRATION. [Chap. 37 Form No. 235. APPLICATION TO SELL PERSONALTY AND REINVEST THE SAME. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of guardianship of said estate were issued to him by said court, and that he now is the guard- ian of said estate. [State condition of personal estate, how invested, income now derived therefrom, what portion it is desired to sell, what portion of the proceeds needed for current expenses or debts, and in what manner it is desired to invest the proceeds of the sale.] Your petitioner therefore prays that a time and place may be fixed for the hearing of this application, and notice thereof given to all parties interested therein, in manner to be determined by the court, and that an order of said court may be entered giving petitioner such order and directions in regard to the reinvestment of said assets as the case may require. Dated this day of , 19 . (Signed) C. D., Guardian. 521. Investment and management of estates Con- cluded. Where investments are made by guardians in the manner provided by law, they are not personally liable if a loss occurs, unless of the stock or securities them- selves. 82 A county judge has power to instruct a guardian to make investments according to his discretion. This is not the best practice for any of the parties inter- ested, for if a loss results, the guardian may become liable therefor, unless it appears that he acted with 82 Hoyt v. Sprague, 103 U. S. 613; Guardianship of Cardwell, 55 Cal. 137; Carlysle v. Carlysle, 10 Md. 440. (868) Chap. 37] POWERS AND DUTIES OF GUARDIANS. 521 diligence and prudence and the loss resulted from the fraudulent acts of another. 83 If a guardian permits the funds of the estate to lay idle for any considerable length of time when he could have invested them, or employs them in his own busi- ness, he should be charged with interest, 84 and if he uses them in speculations on his own account, the in- terest may be compounded annually. 85 What constitutes a proper investment for the funds of a ward is a matter resting in the sound discretion of the court and guardian. Our statutes, unlike those of some states, contain no provisions for such investment. Real estate securities, or municipal or federal bonds, though the income therefrom may not be as large as from other securities, are usually preferred. 86 The safety of the investment should be considered, rather than the amount of the income. Loans upon personal security or upon indorsements of persons or corpora- tions of doubtful standing should not, as a general thing, be made. 87 He should never take any chances by loaning his ward's money at usurious rates, but should take as much as he can get with safety, if it is a legal rate. 88 If he makes usurious loans, and loses the interest, he is liable to his ward therefor. 89 If a guardian uses his ward's funds in speculation, and 83 Wyckoff v. Hulse, 32 N. J. Eq. 697; Slaughter v. Favorite, 107 Ind. 291, 4 N". E. 880; Jacobia v. Terry, 92 Mich. 275, 52 N. W. 629. 84 Swindall v. Swindall, 43 N. C. 285. 85 Farwell v. Steen, 46 Vt. 678; Little v. Anderson, 71 N. C. 190. 86 Spear v. Spear, 9 Eich. Eq. (S. C.) 184. 87 Clark v. Garfield, 8 Allen (Mass.), 427; Gilbert v. Guptill, 34 111. 112; Smith v. Smith, 4 Johns. Ch. (N. Y.) 281. 88 Frost v. Winston, 32 Mo. 489. 88 Draper v. Joiner, 9 Humph. (Tenn.) 612. (869) 522, 523 PROBATE AND ADMINISTRATION. [Chap. 37 makes large profits, he is not allowed to pocket the pro- ceeds, but, instead of paying compound interest, he may be compelled to account to the ward for the prof- its of the investment. 90 522. Liability of guardian for negligence. A guardian should exercise the same degree of care and prudence in the management of the affairs of his ward as an executor in administering the estate of his decedent. 91 He is liable for losses to the estate caused by his negligence and lack of ordinary care and atten- tion. 92 Failure to collect accounts which were good, and which it was his duty to collect, permitting prop- erty to be sold for much less than its reasonable value, neglecting to pay taxes and special assessments on the ward's property, when he has sufficient funds in his possession with which to pay them, 93 have been held to constitute negligence for which he is liable. 523. Liability for ill-treatment of ward. Any guardian to whom is given the custody of an in- fant, and whose duty it is to see that such is properly fed and clothed, is liable in an action brought by the infant through his guardian ad litem for injuries or damages which the infant has sustained on account of 90 Bond v. Lockwood, 33 111. 312; French v. Currier. 47 N. H. 83; Seguin's Appeal, 103 Pa. 139. i In re Roach's Estate, 50 Or. 197, 92 Pac. 118. 92 In re Roach's Estate, 50 Or. 197, 92 Pac. 118. 93 Leonard's Appeal, 95 Pa. 196; Leonard v. Barnum, 34 Wis. 105; McLean v. Hosea, 14 Ala. 194; Shurtleff v. Rile, 140 Mass. 214, 4 N. E. 407; Woodruff v. Snedecor, 68 Ala. 427. (870) Chap. 37] POWEKS AND DUTIES OF GUAEDIANS. 523 such neglect and lack of suitable care. 94 He is also liable in a criminal action to a fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding sixty days, if he neglect to feed and clothe his ward, or maltreat or abuse him or her in any man- ner. The complaint may be made and filed by any- one having such minor in charge, and, if the county judge shall deem the same sufficient, he shall issue a warrant for the arrest of the guardian. 95 Form No. 236. INFORMATION AGAINST GUAEDIAN FOR NEGLECT OR ABUSE OF WARD. State of Nebraska, County, ss. The complaint of E. F., taken under oath before me, J. ~K., county judge of said county, who, being first duly sworn, says that C. D., guardian of A. B., an incompetent person, late of the county afore- said, at and within the county aforesaid, on, to wit, the day of , 19 , and at divers and sundry other times previous to said date, hag neglected to well feed and clothe said A. B., incompetent person, he, the said E. F., having in his possession, as guardian of said A. B., and belonging to the estate of said A. B., sufficient funds with which to provide sufficient food and clothing for said A. B., contrary to the statute in such case made and provided, and against the peace and dignity of the state of Nebraska. And said E. F. further complaint and information makes that said C. D., guardian as aforesaid, at and within the county aforesaid, on, to wit, the day of , 19 , did willfully and maliciously strike, maltreat, and abuse said A. B., contrary to the statute in such case made and provided, and against the peace and dignity of the state of Nebraska. (Signed) E. F. Subscribed in my presence and sworn to before me this day of , 19. (Seal) (Signed) J. K., County Judge. 4 Nelson v. Johansen, 18 Neb. 182, 24 N. W. 730. 5 Rev. Stats., c. 18, 130, [1669]. (871) 524, 525 PROBATE AND ADMINISTRATION. [Chap. 37 524. Rights of foreign guardian in this state. It is a well-recognized rule that a guardian ap- pointed in one state has only statutory authority in another jurisdiction. 96 He may sell real estate by complying with the statute. 97 A court of general equity jurisdiction has power, in its discretion, to order personal property, his share in a settled estate, or his share in real estate sold on partition sale, turned over to him. 98 Their right to bring actions to reduce assets of the estate to posses- sion the same as a local guardian is not clear, though it has been permitted in some district courts, in the language of one of the older judges who has been dead for many years, "as a matter of broad justice." A guardian who collects his ward's property in another state is responsible for it, and if it can be traced into his hands, he is liable, for it is immaterial where it was collected. 99 525. Additional or cumulative bond. Whenever at any time during the existence of the trust it shall be made to appear to the court that the bond of a guardian has become impaired on account of the death or insolvency of a surety or for any rea- son is insufficient, the court may require an additional 96 Leonard v. Putnam, 51 N. H. 247; In re Rice, 42 Mich. 528, 4 N. W. 284; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153. 97 Section 536, post. 98 Grimmett r. Ritherington, 16 Ark. 377; Delafield v. White, 19 Abb. N. C. (N. Y.) 104; Ear? v. Dresser, 30 Ind. 11; Cochran v. Fillians, 30 S. C. 237. 9 Estate of Secchi, Minors, Myr. Prob. (Cal.) 225. (872) Chap. 37] POWEKS AND DUTIES or GUARDIANS. 525 or cumulative bond, 100 and for failure to give such bond when ordered by the court, he may be removed. 101 The procedure is the same as on applications for ad- ditional bonds of executors or administrators. 102 The new bond is, under our statutes, a strictly cumu- lative or additional obligation, 103 relating back to the date of the letters and covering all liabilities occurring during the entire term of guardianship. 104 If the penalty of the two bonds is different, the liability of the sureties is in proportion to and to the extent of the penalties 105 Under the Oregon practice, the county court may require a new bond to be given by any guardian, and may discharge the existing sureties from future re- sponsibility in regard to the case upon like terms as are prescribed for executors and administrators. 106 100 Eev. Stats., c. 16, 81, [1208]. 101 Rev. Stats., c. 16, 82, [1209]. 102 Section 164, supra. 103 Douglas v. Kessler, 57 Iowa, 63, 10 N. W. 313. 104 Clark v. Wilkinson, 59 Wis. 543, 18 N. W. 481; Stevens v. Tucker, 87 Ind. 109; Commonwealth v. Cox's Admr., 36 Pa. 442; Lor- ing v. Bacon, 3 Cush. (Mass.), 465. 105 Bond v. Armstrong, 88 Ind. 65. 106 L. O. L., 1333. (873) CHAPTER XXXVIII. GUARDIANS' SALES AND MORTGAGES OF LANDS. i 526. Power of Guardian to Sell Real Estate. 527. Procedure for Sale. 528. What Interest in Lands may be Sold. 529. Petition. 530. Order to Show Cause Service. 531. Hearing on the Application. 532. License. 533. Bond and Oath. 534. The Sale. 535. Confirmation of Guardian's Sales. 536. Sales by Foreign Guardians. 537. The Rule of Caveat Emptor. 538. Division of the Proceeds. 539. Action for Recovery of Lands Sold by Guardians. 540. Estoppel of Former Ward. 541. Action by Party Claiming Adversely to Ward. 542. Collateral Attack on the License. 543. Collateral Attack, Bond and Oath. 544. Collateral Attack Notice of Sale and Sale. 545. Mortgage on Minor's Lands Application. 546. Proceedings on the Application. 547. Sales of the Interest of Insane Spouse in Real Estate. 548. Hearing and Bond. 549. Sale and Confirmation. 526. Power of guardian to sell real estate. A guardian is without authority to sell real estate or execute a deed of conveyance unless he has procured a license for that purpose from the district court or a judge thereof. Any guardian may, by complying with the statute, obtain a license for the sale of real estate of his ward for the purpose of paying debts, the costs and expenses of managing his estate, to raise money for the support, education and maintenance of (874), Chap. 38] GUARDIANS' SALES. 527 the ward or of his family, or both, and for the pur- pose of making an investment which will bring in a better income. 1 In Oregon such powers are vested in the county judge. 2 The guardian of an insane husband or wife who has been for three years incapable of executing a deed, relinquishment or conveyance of his or her rights in the real estate of the other may also obtain leave of the court to sell such interest. 3 527. Procedure for sale. Only a person appointed to take charge of the prop- erty of a ward by a duly authorized court, and who has qualified according to law, can make application to sell real estate. 4 The procedure is analogous to that in executor's and administrator's sales for pay- ment of debts. There are, however, a number of dif- ferences, owing to the broader power given a guardian than is possessed by an executor or administrator, the changes being such as are made necessary by the dif- ferent capacity in which the applicant acts. Before a license can be granted for the sale of the real estate of other wards than minors, the guardian must obtain a certificate from the county commis- sioners or board of supervisors of the county of which the ward is an inhabitant of their approval of the 1 Rev. Stats., c. 18, 136, 138, 139, [1675], [1677], [1678]. 2 L. O. L., 1346, 1347. 3 Rev. Stats., c. 18, 171, [1710], 4 Myers v. McGavock, 39 Neb. 670, 58 N. W. 522; Wells v. Steckle- berg, 50 Neb. 670, 70 N. W. 242; Shanks v. Seamcrad, 24 Iowa, 131. .(875) 527 PROBATE AND ADMINISTRATION. [Chap. 38 proposed sale, and that they deem it necessary. 5 The usual practice is to make a written application and attach the certificate of approval to the petition. Under the Oregon practice, a like certificate is re- quired of the county court. 6 The term "county court" as used in the above section is clearly the court which is composed of a judge and commissioners in charge of governmental or administrative duties of the county. The legislature never intended that the approval by a court of a proposed order should be a preliminary step to an application to the same court for such order. Guardian's sales in this state are proceedings in rem, and not adversary in their character. 7 Form No. 237. PETITION TO COUNTY COMMISSIONERS FOR APPROVAL OF PROPOSED SALE OF INCOMPETENT PERSON'S REAL ESTATE. To the County Commissioners of County, Nebraska: C. D., guardian of A. B., an incompetent person, respectfully repre- sents to your honorable body that said A. B. is an insane person over the age of twenty-one years, to wit, of the age of years, and is now confined in the Nebraska asylum for the insane at ; that said A. B. is possessed of no personal property except clothing, wearing apparel, and household furniture of the value of - - dol- lars ($ ), and that he is the owner of the following described real estate [describe real estate], and that said real estate is of the value of dollars ($ ); that said A. B. is indebted to various persons in the sum of dollars ($ ), and there is no property of said A. B. in the possession of your petitioner which can be applied to the payment of said debts, and your petitioner de- sires to obtain a license from the district court of county for the sale of said property for the payment of said debts. 5 Rev. Stats., c. 18, 137, [1636]. 6 L. O. L., 1335. 1 Hunter v. Buchanan, 87 Neb. 277, 127 N. W. 166; Huberman v. Evans, 46 Neb. 784, 65 N. W. 1045; Myers v. McGavock, 39 Neb. 843, 58 N. W. 522. (876) Chap. 38] GUARDIANS' SALES. 528 Your petitioner therefore respectfully requests your honorable body to certify to the judge of the district court of said county jour approval of said proposed sale. Dated this - day of , 19 . (Signed) C. D., Guardian of the Estate of A. B., an Incompetent Person. Form No. 238. CERTIFICATE OF APPROVAL BY COMMISSIONERS OP PROPOSED SALE. Whereas, C. D., guardian of the estate of A. B., an incompetent person, has made application to the commissioners of county for their approval of the proposed sale of the real estate of said A. B. for the purpose of paying his debts, we hereby certify that we have examined into the necessity of said proposed sale, and find it necessary for the best interests of said incompetent person, and we fully approve of the same. Dated this day of , 19 . (Signed) G. H., Chairman. Attest: (Seal) (Signed) E. F., Clerk of Commissioners. 528. What interest in lands may be sold. Any legal or equitable interest in lands may be sold under license of the court, including a reversion, 8 a remainder, 9 an undivided share, 10 a contingent re- mainder, 11 or other equitable interest. 12 Under this class of sales there appears to be no reason why the homestead of a person under guardianship may not be sold, 13 and there is authority to the effect that prop- 8 Foster v. Young, .35 Iowa, 27. Wallace v. Jones, 93 Ga. 419, 21 S. E. 89. 10 Gilmore v. Rodgers, 41 Pa. 120. 11 Dodge v. Stevens, 105 X. Y. 985, 12 X. E. 759. 12 Anderson v. Mather, 44 X. Y. 249. 13 Merrill v. Harris, 65 Ark. 355, 46 S. W. 398. 529 PROBATE AND ADMINISTRATION. [Chap. 38 erty devised to a minor under condition that it shall not be sold until he becomes of age may also be ordered sold. 14 A guardian's sale conveys only the interest of the ward in the estate sold, and does not affect the rights of lienholders or those holding vested or contingent estates therein. 15 529. Petition. When the application is made for a sale solely for the payment of debts, the contents of the petition are practically the same as in sales by executors and ad- ministrators. When made for other purposes, it- should also contain a description of all the real estate owned by the ward, give the condition of the land sought to be sold with encumbrances, if any, and the facts and circumstances showing that the best inter- ests of the ward will be subserved by such sale. 16 It should set out facts and not conclusions. The rule is that its contents must be sufficient to apprise the judge to whom the application for an order to show cause is made of the desirability of the sale. 17 It may allege as many grounds for applying for such sale as the statute permits, and if any one of them is sufficiently alleged, a sale made under a proper license will be good. 18 i* Fitch v. Miller, 20 Cal. 352; Southern Marble Co. v. Stegall, 90 Ga. 236, 15 S. E. 806. IB Cool's Heirs v. Higgins, 23 N. J. Eq. 308. 16 Huberman v. Evans, 46 Neb. 784, 65 N. W. 1045; L. O. L., 1351; Sprigg v. Stump, 8 Fed. 217. 17 Womble v. Trice, 112 Ky. 533, 66 S. W. 370, 67 S. W. 9. 18 Goldsmith v. Walker, 14 Or. 125, 12 Pac. 57. (878) Chap. 38] GUARDIANS' SALES. 529 It must be signed and verified by the guardian, but where verified by the attorney, it has been held good on collateral attack. 19 There is no such thing known to the law as an oral verified petition. 20 It should be filed with the clerk of the county where the lands are situated or a judge thereof sitting at chambers anywhere within the judicial district. 21 Form No. 239. PETITION OF GUARDIAN FOR LEAVE TO SELL REAL ESTATE OF HIS WARD FOR HIS EDUCATION AND MAINTENANCE AND FOR REINVESTMENT. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of the Estate of A. B., a Minor, for Leave to Sell Real Estate. Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of guardianship out of and under the seal of the county court of said county were issued to him upon the estate of A. B., a minor; that said A. B. is of the age of years, and now resides in said county; that said minor is the owner of personal property consisting of clothing, books, and house- hold furniture of the value of dollars, and is the owner of no other personal property; that he is the owner of the following de- scribed real estate [describe real estate, and give condition of the property and income therefrom] ; that said A. B. is now a student in Dartmouth College, New Hampshire, and the cost of his tuition, board, traveling and other expenses is about the sum of seven hundred dol- lars ($700) per year, and the income from said realty is insufficient to pay said expenses; that your petitioner has an opportunity to invest the sum of dollars of the proceeds of said sale, should the same be made, in a note secured by first mortgage on real estate bearing interest at the rate of seven per cent per annum. i Hamiel v. Donnelley, 75 Iowa, 93, 39 N. W. 210; Ellsworth v. Hall, 48 Mich. 407, 12 N. W. 512; Myers v. McGavock, 39 Neb. 843, 58 N. W. 522. 20 State v. Dodge County, 20 Neb. 595, 31 N. W. 117. 21 Stewart v. Daggy, 13 Neb. 290, 13 N. W. 399; Dietrichs v. Lin- coln & N. W. E. Co., 14 Neb. 356, 15 N. W. 728. (879) 530 PROBATE AND ADMINISTRATION. [Chap. 38 Wherefore, your petitioner prays that a license may be granted him to sell said real estate, or so much thereof as may be deemed by the court advisable and for the benefit of the ward, and for such other and further relief as may be just and equitable. (Signed) C. D., By A. B. H., His Attorney. [Add verification.] 530. Order to show cause Service. If it shall appear from the petition that it is neces- sary or would be beneficial to the ward that a sale be made of any part of his real estate, an order is made by the court directing the next of kin of the ward and all persons interested in the estate to appear before the court at a time and place therein specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for the sale of such estate. 22 The order should contain a description of the land sought to be sold and the purpose of the sale. 23 Personal service may be had on the next of kin and interested parties at least fourteen days before the date of hearing, or by publication in some newspaper of the county for three successive weeks, as the court may direct; 24 Oregon, ten days. 25 Such service is juris- dictional. 26 Notice to the ward himself is not neces- sary. As far as he is concerned, it is not an adversary 22 Eev. Stats., c. 18, 143, [1282]; L. O. L., 1352. 23 Deford v. Mercer, 24 Iowa, 118. 24 Kev. Stats., c. 18, 144, [1683]. 25 L. O. L., 1353. 26 Clark v. Nebraska Sav. Bank, 50 Neb. 669, 70 N. W. 237; Wells v. Stecklenberg, 50 Neb. 670, 70 N. W. 242. (880) Chap. 38] GUARDIANS' SALES. 530 proceeding, but in effect his application. 27 Before the sale is made, a copy of the order, if issued at chambers, must be filed with the clerk of the district court. 28 Form No. 240. ORDER TO SHOW CAUSE WHY LICENSE SHOULD NOT ISSUE TO GUARDIAN FOR SALE OF HIS WARD'S REAL ESTATE TO RAISE FUNDS FOR HIS MAINTENANCE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of the Person and Estate of A. B., a Minor, for Leave to Sell Real Estate. On reading and filing the petition, duly verified, of C. D., guardian of the person and estate of A. B., a minor, for license to sell the fol- lowing described real estate [describe real estate as in petition], or a part thereof, for the purpose of raising funds for the education and maintenance of said minor, and it appearing from said petition that said real estate consists of [unimproved lots in the city of Omaha, county, Nebraska, and no income is obtained therefrom] : It is therefore ordered that the next of kin of said minor and all persons interested in said estate appear before me at chambers in the courthouse in the city of , county, Nebraska, on the day of , 19 , at 9 o'clock A. M., to show cause, if any there be, why license should not be granted to said C. D., 'guardian, to sell said real estate for the purposes above set forth. And it is further ordered that a copy of this order be personally served on all persons interested in said estate at least fourteen days before the date set for the hearing; [published once each week for three successive weeks in the , a newspapr printed and pub- lished in said county of ]. Dated at chambers in said county this day of , 19. (Signed) C. H., Judge of the District Court, County, Nebraska. 27 Hunter v. Buchanan, 87 Neb. 277, 127 N. W. 166; Myers v. Mc- Gavock, 39 Neb. 843, 58 N. W. 522; Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 324; Mohr v. Porter, 51 Wis. 437, 8 N. W. 364. 28 Rev. Stats., c. 18, 119, [1688]. 56 Pro. Ad. (881) 531 PROBATE AND ADMINISTRATION. [Chap. 38 531. Hearing on application for sale. The hearing must be had at the time and place designated in the notice. 29 The next of kin and all other persons interested in the estate as heirs appar- ent or presumptive may appear before the court and contest the application. The guardian and witnesses may be examined under oath and process may be is- sued by the judge as in other cases. 30 It is the duty of the court to determine on the ex- amination whether it is for the benefit of the ward that his real estate or a part thereof should be sold for his maintenance or education or for investment. 31 If he finds it necessary or desirable to sell a part of the land and that by such sale the whole tract would be greatly injured, he may direct a sale of the whole or a part, or such part as he may deem necessary. 32 "On the district court judges the law has conferred the exclusive power to say whether the facts exist which justify a sale of a ward 's property by his guard- ian; to say whether the sale is a necessity to which the ward must submit; to say whether, in the judg- ment of the court, the sale asked to be authorized is for the best interests of the minor. This is a great discretion and a sacred trust confined to the district judges by the law, and they are thus made the guard- ians of the orphans of the commonwealth. Their au- thority to authorize a guardian on his application to 2 Rev. Stats., c. 18, 146, [1685]; Knickerbocker v. Knickerbocker, 58 HI. 399. so Rev. Stats., c. 18, 145-147, [1684], [1685], [1686]. 31 Rev. Stats., c. 18, 148, [1687]. 32 Rev. Stats., c. 18, 150, [1689]. (882) Chap. 38] GUABDIAXS' SALES. 532 sell his ward's real estate was not meant to be ex- ercised as a matter of course, but only after inquiry and investigation into all the facts and circumstances; and not then unless the mind of the court is convinced that such sale is a necessity or is for the best interests of the ward." 33 532. License. The license should describe the property to be sold. 84 It must specify whether the sale is to be made for the maintenance of the ward and his family, or for the education of the ward and his children, or in order that the proceeds may be put out and invested. If the property appears to be less in value than five hun- dred dollars, the district judge may direct the guard- ian to sell at private sale; otherwise it must be at public auction. 35 The statute does not require him to fix the terms of the sale, and that matter may be left to the discretion of the guardian. In Oregon it may be at either public or private sale, as the judge may order. 36 Form No. 241. LICENSE TO GUARDIAN TO SELL REAL ESTATE OF WARD. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of the Person and Estate of A. B., a Minor, for Leave to Sell Real Estate. Now, on this day of , 19 , at the hour of 9 A. M., this cause came on for hearing on the petition of C. D., guardian of the person and estate of A. B., a minor, for leave to sell the follow- 33 Myers v. McGavock, 39 Neb. 843, 58 N. W. 522. 34 Huberman v. Evans, 46 Neb. 744, 64 N. W. 1045. 35 Rev. Stats., c. 18, 148, [1687]. 36 L. O. L., 1357. (883) 533 PROBATE AND ADMINISTRATION. [Chap. 38 ing described real estate of his said ward [describe real estate as in petition], and the evidence, and was submitted to the court; and it appearing to me from the proof on file that proper notice of the time and place of hearing said petition has been given the next of kin and all persons interested in said estate [that said proposed sale has been duly approved by the county commissioners of said county, Nebraska, of which county said A. B. is a resident, and a certificate of their approval filed with the court] ; and it further appearing to me, after a full hearing on the petition and an examination of the proofs and allegations of the parties, that it would be for the benefit of said ward that said real estate be sold to defray the necessary expenses of the education and maintenance of the ward, and for the purpose of reinvesting the balance of the proceeds in interest-bearing securities or some productive stock, it is therefore ordered and ad- judged by me, in consideration of the premises, that the said C. D., guardian, be and he hereby is licensed to sell, in the manner pre- scribed by law, the real estate above described, subject to all the liens and encumbrances existing upon said premises. That prior to said sale said guardian give a bond as required by law in the penal sum of dollars. Given under my hand at chambers in judicial district this day of , 19. (Signed) W. M., Judge of the District Court, County. 533. Bond and oath. Every guardian licensed to sell real estate is re- quired to give a bond, with sufficient surety or sureties to be approved by the judge, conditioned to sell the same in the manner prescribed by law for the sales of real estate by executors and administrators, and to account for and dispose of the proceeds of the sale in the manner provided by law. 37 The bond is jurisdictional. The district judge is vested with no authority in the matter, and must take 37 Rev. Stats., c. 18, 151, [1690]; L. O. L., 1355. (884) Chap. 38] GUARDIANS' SALES. 533 and approve, if in proper form and sufficient surety, a bond running to himself as obligee. The clerk is without authority to approve it. 38 It is not necessary that it be formally approved if it appears to have been presented to the judge during a session of court and directed by him to be delivered to the clerk. 39 If the land is sold at private sale, it is conditioned to dis- pose of the proceeds of the sale as provided by law. He is also required to take an oath substantially the same as that of an executor on sale of real estate. 40 This is also jurisdictional, and unless taken within the specified time, he is without authority to sell. 41 Form No. 242. GUAEDIAX'3 BOND ON SALE OF REAL ESTATE. Know all men by these presents, that we, C. D., as principal and E. F. and G. H., as sureties, all of county, Nebraska, are held and firmly bound onto C. H., judge of the district court of said county, in the penal sum of dollars ($ ), for which payment well and truly to be made we do hereby jointly and severally bind our- selves, our heirs, executors, administrators, and assigns, by these presents. Dated this day of , 19 . Whereas, on the day of , 19 , the Honorable C. H., judge of the district court of said county, sitting at chambers, issued his license to C. D., guardian of the person and estate of A. B., a minor, for the sale of the following described real estate, for the pur- pose of [state for what purpose sale is to be made], [describe real estate as in petition]. 38 Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485. 39 Hunter v. Buchanan, 87 Neb. 277, 127 N. W. 166. *o Eev. Stats., c. 18, 152, [1691]; L. O. L., 1356. 41 Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485; Fuller v. Hager, 47 Or. 242, 83 Pac. 782; Blackman v. Bauman, 22 Wis. 611; Campbell v. Knights, 26 Me. 224. (885) 534 PROBATE AND ADMINISTRATION. [Chap. 38 Now, therefore, the condition of this obligation is such that, if the said C. D. shall sell said real estate as ordered in the license hereto- fore issued by said C. H., district judge, and in the manner prescribed by law for the sales of real estate by executors and administrators, and account for and dispose of the proceeds of said sale in the manner provided by law, then this obligation to be null and void; otherwise to be and remain in full force and effect. (Signed) C. D. E. F. G. H. The foregoing bond approved by me this day of , 19 . (Signed) C. H., Judge of the District Court, County, Nebraska. 534. The sale. Except when the property is worth less than five hundred dollars, notice of the time and place of sale must be given by publication, and posting notices in the same manner as in the case of sales for the payment of debts, and evidence of such notice may be perpetuated in the same way. 42 Its contents should be the same. It should contain a description of the property to be sold sufficiently accurate to enable it to be identified. 43 Like an executor's or administrator's sale, it need not be made by the guardian personally, but may be conducted by his attorney or auctioneer under his per- sonal direction. 44 Where the terms have been fixed by the court, he can make no contract or agreement not in accordance therewith, nor confirm or ratify any 42 Eev. Stats., c. 18, 153, [1692]; L. O. L., 1357. 43 Kenniston v. Leighton, 43 N. H. 309. 44 Myers v. McGavock, 39 Neb. 843, 58 N. W. 522; Levara v. McNeeny, 5 Neb. Unof. 318, 98 N. W. 179. (886), Chap. 38] GUARDIANS' SALES. 534 deed or agreement made by Ms ward. Such act of the ward is void. 45 The sale must be made to the highest bidder, without regard to any prearranged contract or agreement with the purchaser, or any subsequently made which are not within the terms of the license. 48 A guardian may lawfully make an agreement with an intending purchaser by which the latter is to bid a certain price at the sale. If no one bids more and the price is adequate, the sale is valid, and the pur- chaser cannot set up the defense that the agreement was contrary to public policy and that he is conse- quently released from liability. 47 The guardian cannot be a purchaser, and where there is evidence of collusion between him and a pur- chaser from whom he subsequently acquired the land, it has been held that no title passed, and that the in- terests of the ward were not divested. 48 The license continues in force for one year, and the sale may be made at any date within that time after proper notice. 49 45 Gaylord v. Stebbins, 4 Kan. 42; Worth v. Curtis, 15 Me. 228. 46 Doty v. Hubbard, 55 Vt. 278. 47 Hyatt v. Anderson, 69 Xeb. 702, 96 N. W. 620. 48 McKay v. Williams, 67 Mich. 547, 35 N. W. 159; Winter v. Truax, 87 Mich. 324, 49 N. W. 604; Carpenter v. McBride, 3 Fla. 292. 49 Eev. Stats., c. 18, 153, [1692]. (887) 534 PROBATE AND ADMINISTRATION. [Chap. 38 Form No. 243. EETUEN OF GUAEDIAN ON SALE OF HIS WAED'S EEAL ESTATE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of the Person and Estate of A. B., an Incompetent Person, for Leave to Sell Eeal Estate. To the Judge of the District Court of County, Nebraska: I, C. D., guardian of the person and estate of A. B., an incompe- tent person, herewith make return of my proceedings on the sale of the following described real estate [describe property the same as in the petition and license], pursuant to license granted to me on the day of , 19. That, in pursuance of said license, I, on the day of 19 , took and subscribed the oath required by law before C. F. D., a notary public of said county, and filed the same in this court; on the same day I filed a bond as required by said license, which was on said day duly approved by the Honorable C. H., judge of said court; that I obtained a "certificate of approval of said proposed sale from the board of supervisors of said county, and the same is on file herein, and thereupon I gave public notice of the time and place of said sale by publication of the same in the , a newspaper printed and published in said county, for three successive weeks, as required by said license [that attached hereto, marked "Ex. A," and made a part hereof, is the affidavit of E. F., foreman of the said , of the publication of this notice], and by posting said notice in three of the most public places in said county of [that at- tached hereto, marked "Ex. B," and made a part of this return, is the affidavit of G. H. of the posting of said notices] ; that in pursuance of the terms of said notice, and at the time and place mentioned therein [if an adjournment was had, state to what time and place, and how notice thereof was given], I offered said real estate for sale at public auction to the highest bidder for cash, and kept said sale open for one hour, and sold said real estate to L. M. for the sum of dollars ($ ), he being the highest bidder therefor, and said being the highest sum bid; that said sale was in all respects fairly conducted, and I exerted my best endeavors to sell said real estate in such a manner as would be for the advantage of all persons (888) Chap. 38] GUARDIANS' SALES. 535 interested in said estate, and of said ward; and, in my opinion, no greater sum than the amount specified can be obtained for the same. I. further report that, of the amount so received by me, the sum of dollars ($ ) will be necessary for the support and maintenance of said ward and his family, and for the payment of the costs of this proceeding, and that the balance of about dollars will remain in my hands for investment, pursuant to the order of the court. Dated this day of , 19. (Signed) C. D., Guardian of the Person and Estate of A. B., an Incompetent Person. 535. Confirmation of guardian's sales. There is no statute providing for the confirmation of guardian's sales except the general one that they shall be conducted in the same manner as those by executors and administrators for the purpose of pay- ing debts of their decedents. Confirmation of such sales has always been the practice in this state, and such is the clear intent of the law.. In the leading case on guardian's sales, 50 the court practically held it necessary by its decision that cer- tain findings of the district judge on strictly jurisdic- tional matters were presumed to be based on sufficient evidence and not subject to collateral attack. The petition, order to show cause and proof of ser- vice of same, when granted at chambers, should be filed in the office of the clerk of the district court. The procedure for confirmation should be the same as in executor's and administrator's sales, except that when sales are for the purpose of reinvestment or a surplus remains in the hands of the administrator not needed for present necessities, the court may specifically 60 Myers v. McGavock, 39 Neb. 843, 58 N. W. 522. (889) 535 PROBATE AND ADMINISTRATION. [Chap. 38 direct how it be invested, or instruct the guardian to invest according to his best judgment. 51 The residue of the proceeds remaining in the hands of a guardian upon the final settlement of his accounts is considered and disposed of as real estate. 52 Confirmation cures the same irregularities as in executor's and administrator's sales, and, as in them, never renders a sale valid where some act is omitted which the statute requires in order to convey a good title. 53 Form No. 244. CONFIRMATION OF GUARDIAN'S SALE. In the District Court of County, Nebraska. In fhe Matter of the Application of C. D., Guardian of A. B., an Incompetent Person, for License to Sell Real Estate. An order to show cause why the sale of the following described real estate, , should not be confirmed having been made on the day of , 19, and given to all persons interested therein, and it appearing to me that notice was given of the time and place of said sale according to law, that the sale of said real estate was had according to notice, was legally made and fairly conducted, and that the sum bid is not disproportionate to the value of the property sold, it is therefore ordered and adjudged by me that the said sale be and hereby is confirmed, and that said C. D., guardian of A. B., an incompetent person, is hereby directed as such guardian to execute a deed of conveyance to E. F., the purchaser of said premises. And it further appearing that said C. D., guardian as aforesaid, has in his possession of the proceeds of said sale the sum of dollars, and that the sum of dollars thereof is not needed for the immediate necessities of said ward or his family, it is further ordered that said guardian invest said sum of dollars in a note 51 Rev. Stats., c. 18, 140, [1679]. 62 Rev. Stats., c. 18, 141, [1680]. 53 Blackman v. Bauman, 22 Wis. 611. (890) Chap. 38] GUARDIANS' SALES. 536 or notes secured by mortgage on real estate of at least double the value of the loan. Dated this day of , 19 . (Signed) W. M., Judge of District Court. A guardian's deed is substantially the same as that of an executor or administrator. 54 536. Sales by foreign gnardians. When any minor, insane person or spendthrift resid- ing out of this state shall be put under guardianship in the state or country in which he resides and shall have no guardian appointed in this state, the foreign guardian may file an authenticated copy of his ap- pointment in the district court of any county in which his ward may own real estate, and obtain a license for the purpose of paying debts and the expenses and charges of managing the estate. 55 The certified copy should be proved by the authentication of the clerk, under the seal of the court, together with a certificate of the judge, or a presiding magistrate, that the attestation is in due form of law. 56 If the attestation is irregular on its face but it appears that the court found that the party making the application was the duly qualified guardian, the finding will not be dis- turbed on collateral attack. 57 The petition, notice or order to show cause, and service of same, hearing, license, notice of sale, oath and sale are the same as in sales by a domestic guard- 54 See 337, Form No. 157. 55 Rev. Stats., c. 18. 155, 156, [1694], [1695]; L. O. L., 1359. 5 Civ. Code. 422. 6T Myers v. McGavock, 39 Neb. 843, 58 N. W. 522. (891) 536 PROBATE AND ADMINISTRATION. [Chap. 38 ian. If he is licensed to sell more than enough to pay the debts and expenses of managing the estate, he is required, before making the sale, to give a bond to the district judge with sufficient sureties to account for all the proceeds of such sale that shall remain after the payment of said debts and charges and to dispose of the same according to law. 58 If it shall appear that he is bound by sufficient sureties in the state or coun- try where he was appointed to account for the pro- ceeds of such sale, and an authenticated copy of such bond is filed in the district court, no further bond shall be required. 59 The proceeds of such sale are considered real estate the same as in case of sales by domestic guardians. 60 Under the Oregon statutes, the proceedings for a sale by a foreign guardian are the same as those of a home representative, 61 and if objections are filed, costs may be awarded by the court, in its discretion, to the prevailing party. 62 Form No. 245. BOND OF FOEEIGN GUARDIAN ON SALE OF REAL ESTATE FOR PAYMENT OF DEBTS. Know all men by these presents, that C. D., of the county of Cook and state of Illinois, as principal, and E. F. and G. H., of county, Nebraska, as sureties, are held and firmly bound unto the Honorable W. M., judge of the district court of county, Ne- braska, in the penal sum of dollars ($ ), for which pay- ment well and truly to be made we do hereby bind ourselves, our heirs, executors, administrators, and assigns, jointly and severally, firmly by these presents. Dated at , county, Nebraska, this day of , 19-. 58 Rev. Stats., c. 18, 157, 158, [1696], [1697]; L. O. L., 1362. 59 Rev. Stats., c. 18, 159, [1698]. 60 Rev. Stats, c. 18, 160, [1699]. 61 L. O. L., 1360. 62 L. O. L., 1363. (892) Chap. 38] GUABDIANS' SALES. 537,538 Whereas, C. D. has filed an authenticated copy of the letters of guardianship upon the estate of A. B., a minor, issued to him out of and under the seal of the probate court of Cook county, Illinois, has made application for license to sell the real estate of his said ward situated in said - county, Nebraska, and the proceeds of the sale of said lands will more than pay the debts of said ward, and said district judge has ordered a sale thereof upon the filing by the said C. D., guardian, of the bond required by law: Now, therefore, the condition of this obligation is such that if the eaid C. D., guardian of the estate of A. B., a minor, shall account before said district judge for all the proceeds of said sale that shall remain after the payment of the debts and charges against his said ward, and dispose of the same according to law, then these presents to be null and void; otherwise to be and remain in full force and effect. (Signed) C. D. E. F. G. H. The foregoing bond and sureties approved by me this - day of (Signed) W. M., Judge of the District Court, - County. 537. The rule of caveat emptor. The purchaser at a guardian's sale, or a purchaser from a vendee of a guardian and subsequent pur- chasers, must take notice at their peril of the regular- ity of the proceedings and the consequent right of the guardian to convey the property. Courts have uni- formly treated guardians' sales as strictly judicial, and calling for a strict application of the rule of caveat emptor 538. Disposition of the proceeds. If the sale is made for the maintenance of the ward and his family, or the education of the ward, the guard- as Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485. (893) 538 PROBATE AND ADMINISTRATION. [Chap. 38 ian shall apply the proceeds for that purpose so far as necessary, and shall put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital shall be wanted for the maintenance of the ward and his family, or for the education of the ward, if a minor, or the children of a ward who is a drunkard or an incompetent person, in which case the principal may be used for that purpose as far as may be necessary, in like manner as if it had been personal estate of the ward. 64 If sold for the purpose of rein- vestment, the guardian shall make the investment according to his best judgment, or in pursuance of any order that shall be made by the district court. 65 The guardian is obliged to apply the proceeds of the sale for that purpose for which the sale was author- ized, 66 and the purchaser has no interest in the applica- tion of the proceeds. His interest in the matter ceases as soon as he pays the money. 67 The court may in- clude in the order for confirmation an order for the investment of the proceeds of the sale, or a part thereof, in such securities as he shall deem to be for the benefit of the ward. For the purposes of descent, the proceeds of the sale of the guardian's real estate are considered as still retaining their character as realty, 68 but they lose that character and become personalty as soon as transmitted to an infant. 69 64 Kev. Stats., c. 18, 138, [1667]. 65 Rev. Stats., c. 18, 139, [1669]; L. O. L., 1349. 66 Strong v. Moe, 8 Allen (Mass.), 125; Harding v. Lamed, 4 Allen (Mass.), 426. 67 Mulford v. Beveridge, 78 111. 455. s Rev. Stats., c. 18, 141, [1680]; L. O. L., 1356, 1362. 69 Dyer v. Cornell, 4 Pa. 359; Holmes' Appeal, 53 Pa. 339; Kent, Com., 230. (894) Chap. 38] GUARDIANS' SALES. 539 If the guardian has obtained authority to complete a real estate contract or option made by a decedent in his lifetime, the court may authorize him to execute a note or notes and mortgage on the purchase price. 70 539. Actions for recovery of lands sold by guard- ians. No action for the recovery of real estate sold by a guardian can be brought by the ward or any person claiming under him, unless it shall be commenced within five years next after the termination of the guardianship, excepting only that persons out of the state, and minors and others under legal disability to sue at the time when the cause of action shall accrue, may commence their action at any time within five years next after the removal of their disability, or after their return to this state. 71 The validity of these sales is more frequently tested in actions of this kind than in the proceedings for the sale. As a general rule, a guardian's sale cannot be at- tacked collaterally except for the existence of certain irregularities enumerated by the statute, and which are statutory grounds for holding the sale invalid, or some irregularity which goes to tlie jurisdiction of the judge or the court which granted the license. 72 In such actions, the sale shall not be avoided on account of any irregularity in the proceedings, provided it shall appear First, that the guardian was licensed to make 70 Bev. Stats., c. 18, 178, [1717] ; L. O. L., 1350. 71 Seward v. Didier. 16 Neb. 64, 20 N. W. 12. 72 Walker v. Goldsmith, 14 Or. 125, 12 Pac. 537; Huberman v. Evans, 46 Neb. 784, 65 N. W. 1045; Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 324; Davidson v. Bates, 111 Ind. 391, 12 N. E. 687. (895) 539 PROBATE AND ADMINISTRATION. [Chap. 38 the sale by a district court of competent jurisdiction; second, that he gave a bond which was approved by the judge of the district court, in case any bond was required by the court upon granting the license; third, that he took the oath prescribed in this subdivision; fourth, that he gave notice of the time and place of sale, as prescribed by law; fifth, that the premises were sold, accordingly, at public auction, and are held by one who purchased in good faith. 73 If all these statu- tory requirements have been complied with, and the court has acquired jurisdiction of the premises, though the proceedings may have been grossly irregular, and the sale such a one as the court would set aside upon an appeal, it would be sustained in a collateral action. 74 All other provisions of the law regulating sales are presumed by the courts to be regular. 75 The act to cure defects in deeds, 76 by which a guard- ian 's deed on the sale of his ward's real estate for a valuable consideration, which consideration has been paid to the guardian or his successor in good faith, and which sale has not been set aside by the county court but has been confirmed or acquiesced in by such court, makes the deed good although the guardian failed to take the statutory oath before fixing the time and place of sale as the statute demands. 77 73 Rev. Stats., c. 18, 164, [1703]; L. O. L., 1335. 74 Larimer v. Wallace, 36 Neb. 444, 54 N. W. 835; McCullough v. Estes, 20 Or. 349, 25 Pac. 724. 75 Hobart v. Upton, 2 Saw. 302; Gager v. Henry, 5 Saw. 237; Walker v. Goldsmith, 14 Or. 125, 12 Pac. 537; McCullough v. Estes, 20 Or. 349, 25 Pac. 724. 76 Laws 1899, p. 63; L. 0. L., 7164. 77 Fuller v. Hager, 47 Or. 242, 83 Pac. 782. Section 7164 appears to have been enacted as a curative section, applying only to sales previous to its enactment, February 18, 1899, but the court in the (896) Chap. 38] GUARDIANS' SALES. 540,541 540. Estoppel of former ward. If after a minor ward becomes of age, or after the in- competency of an adult ward is removed, he makes a settlement with his former guardian and receives money from him with knowledge that a portion of the funds is derived from the sale of his lands, he will be held to have ratified or confirmed the sale, and is estopped from denying its validity. 78 If he received the money with knowledge that it was a part of such proceeds, his lack of knowledge of gross irregularities in the sale does not change the rule. 78 If he received no part of the proceeds on such set- tlement, 80 though they may have been used for his support, maintenance and education, the doctrine of estoppel does not apply. 81 541. Action by party claiming adversely to the former ward. The provisions of the statute defining the proceed- ings necessary for a valid sale of a ward's lands are for the benefit of the ward. No one claiming ad- Fuller case treated it as one of general application. As taking the oath has been held not a jurisdictional defect, the subdivisions requir- ing a bond and notice would probably follow the same rule, that is, that except in case of fraud, failure to comply with them could only be raised on confirmation or motion to set aside the order. Under this section, also, the purchaser in good faith, if he has not already received a deed, is entitled to one. 78 Handy v. Noonan, 51 Miss. 166; Hatcher v. Briggs, 6 Or. 31; Brazee v. Schofield, 2 Wash. Ter. 209, 3 Pac. 265. 79 Borcher v. McGuire, 85 Neb. 646, 124 N. W. Ill; Kulp v. Heimann, 90 Neb. 167, 133 N. W. 206. 80 Kazebeer v. Nunemaker, 82 Neb. 732. 118 N. W. 646. 81 Rowe v. Griffiths, 57 Neb. 488, 78 N. W. 20; Wilkinson v. Filby, 24 Wis. 441. 57 Pro. Ad. (897) 542 PROBATE AND ADMINISTRATION. [Chap. 38 versely to him or under any title not traced to him can question the validity of the sale, 82 even though the ward was defrauded by the sale. 83 542. Collateral attack on the license. The principles governing collateral attack on guard- ians ' sales of real estate are substantially the same as in the case of attack on executors' and adminis- trators' sales. A valid license can only be granted to a person who is the duly appointed guardian of the ward whose property is to be sold. 84 Letters issued on the estate of an adult ward without notice, 85 or from a county in which the ward had no property and was not a resident, give him no rights. 86 A defect in the authentication of the letters of a foreign guardian is cured by the order of confirmation in which the court found that the guardian was duly qualified. 87 His license must issue under the seal of a "district court of competent jurisdiction," by which is meant, in the case of a domestic guardian, that of the county in which he was appointed, 88 and in the case of a foreign representative, that of the county in which his 82 Michel v. Borders, 129 Ind. 529, 29 N. E. 29. 83 Marvin v. Schilling, 12 Mich. 46. 84 Wells v. Stecklenberg, 50 Neb. 670, 70 N. W. 242; Grier's Appeal, 101 Pa. 412; McKee v. Thomas, 9 Kan. 343; Paty. v. Smith, 50 Cal. 153. 85 Severns v. Gerke, 3 Saw. 353. 86 In re Hubbard, 82 N. Y. 90; Palmer v. Oakly, 2 Doug. (Mich.) 433; Shroyer v. Richmond, 16 Ohio St. 455. 87 Myers v. McGavock, 39 Neb. 843, 58 N. W. 522. 88 Huberman v. Evans, 46 Neb. 784, 65 N. W. 1045. (898) Chap. 38] GUARDIANS' SALES. 543 letters were filed, 89 such being the only courts having jurisdiction. 90 The sale will be good, though the description in the license was defective or erroneous, if it provided suffi- cient means for identifying the property. 91 A sale without any license whatever is void. 93 543. Collateral attack Bond and oath. A guardian's sale without a bond being given is void on collateral attack by the former ward. 93 If it contains no indorsement of approval by the court, evi- dence may be given to show that it actually was so 89 Eev. Stats., c. 18, 155, [1694]. 90 Spellman v. Dowse, 79 HI. 66. 91 Huberman v. Evans, 46 Neb. 784, 65 N. W. 1045; Bray v. Adams, 114 Mo. 486, 21 S. W. 853; Muarr v. Parrish, 26 Ohio St. 636. In Huberman v. Evans, the petition prayed for the sale of lots 4, 5 and 6. block W, Lowe's addition to the city of Omaha, Nebraska, together with other property There was no block W in Lowe's addition. The wards owned lots 4, 5 and 6, in block U. A license was granted the guardian for the sale of the property as described in the petition. The notice of sale correctly described the lots as 4, 5 and 6, in block U. A sale was had and confirmed, and deed ordered, which was subsequently executed and delivered, and which contained a correct description of all the lots owned by the wards. The court held that the sale divested the wards of all their interest, placing their reasons therefor upon the principle that, in the proceedings to sell the real estate of a ward, the description need not be more specific and definite than is required of a conveyance of real estate and that a deed whose granting clause conveyed all the grantor's lands within a certain county or city is not void for indefiniteness. 92 Ludlow's Heirs v. Park, 4 Ohio St. 5; Newcomb's Lessee v. Smith, 5 Ohio St. 448; Bell's Appeal, 66 Pa. 492; Toppett v. Mize, 30 Tex. 361. 93 Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485. (899) 544 PROBATE AND ADMINISTRATION. [Chap. 38 approved. 94 A failure to take the oath also invali- dates the sale. If taken after the date is fixed, it is a nullity. 95 An oath taken by the attorney retained by the guardian to take charge of the proceedings is also void. 96 544. Collateral attack Notice of sale and sale. While notice of the sale must be given by both posting and publication as provided by law, and the statute directs how proof of giving the notice shall be made, the method is not .xclusive, and other evidence is admissible on collateral attack to show that notice was actually given. 97 A guardian is without authority to purchase his ward's real estate at his own sale, either directly or through a third party. 98 A purchaser of such lands which have been bid in by the guardian during their minority or until after the statute of limitations has expired is chargeable with notice of his want of title. 99 The sale may be set aside for fraud or collusion be- tween the guardian and the purchaser. 100 94 Section 533, supra. 95 Card v. Deans, 84 Neb. 4, 120 N. W. 440; Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485; Ryder v. Flanders, 30 Mich. 336. 96 Levara v. McNeeny, 5 Neb. Unof. 318, 98 N. W. 679. 97 Larimer v. Wallace, 36 Neb. 444, 54 N. W. 825. 98 Brown v. Fisher, 77 Minn. 1, 79 N. W. 494; Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24; Aaronstein v. Irvine, 49 La. Ann. 1478, 22- South. 405. 99 Kazebeer v. Nunemaker, 82 Neb. 732, 118 N. W. 646; Albers v. Kosleuh, 68 Neb. 523, 94 N. W. 521, 97 N. W. 646; Neary v. Neary, 70 Neb. 319, 97 N. W. 302. 100 Southern Marble Co. v. Stegall, 90 Ga. 236, 15 S. E. 806; Dornetizer v. German Sav. Soc., 23 Wash. 132, 32 Pac. 682. (900) Chap. 38] GUARDIANS' SALES. 545 545. Mortgage of minor's lands Application. A guardian has no power to encumber his ward's lands by mortgage, except under a license granted him by a court which is given by statute jurisdiction over the same. 101 The district court of the county from which letters issued, or a judge thereof sitting at chambers anywhere within the judicial district, has power to grant such license to the guardian of a minor whenever it appears necessary to obtain funds for the support or education of the ward. The proceedings are commenced by the presentation of a petition, which should be substantially in the same form as a petition for license to sell the lands for the same pur- poses, with additional allegations setting out the par- ticular grounds which would make a mortgage prefer- able to a sale. An order is thereupon entered fixing the date for a hearing, which cannot be less than eleven days from its date. A copy of the petition with notice must be served on the minor in the same manner as a summons at least ten days before the hearing. 102 The Oregon county court has no jurisdiction to license any guardian to mortgage the estate of his ward for any purpose. 103 Although section 1328, L. 0. L., provides that a guardian may mortgage the real estate of his ward for the purpose of obtaining funds for his support, maintenance, support of his family or the care of his estate, there is no section of the statutes giving the county court power to author- ize the same, and it is a doubtful question whether under the code the circuit court has such power. 101 Trutch v. Bunnell, 11 Or. 58, 4 Pac. 588. 102 Rev. Stats., c. 18, 165, 166, [1704], [1705]. 103 Trutch v. Bunnell, 11 Or. 58, 4 Pac. 588. (901) 545 PROBATE AND ADMINISTRATION. [Chap. 38 Form No. 246. PETITION BY GUARDIAN FOR AUTHORITY TO MORTGAGE REAL ESTATE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of A. B., a Minor, for License to Mortgage Real Estate. Comes now C. D., guardian of A. B., a minor, and respectfully represents unto the court that said A. B. is of the age of 18 years and a resident of , in said county; that said ward is the owner of the following described real estate, , consisting of a house and lot in the city of , which is of the value of dollars, and is free and clear of all liens and encumbrances; that said A. B. is possessed of no personal property save and except personal belong- ings, and has no income save and except what he may earn by labor and the sum of dollars per month rent from said real estate. That said A. B. has completed the high school course in the public schools of said city of , and is desirous of attending the state university to fit himself for the profession of , and will be unable to earn a sufficient amount during his vacations to pay his necessary expenses while at said university, and that the total amount necessary to defray the expenses of said A. B. at said university until he becomes of lawful age, after first deducting the income from said real estate, is about the sum of dollars. That your petitioner will be able to borrow the sum of dol- lars, to be secured by a mortgage on said premises due in five years, with interest at six per cent per annum payable annually. Your petitioner therefore prays that an order of said court be made and entered authorizing and directing him, said C. D., guardian as aforesaid, to execute and deliver a mortgage on said premises in the sum of dollars, with interest at six per cent per annum, payable annually, and accompanying note or notes, for the purpose of the support and education of said A. B. (Signed) C. D., Guardian. [Add verification.] (902) Chap. 38] GUARDIANS' SALES. 5-1G Form No. 247. NOTICE TO WARD. State of Nebraska, County of , ss. To A. B. You are hereby notified that C. D., guardian of you, the said A. B., will on the day of , 19 , make application to the dis- trict court of said county, at the hour of 10 A. M. of said day, or as soon thereafter as counsel can be heard, for an order authorizing said C. D. to execute a mortgage on lands belonging to you, said A. B. A copy of said application is hereto attached. Dated this day of , 19 . C. D., Guardian. 546. Proceedings on the application. On the day fixed for the hearing, the court may with- out further notice enter the order prayed for, or direct a postponement of the matter, and order further notice by publication, or otherwise, or direct a reference for the purpose of ascertaining the propriety of ordering the mortgage. 104 The order granting the petition must be made a matter of record. It should give the amount and terms of the mortgage and authorize the guardian to execute the same in his own name. 105 Before executing the mortgage a bond in double the amount thereof, conditioned to account for the pro- ceeds, must be given by the guardian. 108 When the application is resisted, costs may be awarded the pre- vailing party, and when satisfied that no reasonable grounds exist for the application, they may be taxed against the guardian individually. 107 104 Rev. Stats., c. 18, 167, [1706]. 105 Rev. Stats., e. 18, 170, [1709]. 106 Rev. Stats., c. 18, 168, [1707]. 107 Rev. Stats., c. 18, 169, [1708]. (903) 547 PROBATE AND ADMINISTRATION. [Cliap. 38 Form No. 24.8. ORDER AUTHORIZING GUARDIAN TO EXECUTE MORTGAGE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of A. B., a Minor, for License to Mortgage Real Estate. Now, on this day of , 19 , this matter came on to be heard on the application of C. D., guardian of said A. B., for a license to mortgage real estate of said A. B., for the purpose of obtaining funds for the support of said A. B. It appearing to the court that notice of the time of presenting said application has been given to said A. B. in manner and form as pro- vided by law, and the said A. B. being present, and it further appear- ing to the court, after hearing, that the best interests of said A. B. will be subserved by empowering said petitioner to execute a mort- gage on the following premises, the property of said ward, - , for the purpose of obtaining funds for the education of said ward: It is therefore ordered that said petitioner, C. D., be and hereby is authorized and empowered to execute a mortgage in the sum of - dollars, with interest thereon at six per cent, payable annually, due five years from date, together with the note or notes which said mortgage is to be given to secure. Bond of guardian previous to executing said mortgage fixed at dollars. W. M., District Judge. 547. Sales of the interest of an insane spouse in real estate. When either husband or wife has been insane for three years and incapable of executing any convey- ance of his or her interest in the real estate of the other, including the homestead property, the district court of the county of which such insane person is a resident has power to authorize the legally appointed guardian of such insane person to sell and convey such interest. 108 108 Rev. Stats., c. 18, 171, 177, [1710], [1716]. (904) Chap. 38] GUARDIANS' SALES. 547 A verified petition must be filed by the guardian in the office of the clerk of the district court, together with the written consent of the spouse of such insane person to the granting of the prayer thereof, and his or her agreement to pay whatever costs of said proceeding may be taxed against him or her. 109 Form No. 249. PETITION FOR LICENSE TO SELL INTEREST OF INSANE SPOUSE IN REAL ESTATE. In the District Court of County, Nebraska. In the Matter of the Application of C. D., Guardian of A. B., an Insane Person, for License to Sell the Interest of said A. B. in Real Estate. Comes now C. D. and represents unto the court that one A. B., a resident of said county, was on the day of , 19 , adjudged by the commissioners of insanity of said county insane and a fit subject for confinement in a hospital for the care and treatment of insane people, and that for more than three years last past said A. B. has been insane and incapable of executing a deed, relinquish- ment or conveyance of real estate. n. That on the day of , 19 , letters of guardianship of the person and estate of said A. B. were issued to your said petitioner out of and under the seal of the county court of said county, and he is now the duly appointed guardian of her the said A. B. III. That C. B. of said county is the husband of said A. B. and is the owner of the following described real estate, , which is of the value of dollars, and that he is desirous of selling the same, and has given his written consent to the prayer of this petition, and his written agreement to pay whatever costs of this proceeding may be taxed against him. iou Kev. Stats., c. 18, 172, 176, [1711], [1715], (905) 548 PROBATE AND ADMINISTRATION. [Cliap. 38 IV. That E. F. and G. H. of said county are the children of said A. B. and said C. B., and their sole prospective heirs, and that the present value of the interest of said A. B. in said land by virtue of her marital relation with said C. B. is the sum of dollars. Your petitioner therefore prays that a date be fixed for the hearing on this petition, that an order to show cause why the prayer thereof should not be granted issue, service had as by law required, and that upon said hearing an order of said court be made and entered em- powering petitioner to sell said interest of said A. B. in said real estate. (Signed) C. D., Guardian of A. B. [Add verification, Form No. 5.] 548. Hearing and bond. Service of the order to show cause is had in the same manner as in the case of guardians' sales, and when it is completed, a guardian ad litem must be appointed who shall ascertain the propriety and good faith and necessity of the prayer of the petitioner, and may re- sist the petition by making any proper legal or equi- table defense thereto. 110 If the proposed sale is approved and the guardian found a proper person to make it, a decree may be entered fixing the value of the interest of the insane spouse, and authorizing a sale at public auction or private sale, conditioned on the giving of a bond to be approved by the court to faithfully perform his duties in relation to the sale and to account for the proceeds. 111 The interest of the insane spouse in the lands of the other is that which he or she acquires by virtue of the marital relation. It is substantially a substitute for HO Rev. Stats., c. 18, 172, [1711]. 111 Eev. Stats., e. 18, 173, [1712]. (906) Chap. 38] GUARDIANS ' SALES. 548 the inchoate right of dower or curtesy at common law, its value depending on the number of children of the marriage, the existence of children by a former mar- riage of the owner of the fee and his or her expectancy of life. Form No. 250. BOND OF GUARDIAN ON SALE OF INTEREST OF mSANE SPOUSE IN LANDS. Know all men by these presents, that we, C. D., as principal, and the X. Y. Surety Company, of , as surety, are jointly and sever- ally held and firmly bound unto the district court of county, Nebraska, in the penal sum of dollars, for which payment well and truly to be made we do hereby bind ourselves, our heirs, executors, administrators and successors, by these presents. Dated this day of , 19 . Now, therefore, the condition of this obligation is such that whereas an order has been entered in the district court of county, Nebraska, authorizing and empowering said above-bound C. D., guard- ian of A. B., an insane person, to sell the interest of said A. B., wife of one C. B., in certain real estate of said C. B., if the said above- bound C. D. shall faithfully perform his duties in relation to said sale and conveyance and faithfully account for the proceeds of said sale, this obligation to be void; otherwise to be and remain in full force and effect. (Corporate Seal) (Signed) C. D. X. Y. Co. By L. M., Vice-Pres. C. F., Local Secretary. Form No. 251. OEDER EMPOWERING GUARDIAN OF INSANE PERSON TO SELL INTEREST IN LANDS. [Title of Cause and Court.] Now, on this day of , 19 , this matter came on for hearing on the petition of C. D., guardian of said A. B., for an order empowering him to sell and convey the interest of said A. B. in the following described real estate, , the answer of J. A., guardian ad litem, and the evidence, and was submitted to the court. (907) 549 PROBATE AND ADMINISTRATION. [Chap. 38 On consideration whereof the court finds that service of the order to show cause heretofore issued in said matter has been had as directed by said court, that said application of said petitioner, C. D., is made in good faith, that it is necessary and for the best interest of said A. B. that her interest in said real estate be sold and conveyed, that said interest is an inchoate interest, by virtue of the marital rela- tion existing between said A. B. and said C. B., consisting of an undivided one-third thereof, and the present value of said interest is the sum of dollars. It is therefore ordered that said C. D., guardian, be and he hereby is authorized to sell at private sale the said interest of said A. B. in said real estate at a sum not less than dollars, and that before making said sale he execute and deliver to the clerk of this court his bond in the sum of dollars, to be approved by said court, conditioned as provided by law. (Signed) W. M., District Judge. 549. Sale and confirmation. There is no time within which the power to sell must be exercised. It may be revoked by the court when the insane person becomes of sound mind, such rev- ocation having no effect on prior conveyances. 112 If the sale is at public auction, notice must be given the same as in guardians' sales of real estate for invest- ment. In all cases the sale must be reported to the court, and if it appears regular and no sufficient cause is shown for setting it aside, it will be confirmed and the guardian directed to execute a deed to the pur- chaser. 113 The court has power to tax the whole or any part of the costs, including a reasonable fee for the guardian ad litem to the insane spouse, and they must be paid before the delivery of the deed. 114 112 Kev. Stats., c. 18, 175, [1714]. 113 Eev. Stats., c. 18, 174, [1713]. 114 Eev. Stats., c. 18, 176, [1715]. (908) CHAPTER XXXIX. ACCOUNTS AND SETTLEMENTS OF GUARDIANS. 550. Annual Account of Guardian. 551. Guardian's Account Debit Side. 552. Guardian's Accounts Credits. 553. Power to Compel Interlocutory Accounting. 554. Discharge of Guardian. 555. Settlement Out of Court. 556. Action to Set Aside Settlement. 557. Action by Ward for Property Fraudulently Transferred. 358. Final Accounting in County Clerk. 559. Hearing on Guardian's Account. 560. Order Allowing Final Account of Guardian. 561. Liability of Sureties on Guardian's Bond. 562. Release of Sureties. 563. Action on Guardian's Bond. 563a. Appeals in Guardianship Matters. 550. Annual account of a guardian. The bond of a guardian requires him to make and file with the county court an account of his doings within one year after the issue of letters, and at such other times as the court shall direct. In order that the court shall have full knowledge of the general condition of the estate, and of any unfairness or wrong- doing of the guardian in the management of the funds of the ward, it is the general practice, even though not demanded by the statute, to require an account to be rendered every year thereafter until the termina- tion of the guardianship. The annual account should show all the transactions between the guardian and the ward, and all transactions of the guardian in con- nection with the estate, up to its date. It should show (909) 551 PROBATE AND ADMINISTRATION. [Chap. 39 the amount received from all sources, the amount paid the ward, and the balance in the guardian's posses- sion. The inventory is the basis of the first annual account, but is not conclusive. Either party may show errors or omissions therein. These annual or period- ical accounts are not considered by the courts as conclusive and binding upon the parties. 1 They are held to be prima facie correct ; but, though made under oath and approved by the court, they may be reopened or readjusted in any subsequent annual account, or in the final account. Either party may go behind them and show that other charges should be included, or that the charges therein made are not just and proper. 2 A joint account of joint guardians stands upon the same footing as that of a sole guardian, and may be reopened after the death of one of the guardians, on the settlement of his, the survivor's, accounts. 3 551. Guardian's account Debit side. The general rule is that every guardian is charg- able with all the income from the real estate of his ward, with the value of all the personal property that came into his hands during the existence of the trust, with interest on deposits, and with the proceeds of investments made by him of the ward's property. He 1 Kidd v. Guibar, 63 Mo. 342; In re Davis, 62 Mo. 453; Douglas' Appeal, 82 Pa. 169; Wall's Appeal, 104 Pa. 14. 2 Latham v. Myers, 57 Iowa, 519, 10 N. W. 924; West v. West's Admr., 75 Mo. 204; State v. Jones, 89 Mo. 470; Davia v. Combs, 38 N. J. Eq. 473; Starrett v. Jameson, 29 Me. 504. 3 Blake v. Pegram, 109 Mass. 541. (910) Chap. 39] ACCOUNTING OF GUARDIANS. 551 should be charged with at least savings bank interest on funds which have lain idle for a period of six months or more, 4 with a loss occurring by reason of loans without having first obtained directions from the court concerning the security, 5 losses occurring when no specific directions for investments are given him by the county court, 6 and due diligence in looking into the value of the security has not been shown, or loans have been made without security. 7 Where he makes loans or investments without formal applica- tion and permission from the court, good faith and a high degree of business ability will not protect him from liability. 8 If he permits funds to draw savings bank interest for a long time when they could have been invested so as to bring in more income, he should be charged with what he ought to have received. 9 He should not be held liable for loss of funds occur- ring by the failure of a bank in which they were de- 4 White v. Parker, 8 Barb. (N. Y.) 48; Worrell's Appeal, 23 Pa. 44. 5 In re O'Brien's Estate, 80 Neb. 125, 113 N. W. 1001; In re Wil- son's Estate, 90 Neb. 363, 133 N. W. 447; In re Carver, 118 Cal. 73, 50 Pac. 22. 6 Witty v. Witty, 10 Ky. Law Rep. 513, 40 S. W. 457; Brewer v. Ernest, 81 Ala. 435, 2 South. 84; Wyckoff v. Hulse, 32 N. J. Eq. 697; Covington v. Leak, 65 N. C. 594. 7 Probate Judge v. Mathes, 60 N. H. 433; Lee v. Lee, 55 Ala. 590. 8 Nagle v. Bobbins, 9 Wyo. 211, 62 Pac. 154, 796; In re Shandoney, 133 Cal. 387, 65 Pac. 877. 9 Johnson T. Newton, 11 Hare, 169; Moyle v. Moyle, 2 Russ. & M. 710. (911) 552 PROBATE AND ADMINISTRATION. [Chap. 39 posited unless the circumstances are such that he could have known that it was in a critical condition. 10 552. Guardian's account Credits. A guardian is entitled to credit for all the money paid out according to law for the support and educa- tion of the ward, the payment of his debts and the support of his family. In cases where he has not ob- tained an order of court fixing the amount he may pay for such support and like expenses, it may be de- termined on the hearing on the final account, 11 for interest on money advanced by him to the ward, 12 for necessary costs and attorney fees, and expenses in- curred in collecting and managing the estate. 13 If the attorney fees have not actually been paid, and there is a valid contract between the attorney and guardian for their payment, the court may allow them on the hearing and direct that they be paid directly to the attorney. 14 The fees to which a guardian is entitled for his ser- vices are fixed by the court and rest largely in its dis- cretion. He is entitled to such an amount as the size and character of the estate, the nature of his duties, 10 In re Grammel's Estate, 120 Mich. 487, 79 N. W. 706; In re Hunt, 141 Mass. 515, 6 N. E. 554. 11 Ellis v. Soper, 111 Iowa, 631, 82 N. W. 1041. 12 Hayward v. Ellis, 13 Pick. (Mass.) 273. 13 In re Tolifaro, 113 Iowa, 747, 84 N. W. 836; In re Brady (Idaho), 79 Pac. 75; Pyatt v. Pyatt, 44 N. J. Eq. 391, 15 Atl. 421; Scheib v. Thompson, 23 Utah, 564, 65 Pac. 499. 14 Bailey v. Garrison, 68 Neb. 779, 94 N. W. 990. (912) Chap. 39] ACCOUNTING OF GUARDIANS. 553 relationship to the ward, the duration of the trust, and all the surroundings and circumstances of the ward and estate seem to require. 15 But if the expenses ap- pear large and there was much litigation largely for his own benefit, or partly for his benefit and partly for his ward, the charges should be made accordingly. 16 If he violates any statute, or order or decree of the court, and a loss thereby occurs, he loses his right to pay for his services and also has to make good the loss. 17 The court may, however, if the circumstances seem to warrant it, allow him something for his services. 553. Power to compel interlocutory accounting. A person under guardianship has no power to com- pel his guardian to file his account as long as the trust exists. A relative or person interested in the estate of the ward may make such application, as next friend, to compel him to account where he delays doing so and the circumstances are such as make an accounting desirable. 18 15 Gott v. Culp, 45 Mich. 265, 7 N. W. 767; In re Hogan, 134 Mich. 361, 96 N. W. 439; Woomer's Appeal, 144 Pa. 383, 22 Atl. 749. l In re Tolifaro, 113 Iowa, 747, 84 N. W. 936; Pierce v. Prescott, 128 Mass. 140; Moore v. Shields, 69 N. C. 50. 17 Starrett v. Jameson, 29 Me. 504; Foteaux v. Le Page, 6 Iowa, 123; Mattox v. Patterson, 60 Iowa, 434, 15 N. W. 262; Knowlton v. Bradley, 17 N. H. 458; Farwell v. Steen, 46 Vt. 678. 18 Trumpler v. Cotton, 109 Cal. 250, 41 Pac. 1033; Monell v. M'onell, 5 Johns. Ch. (N. Y.) 283; Clements v. Bamsay (Ky.), 4 S. W. 311. 58 Pro. Ad. (913) 553 PKOBATE AND ADMINISTRATION. [Chap. 39 Form No. 252. GUARDIAN'S ANNUAL ACCOUNT. [Title of Cause and Court.] The following is a true statement of the account of C. D., guardian of the person and estate of A. B., a minor, with said estate, from the date of the issue of letters of guardianship to , 19 : [Date] Appraisement of personalty of said estate as per files in the case $ Income from the real estate [items] Income from personalty [items] Sales of real estate per order of court [items and description of property sold] $ Credits. Debts paid [items] $ Paid for support of ward as per or- der of court [items] Taxes and repairs [items] Fees of county judge [items] Sale of personalty by order of judge [items] Attorneys' fees and costs and expenses [items] Property on hand [items] Appraised value of same Balance due estate $ State of Nebraska, County, ss. C. D., being first duly sworn, on oath says that the foregoing is a true statement of the account of his transactions in regard to said estate for the year ending , 19 , that the debtor items of said account include all the property of every kind and description that has come into his possession as guardian of said estate, and that the (914) Chap. 39] ACCOUNTING OF GUABDIANS. 554 credit items are a proper allowance against said estate, and vouchers for same are hereto attached. (Signed) C. D. Subscribed in my presence and sworn to before me this day of , 19. (Signed) J. K., County Judge. Form No. 253. ORDER ALLOWING ANNUAL ACCOUNT OF GUARDIAN. [Title of Cause and Court.] Now, on this day of , 19 , the first annual account of C. D., guardian of said estate, came before this court for ap- proval, and, after a due examination thereof, the court finds that the same is just and correct. It is therefore ordered that the same be approved. It is further ordered that the said C. D., guardian, make and file in this court a further account of his doings within one year from this date. (Signed) J. K., County Judge. 554. Discharge of guardian. The coming of age of a minor operates per se as a discharge of the guardian, ending his rights to the further management of the estate. 19 The duty of mak- ing a settlement with his ward and delivering the property remaining. 20 The same rules would follow the marriage of a female ward after she has attained the age of sixteen. 21 In the case of the guardian of an incompetent per- son, the guardianship continues until he is discharged by an order of the court which appointed him, 22 or by 19 Goble v. Simeral, 67 Neb. 276, 93 N. W. 235. 20 Stinson v. Leary, 69 Wis. 269, 34 N. W. 63. 21 Montoya v. Miller, 7 N. M. 289, 34 Pac. 40; Decker v. Fessler, 146 Ind. 16, 44 N. E. 657. 22 Hovey v. Harmon, 49 Me. 269. (915) 555 PKOBATE AND ADMINISTRATION. [Chap. 39 an adjudication of a court of competent jurisdiction that the ward is of sound mind. 23 Application for that purpose may be made by the ward, and notice given to the heirs presumptive and next of kin and also to the guardian. 24 If the person is discharged on a writ of habeas corpus on the ground that he is of sound mind, his guardian can be dis- charged on motion supported by a certified copy of the writ. In the case of parties who were adjudged in- competent, not insane, it should be made to appear that they have regained their health and are capable of managing their affairs and understanding ordinary business transactions. 25 The death of a ward effects a discharge of the guardian, 26 and the duty of accounting for the estate devolves upon his representatives. 27 555. Settlement out of court. The liability of a guardian to his ward may be settled between the parties as soon as the guardian is dis- charged without the matter being formally brought before the court for approval. A settlement so made must be a full and complete accounting of all the trans- actions of the guardian with the estate, accompanied by payment or delivery of whatever is due to the ward, and be evidenced by a written receipt. 28 It is binding 23 In re Scheuer, 31 Mont. 606, 79 Pac. 244. 24 Storms v. Allegan Circuit Judge, 99 Mich. 144, 57 N. W. 1074. 25 Cochran v. Anderson, 104 Ind. 282, 3 N. E. 934. 26 Barrett v. Provincher, 39 Neb. 773, 58 N. W. 292. 27 Peck v. Braman, 2 Blackf. (Ind.) 141. 28 Johnson v. Johnson, 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72; Cooper v. Cooper, 9 N. J. Eq. 655. (916) Chap. 39] ACCOUNTING or GUABDIAXS. 556 on both parties only when the guardian acts in good faith, 29 fully discloses to his ward all the circumstances and facts connected with his management of the es- tate, and all his rights therein, 30 and the transaction is entirely free from fraud, duress or undue influence. 31 556. Action to set aside settlement. A settlement made by a guardian and ward out of court may be set aside for fraud, duress, undue influ- ence or concealment of material facts, by action in equity in the district court. 32 It is substantially an action for equitable relief on the ground of fraud, and though the burden of proof is of course upon the plain- tiff, less evidence of actual fraud is required than in other cases for equitable relief on similar grounds. 33 The influence growing out of the fiduciary relation between a guardian and his ward is not presumed by law to terminate with removal of disability, especially in the case of minors, and hence all sales, contracts and agreements made by the former guardian and ward are looked upon by the courts with some suspicion, and if for an inadequate consideration, or slightly tinctured with misrepresentations or suppression of 29 Hooper v. Hooper, 26 Mich. 435; Powell v. Powell, 52 Mich. 432. 30 Witt v. Day, 112 Iowa, 110, 83 N. W. 797; Hawkins' Appeal, 32 Pa. 263; Lewis v. Browning, 111 Pa. 493; Douglass v. Ferris, 138 K Y. 192, 33 X. E. 1041. 31 Motley v. Motley, 43 Ala. 455; Hardin's Admr. v. Taylor, 78 Ky. 593. 32 Butterick v. Bichardson, 39 Or. 246, 64 Pac. 390; Van Bees v. Witzenberg, 112 Iowa, 30, 83 N. W. 787; and eases cited under 555. 33 Stark v. Gamble, 13 N. H. 465; Voltz v. Voltz, 74 Ala. 555; Van Bees v. Witzenberg, 112 Iowa, 30, 83 N. W. 787. (917) 556 PROBATE AND ADMINISTRATION. [Chap. 39 truth, will be set aside. 34 Where different conclusions may be drawn from the facts connected with the settle- ment, that will be adopted which is in favor of the former ward. 35 A conveyance of real estate made by a party to his former guardian soon after he became of age, if accompanied by very slight evidence of mis- representation, concealment of material facts or actual fraud, makes out a prima facie case, and it devolves on the former guardian to prove that the sale was just and equitable, 36 and he must show that he made a full disclosure of all the circumstances and conditions of the estate and that the ward knew that such settlement was to operate as a release of the guardian. 37 A gift from a ward to his guardian is voidable only, the burden of proof being on the guardian to show that it was made freely and voluntarily, and with a full understanding of his rights. 38 It is not necessary before bringing suit that he tender back the money he received on the settlement, but he may in his plead- ings or at the trial offer to return what was paid him. 39 In case of the death of the guardian after settlement, the action may be brought against his executor or administrator and the bondsmen of such executor or administrator joined as parties. 40 34 Eberts v. Eberts, 55 Pa. 110; Garvin's Admr. v. Williams, 50 Mo. 206; Tucke v. Bucholz, 43 Iowa, 415. 35 Van Bees v. Witzenberg, 112 Iowa, 30, 83 N. W. 787; Kirby v. Taylor, 6 Johns. Ch. (N. Y.) 242; Spalding v. Brent, 3 Md. Ch. 411; Wainright v. Smith, 106 Ind. 239, 6 N. E. 333. 36 Berkmeyer v. Kellerman, 32 Ohio St. 240; Bond V. Lockwood, 33 111. 212. 37 Gregory v. Orr, 61 Miss. 307. 38 Wade v. Pulsifer, 54 Vt. 45. 89 Line v. Lawder, 122 Ind. 548, 23 N. E. 758. 40 Witt v. Day, 112 Iowa, 110, 83 N. W. 797. (918) Cliap. 39] ACCOUNTING OF GUARDIANS. 557 The decree, if in favor of the ward, sets aside the settlement, and restores the guardian's bond as a security for its being complied with. The costs of the action, however, are not a liability for which the bondsmen can be held. 41 557. Action by ward for property fraudulently transferred. Xo fraudulent transfer or dealing of the guardian with his ward's property will be allowed to stand. The ward may bring an action on the bond for the value of the property, or he may follow the same and recover it, even though it has passed into the hands of a third party. 42 He cannot pursue both remedies. If he has repudiated a fraudulent or unauthorized act of his guardian, and brought an action on the bond, he cannot set up any legal or equitable claim to the property into which the assets of his estate have passed. 43 If unable to realize the amount due from the bondsmen, he may file a bill in equity for the recovery of such property as he can trace. 44 A guardian who has purchased realty with his ward's funds holds the same as trustee of the ward, and, if he has sold or transferred the land to a third party with notice, the ward will be permitted to establish a resulting trust in the land. 45 If the guardian took the title as trustee Douglass v. Ferris, 138 N. Y. 192, 33 N. E. 1041. 42 Vason v. Bell, 53 Ga. 416. 43 Kowley v. Towsley, 53 Mich. 329, 19 N. W. 80; Beam r. Frone- berger, 75 N. C. 540. 44 Branch v. Du Bose, 55 Ga. 21; Hill v. Mclntire, 39 N. H. 410. 45 Eobinson v. Pebworth, 71 Ala. 240; Hamnett's Appeal, 72 Pa. 337; Beyer's Appeal, 11 Pa. 36; Bowland v. Thompson, 73 N. C. (919) 557 PROBATE AND ADMINISTRATION. [Chap. 39 of the ward, then deeded to a third party, or if the third party had any knowledge, either from the deeds or otherwise, where the purchase money came from, a resulting trust would be established. 46 Any trans- action of the guardian which, while perhaps not fraudulent, is not authorized by the court or law, may be ratified or disapproved by the ward. 47 He cannot ratify in part and disapprove in part. The transac- tion is an entirety. 48 Transactions of this nature are contracts for the purchase of real estate, irregular sales of land, a loan of the ward's funds to a firm of which the guardian is a member, or any unauthorized invest- ment by the guardian. In the case of a loan to a firm of which the guardian is a member, the ward may elect to consider the amount as a loan, or hold the guardian for the amount due upon his bond. 49 A formal ratification of any irregular dealings of the guardian with his ward's estate is not necessary. If, after becoming of age, he receives and retains the bene- fit of such transactions with a full knowledge of their irregularity and his consequent rights, he will be presumed by the law to have ratified them. 50 419; Eobinson v. Kobinson, 22 Iowa, 427; White v. Parker, 8 Barb. (N. Y.) 48. 46 Morrison v. Kinstra, 55 Miss. 71; Taylor v. Brown, 55 Mich. 482, 21 N. W. 901. 47 Tomlinson v. Simpson, 33 Minn. 443, 23 N. W. 864; Eckford v. De Kay, 8 Paige (N. Y.), 89. 48 Singleton v. Love, 1 Head (Tenn.), 357. 49 Douglas v. Bennett, 51 Miss. 680; Summers v. Howard, 33 Ark. 490; Morgan v. Johnson, 68 111. 190; Shorter v. Frazer, 64 Ala. 74; Loyd v. Malone, 23 111. 43; Bush v. Bush, 33 Kan. 556. so Seward v. Didier, 16 Neb. 58, 20 N. W. 12; Caffey v. McMichael, 64 N. C. 507; Cassedy v. Casey, 58 Iowa, 326, 12 N. W. 286; Teipel v. Vanderweier, 36 Minn. 443, 37 N. W. 934. (920) Chap. 39] ACCOUNTING 'OF GUARDIANS. 558 Where the settlement was made in the county judge's office and the account gone over by the ward, guardian and county judge, though there was no judi- cial record of its approval, and a receipt filed, the ward is estopped from attempting to recover property the proceeds of which were included in such account. 51 558. Final accounting in county court. The county court has original jurisdiction of the accounting between a guardian and his former ward, 52 unless the trust has terminated by a settlement between the parties out of court. 53 When a settlement is not made outside of court, the guardian should file his account as soon as possible after the disability of the ward ceases and a hearing had after notice to the ward, which should be personally served. The ward may waive service and enter his appearance. A hearing without service or entry of appearance is of no more binding effect than a hearing on an annual account. 54 If he neglects to render the account, the ward may file his petition in the county court for that purpose.' 55 There is authority to the effect that the right to file such petition is not barred by the statute of limita- tions. 56 A lapse of time after the ward becomes of age, 51 Horcher v. McGuire, 85 Neb. 646, 124 N. W. Ill; Kulp v. Heiman, 90 Neb. 167, 133 N. W. 205. 52 Bisbee v. Gleason, 21 Neb. 534, 32 N. W. 578; Wilson v. Wilson. 90 Neb. 353, 133 N. W. 447. 53 Butterick v. Richardson, 39 Or. 246, 66 Pac. 390. 54 Jacobs v. Fouse, 23 Minn. 51; Mead v. Bakewell, 8 Mo. App. 549; Murphy v. Murphy, 2 Mo. App. 549; Roberts v. Schultz, 45 Tex. 184. 55 Bisbee v. Gleason, 21 Neb. 536, 32 N. W. 578; Ball v. Le Clair. 17 Neb. 39, 22 N. \V. 118. 6 Gilbert v. Guptil, 34 111. 112. (921) 558 PROBATE AND ADMINISTRATION. [Chap. 39 equal to the statute, raises a presumption that there is nothing due the ward. 57 Except in the case of fraud, it should be filed within four years. 58 On the filing of the petition a citation should be issued and personally served on the guardian. Under a statute similar to that of this state, it is held that service by publication on a guardian who had become a nonresident gave the court jurisdiction. 59 After the death of a guardian his personal representatives may be summoned in the same manner. 60 Form No. 254. PETITION TO EEQUIRE GUARDIAN TO ACCOUNT. [Title of Cause and Court.] Your petitioner, A. B., respectfully represents unto the court that on the day of , 19 , letters of guardianship upon his said estate were issued out of and under the seal of said court to C. D.; that your petitioner became of lawful age on the day of , 19 , and on the day of , 19 , he demanded a settlement of the said matters of his said estate with said C. D., and that said C. D. has failed and refused and neglected to settle his business as guardian of said estate with your petitioner; that said C. D. has in his possession a large amount of money, notes, bonds, rights, and effects belonging to your petitioner, and is in- debted to your petitioner in an amount unknown to your petitioner, but which is not less than the sum of dollars. Your petitioner therefore prays that a citation issue out of and under the seal of said court to the said C. D., commanding him to appear before said court on a day to be therein specified, and then and there make full report of his doings as such guardian, and pay 57 Maulf air's Appeal, 110 Pa. 402, 2 Atl. 530; Kimball v. Ives, 17 Vt. 430. 58 See Jones v. Strickland, 61 Ga. 366; Bane's Appeal, 27 Pa. 492. 59 Heisen v. Smith, 138 Cal. 216, 71 Pac. 180. so Waterman v. Wright, 56 Vt. 164, (922) Chap. 39] ACCOUNTING OF GUABDIANS. 559 over to your petitioner the money which may be due him on said accounting, according to law and the terms of his said bond. Dated this day of , 19 . (Signed) A. B. [Add verification.] Form No. 255. CITATION TO GUARDIAN TO FILE HIS FINAL ACCOUNT. State of Nebraska, County, ss. To C. D., Guardian of A. B., a Minor: You are hereby cited to appear before the county court of county, Nebraska, at the county court room in said county, on the day of i , 19 , and then and there make and file a re- port of doings and transactions as auch guardian, and, upon the hearing on said account, settle the affairs of such guardianship, and pay to the said A. B. the money which may be found due him on such accounting, as required by law and the terms of your bond. Should you fail or neglect to comply with the terms of this cita- tion, the amount due from you to the said A. B. on your said account will be determined in your absence. Dated this - day of , 19 . (Seal) (Signed) J. K, County Judge. 559. Hearing on guardian's account. If the guardian fails to appear and file his account, the court may proceed in his absence to take testimony concerning the property, examine into his transactions with the funds and determine the amount due the ward; and a decree rendered without any appearance on his behalf is binding on all parties interested. 61 The account may be a continuation of the last annual account, or a complete statement of all his transac- tions with the property, the latter being the better practice, if there is a probability of objections being i Bisbee v. Gleason, 21 Neb. 536, 32 N. W. 578. (923) 560 PROBATE AND ADMINISTRATION. [Chap. 39 filed. 62 In any case the ward may object to any items which he believes are not a legitimate claim against him or introduce evidence of property omitted. 63 It should include all transactions up to the date when the disability ends. If there are several wards, sepa- rate accounts should be filed for each. 64 Though not required by statute, vouchers for all ex- penditures should be filed. 65 The burden of proof is on the guardian to show that payments claimed for the benefit of the ward were for that purpose, and that credits claimed for debts were prima facie demands against the ward. 66 Where no objections are filed, the testimony of the guardian that the account as it stands is correct is sufficient. 560. Order allowing final account of guardian. A guardian's final account, when approved by the county court, is conclusive as to all matters lawfully embraced therein. 67 It cannot be attacked collat- erally. 68 An appeal may be taken to the district court in the same manner as in probate cases. If the guard- ian appeal, he must give a bond. 69 If the guardian 62 Ellis v. Soper, 111 Iowa, 631, 82 N. W. 1041. 63 Section 510, supra. 64 Pursley v. Hayes, 22 Iowa, 11; Hescht v. Calvert, 32 W. V. 215, 9 S. E. 87. 65 Gregg v. Gregg, 18 N. H. 190; Newman v. Bead, 50 Ala. 297. 66 Stewart v. McMurray, 82 Ala. 269, 3 South. 47. 67 State v. Leslie, 83 Mo. 60; McCleary v. Menke, 109 111. 294; Foust v. Chamblee's Admr., 51 Ala. 74; Candy v. Hannamore, 76 Ind. 125. 68 Bisbee v. Gleason, 21 Neb. 534, 32 N. W. 578; Lynch T. Kotan, 39 111. 14. 69 Goble v. Simeral, 67 Neb. 276, 93 N. W. 235. (924) Chap. 39] ACCOUNTING OF GUARDIANS. 560 filed his account of his own motion, he ought to receive credit for his reasonable costs and expenses, including attorney fees in defending a settlement which the court approved. 70 If he had to be formally cited to account, he should at least pay the costs of the citation. 71 The allowance of fees of his attorney in connection with the accounting is largely in the discretion of the court. 72 The decree lacks one element of a judgment; an exe cution cannot issue thereon, and payment may be made by either turning over the assets and securities or in cash. 73 The inherent jurisdiction of the county court over guardianship matters gives it power to set aside the decree if it was obtained by fraud or misrepresenta- tion in the same manner as other final decrees of such court. 74 Form No. 256. PETITION BY GUARDIAN FOR HIS RELEASE FROM LIABILITY. [Title of Cause and Court.] Your petitioner, C. D., respectfully represents unto the court that on the day of , 19 , letters of guardianship of the said A. B., then a minor, issued to him out of and under the seal of said court; that he thereupon entered upon the discharge of his duties, and has completed his trust as such guardian; that on the day of , 19 , the said A. B. became of lawful age; that on the day of , 19 , he made a full settlement TO Xagle v. Robbing, 9 Wyo. 11, 62 Pac. 154, 796; Neilson v. Cook, 40 Ala. 498. 71 Pyatt v. Pyatt, 44 N. J. Eq. 391, 15 Atl. 421. '-' Moore v. Shields, 69 N. C. 50; Kingsbury v. Powers, 131 HL 182, 22 N. E. 479. 73 Manning v. Manning, 61 Ga. 137. 74 Civ. Code, 648, 656; Levi v. Longini, 82 Minn. 324, 86 N. W. 334; Estate of Leavens, 65 Wis. 440, 27 N. W. 324. (925) 561 PROBATE AND ADMINISTRATION. [Chap. 39 with the said A. B.; that attached hereto and made a part hereof, and marked "Ex. A," "Ex. B," and "Ex. C," is the account of your petitioner as guardian, the receipt of the said A. B. for the amount found due him on such account, together with the written consent of the said A. B. for the discharge of your petitioner as guardian. Your petitioner therefore prays that said court may approve the same, release petitioner as guardian, and the sureties upon his official bond from liability in relation to said guardianship. Dated this day of , 19 . (Signed) G. D. [Add verification.] Form No. 257. ORDER APPROVING FINAL ACCOUNT, AND RELEASING GUARDIAN. [Title of Cause and Court.] Now, on this day of , 19 , this cause came on for hearing on the final account of C. D., guardian of the said A. B., and the said A. B. being present in court, and having attained his majority, and the court having examined said account and all the transactions of the said C. D. as guardian as aforesaid, finds that said account is just and correct, and that there is due the said A. B. from the said C. D. the sum of dollars. It is therefore ordered that the said C. D. pay forthwith to the said A. B. the said sum of dollars, and, upon payment of the same and filing the receipt therefor, said C. D., guardian, and E. F. and G. H., the sureties upon his official bond, be discharged and released from all further liability or responsibility in relation to said guardianship. Said C. D. having filed a receipt from said A. B., for the sum of dollars, it is further ordered that said C. D., together with E. F. and G. H., the sureties upon his official bond, be and they hereby are released from all further responsibility in relation to said guardianship. (Signed) J. K., County Judge. 561. Liability of sureties on guardian's bond. The sureties upon a guardian's bond are liable for the lawful disbursement or delivery of all the assets of (926) Chap. 39] ACCOUNTING OF GUARDIANS. 561 the estate as determined by the order of the county court. 75 The liability does not terminate with the ward becoming of age or the removal of disability, 76 but continues for four years after the discharge of the guardian, 77 provided that if at the time of the dis- charge the party entitled to bring the action is out of the state or under disability to sue, the action may be commenced within five years after the return of such person to the state, or after such disability shall be removed. 78 In Oregon the limitation is three years. 79 Sureties upon a sale bond are liable for a loss or mis- appropriation of the proceeds of the sale, including a loss occurring on account of a failure to comply with the orders of the county court for its investment. 8 * Unless such proceeds have been mingled with other assets and the loss occurred in connection with the loss of such other assets, it is but justice to the first bonds- men that the ward should look to the sureties on the sale bond for reimbursement. 81 A guardian of two or more wards appointed by the same letters and giving but one bond, together with 75 Bond v. Lockwood, 31 HI. 212; Hunt v. State, 53 Ind. 321; State v. Brown, 73 N. C. 81; Taylor v. Hemingway, 181 Ky. 158; McDonald v. Meadows, 1 Met. (Ky.) 507. 76 In re Walling, 35 N. J. Eq. 105; Higgins v. State, 87 Ind. 292. 77 Civ. Code, 13 ; Goble v. Simeral, 67 Neb. 276, 93 N. W. 235. 78 Civ. Code, 13. 79 L. O. L. 1334. so Mattoon v. Cowing, 13 Gray (Mass.), 387; McKim v. Morse, 130 Mass. 439. 81 Henderson v. Coover, 4 Nev. 409; Madison County v. Johnston, 51 Iowa, 152, 50 N. W. 492; Potter v. State, 23 Ind. 607. (927) 562 PROBATE AND ADMINISTRATION;. [Chap. 39 his sureties, is liable to a ward in proportion to his interest in the estate. 82 562. Release of sureties. By virtue of the statute of limitations, the sureties upon a guardianship bond are released on the expira- tion of four years from the date of his discharge. 83 They are also discharged by a settlement made out of court by a ward of full age and with a full knowledge of all the transactions of the guardian with the prop- erty of the estate. 84 If such settlement is set aside for fraud, misrepresentation or suppression of facts, the effect is to renew the bond and reinstate the liabil- ity of the sureties. 85 The payment by the guardian to the ward of the amount found due him on final account- ing in the county court releases the sureties, but setting aside the account reinstates the bond. 86 The death of a surety in no manner affects the lia- bility of his cosureties, 87 nor does the giving of a cumulative bond. 88 The release of a cosurety, by the ward, without the knowledge or consent of the other sureties, 89 or an agreement between the guardian and ward, after the 82 Hooks v. Evans, 68 Iowa, 52, 25 N. W. 925; Pursley v. Hayes, 22 Iowa, 11; Ordinary v. Heishon, 42 N. J. L., 15. 83 Section 561, supra. 84 Seward v. Didier, 16 Neb. 64, 20 N. W. 12. 85 Ela v. Ela, 84 Me. 423, 24 Atl. 893; Douglass v. Ferris, 138 N. Y. 192, 33 N. E. 1041. 86 Johnson's Heirs v. Chandler's Heirs, 15 B. Mon. (Ky.) 584; Aaron v. Mandel, 78 Ky. 427. 87 Winslow v. People, 117 111. 152, 7 N. E. 135. 88 State v. Saunders, 60 Ind. 562; Baum v. Lynn, 72 Miss. 932, 18 South. 428. 8 Tyner v. Hamilton, 51 Ind. 259. (928) Chap. 39] ACCOUNTING OF GUARDIANS. 563 latter becomes of full age, for a valuable consideration, to extend the time for payment of the amount found due the ward, 90 discharges the bond. The county court has no power to discharge the sure- ties except on approval of the final account and pay- ment and deliver} 7 of the money and property therein directed to be made to the ward. The ward should bring suit within a reasonable time after the allow- ance of the account, and if he neglects to do so, the sureties on the bond may bring an action to compel him to commence an action within a reasonable time or consent to their discharge. 91 563. Action on guardian's bond. An action on a guardian's bond accrues when the amount due the ward or the predecessor of the former guardian has been ascertained by the county court on the final accounting. 92 The statute of limitations runs from the date of the discharge of the guardian, and not from the date of the allowance of the account. 93 It is not necessary to obtain leave of the court as in the case of executors' or administrators' bonds. The action may be brought as soon as the order is entered and compliance therewith refused, and is of course brought by the former ward in his own name. 94 In the case of the death of a surety, the amount due from o People v. Seeley, 146 111. 189, 32 N. E. 458. 91 Vermilya v. Bunce, 61 Iowa, 605, 16 N. W. 735. 92 Ball v. Le Clair, 17 Neb. 39, 22 N. W. 118; Bisbee v. Gleason, 21 Neb. 534, 32 N. W. 578. 3 Goble v. Simeral, 67 Neb. 276, 93 N. W. 335. 94 Bisbee v. Gleason, 21 Neb. 534, 32 N. W. 578. 59 Pro. Ad. (929) 563 PROBATE AND ADMINISTRATION. [Chap. 39 the guardian may be filed as an absolute or contingent claim against his estate. 95 Guardians' bonds are construed about as strictly in favor of the ward and against the sureties as they well can be. Their contract is to make good to the minor whatever may be lost by the improper or unlawful act of the guardian. No doctrine of estoppel or consent can be effective, as against minors, to authorize or ex- cuse misconduct by their guardians, or to relieve from the liability in fact assumed by those who have guar- anteed against such misconduct. 96 Of technical de- fenses to the action there are scarcely any. The sureties cannot set up any irregularities in the appoint- ment of the guardian, nor can they deny his appoint- ment, where the bond contains proper recitals, 97 nor if the bond is in proper form, can they in any way question its validity; 98 nor can they show that the mis- appropriation of the ward's funds by their principal occurred after, instead of before, he became of age. It is immaterial when the misappropriation occurred. 99 A settlement made by a guardian in the county court after due notice is final and binding on his sureties in an action on the bond, and his absence at the hearing is no defense. 100 The sureties have nothing to do with the decision of the county court on the amount due, ex- cept to pay it if their principal does not, and they can- 95 Brooks v. Rayner, 127 Mass. 268; Cotton v. State, 64 Ind. 573. 96 Hutson v. Jenson, 110 Wis. 26, 85 N. W. 689. 97 Shroyer v. Richmond, 16 Ohio St. 455; Hayden v. Smith, 49 Conn. 83. 98 Vincent v. Starks, 45 Wis. 458. 99 Judge of Probate v. Cook, 57 N. H. 450. 100 Bisbee v. Gleason, 21 Neb. 534, 32 N. W. 578; Cross v. White, 80 Minn. 413, 83 N. W. 393; Jacobson v. Anderson, 72 Minn. 426, 75 N. W. 607. (930) Chap. 39] ACCOUNTING OF GUARDIANS. 563 not be heard on the hearing. 101 They cannot set up as a defense that the guardian paid the money into court. It must be paid to the ward. 102 They cannot set up that their signatures were obtained by fraud, or by an agreement to secure other signatures, or by any other arrangement or agreement of which the court or the parties to be protected had knowledge. 103 Form No. 258. PETITION ON GUARDIAN'S BOND. [Title of Cause and Court.] The plaintiff complains of the defendants for that on the day of , 19 , defendant C. D. was, in the county court of county, Nebraska, appointed guardian of the estate of this plaintiff, who was at that time a minor of the age of years, residing in said county and state. (2) That on said date, said C. D., together with E. F. and G. H., executed and delivered to the county judge of said county of the following obligation in writing: [Copy bond in full.] (3) That said instrument was duly approved by the county judge of said county, and letters of guardianship thereupon issued out of and under the seal of the said county court to the said C. D., and he entered upon the duties of said guardianship, and collected a large amount of money belonging to said estate and said minor, to wit, the sum of dollars; that all of said money came into the hands of the said C. D., guardian as aforesaid, on or before the day of , 19 , and that all thereof still remains in the hands of the said C. D., guardian as aforesaid. (4) That on the day of , 19 , the plaintiff de- manded a settlement of the matters of his said estate with said C. D., and said C. D. has failed and refused to settle said business as guardian; that on the day of , 19 , the county court of said county duly issued its citation to the said C. D. to appear 101 Braiden v. Mercer, 44 Ohio St. 339, 7 N. E. 155; Badger v. Daniel, 79 N. C. 372. 102 Jacobson v. Anderson, 72 Minn. 426, 75 N. W. 607. 103 Brown v. Probate Judge, 42 Mich. 501, 4 N. W. 195; Vincent v. Starks, 45 Wis. 458; State v. Hewitt, 72 Mo. 603; State v. Lewis, 73 N. C. 138. (931) 563a PROBATE AND ADMINISTRATION. [Cliap. 39 before said court on the day of , 19 , and settle said business, and pay over the said money to plaintiff as required by law and the terms of said bond, which citation was, on the day of , 19 , duly served on the said C. D. (5) That on the day of , 19 , said county court made an order finding the amount due the plaintiff from said C. D. to be the sum of dollars, and requiring payment thereof to be made to said plaintiff, in the words and figures following [copy order settling guardian's account], and that the defendant C. D. has neglected and refused, and still neglects and refuses, to pay said sum to this plaintiff. (6) That plaintiff is of lawful age, and entitled to the full use and control of his estate. (7) That there is therefore due the plaintiff from defendants, C. D., E. F., and G. H., on said bond, the sum of dollars, with interest at the rate of seven per cent per annum from the day of , 19. Plaintiff therefore prays for judgment against the defendants, C. D., E. F., and G. H., for the sum of dollars, with interest thereon at the rate of seven per cent per annum from the day of , 19 , and costs of this suit. (Signed) A. B., By W. B. C., His Attorney. [Add verification.] 563a. Appeals in guardianship matters. All final orders and decrees of the county court in guardianship matters may be taken to the district court by appeal or error in the same way as in probate matters. 104 The rule permitting the guardian to ap- peal without giving a bond is the same as in the case of an executor or administrator. If the appeal is from the order allowing the final account, or any other decree adverse to him, he must give bonds the same as any other appellant. 105 104 See Chapter XXXV. 105 In re Williams' Guardianship (Neb.), 151 N. W. 161; Rhea v. Brown, 4 Neb. Unof. 461, 94 N. W. 716; In re O'Brien's Estate, 80 Neb. 125, 113 N. W. 1001. (932) CHAPTER XL. ADOPTION OF CHILDREN, 564. Adoption Definition. 565. Who may Adopt a Child. 566. Consent of Parents or Guardians. 567. Proceedings for Adoption. 568. Notice of Hearing. 569. Hearing on the Petition. 570. Decree of Adoption. 564. Adoption Definition. Adoption of a child is the act or proceeding by which the parent or parents release their right to the care and custody of the child and their claim to his earn- ings, and such child is taken into the family of another and has conferred on him the rights and privileges of an heir. 1 It is a civil law, right or proceeding, and therefore dependent entirely on the statutes. 2 The Nebraska statutes provide for a full adoption, by which the child takes the name of the adopting parents, becomes subject to their exclusive custody and control, and inherits from them the same as though born to them in lawful wedlock; and a limited or con-r ditional adoption, by which the child is taken into the custody and control of the adopting parents under con- ditions or limitations either concerning their rights over him or his rights in their estate. 3 Under the Oregon statutes, a full adoption is the only one provided for, with the exception that the decree 1 Rapalje & Lawrence's Law Diet.; Bouvier's Law Diet.; Non- She-Po v. Wa-Win-Ta, 37 Or. 215, 62 Pac. 15. 2 Non-She-Po v. Wa-Win-Ta, 37 Or. 215, 62 Pae. 15; Teal T. Sevier, 26 Tex. 516. 3 Kev. Stats., c. 18, 80, 84, [1619], [1623]. (933) 565 PROBATE AND ADMINISTRATION. [Chap. 40 may provide that the child take the name of the adopting parents. 4 The court is without power to enter a decree for the adoption of any but minor children. 5 As the word " minor" is not used in L. 0. L., sec- tion 7083, it would seem that adults might be adopted, according to the construction placed on like statutes in other states. 6 565. Who may adopt a child. Any person of lawful age and a resident of this state, though unmarried, 7 may adopt a child, provided, how- ever, that a married person cannot adopt a child without the consent of the other spouse, unless the parties-have lawfully separated and the party not seeking adoption is not capable of giving consent. 8 In Oregon the consent of the husband or wife to the adoption is required in all cases. 9 A husband and wife may jointly adopt a child as their own, 10 or either parent may adopt a child with the consent of the other. 11 If the child is over fourteen years of age, his consent is also necessary. 12 4 L. O. L., 7095. 5 Rev. Stats., c. 18, 76, [1615]. 6 Collamore v. Learned, 171 Mass. 99, 50 N. K 518; Markover v. Krause, 132 Ind. 294, 31 N. E. 1047; In re Moran, 151 Mo. 555, 52 S. W. 377. 7 Krug v. Davis, 87 Ind. 590. 8 Rev. Stats., c. 18, 78, [1617]. L. O. L., 7083. 10 Clarkson v. Hatton, 143 Mo. 47, 44 S. W. 761. 11 In re Williamson, 102 Cal. 70, 36 Pac. 407. 12 Rev. Stats., c. 18, 79, [1618]; L. O. L., 7087. (934) Chap. 40] ADOPTION OF CHILDREN. 566 566. Consent of parents or guardians. No legitimate child can be adopted without the con- sent of its parents or surviving parent, excepting only in cases where such parent or parents have relin- quished the custody of the child to any person, associa- tion or corporation, been deprived of such custody by a court of competent jurisdiction, or have willfully abandoned and failed to contribute to the support of such child for the period of six months. 13 Consent to the adoption of an illegitimate minor child must be given by the mother, if living. 14 If the child is in the custody of a legally appointed guardian, the consent of such guardian is necessary. 15 If one parent has had the exclusive and actual custody and control of the minor child for the period of six months last preceding the application for adoption, for the support of which the other parent shall have, with- out just cause or fault, contributed nothing whatever during such period, such parent having such custody or control may consent to its adoption. 16 Both parents, the surviving parent if one be dead, or the mother of an illegitimate child, may by a writ- ten instrument executed in the presence of at least one witness, and acknowledged before any officer author- ized by law to acknowledge deeds, relinquish the custody and control of such child to any person, asso- ciation or corporation, and therein authorize such per- is Eev. Stats., c. 18, 77, [1616]. 14 Rev. Stats., c. 18, 77, [1616]. 15 Rev. Stats., c. 18, 77, [1616]; L. O. L., 7084. 16 Rev. Stats., c. 18, 77, [1616], subd. 3. (935) 567 PROBATE AND ADMINISTRATION. [Chap. 40 son, association or corporation to procure the adoption of such child by some suitable person. 17 Under the Oregon statute, if neither of the parents are living and the child has no guardian, his next of kin in this state may give such consent, and if there is no next of kin, the court may appoint some suitable person to act in the proceeding as next friend, and give or withhold such consent. 18 A guardian is without authority, except by order of the court appointing him, to consent to the adoption of his ward, and must therefore make application to the court and procure an order for that purpose. 19 Consent of the parents need not be in writing. It is sufficient if they are in court at the date of the hearing on the petition and make no objection. 20 567. Proceedings for adoption. The county court of the county in which the party desiring to adopt the child resides has exclusive original jurisdiction over the adoption proceedings. 21 Adoption is not, in a strict sense, a judicial proceed- ing, but more in the nature of a contract entered into under judicial sanction after statutory requirements have been complied with. The court must obtain jurisdiction over the child, the parents, and the party or parties seeking to adopt him, and has no power to enter a decree of adoption unless it appear that such 17 Kev. Stats., c. 18, 77, [1616]. 18 L. O. L., 7084. l Rev. Stats., c. 18, 77, [1616], subd. 7. 20 Milligan v. McLaughlin, 94 Neb. 171, 142 N. W. 675. 21 Rev. Stats., c. 18, 80, [1619] j Milligan v. McLaughlin, 94 Neb. 171, 142 N. W. 675. (936) Chap. 40] ADOPTION OF CHILDREN. 567 consent has been given, or that the facts and circum- stances clearly place the proceeding among those ex- ceptions in which the consent of the parents to the adoption of the child by the particular parties is not necessary. 22 The proceeding is commenced by the filing of a peti- tion under oath by the parties desiring to adopt the child, stating that they freely and voluntarily adopt said minor child, and if the adoption is a limited one, the conditions thereof should also be set out. 23 The consent of the parent or parents, or the guardian or person, association or corporation having custody of the child, and relinquishment of his control to the end that he may be adopted by the petitioners, should be filed with the petition, and must be filed before the decree is entered. 24 A guardian must obtain an order from the court under whose seal his letters issued em- powering him to give such consent. 25 Under the Oregon statutes, if either parent is im- prisoned in the state's prison, under a sentence of not less than three years, or has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of fil- ing the petition, the court shall proceed as if such parent were dead, and in its discretion may appoint some suitable person to act in the proceedings as next friend of the child and give or withhold consent to his adoption. 26 22 Tiffany v. Wright, 79 Neb. 10, 112 N. W. 331; Ferguson v. Jones, 17 Or. 204, 20 Pac. 842. 23 Eev. Stats., c. 18, 80, [1619]; L. O. L., 7083. 24 Rev. Stats., c. 18, 80, [1620]. 25 Rev. Stats., c. 18, 79, [1619], subd. 7; L. O. L., 7084. 2 L. O. L., 7085. (937) 567 PROBATE AND ADMINISTRATION. [Chap. 40 Form No. 259. RELINQUISHMENT BY PARENTS AND CONSENT TO ADOP- TION. Whereas, we, A. B. and C. B., husband and wife, of the county of and state of , are the parents of E. B., a minor male child, who was born at , in the county of , and state of , on the day of , 19 , and said child now is and always has been in our lawful custody and control; and Whereas, G. H. and L. H., his wife, of the city of , county of , and state of Nebraska, desire to adopt said child [if on certain terms or conditions, state same in full], and are suitable and competent persons to adopt said E. B., and it is for the best interests of said E. B. that said adoption be made: Now, therefore, we, said A. B. and said C. B., his wife, do hereby voluntarily relinquish all our right to the custody and control over said minor child E. B., and all claim and interest in and to the wages of said minor child, to the end that said child shall be adopted by said G. H. and L. H. [if on terms and conditions state same in full], and we do hereby freely consent to such adoption. In testimony whereof we have hereunto set our hands this day of , 19. (Signed) A. B. C. B. Witness: (Signed) L. M. State of Nebraska, County, ss. On this day of , 19 , before me, the undersigned, a notary public duly commissioned in and for said county, per- sonally came A. B. and C. B., to me known to be the identical per- sons described in and who executed the foregoing relinquishment, and acknowledged the same to be their voluntarily act and deed. Witness my hand and official seal this day of , 19 . (Seal) (Signed) C. F. D., Notary Public. (938) Chap. 40] ADOPTION OF CHELDKEN. 567 Form No. 260. RELINQUISHMENT BY ONE PARENT AND CONSENT TO ADOPTION. Whereas, A. B., of the county of , and state of , in the mother of E. B., a male child, who was born at , in the county of , and state of , on the day of , 19; and "Whereas, on the day of , 19 , in a certain action pending in the district court of . county, Nebraska, wherein said A. B. was plaintiff and C. B., the husband of said A. B., and the father of said child, was defendant, a decree of said court was made and entered granting said A. B. a divorce from said C. B., and also awarding her, said A. B., the custody and control of said E. B., the issue of said marriage; [that said A. B. has had the actual and exclusive custody and control of said minor child for the six months last preceding the date of this relinquishment, and that during said period of six months said C. B. has willfully neglected to provide for his family and has contributed nothing toward the support of said child] ; [C. B., the husband of said A. B., and the father of said child, departed this life on the day of , 19 ]. [Balance follow Form No. 259, page 938.] Form No. 261. RELINQUISHMENT BY CORPORATION AND CONSENT TO ADOPTION. Whereas, on the day of , 19 , A. B. and C. B., his wife, of the county of and state of , parents of E. B., a minor male child then of the age of , executed and delivered in the manner provided by law, to the L. M. Co., a corporation organized and existing under the laws of the state of Nebraska, having power under its articles of incorporation to have the custody and control of minor children, with the power to relinquish its right to such custody and control to the end that such minor children may be adopted by competent and suitable persons, their certain instru- ment in writing hereto attached, made a part hereof and marked "Ex. A," thereby relinquishing said child to said corporation and authorizing said corporation to procure the adoption of said minor child by some suitable person, and that said minor child, E. B., ie now in the custody and control of said corporation, and said (939) 567 PROBATE AND ADMINISTRATION. [Chap. 40 corporation is entitled to the disposition of the person of said child; and Whereas, G. H. and L. H., his wife, residing at , in the county of and state of Nebraska, desire to adopt said child [if upon conditions, state same in full]; that said G. H. and L. H. are suit- able and proper persons to adopt said E. B., and it is for the best interests of said E. B. that said adoption should be made: Now, therefore, the said L. M. Co. hereby relinquishes all its right to the custody and control over said minor child, E. B., to the end that said child shall be fully adopted by said G. H. and L. H., his wife [upon the terms and conditions above set forth], and said L. M. Co. hereby fully consents to such adoption. In testimony whereof the said L. M. Co. has caused this instru- ment to be executed by its president and secretary this day of - , 19. (Signed) L. M. Co., By H. F. C., President, D. C. P., Secretary. Witness: (Signed) E. S. State of Nebraska, County, ss. On this day of , 19 , before me, the undersigned, a notary public duly commissioned in and for said county, personally came H. F. C. and D. C. P., president and secretary, respectively, of the L. M. Co., and acknowledged their execution of said instru- ment as their voluntary act and deed for and in behalf of said com- pany. Witness my hand and official seal this day of , 19 . (Seal) (Signed) C. F. D., Notary Public. Form No. 262. RELINQUISHMENT OF CUSTODY OF CHILD BY PAEENT. Know all men by these presents, that I, C. B., mother of E. B., an illegitimate minor child of the age of years, and which said child was born at , in the county of and state of , on the day of , 19 , do hereby voluntarily relinquish all my right to the custody of and power and control over my said minor child to the L. M. Co., a corporation, and I do (940) Chap. 40] ADOPTION OF CHILDREN. 567 hereby authorize and empower said L. M. Co. to procure the adop- tion of said minor child, E. B., by some suitable person. Dated this day of , 19 . (Signed) C. B. Witness: G. H. [Add acknowledgment, close of Form No. 259.] Form No. 263. PETITION BY CORPORATION GUARDIAN FOR CONSENT TO ADOPTION. In the County Court of County, Nebraska. In the Matter of the Adoption of E. B., a Minor Child. Comes now the L. M. Co., and respectfully represents unto, the court that it is a corporation organized and existing under and by virtue of the laws of the state of Nebraska; that on the day of , 19 , letters of guardianship out of and under the seal of the county court of said county were issued to said L. M. Co., ap- pointing it guardian of the person and property of one E. B., a minor child of the age of years, on account of the cruelty, neglect, and unsuitableness of the parents of said minor child, and that said L. M. Co. now has the lawful custody and control of said child, and is entitled to the disposition of the person of said child, with the consent and approval of the said court from which said letters of guardianship issued. That G. H. and L. H., of the county of and state of Ne- braska, desire to adopt said child: that said G. H. and L. H., his wife, are suitable and proper persons to adopt said E. B., and that it is for the best interests of said E. B. that said adoption should be made. Said L. M. Co. therefore prays that said county court may con- sent to the adoption of said E. B., a minor child, by said G. H. and L. H., his wife, and to relinquish all right to the custody and con- trol of said minor child. Dated this - - day of , 19. [Add verification.] (941) 567 PROBATE AND ADMINISTRATION. [Chap. 40 Form No. 264. OEDER AUTHORIZING GUARDIAN TO CONSENT TO ADOPTION. In the County Court of County, Nebraska. In the Matter of the Adoption of E. B., a Minor Child. On reading and filing the petition of the L. M. Co., a corporation, praying for permission to authorize said L. M. Co. to consent to the adoption of E. B., a minor ward of said L. M. Co., by G. H, and L. H., his wife, of said county, it is ordered that said L. M. Co. be authorized and empowered to relinquish to said G. H. and L. H. his wife, all its rights to the custody and control over said minor child, E. B., and to consent to the adoption of said minor child by said G. H. and L. H., his wife. Dated this day of - , 19. (Signed) J. K., County Judge. Form No. 265. CONSENT OF CHILD OVER FOURTEEN YEARS OF AGE TO ADOPTION. I, E. B., a minor of the age of years, do hereby consent that a decree of the county court of county, Nebraska, be made for my adoption by G. H. and L. H., his wife, of , in eaid county. Dated this day of , 19 . (Signed) E. B. Witness: (Signed) L. M. Form No. 266. PETITION FOR ADOPTION OF CHILD. In the County Court of County, Nebraska. In the Matter of the Adoption of E. B., a Minor Child. Come now G. H. and L. H., his wife, and respectfully show unto the court that they are residents of said county; that one E. B. is a minor child, who was born to A. B. and E. B., his wife, at , in the county of , and state of , on the - day of , 19 ; that the said parents of said E. B. have executed their written relinquishment and consent to the adoption of said child by your said petitioners, which said instrument is filed here- with. (942) Chap. 40] ADOPTION OF CHILDREN. 568 Your petitioners declare that they and each of them do freely and voluntarily adopt said E. B. as their own child [upon terms and conditions, following ] ; that it is their wish to bestow upon said minor child equal rights, privileges and immunities of children born to them in lawful wedlock, and that the name of said child be changed to E. H. Wherefore, your petitioners pray that said court will fix a time for the hearing on this petition, that notice thereof be given to all persons interested as provided by law, that on said hearing a decree of adoption be made and entered by said court bestowing on said child all the rights, privileges and immunities of children born to them in lawful wedlock [if conditional . or limited adoption, state conditions], and that the name of said child be changed to E. H. (Signed) G. H. L. H. 563. Notice of hearing. On the filing of the petition it is the duty of the court to fix a date for the hearing thereon, which must be not less than fourteen days subsequent thereto. Personal service of the notice on the parents, if resi- dents of the state, must be ordered by the court; if they are nonresidents, service by publication for four weeks in some newspaper must be had, the publication to be completed ten days before the date of hearing. 27 Under the Oregon practice, if a parent does not con- sent to an adoption, a copy of the petition and order 27 Rev. Stats, c. 18, 83, [1621]. The word "may" is used in the statute in place of "must," but it was plainly the intent of the legis- lature that some notice be given the absent and nonresident parent. The well-recognized principle of statutory construction by which the word "may" is construed as "must," when necessary to carry out the legislative intent, or when the statute requires the performance of an act for the sake of justice or the public good, and in which the rights of private parties are involved, has been followed in this state from an early day, and clearly applies to the foregoing section. See Kelley v. Morse, 4 Neb. 224; People v. Buffalo County Commrs., 4 Neb. 150. (943) 569 PROBATE AND ADMINISTRATION. [Chap. 40 thereon must be served on him personally if within the state, and if not, be published once each week for three successive weeks in some newspaper printed in the county, the last publication to be at least four weeks from the date of hearing. Like notice is required when the child has no parent living and 'no guardian or next of kin in this state, and the court may order such further notice as it deems necessary or proper. 28 Form No. 267. NOTICE OF HEAE1NG ON PETITION FOR ADOPTION. In the County Court of County, Nebraska. In the Matter of the Adoption of E. B., a Minor Child. All persons interested will take notice that on the day of , 19 , G. H. and L. H., his wife, filed their petition in said court praying for a decree for the adoption of said E. B., and that said petition will be heard by said court in the county court room in said county on the day of , 19 , at the hour of 9 A. M., at which time and place objections to the prayer of said petition will be considered. Dated this day of , 19 . (Seal) (Signed) J. K., County Judge. 569. Hearing on the petition. All the jurisdictional requirements of the statute, which are consent of the parents, with the exception of those cases where, by reason of abandonment, re- linquishment or removal from the control of the parents or other statutory cause, such consent is not necessary, and issue and service of notice, must be fully complied with. The parents by appearing at the hearing and making no objections give their consent the same as though by a formal instrument. 29 Where abandon- as L. O. L., 7086. 29 Milligan v. McLaughlin, 94 Neb. 171, 142 N. W. 675. (944) Chap. 40] ADOPTION OF CHILDREN. 569 ment by one parent is alleged, it being at common law a relinquishment of custody, 30 the same must be estab- lished by competent proof. 31 When jurisdiction has been obtained, a substantial compliance with other re- quirements is all that is necessary. 32 The child and the person desiring to adopt him must be personally present in court, and if the court finds that it is for the best interest of the child, a decree of adoption shall be entered in accordance with the terms and conditions of the consent and petition. 33 Under the Oregon practice, if the court is satisfied from the petition and consent of the identity and rela- tions of the persons, and that the petitioner is of suffi- cient ability to bring up the child, and furnish suitable support and education, having reference to the degree and condition of the parents, and that it is fit and proper that such adoption shall take effect, a decree shall be made setting forth the facts, and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner. 34 If the decree changes the name of the child, it is the duty of the county judge to include the same in his annual report to the secretary of state of all changes of names by the act of his court. 35 30 Stansberry v. Berton, 7 Watts & S. (Pa.) 364. 31 Ferguson v. Jones, 17 Or. 204, 20 Pac. 842; Winans v. Lupie, 47 X. J. Eq. 302, 20 Atl. 969. 32 In re Edds, 137 Mass. 346; Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23; Ferguson v. Herr, 64 Neb. 649, 94 N. W. 542. 33 Rev. Stats, c. 18, 82, [1621]. 34 L. O. L., 7068. 35 L. O. L., 7096. 60 Pro. Ad. (945) 570 PROBATE AND ADMINISTRATION. [Chap. 40 Form No. 268. DECREE OP ADOPTION. In the County Court of County, Nebraska. In the Matter of the Adoption of E. B., a Minor Child. Now, on this day of , 19 , this cause came on for hearing on the petition of G. H. and L. H., his wife, for the adop- tion of E. B., a minor male child of the age of - - years; and on the relinquishment and consent to such adoption by , the of said child. Said petitioners and said minor child, E. B., were present in court in person. Upon an examination of the premises and the evidence, the court finds that all persons interested in said adoption have been duly notified of the time and place for the hearing of this petition, as required by law and the order of this court, and are now before the court; that the facts set forth in said petition are true; that G. H. and L. H., his wife, who have petitioned this court to adopt said child, are proper and suitable persons to adopt said child, and that it is for the best interests of said child that it should be so adopted. It is therefore considered, ordered, and adjugded by the court that the right to the custody of and power and control over said minor child, and all claims and interest in and to the wages of said minor child by the said > , shall and do cease and determine from and after this date, and that the said E. B. be and he hereby is declared the adopted child of said G. H. and L. H., upon the terms and conditions following: [State terms and conditions of adoption, if any.] That the relations of parent and child be and hereby are estab- lished between said E. B. and said G. H. and L. H.; that said E. B. be and now henceforth is subject to the exclusive custody and con- trol of said G. H. and L. H., and shall take and henceforth bear the surname of said H., and shall possess and enjoy all the rights, privileges, and immunities of children born in lawful wedlock [sub- ject to the conditions above set forth]. (Signed) J. K., County Judge. 570. Decree of adoption. A decree of adoption bestows upon the child the rights, privileges, duties and immunities as of a child born in lawful wedlock of the adopting party, except- (946) Chap. 40] ADOPTION OF CHILDREN. 570 ing as otherwise in the decree provided, 36 and relieves his natural parents from all obligations for his care and support. 37 The child is not entitled to inherit through the adopting parents by right of representa- tion, nor can he take property limited to the heir or heirs of the body or bodies of such parents. 38 The decree is a final one, and subject to appeal by any person against whom the same may be made or who is affected thereby. 39 Under the Oregon practice, a parent who has not had notice of the proceeding may at any time within one year after actual notice apply to the circuit court to reverse the decree, and such court has power, after due notice, to reverse the same if it appears that any of the material allegations are untrue. 40 An appeal by the child may be taken by his next friend, and no bond is necessary. 41 It stands on a somewhat different footing from other county court decrees. The parties to it cannot by their own acts nullify or revoke it, 42 and there is authority to the effect that it is not open to collateral attack, and is conclusive on the parties to the proceeding and their privies, 43 but where it partakes more of the nature of a judicial decree of a court of inferior jurisdiction, 36 Rev. Stats., c. 18, 84, [1623] ; L. O. L., 7089. 37 Rev. Stats., c. 18, 84, [1623]; L. O. L., 7090. 38 Meader v. Archer, 65 N. H. 214, 23 Atl. 521; Van Matre v. Sankey, 148 El. 536, 36 N. E. 628; L. O. L., 7089. See, also, 439, supra. 39 Rev. Stats., c. 18, 85, [1624]; L. O. L., 7081. 40 L. O. L., 7092. 41 L. O. L., 7091. 42 Janes v. Cleghorn, 54 Ga. 9. Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23; In re Johnson's Estate, 98 Cal. 531, 33 Pac. 460; Barnard v. Barnard, 119 111. 93, 8 N. E. 320. (947) 570 PROBATE AND ADMINISTRATION. [Chap. 40 and unless all the jurisdictional facts appear on the record itself, it is void on collateral attack, 44 and is not an estoppel as against one who did not consent to it and was not served with notice as the law requires. 45 Where the adopting parties and the parents all ap- peared before the county court of a county other than that in which the petitioners resided, and a decree was entered without objection and with the consent of the parents, it has been held not subject to collateral attack. 46 The adoption of a child as an heir does not neces- sarily give him a share in the estate of his adoptive parents. While his standing in reference to their property would be the same as a child born to them, such parent may devise or bequeath his property to others. 47 44 Morris v. Dooley, 59 Ark. 483, 28 S. W. 30, 430. 45 Ferguson v. Jones, 17 Or. 204, 20 Pac. 842. 46 Milligan v. Mclaughlin, 94 Neb. 171, 142 N. W. 675. 47 Pemberton v. Perrin, 94 Neb. 718, 144 N. W. 164, (948) TABLE OF PROCEEDINGS NEBRASKA. Table showing time required to be given and method of service of notice or citation in proceedings in probate and guardianship mat- ters in county court. Proceeding. Time. Service. All applications for appoint- ment of special adminis- trators. Hearing on account of spe- cial administrator. Petition for probate of will, or for appointment of ad- ministrator. Application for allowance for support. All special proceedings. Notice to creditors. Application to dispense with administration. Application for determining succession to property. Petition to compel filing of inventory. Application for removal of executor or administrator. Application of special ad- ministrator for license to sell personal property. None. None. As ordered by the court. None, or as ordered by court. As ordered by court. Not less than six nor more than eighteen months. As ordered by court. As ordered by court. As ordered by court. As ordered by court. None. None. None. Publication for three weeks or as or- dered by the court. None, or as ordered by court. Personal. Publication for four weeks from date of order fixing time. Publication for thirty days. As ordered by court. Personal. Personal. By pub- lication on non- resident. None. (949) TABLE OF PROCEEDINGS NEBRASKA. Proceeding. Time. Service. Annual account of executor or administrator. Application for additional security on bond. Application for sale of per- sonal property by executor or administrator. Application of special ad- ministrator for license to sell partnership interest. Eeport of special administra- tor, partnership matters. Application for license to mortgage real estate. Eeport of executor or ad- ministrator on mortgag- ing real estate. Application to compromise claim. Application for permission to bring suit to set aside conveyance of decedent. Hearing on final account and petition for distribution. Notice to creditors to call for their money. Other applications in con- nection with the adminis- tration. (950) None. court. As ordered by court. As ordered by court. None, or as ordered by court. As ordered by court. None. None. None. As ordered by court. As ordered by court. None. Personal. As ordered by court. As ordered by court. None, or as ordered by court. None. None. None. None. Waiver by parties, or by publication. Usual practice for three weeks. Publication for three weeks. None, or as ordered by court. TABLE OF PROCEEDINGS NEBRASKA- GUARDIANS. Proceeding. Time. Service. Application for ship of minor. guardian- Application for temporary guardianship of incompe- tent. Application for guardian- ship of person previously adjudged insane. Application for guardianship of other incompetent. Application for guardianship of spendthrift. Application to mortgage real estate. Report on mortgaging real estate. Applications for orders for sales of personalty, for al- lowances for support or education, and in regard to investments or manage- ment of estate. Annual account of guardian. Final account of guardian and petition for discharge. As ordered by court. None. None. Not less than fourteen days. Not less than ten days. Not less than ten days. None. As ordered by court. None. As ordered by court. None, except where custody of person or property may be taken from parent. In such cases as ordered by court. None. None. Personal. Personal. Personal. None. None, or as ordered by court. None. Waiver by ward. Publication or personal service as ordered by court. Usual pub- lication three weeks. (951) TABLE OF PROCEEDINGS NEBRASKA. Proceeding. Time. Service. Application for adoption of child. Not less than fourteen days. Personal, or publi- cation four weeks at least ten days prior to date set for hearing. In all cases where personal service is required by the statute or as ordered by the court, the interested parties, if competent and of lawful age, may waive same, or enter their appearance. In proceed- ings where both the time for hearing and the service of the notice are as ordered by the court, such court may proceed instanter if the interested parties are present, or if the application is one which in his opinion warrants the entry of the order on a proper showing, without notice. In administration proceedings an ex parte order for the payment of any of the expenses of the administration of the estate, or to an heir or legatee, may be attacked on the hearing on the final account. A petitioner should always designate the news- paper in which the publication of any notice is to be made. (952) TABLE OF PROCEEDINGS OREGON. Table showing time required to be given and method of service of citation in proceedings in probate, guardianship and adoption matters in Oregon county court. Proceeding. Time. Service. All applications for appoint- ment of special adminis- trators. Hearing on account of spe- cial administrator. Application for probate of will in common form, ap- pointment of general or partnership administrator. Applications for allowance for support. All special proceedings. Action to contest will. Notice to creditors. Appeal to county court from rejection of claim by ex- ecutor or administrator. Petition to compel filing of inventory. Application for new bond. Application for removal of executor or administrator. Periodical account of execu- tor or administrator. Applications for sale of per- sonal property. None. None. None, or as ordered by court. None, or as ordered by court. As ordered by court. As in civil cases. Six months. Ten days. As ordered by court. As ordered by court. None. None. None. None, or as ordered by court. Personal. As in civil cases. Publication for four weeks from date of notice. Personal. Personal. Personal. As ordered by j Personal, court. None. As ordered by court. None. None. (953) TABLE OF PROCEEDIXGS OREGON. Proceeding. Time. Service. Application for sale of real estate. Notice of sale. Confirmation of sales of real estate. Confirmation of executor's sales under power. Account of partnership ad- ministrator. Application for redemption of mortgaged property. Application to determine amount due mortgagee from proceeds of sales of real estate. Application to compromise claim. Application for order to bring suit to set aside conveyance of decedent. Hearing on final account and petition for distribution. Not less than ten days from date of ser- vice. Fifteen days from date of return. Fifteen days from date of filing report. As ordered by court. As ordered by court. Ten days. None. None. Not less than four weeks. Personal on residents of state. Publica- tion not less than four weeks for nonresidents. Private sale. Pub- lication of notice for four weeks and posting three no- tices. None. None. None, or as ordered by court. None, or as ordered by the court, if petition by mort- gagee. Personal, or as or- dered by court. None. None. Publication for four weeks, once a week or oftener. (954) TABLE OF PROCEEDINGS OREGON. Proceeding. Time. Service. Application of heir, devisee or legatee for share of es- tate before close of admin- istration. Ten days before Personal. term. Other applications in connec- tion with the administra- | tion. As ordered by None, or as ordered court. by court. GUARDIANS. Proceeding. Time. Service. Application for guardianship of minor. Application for temporary guardian of incompetent. Application for guardian- ship of insane or incom- petent. Application for guardianship of spendthrift. Annual account of guardian. Application for removal of of guardian. Application for discharge of guardian of spendthrift or incompetent or insane. Application for new bond. Application for sale of real estate. As ordered by court. None. Ten days. Ten days. None. As ordered by court. As ordered by court. As ordered by court. Not less than four nor more than eight weeks. None, or as ordered by court. None. Personal, or as or- dered by court. Personal. None. Personal. Nonresi- dent by publica- tion. As ordered by court. As court may direct. Personal, not less than ten days from date of hearing or publication for three weeks. (955) TABLE OF PROCEEDINGS OREGON. Proceeding. Time. Service. Notice of sale. Private sale. Pub- lication of notice for four weeks and posting three notices. Confirmation of sale. Fifteen days None. . from date of return. Applications for orders for sales of personal property, allowances for support, or education, and in regard to investment of assets and management of the estate. As ordered by None, or as ordered court. by court. Final account. As ordered by Waiver by ward. court. Publication or per- sonal service as ordered by court. ADOPTION. Proceeding. Time. Service. Petition for adoption of child, parents consenting. As ordered by None, or as ordered court. by court. Petition for adoption of child, parents not consent- ing. Seven weeks. Personal service or publication for at least three weeks, last publication four weeks from date of hearing, on nonresidents. Where no service of citation is required, and in cases where the method of service is as ordered by court, if the petition is in proper form, clearly showing that the party is entitled to the order, it being (956) TABLE OF DESCENT OF REAL PROPERTY, ETC. substantially a formal matter, the court may act on it at once. When service of a citation is had by publication, the paper in which it ap- pears is designated by the county judge. TABLE OF DESCENT OF REAL PROPERTY AND OF DEGREES OF KINSHIP OF NEBRASKA. V CHEAT UNCLES UNCLES $ UNC*L OCSCENDANTS P This table shows graphically the order of inheritance of real es- tate and the degrees of relationship to the decedent. The figures in the upper right-hand corners of the squares give the order of inherit- ance, and those in the upper left-hand corners the degrees of re- lationship, thus indicating the oases in which the right to inherit is not determined solely by the degree of kinship. For example, grand- nephews and cousins are each within the fourth degree, but the former class inherit before the latter, because the latter are descended from a more remote ancestor. The small letters following the figures in- dicate that the parties take by right of representation. Lineal de- (957) TABLE OF DESCENT OF REAL PROPERTY, ETC. Bcendants of children take in preference to collaterals. The surviving Bpouse is neither an heir nor of the next of kin, but takes a share or interest in the estate by virtue of the marital relation, and is therefore omitted from the table. TABLE OF DESCENT OF REAL PROPERTY AND OF DEGREES OF KINSHIP OF OREGON. The figures and letters in the squares have the same meaning as in the Nebraska table. The degrees of kinship are the same. The surviving spouse takes by inheritance in the case of failure of issue, but is not of the next of kin within the usual definition of the term. (958) LIFE EXPECTANCY TABLES. Actuaries' American Carlisle Ages. Table. Table. Table. "15 44.96 45.50 45.00 16 44.27 44.85 44.27 17 43.58 44.19 43.57 18 42.88 43.53 42.87 19 42.19 42.87 42.17 20 41.49 42.20 41.46 21 40.70 41.53 40.75 22 40.09 40.85 40.04 23 39.39 40.17 39.31 24 38.08 39.49 38.59 25 37.98 38.81 37.86 26 37.27 38.12 37.14 27 36.56 37.43 36.41 28 35.86 36.73 35.69 29 35.15 36.03 35.00 30 34.43 35.33 34.34 31 33.72 34.63 33.68 32 33.01 33.92 33.03 33 32.30 33.21 32.36 34 31.58 32.50 31.68 35 30.87 31.78 31.00 36 30.15 31.07 30.32 37 29.44 30.35 29.64 38 28.72 29.62 28.96 39 28.00 28.90 28.28 40 27.28 28.18 27.61 41 26.56 27.45 26.97 42 25.84 26.72 26.34 43 25.12 26.00 25.71 44 24.40 25.27 25.09 45 23.69 24.54 24.46 46 22.97 23.81 23.82 47 22.27 23.08 23.17 48 21.56 22.36 22.50 49 20.87 21.63 21.81 50 20.18 20.91 21.11 51 19.50 20.20 20.39 52 18.82 19.49 19.68 53 18.16 18.79 18.97 54 17.50 18.09 18.28 (959)' LIFE EXPECTANCY TABLES. Actuaries' American Carlisle Ages. Table. Table. Table. 55 16.86 17.40 17.58 56 16.22 16.72 16.89 57 15.59 16.05 16.21 58 14.97 15.30 15.55 59 14.37 14.74 14.92 60 13.77 14.10 14.34 61 13.18 13.45 13.82 62 12.61 12.86 13.31 63 12.05 12.26 12.81 64 11.51 11.67 12.30 65 10.97 11.10 11.79 66 10.46 10.54 11.27 67 9.96 10.00 10.75 68 9.47 9.47 10.23 69 9.00 8.97 9.70 70 8.54 8.48 9.18 71 8.10 8.00 8.65 72 7.67 7.55 8.16 73 7.26 7.11 7.72 74 6.86 6.68 7.33 75 6.48 6.27 7.01 76 6.11 5.88 6.69 77 5.76 5.49 6.40 78 5.42 5.11 6.12 79 5.09 4.74 5.80 80 4.78 4.39 5.51 81 4.48 4.05 5.21 82 4.18 3.71 4.93 83 3.90 3.39 4.65 84 3.63 3.08 4.39 85 3.36 2.77 4.12 86 3.10 2.47 3.90 87 2.84 2.18 3.71 88 2.59 1.91 3.59 89 2.35 1.66 3.47 90 2.11 1.42 3.28 91 1.89 1.19 3.26 92 1.67 .98 3.37 93 1.47 .80 3.48 94 1.28 .64 3.53 (960) INTEREST TABLE. The following table gives the values of an annuity of $1.00, payable at end of each year, at four, five, six and seven per cent interest for from one to fifty years, the interest being compounded annually. Years 4% Int. 5% Int. 6% Int. 1% Int. 1 .961538 .952381 .943396 .934579 2 1.886095 1.859410 1.833393 1.808018 3 2.775091 2.723248 2.673012 2.624316 4 3.629895 3.545951 3.465106 3.387211 5 4.451822 4.329477 4.212364 4.100197 6 5.242137 5.075692 4.917324 4.766540 7 6.002055 6.786373 5.582381 5.389289 8 6.732745 6.464323 6.209794 5.971299 9 7.435332 7.107822 6.801692 6.515232- 10 8.110896 7.721735 7.360087 7.023582 11 8.760477 8.306414 7.886875 7.498674 12 9.385074 8.863252 8.383844 7.942686 13 9.985648 9.393573 8.852683 8,367651 14 10.563123 9.898641 9.249984 8.745468 15 11.118387 10.379658 9.712249 9.107914 16 11.652296 10.837770 10.105895 9.446649 17 12.165669 11.274066 10.477260 9.763223 18 12.659297 11.689587 10.827603 10.059087 19 13.133939 12.085321 11.158116 10.335595 20 13.590326 12.462210 11.469921 10.594014 21 14.029160 12.821153 11.764077 10.835527 22 14.451115 13.163003 12.041582 11.061241 23 14.856842 13.488574 12.303379 11.272187 24 15.246963 13.798642 12.550358 11.469334 25 15.622080 14.093945 12.783356 11.653583 26 15.982769 14.375185 13.003166 11.825779 27 16.329586 14.643034 13.210534 11.986709 28 16.663063 14.898127 13.406164 12.137111 29 16.983715 15.141074 13.590721 12.277674 30 17.292033 15.372451 13.764831 12.409041 31 17.588494 15.592811 13.929086 12.531814 32 17.873552 15.802677 14.084043 12.646555 61 Pro. Ad. (961) INTEREST TABLE. Years 4% Int. 5% Int. 6% Int. 7% Int. 33 18.147646 16.002549 14.230230 12.753790 34 18.411198 16.192904 14.368141 12.854009 35 18.664613 16.374194 14.498246 12.947672 36 18.908282 16.546852 14.620987 13.935208 37 19.142579 16.711287 14.736780 13.117017 38 19.367864 16.867893 14.846019 13.193473 39 19.584485 17.017041 14.949075 13.264928 40 19.792774 17.159086 15.046297 13.331709 41 19.993052 17.294368 15.138016 13.394120 42 20.185627 17.423208 15.224543 13.452449 43 20.370795 17.545912 15.306173 13.506962 44 20.584841 17.662773 15.383182 13.557908 45 20.720040 17.774070 15.455832 13.605522 46 20.884654 17.880067 15.524370 13.650020 47 21.042936 17.981016 15.589028 13.691608 48 21.195131 18.077158 15.650027 13.730474 49 21.341472 18.168272 15.707572 13.766800 50 21.482185 18.255925 15.761861 13.800746 (962) APPENDIX. SYNOPSIS OF LAWS ENACTED BY THE NE- BRASKA LEGISLATURE AT ITS THIRTY- FOURTH SESSION AFFECTING PROBATE, GUARDIANSHIP AND ADOPTION MATTERS IN THE COUNTY COURTS. Senate File 50. This act amends section 2449 of the Revised Statutes and establishes an entirely new fee system. It provides that the county judge shall be entitled to the following fees in probate matters: For the settle- ment of the estate of a decedent, the gross value of which, including real estate, does not exceed $1,000, the sum of $10; where such value is over $1,000 and under $2,000, the sum of $15, and where such value exceeds $2,000, the sum of $35. Such fees are in full of any and all services to be performed by the judge in the settlement of an estate in which no contest arises, and include one copy of the will and probate thereof for record in the office of the registrar of deeds. In other cases, where copies of instruments are necessary, he shall be allowed a fee of fifty cents for the first hun- dred words and ten cents for each additional hundred words or fraction thereof. In case of a contest he is allowed a fee of $2 for each day consumed. For reap- pointment of an executor or administrator or appoint- ment of an administrator de bonis non, $10, and for proceedings dispensing with the administration of estates, $10. (963) 964 APPENDIX. In cases where proceedings are brought before one judge and concluded before another, the fee based on the value of the estate is to be equally divided between them. In matters of guardianship or trusteeship the court is allowed the sum of $8 for the appointment of a guardian or trustee, the sum of $1.50 per annum while such matters are pending in court for hearings on re- ports of such officers, and $3 for each final settlement and discharge. In adoption matters he is entitled to a fee of $8, for the entire proceeding. All the above fees are in addition to the printers' fees for the publication of notices required by law to be given in such proceedings. It went into effect April 15, 1915. House Roll 613. This act amends section 1235 of the Revised Statutes, by giving the county board juris- diction to appoint an acting judge, who shall preside over the court whenever the judge is absent from the county, disqualified or incapacitated. He is required to give bond in the same manner as a county judge who has been elected to the office. It went into effect April 15, 1915. House Roll 178. This act repeals sections 1536, 1537, 1538 and 1539, Revised Statutes (see sections 135, 136, 137 and 138, supra), and provides for the de- termination of heirship in cases where the party has been dead for two years, possesses real property in this state and no application has ever been made for the appointment of an administrator. Jurisdiction to make such order is vested in the county court of the APPENDIX. 965 county in which the decedent resided, or if a non- resident of the state, of the county in which he died seised of an estate of inheritance in real estate. Any heir of such decedent or person claiming under mesne conveyances from such heir may file his verified petition in the county court having jurisdiction after the expiration of the two year period, which petition shall set out the residence and date of death of the decedent, a full description of his real estate in this state, an enumeration of all the heirs, and that no application has been made for the appointment of an administrator. If made by a party claiming under a mesne conveyance- from an heir, it must set out the nature and extent of his interest. On the filing of the application a date is fixed for the hearing, which date must be within not less than thirty nor more than sixty days. A notice or citation is issued and service had on all parties interested by publication thereof for three successive weeks in a legal newspaper of the county. Any person claiming to be an heir may appear at the hearing and establish his rights. If the court has acquired jurisdiction and the allegations of the peti- tion are proved, the court makes an order determining who are the heirs of the decedent. Such order is bind- ing on all the heirs and creditors, excepting only such creditors as have subsisting liens. As it is a final order determining substantial rights of parties, an appeal may be taken to the district court. Sections 135, 136, 137 and 138, supra, are therefore obsolete. Senate File 68. This act amends section 6632 of the Revised Statutes in regard to the assessment of 966 APPENDIX. the inheritance tax by requiring the court, on the filing of the report of the appraiser, to fix a day for making the appraisement and notify all interested parties, and on that date appraise the property, and from such appraisal and report fix the value of the shares and interests liable for such tax and the amount of the taxes due thereon. The court is also given power in cases where it appears from the petition of an inter- ested party that an estate is not liable for a tax, after notice to the county attorney, to make an order or find- ing that such estate is not liable. Senate File 59. Under this act the proceedings for mortgaging real estate by guardians for the purpose of paying existing mortgages are identical with that of executors and administrators. The acts concerning dispensing with administration, assessment of the inheritance tax and mortgaging land by guardians take effect July 8, 1915. TABLE OF CASES. A Page Aaron v. Mandel, 78 Ky. 427 9i?8 Aaronstein v. Irvine, 49 La. Ann. 1478 900 Abbott v. Abbott, 41 Mich. 4oO 65, 125 v. Coburn, 28 Vt. 663 538 v. Miller, 10 Mo. 141 405 Abila v. Burnett, 33 Cal. 658 498 Ackley v. Dygert, 33 Barb. (N. Y.) 176 502 Adair v. Adair, 30 Ga. 102 141 Adams v. Brackett, 5 Met. (Mass.) 280 553 v. Dennis, 76 Neb. 682 454 v. Field, 21 Vt. 256 65 v. Harris, 47 Miss. 144 388 v. Lewis, 5 Saw. 229 16 v. Morrison, 4 N. H. 166 512 v. Petrain, 11 Or. 304 767, 770, 775 v. Specht, 40 Kan. 387 839 v. Winne, 7 Paige (N. Y.), 97 98 Adams' Lessee v. Jeffries, 12 Ohio, 253 483 Aetna Life Ins. Co. v. Swayze, 30 Kan. 18 307 Aikin v. Aikin, 12 Or. 293 610, 629 v. Crabtree, 12 Or. 244 424, 427 T. Dunlap, 16 Johns. (N. Y.) 77 569 v. Weckerly, 19 Mich. 482 123 Albers v. Kozeluh, 68 Neb. 523 532, 900 Albin v. Parmele, 70 Neb. 740 41, 47 Albright v. Cobb, 30 Mich. 358 303 Aldrich v. McClelland, 34 N. J. Eq. 237 237 Alexander v. Alexander, 26 Neb. 75 122 v. Alexander, 41 N. C. 230 52, 54 v. Bryan, 110 U. S. 414 784 v. Buffington, 66 Iowa, 360 865 v. Fisher, 18 Ala. 374 336 Alf ord Carriage Co. v. Gleason, 36 Conn. 86 261 Alfred v. McKay, 36 Ga. 440 821 Alger v. Colwell, 2 Gray (Mass.), 404. 195 (967) 968 TABLE OF CASES. Allaire r. Allaire, 37 N. J. L. 312 125 Ailing v. Newport Probate Court, 18 R. I. 612 348 Allen v. Bartlett, 52 Kan. 387 676 v. Dundas, 3 Term Rep. 125 . 216 v. McCoy, 8 Ohio, 418 615 v. Sanders, 34 N. J. Eq. 203 242 v. Shephard, 87 111. 314 518 V. Smith, 29 Neb. 74 434 v. Walsh, 25 Minn. 543 435 Allison v. Allison, 101 Va. 537 40 Allyn v. Cole, 3 Neb. Unof . 108 862 Alvey v. Hartwig (Md.), 67 Atl. 132 821 American Bible Society v. Price, 115 HI. 623 89, 131 American Board of Commissioners, Appeal of, 27 Conn. 344 772 American Seaman's Friend Society v. Hopper, 39 N. Y. 619 85 American State Bank v. Huntington, 34 Neb. 597 456 Ames v. Armstrong, 106 Mass. 15 766 Ames' Will, 40 Or. 495 60, 83, 86 Amis v. Cameron, 55 Ga. 449 203 Amoskeag Mfg. Co. v. Barnes, 84 N. H. 25 75, 432, 438 Amsbaugh v. Exchange Bank, 33 Kan. 100 470 Andersen v. Andersen, 69 Neb. 565 19, 734 Anderson v. Anderson, 112 N. Y. 104 164 v. Anderson, 42 Vt. 350 854 v. Bogard, 83 Neb. 8 42, 260 v. Bradford, 5 J. J. Marsh. (Ky.) 69 567 v. Chicago B. & Q. By. Co., 35 Neb. 95 299 V. Mather, 44 N. Y. 249 877 v. Piercy, 20 W. Va. 282 303 v. Schertz, 94 Neb. 390 402, 623, 624 Andrew v. Hinderman, 71 Wis. 148 314 v. Motley, 12 Com. B., N. S., 514 96 Andrews v. Avory, 14 Graft. (Va.) 236 538 v. Bassett, 92 Mich. 449 559, 720 v. Carr, 2 R. I. 493 238 v. Tucker, 7 Pick. (Mass.) 250 237, 254, 303 Angell v. Bobbins, 4 R. I. 493 537 Ansley v. Baker, 14 Tex. 607 422 Appel v. Byers, 98 Pa. 479 55 v. Kelsey, 47 Ark. 413 422 Apple, Estate of, 66 Cal. 432 403 TABLE OF CASES. 969 Page Archambault v. Blanchard, 198 Mo. 384 89 Arlington State Bank v. Paulsen, 57 Xeb. 117 326, 375, 376 Armstrong v. Armstrong, 63 Wis. 162 145 v. Stowe. 77 N. C. 360 235 Armstrong's Appeal, 63 Pa. 312 585 Arnold v. Dean, 61 Tex. 349 553 Arthur's Appeal, 1 Grant (Pa.), 55 825 Aspden v. Nixon, 4 How. U. S. 467 416 Aston v. Galloway, 38 N. C. 126 579 Atcheson Y. Scott, 51 Tex. 212 334 Atkins v. Atkins, 18 Neb. 474 603 v. Sanger, 1 Pick. (Mass.) 192 149 Atkinson v. Hasty, 21 Neb. 663 215, 216, 217, 220, 225 v. Mays, 57 Neb. 137 156 v. Staig, 13 R. I. 725 156 Atwood v. Atwood, 22 Pick. (Mass.) 283 606 Aubert's Appeal, 119 Pa. 48 99 Aubuchon v. Aubuchon, 113 Mo. 260 515 Austin v. Munroe, 47 N. Y. 460 347 v. Wilson's Exrs., 21 Ind. 252 , 334 Ayers v. King, 168 Mo. 240 749 v. Palmer, 57 Cal. 309 376 Ayres' Estate, In re, 84 Neb. 16 66, 147 B Baacke v. Baacke, 50 Neb. 18 98, 100, 103 Babcock v. Cobb, 11 Minn. 347 542 Bachelor v. Korb, 58 Neb. 122 883, 885, 889, 900 v. Schmela, 49 Neb. 37 679, 706 Backenstoss v. Stahler's Admrs., 33 Pa. 251 525 Backhouse, In re, 185 N. Y. 544 650 Bacon v. Morrison, 57 Mo. 68 519 Badenhoff v. Johnson, 11 Nev. 87 848, 853 Badger v. Daniel, 76 N. C. 372 937 Baer v. Ballingall, 37 Or. 422 614, 621 Bailey v. Dillworth, 10 Smedes & M. (Miss.) 404 308 v. Garrison, 68 Neb. 679 869 v. Wright, 39 Mich. 96 290 Baker v. Baker, 51 Wis. 538 279 v. Bourne, 127 Ind. 466 277 970 TABLE OF CASES. Page Baker v. Bradsby, 23 111. 632 524 v. Davis, 18 N. H. 325 261 v. .Martin, 156 Ind. 53 547 v. Moor, 60 Me. 443 773 v. Raleigh & G. R. Co., 91 N. C. 208 557 v. Rust, 37 Tex. 242 470 Baker's Estate, In re, 178 N. Y. 575 642 Balch v. Smith, 12 N. H. 437 822 Baldridge v. State, 69 Inci. 196. . , 846 Baldwin v. City of New York, 42. Barb. (N. Y.) 529 18, 320 v. Parker, 99 Mass. 79 138 v. Sheldon, 48 Mich. 580 58 v. Spriggs, 65 Md. 373 100 Baldwin's Appeal, 81 Pa. 441 417 Ball v. Clothier, 34 Wash. 299 547 v. Collins (Tex.), 5 S. W. 622 539 v. LeClair, 17 Neb. 39 921, 929 Ballantine v. Proudfoot, 62 Wis. 217 88 Ballard v. Ballard, 18 Pick. (Mass.) 41 582 v. Carter, 5 Pick. (Mass.) 112 99 Bambrick v. Webster Grove Pres. Church, 53 Mo. App. 225 349 Bancroft v. Andrews, 6 Cush, (Mass.) 493 252 Bane v. Wick, 14 Ohio St. 505 278 Bane's Appeal, 27 Pa. 492 922 Bangs v. Gray, 60 Neb. 457 456 Bank of Maywood v. McAllister's Estate, 36 Neb. 188 442 Banks v. Ammon, 27 Pa. 172 530 v. Steele, 27 Neb. 138 356, 357 v. Uhl, 5 Neb. 240 818 Barde v. Wilson, 54 Or. 68. 794 Barker v. Brown, 18 111. 91 436 v. Ladd, 3 Saw. 44 298 Barnard v. Barnard, 118 HI. 93 947 Barnes v. Barnes, 66 Me. 286 125 Barnes' Estate, In re, 36 Or. 282 431 Barney v. Babcock, 115 Wis. 409 759 v. Saunders, 16 How. (U. S.) 453 683 Barnwell v. Thudgell, 56 N. C. 50 546 Barrel v. Kern, 44 Or. 502 302 Barrett v. French, 21 Or. 19 432 v. Provineher, 39 Neb. 773 916 TABLE OF CASES. 971 Page Bartels v. Grove, 4 Wash. 632 7/8 Bartholomew v. Warner, 32 Conn. 98 333 Bartlett v. Bartlett, 15 Neb. 593 456 v. Smith, 5 Neb. Unof. 337 357 Baskett v. Hassell, 107 U. S. 602 589,591 Bassett v. Miller, 8 Md. 548 684 Bates v. Shraeder, 13 Johns. (N. Y.) 26 748 Battey v. Battey, 94 Neb. 729 326 Baucus v. Barr, 45 Hun (N. Y.), 552 781 Baum v. Lynn, 72 Miss. 932 928 Bauman v. Franse, 37 Neb. 807 627 Bauserman v. Charlott, 46 Kan. 490 436 Bayer's Estate, In re, 95 Neb. 488 274, 282 Bayley, In re, 67 N. J. Eq. 566 701 Bazzo v. Wallace, 16 Neb. 290 793, 798 Beak v. Beak, L. E. 13 Eq. 189 591 Beall v. New Mexico, 16 Wall. (U. S.) 535 775 Beals v. Crowley, 59 Cal. 665 589 Beam v. Froneberger, 77 N. C. 540 919 Bean v. Bean, 144 Mich. 599 89 v. Martin, 6 Pick. (Mass.) 269 309 Beaubien v. Cicotte, 12 Mich. 469 147, 164 Becker v. Anderson, 6 Neb. 499 314, 319 v. Anderson, 11 Neb. 494.. 314, 319 v. Linton, 80 Neb. 655 715 Beebe v. Estabrook, 79 N. Y. 246 54 v. McKinzie, 19 Or. 292 127 Beeber's Appeal (Pa.), 8 Atl. 191 675 Beecher v. Buckingham, 18 Conn. 110 286 Beem v. Kimberly, 72 Wis. 343 756 Beene's Admr. v. Collenberger, 38 Ala. 647 529 Beer v. Plant, 1 Neb. Unof. 372 2, 17, 157, 296 Beideman v. Sparks, 64 N. J. Eq. 374 772 Beisley v. Howard, 117 Ala. 449 252 Belcher v. Branch, 11 R. I. 296 328 Bell v. City of New York, 10 Paige (N. Y.), 49 606 v. People, 84 111. 230 780 v. Taylor, 14 Kan. 277 512 v.Walker, 54 Neb. 222 ...805 Bell's Appeal, 66 Pa. 498 899 Bellinger v. Thompson, 26 Or. 320 241, 756, 764, 771, 780 972 TABLE OF CASES. Page Benjamin v. Bush, 89 Neb. 334 : 323, 416 Bennett v. Bennett, 65 Neb. 432 859 v. Bittle, 4 Rawle (Pa.), 339 , 52 v. Hibbert, 81 Iowa, 154 89 v. Ives, 30 Conn. 329 568 v. Overing, 16 Gray (Mass.) , 267 776 v. Owen, 13 Ark. 177 529 v. Taylor, 4 Neb. Unof. 800 806, 817 v. Van Riper, 47 N. J. Eq. 563 56 Benoist v. Murrin, 58 Mo. 307 88 Benson, In re, 69 N. Y. 499 584 Bently v. Baker, 61 Neb. 92 778 Bentley v. Bentley's Estate, 72 Neb. 803 457 v. Torbet, 68 Iowa, 122 863 Benton v. Benton, 63 N. H. 289 53 Benton, In re, 234 111. 666 641 Bfirgin v. Haight, 99 Cal. 52 546, 547 Berkmeyer v. Kellerman, 32 Ohio St. 239 918 Bernard v. Minshull, 1 Johns. Ch. (Eng.) 276 58 Berry v. Hamilton, 12- B. Mon. (Ky.) 183 196 v. Johnson, 50 Me. 401 826 Berry, In re Estate of, 154 Iowa, 301 128 Besancon v. Wagner, 12 N. D. 240 347, 691 Besondy, In re, 32 Minn. 385 856 Besser v. Joyce, 9 Or. 310 606 Best v. Gralap, 69 Neb. 811 17, 465, 466, 467 Betcher v. Betcher (Minn.), 86 N. W. 1 710 Betts v. Betts, 113 Iowa, 111 146, 691 Bever v. Spangler, 93 Iowa, 576 146 Bickel v. Butcher, 35 Neb. 361 443 Biddison v. Story, 57 Md. 96 249 Biddle v. Wendell, 37 Mich. 452 785 Bigelow's Exrs. v. Bigelow's Admrs., 4 Ohio, 138 170, 250 Bills v. Scott, 49 Tex. 430 89, 250 Bingham, In re, 127 N. Y. 296 498 v. Maxey, 15 111. 295 333, 529 Birdsall v. Hewlett, 1 Paige (N. Y.), 32 , 582 Birney v. Hann, 3 A, K. Marsh. (Ky.) 322 748 v. Wilson, 88 Ohio St. 426 726 Bisbie v. Gleason, 21 Neb. 236 921, 923, 924, 929, 930 TABLE OF CASES. 973 Page Bishop v. Boyle, 9 Ind. 169 605 Bitner v. Bitner, 65 Pa. 347 89 Bixby v. Jewell, 72 Neb. 755 480, 499, 534, 628 Black v. Henry G. Allen Co., 12 Fed. 618 406 T. Whitall, 9 N. J. Eq. 572 597 Blackman v. Bauman, 22 Wis. 611 543, 885, 890 Blackstone v. Miller, 183 U. S. 202 644 Blackwell v. Townsend, 91 Ky. 609 486 Blackwood v. Eegina, 8 App. Cas. 82 412 Blaine v. Traux, 58 Or. 582 433 Blair, In re, 59 X. Y. Supp. 1090 156 Blake v. Chambers, 4 Xeb. 90 330, 686 v. Pegram, 101 Mass. 592 843 v. Pegram, 109 Mass. 541 690, 910 Blakeley's Will, In re, 48 Wis. 294 148 Bland T. Fleeman, 58 Ark. 84 575 Blaskower v. Steel, 23 Or. 198 427 Blodgett v. Hitt, 29 Wis. 169 , 547 Bloom v. Burdick, 1 Hill (X. Y.), 130 502 Blount v. Pritehard, 88 X. C. 445 484 Blower v. Morrett, 3 Ves. Sr. 420 585 Blume v. Hartman, 115 Pa. 32 144 Blythe v. Ayres, 96 Cal. 532 730 Boales v. Ferguson, 55 Xeb. 565 679, 706, 746, 750 Board of Commissioners, Dawes Co. v. Furay, 5 Xeb. Unof. 507. . . . 219 Boardman v. Wark, 40 Minn. 399 858 Boaz's Admr. v. Milliken, 83 Ky. 634 859 Bobb v. Barnum, 59 Mo. 394 625 Boden v. Meier, 71 Xeb. 191 23, 575, 594, 835 Boevink v. Christiaanse, 69 Xeb. 256 376, 381, 383 Boggs v. Boggs, 62 Xeb. 294 92, 134, 135, 136 Boland's Estate, 35 Cal. 310 485 Bolander's Estate, In re, 38 Or. 490 268, 359 Bellinger v. Knox, 3 Xeb. Unof. 811 54 Bolton Y. Ohio Xat. Bank, 50 Ohio St. 290 263 Bonacum v. Manning, 85 Xeb. 60 25, 325, 376, 720 Bond v. Armstrong, 88 Ind. 65 893 v. Lockwood, 33 111. 212 856, 870, 918, 927 v. Zeigler, 1 Ga. 324 334 Bond's Lessee v. Swearingen, 1 Ohio St. 395 263 Bone's Appeal, 27 Pa. 4C2 865 974 TABLE OF CASES. Page Bonnell v. Holt, 89 HI. 71 541 Boody v. Emerson, 17 N. H. 577 538 Booker v. Armstrong, 93 Mo. 49 685. 687 Booth v. Foster, 11 Ala. 312 494 v. Starr, 5 Day (Conn.) , 275 458 Booyer v. Hodges, 45 Miss. 78 354 Borcher v. McGuire, 85 Neb. 646 897, 921 Boron v. Kent, 190 N. Y. 422 596 Borneman v. Sindlinger, 15 Me. 429 572 Bostwick v. Skinner, 80 HI. 158 490 Boughton v. Flint, 74 N. Y. 476 580 Bouldin v. Ewart, 63 Mo. 330 512 Bourne v. Stevenson, 38 Me. 499 262, 271 Bowen v. Hoxie, 137 Mass. 527 733, 737 v. Johnson, 6 Ind. 110 98 v. Payton, 14 E. I. 257 52 Bowers v. Holladay, 28 Or. 491 432 v. Swander, 121 Ind. 164 865 Bowman's Estate, In re, 133 Wis. 594 156, 448 Boyd v. Boyd, 66 Pa. 293 136 Boyd's Sureties v. Oglesby, 23 Gratt. (Va.) 684 307 Boyer v. Hawkins, 86 Iowa, 50 567 v. Robinson, 26 Wash. 117 750 Boylston v. Carver, 11 Mass. 215 145 Boyse v. Rossborough, 6 H. L. Cas. 6 136 Brackenridge v. Holland, 2 Blackf. (Ind.) 377 546 Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523 102 Bradiee v. Andrews, 137 Mass. 50 56 Bradley v. Bradley's Admr., 83 Va. 75 687, 707 v. Missouri Pac. Ry. Co., 51 Neb. 653 213, 218 Bradley's Estate, 11 Phila. (Pa.) 87 446 Bradshaw v. Commonwealth, 3 J. J. Marsh. (Ky.) 332 711 Brady, In re (Idaho), 79 Pac. 75 912 Bragaw v. Bolles, 51 N. J. Eq. 84 550 Braiden v. Mercer, 44 Ohio St. 339 931 Branch v. Du Bose, 55 Ga. 21 919 Brand v. Brand, 109 Ky. 721 446 Brandon v. Jensen, 79 Neb. 569 399, 532, 628 Brant v. Wilson, 8 Cow. (N. Y.) 56 97 Brathwaite v. Harvey, 14 Mont. 208 413 Braun v. Mathiesen, 139 Iowa, 409 703 TABLE OF CASES. 975 Page Brawley v. Collins, 88 N. C. 605 52 Bray v. Adams, 114 Mo. 486 . 899 Brazee v. Schofield, 2 Wash. Tor. 209 897 Brazer v. Dean, 15 Mass. 183 279 Brenham v. Davidson, 51 Cal. 352 859 Brenner v. Alexander, 16 Or. 351 476 Brewer v. Ernest, 81 Ala. 435 911 Brewster v. Balch, 9 Jones & S. (N. Y.) 63 769 Brewster's Estate, In re, 113 Mich. 561 684, 695 Brichacek v. Brichacek, 75 Neb. 417 623 Bridge v. Swain, 3 Eedf . Sur. (N. Y.) 487 497 Bridgman v. Bridgman, 30 W. Va. 212 213 v. Green, Wilmot Ops. 58, 65 719 Briggs v. Baptist Church (Me.), 8 Atl. 267 780 Brigham v. Shattuck, 10 Pick. (Mass.) 308 58, 584 Brinckerhoff v. Eemsen, 8 Paige (N. Y.), 488 63, 65 Brinkworth v. Hazlett, 64 Neb. 502 463 Brinton v. Van Cott, 8 Utah, 480 467 Brisbane v. Huntington, 128 Iowa, 166 730 Broaclridge v. Sackett, 138 Mich. 293 577 Brock, Ex parte, 37 S. C. 348 125 Brodrib v. Tibbitts, 63 Cal. 80 847 Bromley's Estate, In re, 114 Mich. 53 141 Brooks v. Dutcher, 22 Neb. 644 131 v. Jackson, 125 Mass. 307 782 v. Rayner, 127 Mass. 268 930 Broughton v. Bradley, 34 Ala. 694 245 Brown v. Brown, 3 Conn. 299 82 v. Brown, 71 Neb. 200 54, 734, 736 v. Brown, 41 N. Y. 507 554 v. Brown, 7 Or. 285 327 v. Brown, 79 Va. 648 585 v. Brown, 16 Vt. 197 576 v. Bulkley, 14 N. J. Eq. 294 146 v. .Burdick, 25 Ohio St. 260 158 v. Chase, 4 Mass. 436 , ...863 v. Fisher, 77 Minn. 1 900 v. Forbes, 1 Neb. Unof . 888 455 v. Forsche, 43 Mich. 500 200 v. Foster, 6 R. I. 564 . 537 v. Hannah, 132 Mich. 33 512 976 TABLE OP CASES. Page Brown v. Harman, 76 Neb. 28 224, 225 v. Jacobs' Estate, 24 Neb. 714 272, 775 v. Mitchel, 75 Tex. 9 162 v. Powell, 45 Ala. 149 496 r. Probate Judge, 42 Mich. 501 931 v. Eedwyne, 16 Ga. 67 825, 826 v. Sherrer, 5 Colo. App. 225 101 v. Smith, 101 Me. 455 405, 408 v. State, 23 Kan. 235 764, 780 v. Thorndike, 15 Pick. (Mass.) 388 99 v. Ventress, 24 La. Ann. 187 242 v. Walter, 58 Ala. 310 288 v. Watson, 66 Mich. 223 357 v. Webster, 87 Neb. 788 117, 465 v. Wiley, 107 Ga. 85 567 T. Yaryan, 74 Ind. 305 858 Brown's Appeal, 68 Pa. 53 519 Brown, In re, 1 B. Mon. (Ky.) 56 95 Brown's Estate, In re, 65 Vt. 331 263 Browne v. Coleman, 62 Or. 461 495, 533, 536 Brownfield v. Holland, 63 Wash. 86 458 Brubaker v. Jones, 23 Kan. 411 519, 538 Bruce v. Moon, 57 S. C. 60 468 Bruch v. Laatz, 2 Rawle (Pa.), 392 422 Bruner's Appeal, 57 Pa. 52 307 Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 506 102 Brusha v. Hawke, 87 Neb. 534 221, 436, 473 v. Phipps, 86 Neb. 822 516 Bryan v. Bauder, 23 Kan. 95 486 Bryant v. Russell, 23 Pick. (Mass.) 508 352 v. Thompson, 128 N. Y. 426 790 Buchanan v. Buchanan, 75 N. J. Eq. 274 323 v. Schulderman, 11 Or. 150 40 Buckingham v. Boar, 45 Mich. 244 455 Buckland v. Gallup, 40 Hun (N. Y.), 61 301 Buckley v. Buckley, 16 Nev. 180 240 Buecker v. Carr, 60 N. J. Eq. 306 383 Buehler's Appeal, 100 Pa. 385 596 Buel v. Dickey, 9 Neb. 285 194, 762, 764 Buerstetta v. Buerstetta, 83 Neb. 287 39 Buford T. Gruver, 223 Mo. 231 123 TABLE OF CASES. 977 Page Bugbee v. Sargent, 27 Me. 38 555 Bull v. Payne, 47 Or. 581 426 Bullock's Admr. v. Rogers, 16 Vt. 294 258 Bundy v. McKnight, 48 Ind. 502 83, 87, 91 v. Youmans, 44 Mich. 376 362 Bunker v. Rand, 19 Wis. 253 572 Burbank v. Burbank, 152 Mass. 254 50 v. Payne, 17 La. Ann. 15 409 v. Sweney, 161 Mass. 490 46 Burch v. Burch, 52 Ind. 136 576 Buren's Will, 47 Or. 307 83, 86 Burger v. Frakes, 67 Iowa, 460 853 Burke v. Bishop, 27 La. Ann. 465 591 Burke's Estate, In re, 66 Or. 286 219 Burleigh v. Clough, 52 N. H. 567 46 v. Palmer, 74 Neb. 122 327 Burling v. Alvord's Estate, 77 Neb. 861 438, 463, 625 Burnet's Exrs. v. Burnet, 30 N. J. Eq. 595 57, 59, 584 Burney v. Torrey, 100 Ala. 157 84 Burns v. Van Loan, 39 La. Ann. 560 537 Burnside v. Savier, 6 Or. 156 359 Burreli v. Chicago M. & St. P. Ry. Co., 43 Minn. 363 536 Bursen v. Goodspeed, 60 111. 277 481 Burton v. Williams, 63 Neb. 431 403, 405 Burwell v. Cawood, 2 How. (U. S.) 560 350 Bush v. Bush, 33 Kan. 556 920 v. Clark, 127 Mass. Ill 357 v. De Lano, 133 Mich. 321 125, 147 Bush's Estate, In re, 89 Neb. 334 684 Butler v. Fitzgerald, 43 Neb. 192 615 Butterick v. Richardson, 39 Or. 246 917, 921 Butts v. Purdy, 63 Or. 169 311 Byerly v. Donlin, 72 Mo. 270 252 Byrne v. Hume, 84 Mich. 185 151, 347 Byron Reed Co. v. Klabunde, 76 Neb. 103 14, 157 c Caddell v. Palmer, 1 Clark & F. 372 40 Cadman v. Richards, 13 Neb. 383 172, 178, 180, 182, 429, 791, 801 Cadmus v. Combs, 37 N. J. Eq. 264 553 62 Pro. Ad. 978 TABLE OF CASES. Page Caffey v. McMichael, 64 N, C. 507. ... . 920 Cahill v. Bassett, 66 Mich. 407 499 Gaboon v. Moore, 11 Vt. 604 354 Caines v. De Lacroix, 6 Wall. (U. S.) 719 544 Calder v. Curry, 27 E. I. 610, 556 Caldwell v. Caldwell, 45 Ohio St. 512 383 Calhoun v. McKnight, 36 La. Ann. 414 241 Callahan v. Wooldridge, 171 Mass. 595 657 Camden v. Plain, 91 Mo. 117.. 545 Cameron v. Boyd, 4 Dana (Ky.), 549.. 577 v. Cameron, 15 Wis. 1 690 v. Justices Inferior Court Eichmond Co., 1 Ga. 36 765, 768 Camp v. Crocker, 54 Conn. 21 50 v. Grant, 21 Conn. 41 571 v. Smith, 68 N. C. 537 352 Campau v. Gillett, 1 Mich. 416 506 Campbell v. Campbell, 30 N. J. Eq. 415 603 v. Clark, 64 N. H. 328 54, 57 v. Clark, 2 Doug. (Mich.) 141 604 v.Johnson, 41 Ohio St. 588 785 v. Knights, 26 Me. 224 543, 885 v. Murphy, 55 N. C. 357 616 v. State, 66 Md. 1 775 Campbell, In re, 12 Wis. 369 675 Campbell's Will, In re, 170 N. Y. 84 498 Candy v. Hannamore, 76 Ind. 125 924 Capps v. Hickman, 97 111. 429 822 Card v. Deans, 84 Neb. 4 900 Cardwell, Guardianship of, 55 Cal. 137 868 Carlisle v, Burley, 3 Me. 250 303 Carlson v. Oregon Short Line E. E. Co., 21 Or. 459 29 Carlton v. Carlton, 40 N. H. 14 63 v. Patterson, 29 N. H. 586 149 Carlysle v. Carlysle, 10 Md. 440 868 Carow v. Mowatt, 2 Edw, Ch. (N. Y.) 57 213 Carpenter v. Carpenter, 8 Bush (Ky.), 283 90 v. Hatch, 64 N. H. 573 149 v. McBride, 3 Fla. 292 887 v. Murphy, 74 Wis. 541 429, 439 Garriger's Admr. v. Whitington's Admr., 26 Mo. 311 436 Carroll v. Connett, 2 J. J. Marsh. (Ky.) 195 762 TABLE OF CASES. 979 Page Carroll v. Bonham, 52 X. J. Eq. 625 79 v. House, 48 N. J. Eq. 269 140 Carson v. Fears, 91 Ga. 4S2 334 Carter v. Gray, 58 Ky. 411 577 v. Manufacturer's Nat. Bank, 71 Me. 448 344 v. Penn, 79 Ga. 747 433 Carter, In re, 120 Iowa, 215 855 Cartright v. Cartright, 1 Phillim. 90 90 Carty v. Connelley, 91 Cal. 15 593 Gary v. White, 52 N. Y. 139 448, 459 Carver, In re, 118 Cal. 73 911 Case v. Haggerty, 91 Neb. 746 39 Casey v. Peebles, 13 Neb. 9 796 Casoni v. Jerome, 58 N. Y. 315 784, 785 Cassady v. Casey, 58 Iowa, 326 920 Castner'a Appeal, 88 Pa. 478 54 Casto v. Murray, 49 Or. 57 286 Catholic Mut. Benefit Assn. v. Firnane, 50 Mich. 82 733 Catlett v. Carter's Exr., 2 Munf . ( Va.) 24 769 Caufield v. Sullivan, 85 N. Y. 153 39 Caulton v. Pope, 84 Neb. 723 194, 260, 295 Caylor v. Caylor's Estate, 22 Ind. App. 666 590 Cazassa v. Cazassa, 92 Tenn. 373 597 Central Branch U. P. E. Co. v. Andrews, 37 Kan. 162 302 Chadbourne v. Chadbourne, 9 Allen (Mass.), 173 307 Chaddock v. Haley, 81 Tex. 617 150 Chaffin's Will, 32 Wis. 557 88 Chaler, Succession of, 39 La. Ann. 308 213 Chambers v. Jones, 72 111. 275 544 v. Shaw, 52 Mich. 18 42 Chambers' Estate, In re, 38 Or. 131 424, 551, 701 Chamberlin's Appeal, 70 Conn. 363 185, 253 Chan v. City of South Omaha, 85 Neb. 434 865 Chandler v. Barrett, 21 La. Ann. 58 90 v. Jost, 96 Ala. 596 143 Chandler, In re, 87 Ala. 300 324 Chapman v. Barnes, 29 111. App. 184 450 Chapoton v. Prentis, 155 Mich. 283 315, 319 Charlick's Estate, 11 Abb. N. C. (N. Y.) 56 580 Charlton's Appeal, 88 Pa. 476 335 Chase v. Hoxie, 64 Kan. 320 45 980 TABLE OF CASES. Chase v. Ladd, 153 Mass. 126 131 v. Whiting, 30 Wis. 544 526 Cheever v. Ellis, 144 Mich. 477 708, 709 Cheney v. Cheney, 78 Neb. 274 134 v. Gleason, 125 Mass. 166 288 Chess' Appeal, 4 Pa. 52 389 Chess' Appeal, 87 Pa. 362 581 Chicago B. & Q. By. Co. v. Healey, 76 Neb. 783 265, 299 v. Gould, 64 Iowa, 343 223, 243 v. Oyster, 58 Neb. 1 299 v. Waserman, 22 Fed. 872 733 Chicago K. & N. By. Co. v. Cook, 43 Kan. 83 540 Chicago B. I. & Pac. By. Co. v. Hambel, 2 Neb. Unof. 697 672 Chick v. Ives, 2 Neb. Unof. 879 39, 51, 325 Children's Aid Society v. Loveridge, 70 N. Y. 387 91 Childress v. Bennett, 10 Ala. 751 19 Chisolm's Heirs v. Ben, 7 B. Mon. 408 107 Choate v. Arrington, 116 Mass. 552 780 Chouteau v. Suydam, 2 N. Y. 184 308 Chrisman v. Chrisman, 16 Or. 127 85, 123 Christian v. Evans, 5 Or. 254 794 v. Morris, 50 Ala. 385 355 Christiansen v. Talmage (Or.), 13S Pac. 453 127 Chubb v. Bradley, 58 Mich. 268 856 City of Carondelet v. Desnoyer's Admr., 27 Mo. 36 432 City of Friend v. Burleigh, 53 Neb. 674 294 City of Horton v. Trompeter, 53 Kan. 150 217 City of Philadelphia v. Davis, 1 Whart. (Pa.) 490 604 Clapham's Estate, In re, 73 Neb. 492 156 Clapp v. Fullerton, 37 N. Y. 197 145 v. Inhabitants of Stoughton, 10 Pick. (Mass.) 4C8 254, 259 Clark v. Blackington, 110 Mass. 369 330, 333, 405 v. Bundy, 29 Or. 193 746 v. Clement, 33 N. H. 563 409, 278, 412 v. Clough, 63 N. H. 43 313 v. Ellis, 9 Or. 129 85, 117 v. Fleischman, 84 Neb. 465 46, 356 v. Garfield. 8 Allen (Mass.), 427 869 v. Lyon, 82 Neb. 625 854 v. Moses, 50 Ala. 326 334 v. Nebraska Savings Bank, 50 Neb. CG9 880 TABLE OF CASES. 981 Page Clark v. Stansburry, 49 Mo. 346 140 v. State, 6 Gill & J. (Md.) 346 . 765 v. Turner, 50 Neb. 290 107, 118, 156, 448 v. Wilkinson, 59 Wis. 543 873 Clarkson v. Hatton, 153 Mo. 47 934 Clary v. Watkins, 64 Neb. 386 726 Clausenius v. Clausenius, 179 111. 545 89 Clawson v. Brewer, 67 N. J. Eq. 201 465 Cleaver v. Cleaver, 39 Wis. 96 56 Cleaves v. Dockray, 67 Me. 118 763 Clement v. Cozart, 103 N. C. 173 479 Clements v. Eamsey (Ky.), 4 S. W. 311 913 Clemmens v. Brillhart, 17 Neb. 325 821 Clemens v. Heelan, 52 Neb. 287 611, 629 Clendenning v. Clymer, 17 Ind. 155 587 Cleveland v. Quilty, 128 Mass. 578 805 Clinch, In re, 180 N. Y. 300 644 Cline v. Dexter, 72 Neb. 619 456 Cline's Will, 24 Or. 178 86 Clotilde v. Lutz, 157 Mo. 439 578 Clough v. Clough, 117 Mass. 83 589, 590 Clyce v. Anderson, 49 Mo. 37 91 Coat v. Coat, 63 111. 73 515 Cochran v. Anderson, 104 Ind. 282 916 v. Fillians, 30 S. C. 237 872 Cockerel v. Hobson, 16 Ala. 391 462 Cocks v. Haviland, 124 N. Y. 431 709 Coe v. Knights & Ladies of Security (Neb.), 147 N. W. 112 212 Cog-jeshall v. Pelton, 7 Johns. Ch. (N. Y.) 192 50 Coggeswell v. Concord & M. R. R., 68 N. H. 192... 308 Cohee v. State, 79 Neb. 811 859 Cole v. Boyd, 68 Neb. 146 533, 534, 547 Cole's Will, In re, 52 Wis. 591 194 Coleman v. Parker, 114 Mass. 30 580 Coles v. Coles, 15 Johns. Ch. 319 615 Collamore v. Learned, 171 Mass. 99 934 v. Wilder, 19 Kan. 67 439 Collins v. Farnsworth, 8 Blackf . (Ind.) 575 485 v. Hoxie, 9 Paige (N. Y.), 88 55 v. Tillou's Admr., 26 Conn. 373 422 v. Townley, 21 N. J. Eq. 353 85 982 TABLE OF CASES. Collup v. Smith, 29 Va. 258 98 Colt v. Dubois, 7 Neb. 396 127 Colton v. Field, 131 111. 398 421 Colwell v. Alger, 5 Gray (Mass.), 67 194, 774 Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803 124 Commonwealth v. Bryan, 8 Serg. & E. (Pa.) 128 771 v. Coleman, 52 Pa. 468 662 v. Cox's Admr., 36 Pa. 442 873 v. Forney, 2 Watts & S. (Pa.) 358 782 v. Fretz, 4 Pa. 347 767, 768 v. Moltz, 10 Pa. 327 767 v. Kogers, 53 Pa. 470 764 v. Wenrick, 8 Watts (Pa.), 159 767, 770 Commonwealth's Appeal, 128 Pa. 603 662 Compton v. Pruitt, 88 Ind. 171 604 Comstock v. Hadlyme, 8 Conn. 254 84 Conant v. Stratton, 107 Mass. 474 193 Conant's Estate, In re, 43 Or. 535 431 Cone v. Dunham, 59 Conn. 145 438 Conger v. Cook, 56 Iowa, 117 484 Connecticut Mut. Life Ins. Co. v. Schurmier (Minn.), 147 N. W. 459 823 Connell v. Moore, 70 Kan. 88 823 Connell, In re, 170 N. Y. 423 641 Connolly's Estate, In re, 73 Cal. 423 775 Connor, In re, 93 Neb. 118 823 v. Root, 11 Colo. 183 493 v. Skaggs, 213 Mo. 334 88 Conover's Exrs. v. Conover, 1 N. J. Eq. 403 273 Conroy v. Hallowell, 94 Neb. 774 8 Conrad v. Douglas, 59 Minn. 498 607 Conser's Estate, In re, 40 Or. 142 273, 681, 682 Continental Building & Loan Assn. v. Mills, 44 Neb. 136 800 Continental Trust Co. v. Peterson, 76 Neb. 411 680 Converse v. Starr, 23 Ohio St. 491 118 Cook v. Cook (N. J.) 47 Atl. 732 325 v. Dawson, 29 Beav. 126 555 v. Sexton, 79 N. C. 305 277 v. Winchester, 81 Mich. 581 64 Cook, In re, 137 Cal. 184 484, 485 Cooke v. Cooke, 29 Md. 538 303 TABLE OF CASES. 983 Cooke v. Meeker, 36 N. Y. 15 581 Cool's Exrs. v. Higgins, 29 N. J. Eq, 308 878 Cooley v. Jansen, 54 Neb. 33 628 Coon v. Cook, 6 Ind. 268. 536 Cooper v. Cooper, 9 N. J. Eq. 655 916 v. McNamara, 92 Iowa, 243 821 v. Williams, 109 Ind. 270 353 Coopwood v. Wallace, 12 Ala. 790 348 Copp v. Copp, 20 N. H. 284 847 v. Hersey, 31 N. H. 317 674 Oorbitt v. Corbitt, 54 N. C. 117 55 Corey v. Hyde, 49 Cal. 470 389, 392 v. Plummer, 48 Neb. 481 624, 628 Corliss v. McLagin, 29 Me. 115 261 Cornelius v. Miles (Ky.), 53 S. W. 517 453 Cornthwaite v. First Nat. Bank of Eockville, 57 Ind. 268 355 Corwine v. Corwine, 24 N. J. Eq. 579 577 Costello, In re, 189 N. Y. 288 661 Cotton v. State, 64 Ind. 573 929 Courtright v. Courtright, 40 Mich. 633 821 Covington v. Leak, 65 N. C. 594 859, 911 Cowdry, In re, 77 Vt. 539 84, 147 Cowgill v. Linville, 20 Mo. App. 138 334 Cowherd v. Kitchen, 57 Neb. 426 759, 790, 791 Cowie v. Strohmeyer, 150 Wis. 401 704 Cowles v. Cowles, 8 111. 435 826 Cox v. Chalk, 37 Md. 569 237 Y. Cox, 101 Mo. 168 126 v. Ellsworth, 18 Neb. 669 212 v. John, 32 Ohio St. 538 343 v. Yeazel, 49 Neb. 343. 320, 404 Graf ton v. Beal, 1 Ga. 322 251 Craig v, Anderson, 3 Neb. Unof. 638 347, 422 v. Jennings, 31 Ohio St. 84 288 v. Leslie, 3 Wheat. (U. S.) 563 782 Cramer v. Corbis, 31 111. 259 839 Crandall v. Baker, 8 N. D. 263 44 v. Nichols, 93 Neb. 80 45 CrandalPs Appeal, 63 Conn. 365, 139 Crane v. Stickles, 15 Vt. 252 318 Crause v. Peterson, 130 Cal. 169 328 Cravens v. Logan, 7 Ark. 102 354 984 TABLE OF CASES. Page Crawford v. McCarty, 159 N. Y. 514 576 v. Wist, 26 Or. 596 794 Crawford's Estate, 51 Or. 76 794 Creagh v. Tunstall, 98 Ala. 249 857 Creamer v. Ingalls, 8& Wis. 112 756 Creighton v. Murphy, 8 Neb. 349 405, 413, 442 Creighton's Estate, In re, 12 Neb. 280 747 Creighton's Estate, In re, 88 Neb. 167 20, 21, 802 Creighton's Estate, In re, 91 Neb. 654 51,791, 803 Creswell v. Slack, 68 Iowa, 110 459 Crispin v. Winkleman, 57 Iowa, 523 288 Crombie v. Engel, 19 N. J. Eq. 83 711 Crone's Appeal, 103 Pa. 571 556 Crocker v. Smith, 47 Neb. 102 846, 847 Crosby's Estate, 55 Cal. 574 482 Cross v. Baskett, 17 Or. 82 708 v. White, 80 Minn. 413 930 Crouch v. Davis' Exrs. 23 Gratt. (Va.) 62 584 v. Eveleth, 12 Mass. 502 544 v. Puryear, 1 Band. (Va.) 258 603 Crowninshield v. Crowninshield, 2 Gray (Mass.), 524 90, 123 Cudney v. Cudney, 68 N. Y. 152 134 Culbertson v. Culbertson, 68 Ark. 405 597 Cullen v. O'Hara, 4 Mich. 132 289, 303 Culver v. Hardenbergh, 37 Minn. 225 518, 538 v. Harper, 27 Ohio St. 464 601 Culver's Estate, In re, 153 Iowa, 461 662 Cummings v. Plummer, 94 Ind. 403 54 Cummings' Estate, 153 Pa. 397 262 Cunningham v. Anderson, 107 Mo. 371 502 v. Cunningham, 80 Minn. 180 64 Cunningham, In re, 30 Minn. 169 97 Curran v. State, 53 Or. 154 809 Currier v. Currier, 70 N. H. 149 586 Curtis v. Farmers' Nat. Bank, 39 Ohio St. 359 355 v. Price, 12 Ves. 193 605 Gushing v. Hale, 8 Vt. 38 836 Cusic v. Byrne, 1 Cal. App. 643 ' 672 Cusick v. Hamer, 25 Or. 473 216, 217 Cutter v. Butler, 25 N. H. 343 102 v. Meeker, 71 Neb. 782 500 v. Waddingham, 23 Mo. 206 728 TABLE OF CASES. 985 D Page Dabney v. Cotterel's Admx., 9 Gratt. (Va.) 572 53 Dakota Co. v. Bartlett, 67 Neb. 62 712 Dale v. Dale, 38 N. J. Eq. 274 140, 143 Dalrymple v. Gamble, 66 Md. 298 235, 409 Damarell v. Walker, 2 Kedf. Sur. (N. Y.) 198 945 Damkroeger v. James (Neb.), 146 N. W. 936 465 Dampier v. McColl, 78 Ga. 607 823 v. St. Paul Trust Co., 46 Minn. 526 445 Danforth v. Smith, 23 Vt. 247 601 Daniel v. Smith, 75 Cal. 548 589 Daniels v. Brown, 38 N. H. 454 290 Darden v. Wyatt, 15 Ga. 414 823 Dardis' Will, In re, 135 Wis. 457 128 Darland v. Taylor, 52 Iowa, 503 589 Darley v. Darley, 3 Brad. Sur. (N. Y.) 508 136 Dart's Will, In re, 34 Or. 56 806 Davenport v. First Congregational Society, 33 Wis. 387 308 v. Sargeant, 63 N. H. 538 578 David Adler & Sons Clothing Co. v. Hellman, 55 Neb. 266 600 Davis v. Clark, 58 Kan. 54 272 v. Davis, 27 Neb. 859 798 v. Davis, 11 Ohio St. 386 18 v. Estey, 8 Pick. (Mass.) 875 414 v. French, 20 Mo. 21 348 v. Hapgood, 54 N. C. 253 534 v. Hoover, 112 Ind. 423 327 v. Kendall, 161 Ind. 412 473, 475, 494 Davis' Appeal, 60 Pa. 118 865 Davis, In re, 62 Mo. 453 910 Davidson v. Bates, 11 Ind. 391 895 v. Davidson, 70 Neb. 584 124 Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 252 596 Dawes v. Boylsron, 9 Mass. 337 19, 417 v. Head, 3 Pick. (Mass.) 128 414 v. Shed, 15 Mass. 6 . 438 Dawson v. Dawson, 35 Ohio St. 443 770 v. Helms, 30 Minn. 107 518 Day v. Day, 3 N. J. Eq. 549 144 v. Graham, 97 Mo. 398 433 v. Holland, 15 Or. 364 802 986 TABLE OF CASES. Page D'Avignon, In re, 12 Colo. App. 489 133 Dean v. Negley, 41 Pa. 312 92 v. Portis, 11 Ala. 104 . . 769 De Bernal's Estate, In re, (Cal.) 131 Pac. 375 554 De Bow v. Wollenberg, 52 Or. 434 296 Decker v. Decker, 121 111. 341 53, 586 v. Feisley, 146 Ind. 16 915 Deckernback v. Deckernback, 65 Or. 165 127 Decuir, Succession of, 22 La. Ann. 372 349 v. Succession of, 23 La. Ann. 166 238 Deering v. Adams, 34 Me. 41 790 v. Kerf oot, 89 Va. 491. .. 553 Def ord v. Mercer, 25 Iowa, 118 . 880 Dekay v. Darrah, 14 N. J. L. 288 436 Dekum's Estate, In re, 28 Or. 99 276, 281 Dellafield v. Parish, 25 N. Y. 35 83, 142 v. White, 19 Abb. N. C. (N. Y.) 104 872 Den d. Delaplaine v. Searing, 1 N. J. L. 340 728 Den d. Pierson v. Hart. 3 N. J. L. 73 728 Dennick v. Railroad Company, 103 U. S. 11 300 Denning v. Butcher, 91 Iowa, 425 149, 150 Dennis, In re, Estate of, 67 Iowa, 110 280 Densine v. Cornwell, 11 Serg. & R. (Pa.) 374 858 Denson v. Beazley, 34 Tex. 191 89 Denton v. Nanny, 8 Barb. (N. Y.) 618 602 Deobold v. Opperman, 11 N. Y. 231 352, 784 Derby v. Derby, 4 R. L 414 50 Desribes v. Wilmer, 69 Ala. 25 822 Dessert, In re, 154 Wis. 320 642 Devlin v. Commonwealth, 101 Pa. 273. 211 Devol v. Dye, 121 Ind. 121 589 Devries v. Devries, 5 Neb. Unof. 179 442 Dew v. Kuehn, 64 Wis. 300 42 Dexter v. Cranston, 41 Mich. 448 509 Dey v. Codman, 39 N. J. Eq. 258 688 Dibble v. Dibble, 8 Ind. 307 846 Dick v. Kendall, 6 Or. 166 293 Dickerson v. Dickerson, 31 N. J. Eq. 652 845 Dickinson v. Aldrich, 79 Neb. 198 98 v. Columbia State Bank, 70 Neb. 260 456 v. Dickinson, 124 HI. 483 540, 541 TABLE OF CASES. 987 Page Dickinson's Estate, In re, 148 Pa. 142 749 Dickman v. Burhauser, 16 Neb. 686 626 Dietrichs v. Lincoln & N. W. Ky. Co., 14 Neb. 356 879 Dillman v. McDaniel, 22 111. 276 85 Pilworth's Appeal, 108 Pa. 92 682 Dingley v. Buffum, 57 Me. 381 261 Disher v. Disher, 45 Neb. 100 45, 622 Divine v. Mitchum, 8 B. Mon. (Ky.) 488 603 Dix v. Morris, 66 Mo. 514 352 Dixon v. Buel, 21 111. 203 422 Dobbins v. Half acre, 52 Miss. 561 769 Dobson v. Dobson, 7 Neb. 296 800 Dodd v. Anderson, 197 N. Y. 496 156 Dodge, Appeal of, 106 Pa. 216 55 v. Manning, 1 N. Y. 298 576 v. Stevens, 105 N. Y. 985 877 Dodge County v. Burns, 89 Neb. 534 643, 662, 666 Dodson v. Dodson, 152 Mich. 586 61 Doe d. Cholmondley v. Maxey, 12 East, 889 99 Clements v. Henderson, 4 Ga. 148 526, 542 Hamilton v. Hardy, 52 Ala. 291 486 Hick v. Dring, 2 Maule & S. 448 53 Doherty v. O'Callaghan, 157 Mass. 90 149 Donald v. Nesbit, 89 Ga. 290 607 v. Portis, 42 Ala. 29 720 Donaldson v. Hall, 106 Minn. 502 103 Donges' Estate, In re, 104 Wis. 397 733 Donnelley v. Donnelley's Heirs, 8 B. Mon. (Ky.) 113 606 Dooley v. Bell, 87 Ga. 74 538 Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45 406 Dorah's Admr. v. Dorah'3 Exr., 4 Ohio St. 92 278 Dornetizer v. German Sav. Bank, 23 Wash. 1C2 900 Dorr, In re, Petition of, Walk. Ch. (Mich.) 145 865 Dortch v. Dortch, 71 N. C. 224 585 Doty v. Hubbard, 55 Vt. 278 887 v. Sumner, 12 Neb. 378 225 Dougherty v. Kubat, 67 Neb. 269 738 Douglas v. Bennet, 51 Miss. 680 920 v. Cameron, 47 Neb. 358 726, 727 v. Ferris, 138 N. Y. 192 917, 919, 928 Y. Kessler, 57 Iowa, 63 873 988 TABLE OF CASES. Page Douglas v. Parker, 84 Me. 522 264 Douglas' Appeal, 82 Pa. 169 910 Douglas County v. Kountz, 84 Neb. 596 644, 661, 667 Dove v. Torr, 128 Mass. 38 56 Dovey v. Dovey, 95 Neb. 324 625 Dow v. Dow, 36 Me. 211 596 Dowling v. Feeley, 72 Ga. 557 779 Downing's Will, In re, 118 Wis. 581 84, 149 Drake v. Drake, 82 N. C. 443 694 Draper v. Joiner, 9 Humph. (Tenn.) 612 969 Draper's Estate, In re, 215 Pa. 314 84, 147 Dray v. Bloch, 29 Or. 351 293, 359, 708 Dredla v. Baache, 60 Neb. 655 9, 428, 429, 803, 808 Drew v. Haggerty, 81 Me. 231 589 v. Wakefield, 54 Me. 296 58 Drew's Appeal, 58 N. H. 319 213 Drexel v. Rochester Loan Co., 65 Neb. 231 798 Drinkwater v. Drinkwater, 4 Mass. 254 299 Drummond v. Jones, 44 N. J. Eq. 53 328 Drury v. Connell, 177 HI. 43 64 Dubuch v. Wildermuth, 3 La. Ann. 407 422 Dudley v. Gates, 124 Mich. 440 126, 150 Duffin v. Abbott, 48 111. 17 536 Duffy v. State, 60 Neb. 412 4 Duke's Admrs. v. Duke's Distributees, 26 Ala. 673 680 Duncan v. Inhabitants of Franklin, 43 N. J. Eq. 143 586 Dundas v. Carson, 27 Neb. 634 265, 323 v. Chrisman, 25 Neb. 495 443, 474 Dunham v. Siglin, 39 Or. 295 436 Dunham's Appeal, 27 Conn. 193 88 Dunlap v. Newman, 47 Ala. 429 352 Dunn, Ex parte, 63 N. C. 137 282 v. Sargent, 101 Mass. 236 259 Dunnell v. Municipal Court, 9 E. I. 189 675 Durfee v. Justus, 92 Mich. 211 785 Durie v. Blauvelt, 48 N. J. L. 114 412 Durland v. Seller, 27 Neb. 32 627 Durnford v. De Gruys, 8 Mart. (La.) 220 513 Dutcher v. Culver, 23 Minn. 415 802 Dwight v. Simon, 4 La. Ann. 490 239 Dwyer v. Kalteyer, 68 Tex. 454 686 TABLE OF CASES. 989 Page Dye v. Kerr, 15 Barb. (N. Y.) 444 449 v. Cornell, 4 Pa. 359 894 E Earl v. Dresser, 80 Ind. 11 844, 849, 872 Earle v. Grove, 92 Mich. 285 568 Eastis v. Montgomery, 93 Ala. 293 140 Easton v. Courtright, 84 Mo. 27 362 Eaton v. Cole, 10 Me. 137 309 Eberts v. Eberts, 42 Mich. 404 57 v. Eberts, 55 Pa. 110 918 Eckert v. Flowry, 43 Pa. 46 942 Eckford v. De Kay, 8 Paige (N. Y.), 89 920 Edds, In re, 137 Mass. 346 945 Eddy's Case, 32 N. J. Eq. 781 86 Edgerton v. Edgerton, 17 N. J. Eq. 419 441, 590 Edmunds' Admr. v. Scott, 78 Va. 720 335, 771 Edney v. Baum, 59 Neb. 147 799 v. Baum, 70 Neb. 159 329, 330 Edwards v. Cobb, 95 N. C. 4 238 v. Eainer's Exr., 17 Pa. 597 260 v. Russell, 21 Wend. (N. Y.) 63 10 Eisenbise v. Eisenbise, 4 Watts (Pa.), 134 303 Ela v. Ela, 84 Me. 423 928 Elgutter v. Missouri Pac. Ey. Co., 53 Neb. 748 222, 231 Elizalde v. Murphy, 163 Cal. 681 764 Ellicott v. Chamberlin, 38 N. J. Eq. 694 187 Elliott v. Elliott, 3 Neb. Unof . 832 61, 82 v. Garvin, 166 Fed. 278 458 v. Sparrell, 114 Mass. 404 685 Ellis v. Aldrich, 70 N. H. 219 585, 586 v. Gary, 74 Wis. 176 448, 466 v. Scott, 75 N. C. 108 850 v. Soper, 11 Iowa, 631 855, 912, 924 v. Witty, 63 Miss. 117 226 Ellsworth v. Hall, 48 Mich. 407 879 Ellwood v. Diefendorf, 5 Barb. (N. Y.) 398 562 Elting v. Biggsville Nat. Bank, 173 111. 368 545 Elwell v. Universalist Church, 63 Tex. 220 239 Emerson v. Bowers, 14 N. Y. 449 213, 238 v. White, 29 N. H. 482 748 990 TABLE OF CASES. Page Emery v. Bachelder, 78 Me. 333 586 v. Clough, 63 N. H. 552 589 v. Darling, 50 Ohio St. 260 290 Engles v. Morgenstern, 85 Neb. 51 807 English's Exrs. v. McNair's Admr., 34 Ala. 40 185 Engstad v. Syverson, 73 Minn. 188 785 Ensey v. Hines, 30 Kan. 704 450 Entwhistle v. Meikel, 180 111. 9 117 Erben v. Lorillard, 19 N. Y. 279 467 Erickson v. Nyblom, 78 Neb. 642 473 Erwin v. Turner, 6 Ark. 14 438 Estabrook v. Hapgood, 10 Mass. 313 458 Estes v. Wilcox, 67 N. Y. 264 314 Esty v. Clark, 101 Mass. 36 55 Eubank v. Clark, 78 Ala. 73 684 Evans v. Buchanan, 13 Ind. 438 236 Evans' Appeal, 51 Conn. 435 718 Everson v. Hum, 89 Neb. 716 127 Ev.ertson v. Tappen, 5 Johns. Ch. (N. Y.) 498 687 Evertz v. Stiger, 6 Or. 55 703 Ewen v. Hitchcock (Iowa), 146 N. W. 1 321 Ewing v. Griswold, 43 Vt. 400 439 v. Mclntyre, 141 Mich. 506 107 Ewing's Heirs v. Handley's Exrs., 4 Litt. (Ky.) 346 54 Eyre v. Shaftsbury, 2 P. Wms. 102 822 F Fairbanks, Morse & Co. v. Welshans, 55 Neb. 3C2 357 Fairfield v. Gulliver, 49 Me. 360 14 Faran v. Robinson, 17 Ohio St. 242 478 Farmer v. Sprague, 57 "Wis. 324 150 Farnum v. Loomis, 2 Or. 30 605 Farrar v. Haselden, 9 Rich. Eq. (S. C.) 331 567 Farrell v. Farrell, 1 Duv. (Ky.) 203 140 Farris v. Hayes, 9 Or. 81 603 Farrow v. Nevin, 44 Or. 496 790, 807, 809 Farwell v. Steen, 46 Vt. 678 769, 913 Fauber v. Keim, 85 Neb. 217 577 v. Keim, 88 Neb. 379 756 Faulk v. Dashiell, 62 Tex. 642 376 Fearing v. Jones, 149 Mass. 12 589 TABLE OF CASES. 991 Page Feaster v. Eagan, 135 Iowa, 633 326 Fecht v. Hinze, 162 Mich. 52 578 Feller v. Feller, 40 Or. 76 811, 813, 817 Fellers v. Fellers, 54 Neb. 694 607 Fellows v. Allen, 60 N. H. 439 95, 99 v. Little, 46 X. H. 27 596 Felton v. Sowles, 57 Vt. 382 189, 792 Fennell v. Fennell, 80 Kan. 730 722 v. Henry, 70 Ala. 484 597 Fenton v. Keed, 4 Johns. (N. Y.) 52 606 Fergus v. Schaible, 91 Neb. 180 719 Ferguson v. Herr, 64 Neb. 649 945 v. Morris, 67 Ala. 389 413 v. Scott, 49 Miss. 500 428 v. Stuart's Exrs., 14 Ohio, 140 55 Ferguson's Admr. v. Carson's Admr., 86 Mo. 673 791 Ferrin v. Merrick, 41 N. Y. 315 446 Ferris v. Neville, 127 Mich. 442 66 Ferry v. Campbell, 110 Iowa, 290 637, 662 Fetrow's Exrs. v. Fetrow, 50 Pa. 253 260 Field v. Andrada, 106 Cal. 107 314 v. Schieffelin, 7 Johns. Ch. (N. Y.) 150 230, 865 Fifield v. Sperry, 20 N. H. 338, 301 Filley v. Phelps, 18 Conn. 294 356 Finch v. Sink, 46 111. 169 490, 492 Findlay v. Chicago & G. T. E. Co., 106 Mich. 700 218 v. Smith, 6 Munf. (Va.) 134 603 Finley v. Taylor, 97 Iowa, 420 447 Finnegan v. Finnegan, 125 Ind. 263 319 First Nat. Bank v. Balcom, 25 Conn. 351 588 v. Brenneman's Exrs., 114 Pa. 315 351 v. How, 28 Minn. 150 769 v. McCleneghan, 83 Neb. 706 761 v. Pilger, 78 Neb. 168 533 v. Reese, 64 Neb. 292 625, 627 Fisher v. Bush, 131 Ind. 315 545 v. Fisher, 80 Neb. 145 53 v. Fisher, 90 Neb. 145 47 v. Kountz, 110 Iowa, 498 716 Fisher's Estate, In re, 158 Mich. 1 704 Fisk v. Kellogg, 3 Or. 503 480, 482, 483, 540 992 TABLE OF CASES. Page Fitch v. Martin, 74 Neb. 538 453, 454 v. Martin, 82 Neb. ]24 441, 453, 454 v. Miller, 20 Cal. 352 878 Fitzgerald v. Paisley, ] 10 Iowa, 98 695 Fitzgerald's Estate v. First National. Bank, 64 Neb. 260. .438, 441, 470 v. Union Savings Bank, 65 Neb. 97 442, 443, 803 Fitzgerald's Estate, In re, 59 Wis. 508 687 Fitzhugh's Exrs. v. Fitzhugh, 11 Gratt. (Va.) 300 445 Fitzpatrick v. Flannagan, 106 U. S. 648 357 Flanders v. Lane, 54 N. H. 390 706 Flannagan v. Howard, 200 111. 296 732 Fleming v. Bale, 23 Kan. 88 492 Fletcher v. Fletcher, 83 Neb. 156. ..41, 273, 279, 280, 281, 627, 690, 740 v. Holmes, 40 Me. 364 314 v. Livingston, 123 Mass. 388 495 Fletcher, Succession of, 11 La. Ann. 60 730 Fletcher's Admr. v. Sanders, 7 Dana (Ky.), 345 409, 779 Flintham's Appeal, 11 Serg. & K. (Pa.) 15 446 Florsheim v. Holt, 32 La. Ann. 133 550 Floyd v. Carow, 88 N. Y. 560 58 Flynn v. Chicago & G. W. E. Co. (Iowa), 141 N. W. 401 330 Fogg, In re, 105 Me. 480 722 Foley v. Brocksmit, 119 Iowa, 457 445, 703 v. Hamilton, 89 Iowa, 686 762 v. Kane, 53 Iowa, 64 512 v. McDonald, 46 Miss. 238 498 Foltz v. Prouse, 17 111. 487 236 Fonda v. Van Horn, 18 Wend. (N. Y.) 631 822 Fontaine v. Boatman's Savings Institute, 57 Mo. 552 606 Forbes v. Sweesy, 8 Neb. 250 605 Ford v. Livingston, 70 Hun (N. Y.), 178 265 Forney's Estate, 161 Pa. 209 95 Forse & Hembling's Case, 4 Coke, 60b 101 Forster v. Fuller, 6 Mass. 58 354 Fort v. Crook, 3 Neb. Unof. 12 636 Forward v. Forward, 6 Allen (Mass.), 494 689 Forwood v. Forwood, 86 Ky. 114 715 Foster v. Davis, 46 Mo. 268 353 T. Fifield, 20 Pick. (Mass.) 67 258 v. Foster, 36 N. H. 437 279 v. Murphy, 76 Neb. 576 591, 792 TABLE OF CASES. 993 Page Foster v. Thomas, 21 Conn. 285 513 v. Young, 27 Iowa, 27 877 Foster's Appeal, 74 Pa. 391 363 Foteaux v. Le Page, 6 Iowa, 123 856, 913 Foust v. Chamblee's Admr., 51 Ala. 75 924 Fox, In re, 92 N. Y. 93 570 v. Davis, 113 Mass. 259 715 v. Kerper, 51 Ind. 148 850 v. Minor, 32 Cal. Ill 859 v. Wills, 25 Wis. 846 867 Frank v. Shipley, 22 Or. 199 83 Frankenf eld's Appeal, 102 Pa. 589 864 Franklin v. Osgood, 2 Johns. Ch. (N. Y.) 19 325 Franks v. Chapman, 61 Tex. 576 166 Fraser v. Jennison, 42 Mich. 320 88, 131, 184 Frawley v. Cosgrove, 83 Wis. 444 756 Frazier v. Littleton, 100 Va. 9 557 v. Steenrod, 7 Iowa, 339 511, 543 Freazier v. Jeakins, 64 Kan. 615 . 900 Frederickson's Estate, In re, 83 Neb. 18 132, 139 Free v. Stuart, 39 Neb. 320 261 Freeman r. Foss, 145 Mass. 361 449, 496 v. Washtenaw Probate Judge, 79 Mich. 390 279, 381 Fremont, E. & M. V. K. Co. v. Setright, 34 Neb. 253 152 French v. Currier, 47 N. H. 88 870 v. Hoyt, 6 N. H. 370 ;. 490 v. Strumberg, 52 Tex. 92 596 v. Vredenburg, 105 Pa. 10 555 Freto v. Brown, 4 Mass. 675 820 Fretwell v. McLemore, 52 Ala. 124 418 Freud's Estate, In re, 73 Cal. 555 170 Friedlander v. Eyder, 30 Neb. 783 261 Fritz v. Fritz, 93 Iowa, 27 437 Froebich v. Lane, 45 Or. 13 18, 164, 577, 708. 750 Frost v. Wingate, 73 N. H. 535 561 v. Winston, 32 Mo. 489 869 Frothingham v. Shaw, 175 Mass. 59 644 Frothingham, In re, 75 N. J. Eq. 205 96 Fry v. Evans, 8 Wend. (N. Y.) 539 353 Frye v. Crockett, 77 Me. 157 763 Fudge v. Fudge, 23 Kan. 426 492 63 Pro. Ad. 994 TABLE OF CASES. Page Fudge v. State, 3 Gill & J. (Md.) 114 783 Fulcher v. Commonwealth, 3 J. J. Marsh. (Ky.) 592 772 Fuller v. Cushman, 170 Mass. 286 676 v. Hager, 47 Or. 242 530, 532, 885, 896 v. McEwen, 17 Ohio St. 238 576 Fulton v. Freeland, 219 Mo. 449 89, 132 v. Ryan, 33 Neb. 456 802 Furgeson v. Jones, 17 Or. 204 937, 945 6 Gafney' Estate, 146 Pa. 49 447 Gage Y. Ward, 25 Me. 101 605 Gager v. Henry, 5 Saw. 237 896 v. Prout, 48 Ohio St. 89 424, 494 Gaines v. Chew, 2 How. (U. S.) 641 162 v. Green Pond Iron Min. Co., 33 N. J. Eq. 603 622 v. Hennen, 24 How. (U. S.) 533 170 Gallagher v. Smiley, 28 Neb. 189 623, 624 Gallagher's Appeal, 48 Pa. 123 576, 577 Galloway v. McPherson's Estate, 67 Mich. 546 446 Gandolfo v. Walker, 15 Ohio St. 251 772 Gannon's Estate, In re, 64 Neb. 220 796 Gano v. Fisk, 43 Ohio St. 462 588, 589 Ganser v. Ganser, 83 Minn. 195 778 Garber v. Commonwealth, 7 Pa. 265 784 Gardelo v. Kloke, 36 Neb. 493 390 Gardner v. Carter, 74 N. H. 507 644 v. Estate of Callaghan, 61 Wis. 91 438 v. Gardner, 17 R. I. 751 318 v. Gillihan, 20 Or. 601 293, 359 v. Heyer, 2 Paige (N. Y.), 11 55 v. Moss, 123 Ky. 334 156 Garner v. Tucker, 61 Mo. 427 526 v. Wood, 71 Md. 37 745 Garnsey v. County Court, 33 Or. 205 790, 807 Garrett v. Bruner, 59 Ala. 513 498 Garrigus v. Ellis, 95 Ind. 598 861 Garrison v. Cox, 95 N. C. 253 242 Garthwaite's Exr. v. Lewis, 25 N. J. Eq. 351 59, 583 Garvin's Admr. v. Williams, 44 Mo. 465 134 Gaster v. Caster's Estate, 90 Neb. 529 41, 724 TABLE OF CASES. 995 Page Gaster v. Gaster's Estate, 92 Neb. 6 714 Gaston v. Portland, 48 Or. 85 811, 817 Gates v. Cole, 137 Iowa, 613 123 v. McClenehan, 124 Or. 593 348 Gatch v. Simpton, 40 Or. 96 272, 710, 711 Gaurus v. Davis, 234 111. 811 133 Gavett v. Moulton, 119 Wis. 35 105 Gavin v. Graydon, 41 Ind. 559 500 Gay v. Gillilan, 92 Mo. 264 134 v. Minot, 3 Gush. (Mass.) 352 332 Gaylord v. Stebbins, 4 Kan. 42 887 Geiger v. Bitzel, 89 Ohio St. 85 722 v. Keigler, 9 S. C. 426 307 Gelston v. Shields, 16 Hun (N. Y.), 143 55 Genau v. Abbott, 68 Neb. 117 17 v. Roderick, 4 Neb. Unof. 136 2 Gentry v. Bearss, 82 Neb. 786 866, 867 Gerber v. Bauerline, 17 Or. 115 864 German v. German, 27 Pa. 116 54 Gerrard v. Johnson, 12 Ind. 637 490 Gerrish v. Gerrish, 8 Or. 351 61, 735 Gerry v. Stinson, 60 Me. 186 601 Geyer v. Wentzel, 68 Pa. 84 58 Gibbs v. Shaw, 17 Wis. 204 290 Gibson v. Pitts, 65 N. C. 155 483 v. Roll, 30 111. 172 488, 490 v. Roll, 27 111. 88 487 Gihon, In re, 169 N. Y. 443 657 Gilbert v. Guptil, 34 111. 112 869, 921 Gilbert's Appeal, 78 Pa. 286 353 Gilbert's Estate, In re, 39 Hun (N. Y.), 61 682 Gilbert's Estate, In re, 104 N. Y. 200 791 Gilchrist v. Rea, 9 Paige (N. Y.), 66 470 Gill, Goods of, 1 Hagg. Ecc. 341 223 Gillette v. Morrison, 9 Neb. 395 452, 454 Gillilan v. Oakes, 1 Neb. Unof. 55 309, 390 Gilkey v. Hamilton, 22 Mich. 283 286 Gilkham, In re, 61 N. J. Eq. 715 91 Gilmore v. Burch, 7 Or. 374 605 v. Rodgers, 41 Pa. 120 877 Glade v. White, 42 Neb. 336 17 996 TABLE OF CASES. Page Gladding v. St. Matthias Church, 25 R. I. 268 583 Gladson v. Whitney, 9 Iowa, 267 485 Clancy v. Glancy, 17 Ohio St. 134 61 Glass v. Greathouse, 20 Ohio, 503 546 Glenn, Ex parte, 20 S. C. 64 682 v. Clark, 53 Md. 580 606 Glenn's Estate, 74 Cal. 567 576 Glover's Heirs, Lessee of, v. Kuffin, 6 Ohio St. 255 526 Glynn v. Glynn, 62 Neb. 872 737, 738 Gobel v. Simeral, 67 Neb. 276 915, 924 Goddard v. Sawyer, 9 Allen (Mass.), 78 514 Godfrey v. Smith, 73 Neb. 756 38, 78, 154 Godfrey's Estate, In re, 4 Mich. 304 482 Godman v. Converse, 43 Neb. 463 277, 278 Godwin v. Waterford, 107 N. C. 168 675 Goforth's Lessee v. Longworth, 4 Ohio St. 129 526 Goldsmith v. Walker, 14 Or. 125 878 Goldthorpe's Estate, In re, 94 Iowa, 336 146, 148 Goldthorpe's Estate, In re, 115 Iowa, 430 138 Goldthwaite v. Day, 149 Mass. 185 361, 362 Goltra v. Penland, 42 Or. 18 423 v. Penland, 45 Or. 261 426, 427, 454 Goddall v. Marshall, 11 N. H. 88 415 Goode v. Buf ord, 14 La. Ann. 102 779 Goodrich v. Adams, 138 Mass. 532 728 Goodwin v. Hardy, 57 Me. 543 581 v. Jones, 3 Mass. 514 403 v. Milton, 25 N. H. 458 265 Gordon v. Gordon, 55 N. H. 399 548 v. Jones, 86 Miss. 719 576 Gosnell v. Flack, 71 Md. 423 750 Goss v. Stone, 63 Mich. 329 826 Gott v. Culp, 45 Mich. 265 846, 913 Gotzian, In re, 34 Minn. 159 610 Goudy v. Shank, 8 Ohio St. 45 865 Gould v. Moulaban, 53 N. J. Eq. 341 446 Gould's Estate, In re, 156 N. Y. 423 657 Gourley v. Linsenbigler, 51 Pa. 345 588 Governor v. Williams, 25 N. C. 152 779 Grady v. Hughes, 64 Mich. 540 14 T. McCorkle, 57 Mo. 172 604 TABLE OF CASES. 997 Page Graham v. Burch, 52 Minn. 72 96 v. Graham, 143 N. Y. 573 716 v. Hawkins, 38 Tex. 628 502 v. Hester, 15 La. Ann. 148 860 v. Townsend, 62 Neb. 364 803 Grammel's Estate, In re, 120 Mich. 487 912 Grandjean v. Beyl, 78 Neb. 349 263 Grandstrand, In re, 49 Minn. 438 867 Grant v. Hughes, 94 N. C. 231 677 v. McKinney, 36 Tex. 32 364 v. Paddock, 30 Or. 320 725 Graves v. Alden, 92 Me. 177 405 v. McHugh, 58 Mo. 499 762 v. Spedden, 46 Md. 527 593 v. Tilton, 63 N. H. 192 411 Gray v. Franks, 86 Mich. 482 406 v. Gray, 39 N. J. Eq. 322 238, 239 Gray's Appeal, 36 Pa. 243 846 Green v. Alden, 92 Me. 177 405 v. Clark, 25 Vt. 136 801 v. Johnson, 3 Gill & J. (Md.) 389... 852 v. Sergeant, 23 Vt. 466 224 Greene v. Dennis, 6 Conn. 292 584 v. Greene, 11 Ohio St. 535 603 Greenman v. Harvey, 53 111. 386 492 Greenough v. Small, 137 Pa. 132 819 Greenwood v. Cline, 7 Or. 17 123 v. Town of Lasalle, 107 111. 225 437 Gregg v. Currier, 36 N. H. 200 779 v. Gregg, 18 N. H. 190 924 v. Wilson, 24 Ind. 227 245 Gregory v. Hughes, 20 Tex. 345 434 v. Orr, 61 Miss. 307 918 Greiner's Appeal, 103 Pa. 89 594 Gress Lumber Co. v. Leitner, 91 Ga. 810 529 Grider v. Eubanks, 12 Bush (Ky.), 510 718 Gridley v. Andrews, 8 Conn. 1 574 Gridley's Heirs v. Phillips, 5 Kan. 349 512 Grier's Appeal, 101 Pa. 412 898 Griffith v. Frazier, 8 Cranch (U. S.) , 25 235 Griggs' Appeal, 101 Pa. 512 536 993 TABLE OF CASES. Grigg* T. Shaw. 42 N. J. Eq. 631 ............................. 675 Grime T. Borden, 166 Mass. 715 ................................ 715 Grimm, Appeal of, 105 Pa. 375 ................................ 333 Grimmet v. Titherington, 16 Ark. 377 .......................... US Griswold v. Bigelow, 6 Conn. 258 ............................. v. Prink, 22 Ohio St. 79 .................................. 330 Grochoski v. Grochoski. 77 Xeb. 506 ........................... Groton T. Buggies, 17 Me. 130 ................................ 7SO Grymes v. Hone. 49 X. Y. 17 ................................ 5SS, 591 Guilford T. Love, 49 Tex. 715 ................................. 359 Gunby v. Brown, 86 Mo. 253 .................................. 4S1 Gutter v. Janes, 9 Cal. 643 .................................... 435 Guthman v. Guthman, 18 Neb. 98 ....................... 19, till. 629 Guy v. Gerricks, 85 HI. 428 .................................... 454 Gyger's Estate, 65 Pa. 311 .................................... 214 H Haaek T. Tobin. 79 Minn. 101 ................................ 66 Hackett v. Haekett. 18 B. I. 165 ............................... 444 Haddock v. Boston 4 M. B. B. Co., 146 Mass. 155 .............. 10S Hadsall T. Hadsall, 82 Neb. 587 ........................... 280, 62S Hagennan v. Powell. 76 Neb. 514 ............................. 4"> Hagy T. Avery, 69 Iowa, 434 .................................. 860 Haight v. Hayes, 3 Neb. Unof. 587 ............................. 542 Haines v. Cox, 1 Pinn. (Wis.) 551 ............................. 546 v. Hayden, 95 Mich. 324 ................. 88, 131, 137, 148. 150 Hake v. Stott's Err., 5 Colo. 140 .............................. 237 Haldeman v. Haldeman, 40 Pa. 29 ............................. 584 Hale v. James, 6 Johns. Ch. (N. Y.) 258 ................... 610, 615 Hall T. Cardell, 111 Iowa, 206 ................................ HB v. Crabb, 56 Neb. 392 .................................... 605 T. Cashing, 9 Pick. (Mass.) 397 ............................ fl T. Dunn, 52 Or. 479 ....................................... 817 T. Ptnch, 29 Wis. 27S ..................................... 449 T. Hall, 1 Prob. Div. 4S1 ................................. 136 T. Hall, 132 Iowa, 644 .................................... 596 T. Hall, 140 Mass. 467 ..... , .............................. 54 T. Hall, 70 N. H. 47 ...................................... 605 T. Hall, 2 McCord (S. C.), 269 ............................. 604 T. Hooper, 47 Neb. Ill ................................... 636 T. Perry, 87 Me. 569 ..................................... 86 TABLE OF CASES. 999 Page Hall r. Ray, 40 Vt. 576 544 r. Smith, 61 N. H. 144 722 v. Thayer, 105 Maw. 219 223 v. Woodman, 49 N. H. 295 4.81 Halley v. Webster, 21 Me. 461 131 Ham v. Henderson, 50 Cal. 367 301 Hambelton's Appeal, 102 Pa. 50 857 Hamiel v. Donnelley, 75 Iowa, 93 879 Hamilton v. Pleasants, 31 Tex. 638 513 Hamlin v. Kinney, 2 Or. 91 770 Hammond v. Corbitt, 50 N. H. 501 821 v. Dike, 42 Minn. 273 139 v. Wood, 15 B. I. 566 118, 214 Hamnett's Appeal, 72 Pa. 337 919 Hampton v. Westcott, 39 N. J. Eq. 522 83 Hamrick v. Craven, 39 Ind. 241 330, 354 Hancock v. Hubbard, 19 Pick. (Mass.) 167 772 Hancock's Estate, In re, 7 Kulp (Pa.), 36 259 Hand v. Marcy, 28 Ind. 59 604 Handy v. Noonan, 51 Miss. 156 897 Hanifan v. Needles, 108 111. 403 244, 245 Hanly v. Kubli, 46 Or. 632 605 Banner v. Silver, 2 Or. 336 17, 286 Hannum v. Day, 105 Mass. 33 482, 766 Hansen v. Bergquist, 9 Neb. 278 225 Hanson's Estate, 133 Cal. 38 449 Harbeck, In re. 145 N. Y. 848 688 Hardaway v. Parham, 27 Miss. 103 235 Harding v. Grim, 25 Or. 596 426 v. Lamed, 4 Allen (Mass.), 426 894 Hardin's Admr. v. Taylor. 78 Ky. 593 917 Hardy v. Merrill, 56 N. H. 227 138 Hargroves v. Thompson, 31 Miss. 211 203 iiarrington v. Jones, 53 Or. 239 259, 293 v. Stees, 82 111. 50 25 v. Tolbert, 110 Ga. 428 570 Harker v. Irick, 10 X. J. Eq. 369 321, 781 Harlan r. Stevenson, 30 Iowa, 317 431 Harland v. Lillienthal," 53 N. Y. 438 691 Harman v. Harman, 62 Neb. 52 442 Barring v. Allen, 25 Mich. 508 147 1000 TABLE OF CASES. Page Harris v. Fly, 9 Paige (N. Y.), 421 579 v. Parker, 41 Ala. 604 352 Harrison v. Clark, 87 N. Y. 572 785 v. Harrison, 80 Neb. 103 765, 766 v. Harrison's Admr., 4 Leigh (Va.), 371 264 v. Nixon, 9 Pet. (U. S.) 483 39 Harrod v. Norris' Heirs, 11 Mart. (La.) 297 515 Hart's Will (Or.), 132 Pac. 529 83 Harte v. Richenberg, 3 Neb. Unof. 820 452 Hartley Y. Croze, 38 Minn. 325 507, 508, 543 Hartman v. Lee, 30 Ind. 281 440 Hartnett v. Holdredge, 5 Neb. Unof. 114 453 v. Holdredge, 73 Neb. 570 453 v. Wandell, 60 N. Y. 346 184 Hartson v. Elden, 50 N. J. Eq. 522 577 Hartwell v. Bice, 1 Gray (Mass.), 587 594 Harvey v. Sullens, 46 Mo. 147 134 Harvey, In re, 16 111. 127 545 Harwood v. Goodright, 1 Copp. (Eng.) 67 103 Hascall v. Cox, 49 Mich. 435 55 Hastings v. Bachelor, 27 Tex. 259 857 Hatch v. Kelley, 63 N. H. 29 482 Hatcher v. Briggs, 6 Or. 31 547 Hatheway v. Weeks, 34 Mich. 237 194, 897 Hathaway's Appeal, 46 Mich. 327 119 Hathorn v. King, 8 Mass. 371 84, 131 Haug v. Primeau, 98 Mich. 91 537 v. Schumaker, 166 N. Y. 566 40 Haun v. Martin, 48 Or. 204 743 Haus, In re, 32 Minn. 157 164 Haven v. Foster, 9 Pick. (Mass.) 112 557 Hawes v. Humphrey, 9 Pick. (Mass.) 350 98 Hawke v. Euyart, 30 Neb. 149 48, 67 ; 103 Hawkins v. Carpenter, 88 N. C. 403 774 v. Doe, 60 Or. 437 451, 465, 466 v. Hawkins' Admr., 28 Ind. 71 490 v. Bidenhour, 13 Mo. 125 430 Hawkins' Appeal, 32 Pa. 263 917 Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 528 584 v. Smith, 49 Conn. 83 841, 930 Haydock v. Duncan, 40 N. H. 45 194 TABLE OF CASES. 1001 Page Haynes v. Harris, 33 Iowa, 516 319 v. Haynes, 33 Ohio St. 498 65 Hayward v. Ellis, 13 Pick. (Mass.) 272 912 Hazleton v. Bogardus, 8 Wash. 102 297 v. Eeed, 46 Kan. 73 607 Hazlett v. Blakeley's Estate, 70 Neb. 613 462, 463, 464, 755 Head v. Spier, 66 Kan. 386 749 Head, Succession of, 28 La. Ann. 800 236 Headley v. Kirby, 18 Pa. 326 590 Heard v. Lodge, 20 Pick. (Mass.) 53 785 Heartt v. Walsh, 75 111. 200 357 Heath v. Bancroft, 49 Conn. 220 56 v. Page, 63 Pa. 108 145 v. Waters, 40 Mich. 457 357 v. Wells, 5 Pick. (Mass.) 140 438 Heath's Estate, In re, 58 Iowa, 36 678 Heavenridge v. Nelson, 56 Ind. 90 : . 720 Hedman v. Anderson, 8 Neb. 165 569 Heermans v. Hill, 4 Thomp. & C. (N. Y.) 602 19 Heisey v. Smith, 138 Cal. 216 922 Helmer v. Shoemaker, 22 Wend. (N. Y.) 137 43 Helms v. Elliott, 89 Tenn. 446 732 v. Love, 41 Ind. 210 492 Hemphill v. Hamilton, 11 Ark. 425 354 Hendee v. State, 80 Neb. 80 6 Henderson v. Adams, 15 Mich. 39 49 v. Coover, 4 Nev. 429 927 v. Levy, 52 Ga. 35 768 v. Whitinger, 56 Ind. 131 559 Henderson, Succession of, 113 La. Ann. 101 553 Hendrix v. Barker, 49 Neb. 369 390, 434 v. Eichards, 57 Neb. 794 866 v. Rieman, 6 Neb. 521 298, 404 Henrich v. Saier, 124 Mich. 86 139 Henry v. Henry, 73 Neb. 746 323, 383 Henry County v. Taylor, 36 Iowa, 259 308 Henry, Estate of, 65 Mich. 551 281 Henschel v. Maurer, 69 Wis. 576 593 Hentge's Estate, In re, 86 Neb. 75 118, 156 Herbert v. Berrier, 81 Ind. 1 62 Herman v. Beck, 68 Neb. 566 441, 807, 808 1002 TABLE OF CASES. Page Herreen's Estate, 40 Or. 96 18, 251 Herteman's Estate, In re, 73 Cal. 545 352 Hertzog v. Hertzog, 34 Pa. 318 467 Heseht v. Calvert, 32 W. Va. 215 924 Hespen v. Wendeen, 85 Neb. 172 465, 466 Hess v. Nichols, 72 Tex. 491 97 Hess' Will, In re, 48 Minn. 504 139 Hessig v. Hessig, 131 Ky. 514 561 Hessler v. Cady, 79 Neb. 691 594, 596 Hewitt v. Bronson, 5 Daly (N. Y.), 1. 446 Heydoek's Appeal, 7 N. H. 496 412 Heyne v. Dorflier, 57 Hun (N. Y.), 591 457 Hey wood v. Heywood, 92 Neb. 72 38 Hiatt v. McCalley, 171 Ind. 91 63 Hibler v. Hibler, 104 Mich. 274 576 Hibner v. Wilson, 83 Neb. 359 323 Hicks v. Hicks, 12 Barb. (N. Y.) 322 801 Higgins v. Carlton, 28 Md. 115 140 v. State, 87 Ind. 282 927 Higgins' Estate, In re, 15 Mont. 474 780 High, In re, 2 Doug. (Mich.) 517 155 Hill v. Bowers, 120 Mass. 135 57 v. Hill, 121 Ind. 255 450 v. Hill, 90 Neb. 43 49, 55 v. Hill, 43 Pa. 531 261 v. State, 23 Ark. 604 435 v. Toms, 87 N. C. 493 586 v. Tucker, 13 How. (U. S.) 458 413, 417 Hillenrant v. Burton's Heirs, 17 Tex. 140 499 Hillman v. Young, 64 Or. 79 17, 293, 311, 319, 588, 589 Hills v. Sherwood, 48 Cal. 386 315 Hinkle v. Sage, 67 Ohio St. 256 449 Hinton v. Eland's Admr., 81 Va. 288 257 Hisket v. Bozarth, 75 Neb. 70 454 Hitchcock v. Cohen, 6 Ad. & E 259 Kite's Devisees v. Kite's Exr., 93 Ky. 257 325 Hobart v. Hobart, 62 N. Y. 80 448, 457 v. Upton, 2 Saw. 302 896 Hobbins, In re, 41 Mont. 39 85 Hobbs v. Middleton, 1 J. J. Marsh. (Ky.) 177 769, 784 Hobson v. Ewan, 62 HI. 146 490 TABLE OP CASES. 1003 Page Hobson v. Huxtable, 79 Neb. 334 532, 535 Hockaday v. Lynn, 200 Mo. 456 732 Hocker v. Wood's Exr., 33 Pa. 466 842 Hodges v. Kimball, 91 Fed. 845 406 v. Thacher, 23 Vt. 455 792 Hodgkins v. Merritt, 53 Me. 208 357 Hoes v. Van Hoesen, 1 Barb. Ch. (N. Y.) 400 556 Hoffman v. Armstrong, 90 Me. 123 704 v. Tucker, 58 Neb. 457 310, 314 Hogan, In re, 134 Mich. 361 913 Hogan v. Jackson, Cowp. 299 42 v. Sullivan, 114 111. 456 589, 590 v. Wyman, 2 Or. 304 62 Hoile v. Bailey, 58 Wis. 434 853 Holbrook v. Brooks, 33 Conn. 347 865 v. McCleary, 79 Ind. 167 584 Holcolmb v. Holcomb's Exrs., 11 N. J. Eq. 281 303 v. Phelps, 16 Conn. 127 407 Holderbaum, In re, 82 Iowa, 69 324 Holden v. Spies, 65 Kan. 412 '. 749 Hollenbeck v. Pixley, 3 Gray (Mass.), 521 ...276, 279 Holliday v. Holliday, 16 Or. 147 184, 186, 230, 237 Holliday's Estate, In re, 18 Or. 179 256, 257 Hollingsworth, In re, Last Will of, 58 Iowa, 527 147 Holloway v. Filson, 89 Neb. 403 453 Hollowell v. Cole, 25 Mich. 345 319 Holman v. Bennett, 44 Miss. 322 499 v. Riddle, 8 Ohio St. 384 66 Holmes v. Cole, 51 Or. 486 813, 817 v. Columbia Trust Co., 4 Neb. Unof. 893 392, 395 v. Holmes, 3 Paige (N. Y.), 363 602 v. Mason, 80 Neb. 448 499, 532, 534, 535, 628, 636 Y. Oregon & Cal. Ey. Co., 9 Fed. 229 117, 120 Holmes, In re, 33 Me. 577 252 Holt County v. Scott, 53 Neb. 176 5 Holt, In re, 56 Minn. 33 63 Holtz v. Burling, 84 Neb. 211 547 Holyoke v. Bishop, 86 Neb. 490 627, 628, 681 v. Haskins, 5 Pick. (Mass.) 20 537, 854 v. Sipp, 77 Neb. 394 65, 66 Hood v. Hood, 85 N. Y. 561 769 1004 TABLE OF CASES. Page Hooker v. Van Slambrook, 122 Mich. 65 450 Hooks v. Evans, 69 Iowa, 52 928 Hooper v. Hooper, 26 Mich. 435 917 v. Hooper's Exrs., 29 W. Va. 276 350 v. Olmstead, 6 Pick. (Mass.) 481 412 Hopper v. Hopper, 90 Neb. 622 61 Horah v. Knox, 87 N. C. 583 142 Horn v. Lockhart, 17 Wall. (U. S.) 570 346 Horst v. McCormick Harvester Company, 30 Neb. 558 561, 562 Horton, City of, v. Trompeter, 53 Kan. 150 217 Hosmer v. Sturgis, 30 Ohio St. 657 597 Hotchkiss v. Ladd's Estate, 62 Vt. 209 166 Houck v. Meyers, 23 Or. 10 478, 484 Hough v. Harvey, 71 111. 72 684 House v. Dexter, 9 Mich. 246 389 v. Fowle, 22 Or. 303 604, 605, 608 Housel v. Cramer, 13 Neb. 298 455 Hovarka v. Havelik, 68 Neb. 14 500 Hovey v. Harman, 49 Me. 269 915 v. Newton, 11 Pick. (Mass.) 421 447 Howard v. Babcock, 7 Ohio, pt. 2, p. 73 309 Howbert v. Heyle, 57 Kan. 58 486 Howe v. Bloemenkamp, 88 Neb. 389 543 v. Howe, 99 Mass. 88 145 v. Howe, 179 Mass. 546 651 v. Kern, 63 Or. 487 478, 482, 483, 485, 489, 502, 504 v. Richards, 112 Iowa, 220 91 v. Searing, 19 How. Pr. (N. Y.) 14 859 v. Watson, 171 Mass. 30 486 Howell t. Anderson, 66 Neb. 975 321 v. Taylor, 50 N. J. Eq. 428 146 Howes v. Whipple, 41 Ga. 322 287 Hoy v. Anderson, 39 Neb. 386 624, 628 v. Hoy, 93 Miss. 782 101 Hoyt v. Hoyt, 112 N. Y. 515 576 v. Sprague, 103 U. S. 613 844, 868 Hubbard, In re, 82 N. Y. 90 898 v. Hubbard, 7 Or. 42 83, 116, 126, 130 Huber's Appeal, 80 Pa. 348 58, 584 Huberman v. Evans, 60 Neb. 694 788, 876, 883, 898, 899 Hudgin v. Hudgin's Exr., 6 Gratt. (Va.) 320 876 TABLE OF CASES. 1005 Page Hudson v. Wilber, 114 Mich. 116 567 Huebner v. Sesseman, 38 Neb. 78 440 Hugenin v. Beasley, 14 Ves. 273 709 Hughes v. Knowlton, 37 Conn. 429 55 Hughes, In re, 95 N. Y. 55 418 Hulet v. Carey, 66 Minn. 327 101 Humphrey, In re, 25 N. J. Eq. 513 85, 145 v. Merritt, 51 Ind. 197 264 Humphreys v. State, 70 Ohio St. 67 662 v. Taylor, 5 Or. 261 295, 311 Hunt v. Grant, 87 Minn. 189 561 v. Thorn, 2 Mich. 213 309 Hunt, In re, 141 Mass. 515 912 Hunt, In re, 81 Me. 275 . 102, 912 Hunt's Will, In re, 122 Wis. 460 127 Hunter v. Buchanan, 87 Neb. 277 876, 881, 885 Huntress v. Place, 137 Mass. 409 57 Hurley v. Estes, 6 Neb. 391 99 Hurste v. Hotaling, 20 Neb. 178 615 Hussey v. Coffin, 1 Allen (Mass.), 354 236 Hutehins v. St. Paul M. & M. Ey. Co., 44 Minn. 5 218 Hutchinson v. Cassidy, 46 Mo. 431 544 Hutson v. Jensen, 110 Wis. 26 930 Hutton v. Hutton, 40 N. J. Eq. 461 418 Hyatt v. Anderson, 69 Neb. 702 877 Hyde v. Baldwin, 17 Pick. (Mass.) 303 165 v. Bedding, 74 Cal. 493 231, 537 Hyland v. Baxter, 98 N. Y. 610 687 I Ingersol v. Nangam, 84 N. Y. 622 492, 541 Inhabitants of Augusta v. Inhabitants of Windsor, 19 Me. 317. .. 469 Inman's Admr. v. Gibbs, 47 Ala. 305 520 Iowa Land Co. v. Douglas County, 8 S. D. 491 437 Ireland v. Parmenter, 48 Mich. 631 55 Irish v. Nutting, 47 Barb. (N. Y.) 370 588 Irvine v. Beck, 62 Or. 596 424, 426, 701 v. Irvine (Or.), 136 Pac. 19 42, 43 Irvine's Estate, In re, 203 Pa. 603 765 Irwin v. Backus, 25 Cal. 214. ..' 784, 785 v. Zane, 15 W. Va. 646 58 1006 TABLE OF CASES. Page Inwin's Estate, 141 Pa. 278 315 Irwin's Estate, In re, 152 Iowa, 323 703 Isaac v. Halderman, 76 Neb. 825 61, 125, 132, 133 v. Halderman, 84 Neb. 251 132 J Jackson v. Astor, 1 Finn. (Wis.) 430 490 v. Bevins, 74 Conn. 49 556 v. Combs, 7 Cow. (N. Y.) 36 , 822 v. Hardin, 83 Mo. 175 84, 86 v. Hilton, 16 Johns. (N. Y.) 96 748 v. Housel, 17 Johns. (N. Y.) 281 51 v. Jackson, 28 Miss. 674 597 v. Jackson (Or.), 135 Pac. 200 127 v. Johnson, 5 Cow. (N. Y.) 74 605 v. Magruder, 51 Mo. 55 518 v. Newton, 18 Johns. Ch. (N. Y.) 355 572 v. O'Rourke, 71 Neb. 418 324, 600, 865 v. Phillips, 57 Neb. 189 230, 404, 434 v. Rayner, 12 Johns. (N. Y.) 291 348 v. Robinson, 4 Wend. (N. Y.) 436 482 v. Vickory, 1 Wend. (N. Y.) 414 146 Jacobia v. Terry, 92 Mich. 275 869 Jacobs v. Jacobs, 99 Mo. 427 308, 688 v. Morrow, 21 Neb. 233 272, 796 Jacobs' Appeal, 23 Pa. 477 519 Jacobson v. Anderson, 72 Minn. 426 920, 931 Jaffee v. Jacobson, 1 C. C. A. 24 930 Jaffrey v Jaffrey (N. H.), 80 Atl. 504 324 Jahns v. Nolting, 29 Cal. 507 288 James v. James, 4 Paige (N. Y.), 115 58, 584 v. Meyer, 41 La. Ann. 1100 537 v. Sutton, 36 Neb. 393 85 James' Estate v. O'Neil, 70 Neb. 132 279 Janes v. Cleghorn, 54 Ga. 9 947 Jarnagin v. Frank, 59 Miss. 393 257 Jarvis v. Barrett, 14 Wis. 591 442 v. Rusick, 12 Mo. 63 544 Jasper v. Jasper, 17 Or. 590 39 Jeffree v. Walsh, 14 Neb. 143 783 TABLE OF CASES. 1007 Page Jenkins v. Clark, 71 Iowa, 552 853 v. Fowler, 63 N. H. 844 53 v. Hall, 26 Or. 70 608 Jenness v. Carlton, 40 Mich. 343 356 Jennings v. Smith, 29 111. 116 325 Jennings' Admr. v. Chandler, 10 Wis. 31 262 Jennison v. Hapgood, 10 Pick. (Mass.) 77 406, 416, 444, 687 Jeter v. Barnard, 42 Ga. 43 571 Jetter v. Lyon, 70 Neb. 429 796 Jewett v. Guyer, 38 Vt. 209 514 Jillett v. Union Nat. Bank, 56 Mo. 304 57 Jochumsen v. Suffolk Savings Bank, 3 -Allen (Mass.), 87, 211 537 Johannes v. Youngs. 45 Wis. 455 783 John's Will, In re, 6 Or. 188 116 Johnson v. Armstrong, 97 Ala. 731 134 v. Ballou, 28 Mich. ?92 57 v. Berlizheimer, 84 111. 54 357 v. Blackman, 11 Conn. 343 333 T.Colby, 52 Neb. 327 296 v. Corbett, 11 Paige (N. Y.), 265 279 v. Evans, 8 Gill (Md.), 155 595 v. Ghost, 11 Neb. 414 595 Y. Goss, 128 Mass. 433 559 v. Hollifield, 82 Ala. 123 684 v. Hoyle, 3 Head (Tenn.), 55 595 v. Johnson, 106 Ind. 475 65 v. Johnson, 105 Md. 81 88 v. Johnson, 32 Minn. 513 604 r. Johnson, 2 Hill Eq. (S. C.) 277 918 v. Johnson's Estate, 66 Mich. 525 231 v. Jones, 2 Neb. 126 539 v. Kelley, 44 Ga. 485 825 v. Newton, 11 Hare, 165 911 v. Plume, 77 Ind. 166 606 v. Pulver, 1 Neb. Unof. 290 548, 586, 703 v. Savage, 50 Or. 294 708, 756 v. Schafner, 23 Or. 115 803 Johnson's Estate, In re, 57 Cal. 529 65, 90 Johnson, In re, 98 Cal. 531 947 Johnson, In re, 87 Iowa, 130 823 Johnson's Heirs v. Chandler's Heirs, 15 B. Mon. (Ky.) 584 928 1008 TABLE OF CASES. Page Johnston v. Haynes, 68 N. C. 514 856 v. Smith, 25 Hun (N. Y.), 171 784 Jones v. Billstein, 28 Wis. 221 29G v. Dove, 6 Or. 188 116 v. French, 72 Ind. 138 546 v. Hudson, 93 Neb. 561 39 v. Jones, 46 Iowa, 466 82 v. Jones, 14 B. Mon. (Ky.) 273 781 v. Keep's Estate, 23 Wis. 45 442 v. Kanppen, 63 Vt. 391 722 v. Null, 9 Neb. 57 433 v. Parker, 67 Tex. 76 856 v. Piggott, 68 Neb. 140 795, 799 v. Kichardson, 5 Met. (Mass.) 247 194,774 v. Selby, Finch Prec. Ch. 300 592 v. Strickland, 61 Ga. 336 922 r. Walker, 103 U. S. 444 351 Jones' Estate, In re, 83 Neb. 841 796 Jones, In re, 172 N. Y. 675 651 Joy v. Elton, 9 N. D. 428 780 Judah v. Fredericks, 57 Cal. 389 302 Judge of Probate v. Adams, 49 N. H. 150 770 v. Claggett, 36 N. H. 381 771 v. Cook, 57 N. H. 450 930 v. Fillmore, 1 D. Chip. (Vt.) 420 770 v. Heydock, 8 N. H. 491 799 v. Sulloway, 68 N. H. 511 321,781 Judson v. Creighton, 88 Neb. 37 740 Jul v. Hansen, 87 Neb. 567 37, 39, 43 Jurgens' Estate, 87 Neb. 571 624 Justices of Inferior Court v. Sloan, 7 Ga. 31 769 K Kader v. Yeargin (Tenn.), 3. S. W. 178 781 Kahn v. Isrealson, 62 Tex. 221 846 Kain v. Fisher, 6 N. Y. 597 260 Kaise v. Lawson, 38 Tex. 160 748 Kaminer v. Hope, 9 S. C. 258 177 Kammerer v. Morlock, 125 Mich. 320 538 Karney v. Vale, 56 Ind. 542... 856 Kaser v. Kaser, 68 Or. 158 38, 583, 742 TABLE OF CASES. 1009 Page Kaufman v. Breckenbridge, 117 HI. 305 43 Kazebeer v. Nunemaker, 82 Neb. 732 897, 839 Keegan, Estate of, v. Welch, 83 Neb. 166 172, 174, 177 Keeler v. Trueman, 15 Colo. 143 263 Keene v. Munn, 16 N. J. Eq. 398 559 Keever v. Hunter, 66 Ohio St. 616 750 Keith v. Eaton, 58 Kan. 732 39 Kelley v. Green, 63 Pa. 299 514 Kelley v. Bronson, 26 Minn. 359 355 T. Devin, 65 Or. 215 465, 466, 467 v. McCallum, 83 N. C. 593 567 v. Morse, 3 Neb. 224 943 Kelsey, Appeal of, 47 Ark. 413 540 v. Kelley, 63 Vt. 41 318 Kempe v. Pintard, 32 Miss. 324 508. 543 Kempf 's Appeal, 53 Mich. 352 53 Kempsey v. McGinnis, 21 Mich. 123 123 Kendall v. Bates, 35 Me. 357 309 Keniston v. Adams, 80 Me. 290 119 v. Sceva, 54 N. H. 24 592 Kennedy v. Cromwell, 108 N. C. 1 779 v.Kennedy, 105 111. 350 52 Kennedy, In re, Estate of, 157 Cal. 518 639 Kenniston v. Leighton, 53 N. H. 309 56 Kent v. Bothwell, 152 Mass. 341 301 v. Mahaffey, 10 Ohio St. 204 96 v. Morrison, 153 Mass. 137 376 Kentucky Bank v. Combs, 7 Pa. 543 691 Kerlin's Lessee v. Bull, 1 Dall. 175 46 Kerly's Appeal, In re, 109 Pa. 41 495 Kern v. Cooper, 91 Minn. 121 295 v. Kern, 154 Ind. 29 97 Kernochan v. New York El. R, Co., 128 N. Y. 559 293 Kerns v. Dean, 77 Cal. 555 434 Kerr v. Bosler, 62 Pa. 187 58 v.Dougherty, 79 N. Y. 327 59 v Loewenstein, 65 Neb. 43 801, 806 v. Lundsford, 31 W. Va. 659 130, 131, 132 Kerrigan v. Leonard (N. J.), 8 Atl. 503 148 Kersey v. Nailey, 52 Me. 198 276 Kessler's Estate, In re, 87 Wis. 660 438, 449, 451 64 Pro. Ad. 1010 TABLE OF CASES. Page Ketchum v. Shaw, 22 Ohio St. 503 602 Kettletas v. Gardner, 1 Paige (N. Y.), 488 845 Kettry v. Thuma, 9 Ind. App. 498 457 Kidd v. Guibar, 63 Mo. 342 710 Killefer v. McLain, 78 Mich. 249 365 Kimball v. Ives, 77 Vt. 430 922 v. Linton, 98 111. 578 546 Kimball's Appeal, 45 Wis. 391 229 King v. Boetcher (Neb.), 147 N. W. 830 45, 622 v. Boyd, 4 Or. 332 311 v. Davis, 87 Ind. 590 934 v. Gilson, 191 Mo. 307 347 v. Holmes, 84 Me. 219 143 v. Hughes, 52 Ga. 630 845 v. King, 3 Johns. Ch. (N. Y.) 552 353 v. Neeley, 14 La. Ann. 165 728 v. Talbot, 40 N. Y. 86 352 King's Estate, In re, 113 Mich. 606 525 Kingman's Estate, In re, 20 111. 563 640 Kingsbury v. Powers, 131 111. 182 925 Kinne v. Kinne, 9 Conn. 104 84 Kinney v. Knoebel, 51 111. 112 512 v. Newbold, 115 Iowa, 145 585 Kinzie v. State, 71 Ind. 12 855 Kiplinger v. Joslyn, 93 Neb. 40 820 Kirby v. Taylor, 6 Johns. Ch. (N. Y.) 242 918 Kirk v. Bowling, 20 Neb. 260 118, 157, 158 Kirsher v. Kirsher, 126 Iowa, 337 123 Kiswetter v. Kress, 24 Ky. Law Eep. 1239 556 Kittredge v. Folsom, 8 N. H. 98 250 Kitson v. St. Paul Trust Co., 78 Minn. 325 680 Klenke, In re, 210 Pa. 575 722 Kline v. Moulton, 11 Mich. 370 295 Kloke v. Wolf, 78 Neb. 504 625 Knapp v. Minot, 164 Mass. 38 733 v. Wallace, 50 Or. 534 540 v.Windsor, 6 Cush. (Mass.) 156 726 Knickerbocker v. Knickerbocker, 58 111. 394 822 Knight v. Hamakar, 33 Or. 154 242, 250, 251, 689, 802 v. Knight, 6 Ind. App. 269 457 Knight's Estate, In re, 91 Neb. 127 705 TABLE OF CASES. 1011 Page Knowlton v. Bradley, 17 N. H. 458 913 Knott v. Shaw, 5 Or. 484 432 Knox v. Bigelow, 15 Wis. 415 301 v. Knox, 25 Ala. 495 129 Koehler v. Ball, 2 Kan. 173 518 Kofka v. Bosicky, 41 Xeb. 328 449, 457, 465, 466, 467, 468 Kohny v. Dunbar, 21 Idaho, 258 714 Kolterman v. Chilvers, 82 Xeb. 216 2, 118, 158, 160 Koopman v. Carroll, 50 Xeb. 824 152, 327 Koslowski v. Xewman, 74 Xeb. 704 286, 290 Kroh v. Heins, 48 Xeb. 691 224, 452 Kulp v. Heiman, 90 Xeb. 167 897, 921 Kyger v. Eyley, 2 Neb. 28 99, 300 L Labs v. Labs, 92 Xeb. 378 465 Lacey v. State Treas. (Iowa), 121 N. W. 179 642 Ladd v. Mills, 44 Or. 393 241, 518 v. Stephens, 147 Mo. 319 688 v. Wiggin, 35 X. H. 421 259, 330 Larr.ar v. Mieon, 112 U. S. 452 850 Lamb v. Wogan, 27 Xeb. 236 626 Lamport v. Beeman, 34 Barb. (N. Y.) 239 559 Landers v. Stone, 45 Ind. 404 198 Lane v. Hill, 68 Mo. 275 97, 105 v. Moore, 151 Mass. 87 131 v.Walker, 59 Or. 107 37, 42 Langdon v. Astor's Exrs., 16 N. Y. 34 587 v. Blackburn, 109 Cal. 19 164 Langevin's Will, In re, 45 Minn. 429 127 Lang's Estate, 65 Cal. 19 91 Lanier v. Irvine, 21 Minn. 447 762 Lanphere v. Lowe, 3 Xeb. 131 261 Lantry v. Wolf, 49 Xeb. 374 290 La Plant, In re, 83 Minn. 366 822 Lappin v. Mumf ord, 14 Kan. 9 258 Larimer v. Wallace, 36 Xeb. 444 896, 900 Larson v. Chase, 47 Minn. 307 444 v. Union Pacific B. Co., 70 Neb. 261 219, 221, 225, 230 LaFsiter v. Travis, 98 Tenn. 330 156 Latham v. Meyers, 57 Iowa, 619 855, 910 1012 TABLE OF CASES. Page Latham v. Schaal, 25 Neb. 535 132,139, 146 v. Udell, 38 Mich. 238 92 Laton v. Corser, 51 Minn. 406 604 Latta v. Miller, 109 Ind. 302 308 Laughton v. Atkins, 1 Pick. (Mass.) 542 104 Lautenschalger v. Lautenschlager, 80 Mich. 292 66 Lawrence v. Kittridge, 21 Conn. 577 418 v. Wright, 23 Pick. (Mass.) 128 286 Lawrence's Appeal from Probate, 49 Conn. 41 398 Lawrey v. Sterling, 41 Or. 518 376, 383 Laycock v. Olson, 60 111. 30 301 Leach v. Lewis, 38 Ind. 160 354 League v. Williamson, 33 Tex. Civ. App. 647 405 Leahy v. Haworth, 141 Fed. 850 193, 228, 406 Learned v. Mathews, 40 Miss. 210 545 Leathers v. Greenacre, 53 Me. 561 , 79 Leatherwood v. Sullivan, 81 Ala. 458 265 Leavens, Estate of, 65 Wis. 440 756, 925 Leavitt v. Leavitt, 65 N. H. 102 185 Leavitt's Estate, In re, 85 Neb. 721 743 Le Blanch, Succession of, 37 La. Ann. 546 821 Lee v. Lee, 22 Ind. 384 847 v. Lindell, 22 Mo. 202 663 v. Patrick, 31 N. C. 135 420 v. Scudder, 31 N. J. Eq. 633 88 Lee's Case, 1 Minn. 60 14 Leek v. Patten, 18 Me. 42 165 Leigh v. Savidge's Exrs., 14 N. J. Eq. 124 553 Leininger Lumber Co. v. Dewey, 80 Neb. 659 715 Lenderink v. Sawyer, 92 Neb. 587 288, 444, 445 Lenfers v. Henke, 73 HI. 405 611 Lennig's Estate, 52 Pa. 135 559 Lentz v. Pilert, 60 Md. 296 217 Leonard v. Barnum, 34 Wis. 105 870 v. Grant, 8 Or. 276 600 v. Putnam, 51 N. H. 247 : 812 v. Steam Nav. Co., 84 N. Y. 48 360 Leonard, In re, Estate of, 95 Mich. 295 85 Leonard's Appeal, 95 Pa. 196 870 _ Lesieur v. Simon, 73 Neb. 645 314 v. Sipperd, 84 Neb. 296 38 TABLE OF CASES. 1013 Page Letchworth's Appeal, 30 Pa. 175 56, 57 Levara v. McNeeny, 5 Neb. Unof. 318 219, 230, 510, 886, 900 Leverett v. Dismukes, 10 Ga. 98 223 Levering v. Levering, 64 Md. 399 237 v. Rittenhouse, 4 Whart. (Pa.) 130 595 Levi v. Longini, 82 Minn. 324 .' 925 Levy v. Riley, 4 Or. 393 241, 518 Lewis v. Browning, 11 Pa. 493 917 v. Jones, 50 Barb. (N. Y.) 645 147 v. Palmer, 46 Conn. 454 44 v. Watrus, 7 Neb. 477 225 v. Williams, 54 Mo. 200 707 Lewon v. Heath, 53 Neb. 707 295 Liddell v. Liddell, 11 N. J. L. 44 787 Ligare v. Semple, 32 Mich. 438 603 Lind v. Burke, 50 Neb. 785 730 Lindley v. O'Reilley, 50 N. J. L. 636 325 Lindner v. Adams County Bank, 49 Neb. 735 356, 357 Line v. Lowder, 122 Ind. 548 918 Lines v. Lines, 142 Pa. 149 403 Lingle v. Cook's Admrs., 32 Gratt. (Va.) 262 765 Link v. Reeves, 63 Neb. 424 812 Li-Po-Tai's Estate, 108 Cal. 484 186 Lippincott's Exrs. v. Lippincott, 19 N. J. Eq. 321 128 Litchfield v. Cudworth, 15 Pick. (Mass.) 23 324, 512 Little v. Anderson, 71 N. C. 190 869 v. Caldwell, 101 Cal. 553 362 v. Giles, 25 Neb. 313 42, 44 v. Lesia, 4 Mich. 119 324 v. Little, 13 Gray (Mass.), 264 90 Lloyd v. Malone, 23 111. 43 920 Lobeck v. Lee-Clark, Anclreesen Hardware Co., 37 Neb. 158 361 Lockwood v. Sturdevant, 6 Conn. 373 512 Lodge v. Fitch, 72 Neb. 652 594, 595 Lommen v. Tobiason, 52 Iowa, 665 685 Long v. Burnett, 13 Iowa, 33 177 v. Landerman, 118 Mich. 174 , 324 v. Shackleford, 25 M.'ss. 566 308 v. Thompson, 34 Or. 362 298 Loomis v. Armstrong, 49 Mich. 521 362 v. Tifft, 16 Barb. (N. Y.) 541 315 1014 TABLE OP CASES. Page Loosemore v. Smith, 12 Neb. 344 14, 118, 158, 162 Loosing v. Loosing, 85 Neb. 66 41, 44, 47 Lord v. Hough, 37 Cal. 657 853 v. Lord, 58 N. H. 7 66 Loring v. Bacon, 3 Cush. (Mass.) 465 873 v. Blake, 98 Mass. 253 47 v. Cunningham, 9 Cush. (Mass.) 87 250 v. Thorndike, 5 Allen (Mass.), 260 53 Losey v. Westbrook, 35 N. J. Eq. 116 57 Lothrop v. Wightman, 41 Pa. 397 ; 334 Love v. Love, 8 Or. 83 603 v. Walker, 58 Or. 95 45 Lovell v. Minot, 20 Pick. (Mass.) 119 340 Lovering v. Levering, 129 Mass. 97 584 Low v. Bartlett, 8 Allen (Mass.), 259 418 Lowder v. Lowder, 58 Ind. 538 , 131 Lucas v. Cassaday, 2 G. Greene (Iowa), 208 441 Luce v. Foster, 42 Neb. 818 189 v. Harris, 79 Pa. 432 54 Lucht v. Behrens, 28 Ohio St. 231 349, 350 Lucke's Estate, In re, 64 Or. 320 423 Luddington v. Patton, 111 Wis. 268 718 Ludlow's Heirs v. Park, 4 Ohio, 5 i. 899 Luieh v. Medin, 3 Nev. 93 236 Lundsford v. Jarrett, 2 Lea (Term.), 579 500 Lunt v. Aubens, 39 Me. 352 825 Luper v. Wertz, 19 Or. 122 64, 65, 116, 130 Luppie v. Winans, 37 N. J. Eq. 245 853 Lupton v. Lupton, 2 Johns, Ch. (N. Y.) 614 576, 577 Lydick v. Chaney, 64 Neb. 288 17, 574, 747, 755, 769 Lynch v. Clements, 24 N. J. Eq. 431 139 v. Divan, 66 Wis. 490 273 v. Kirby, 65 Ga. 279 355 v. Eotan, 39 111. 14 924 Lynn v. Yeaton, & Cranch C. C. 182 552 Lyon v. Dada, 127 Mich. 495 104 v. Osgood, 58 Vt. 707 321 v. Vanatta, 35 Iowa, 521 490 Lyons v. Carr, 77 Neb. 883 533, 535 v. Hammer, 84 Ala. 197 483 TABLE OF CASES. 1015 Me Page MeAffee v. Phillips, 25 Ohio St. 374 706 McAnnulty v. McClay, 16 Neb. 418 404, 405, 524, 526 McBride v. No. Pac. Ry. Co., 19 Or. 65 398 McCabe v. Lewis, 76 Mo. 298 234 McCalla v. Bain, 45 Fed. 438 731 McCallister v. Lancaster Co. Bank, 15 Nev. 295 861 McCampbell v. Durst, 73 Tex. 410 544 McCartney v. Osburn, 118 111. 403 57, 581 McCarty v. Frazer, 62 Mo. 263 781 McChesney, In re, 106 Wis. 315 825 McClary v. Stull, 44 Neb. 464 88, 135, 136, 150 McClay v. Foxworthy, 18 Neb. 295 480, 483, 504, 542 McClave v. McClave, 60 Neb. 464 598, 749 McCleary v. Menke, 109 El. 294 203, -924 McCleery v. Allen, 7 Neb. 21 48 McClellan v. Filson, 44 Ohio St. 184 444 McClellan's Appeal, 29 Pa. 369 436 McClosky v. Gleason, 56 Vt. 264 864 v. Plantz, 76 Minn. 323 847 McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134 622 v. Thompson, 92 Ind. 565 417 McCormick v. Elsea's Estate, 107 Va. 472 119 v. Hanks, 105 Iowa, 639 596 r. McCormick, 53 Neb. 255 472, 473 v. Paddock, 20 Neb. 486 861 McCoy v. Conrad, 64 Neb. 150 81, 124, 146, 149 v. Lane, 66 Neb. 147 862 v. Morrow, 18 HI. 519 578 McCracken v. McCracken, 6 T. B. Mon. (Ky.) 252 622 McCrary v. Biggers, 40 Or. 465 578 v. Tasker, 41 Iowa, 255 281 McCreary v. Creighton, 76 Neb. 179 700 McCue v. Garvey, 14 Hun (N. Y.), 562 446 McCulloch v. Campbell, 49 Ark. 367 92 v. Valentine, 24 Neb. 215 38 McCullough v. Estes, 20 Or. 349 536, 896 McCullough's Estate, In re, 31 Or. 86 688, 691 McCully v. Chapman, 58 Ala. 325 519 1016 TABLE OF CASES. Page McCune r. House, 8 Ohio St. 144 79 McCurdy v. McCurdy, 197 Mass. 248 644 v. Neall, 42 N. J. Eq. 333 67. 1 25 McDonald v. Meadows, 1 Met. (Ky.) 507 927 McDowell v. First Nat, Bank of Sutton, 73 Neb. 307 690 v. Jones, 58 Ala. 25 235 McDuffie v. Mclntyre, 11 S. C. 351 866 McElroy v. Hatheway, 44 Mich. 399 . 194, 674 McEntee v. Bonacum, 66 Neb. 551 444 McEwan v. Zimmer, 38 Mich. 765 442 McFadden v. Council, 88 N. C. 105 238 v. Ross, 93 Ind. 134. 236 McGarvey v. Darnall, 134 111. 367 459 McGee v. McDonald's Estate, 68 Mich. 628 472 McGhee's Estate, In re, 109 Iowa, 9 650 McGlave v. Fitzgerald, 67 Neb. 417 315, 713 McGrath v. Reynolds, 116 Mass. 566 590 McGraw v. Irwin, 87 Pa. 139 417 McGrew v. State Bank of Humboldt, 60 Neb. 716 432, 472, 474 Mcllvaine v. Harris, 20 Mo. 457 529 Mclntire v. Mclntire, 64 N. H. 609 151 Mclntyre v. Mclntyre, 120 Ga. 67 95 McKay v. Freeman, 6 Or. 449 603, 614 v. Williams, 87 Mich. 547 889 McKay, In re, Will of , 110 N. Y. 611 66 McKee v. Thomas, 9 Kan. 543 898 McKenna v. McMichael, 189 Pa. 440 107 McKim v. Aulbach, 180 Mass. 481 765 v. Bartlett, 129 Mass. 226 771 McKinley v. Coe, 66 N. J. Eq. 70 556 McKinnon v. McKinnon, 56 Fed. 409 286, 467 v. McKinnon, 81 N. C. 201 862 McKnight's Exrs. v. Walsh, 24 N. J. Eq. 498 636 McLaughlin v. McCumber, 36 Pa. 14 483 McLean v. Hosea, 14 Ala. 194 870 McMahon v. Harrison, 6 N. Y. 443 213 v. Ryan, 20 Pa. 329 91 McMullen v. Brazelton, 81 Ala. 412 697 McNabb v. Wrxon, 7 Nev. 163 273 McNagle v. Parker, 75 Neb. 139 96 MeNally v. Weld. 30 Minn. 209 445 TABLE OF CASES. 1017 Page McNeeley v. Pearson (Tenn. Ch. App.), 42 S. W. 165 109 McNish r. State, 74 Neb. 261 831 McPherson, In re, 104 N. Y. 306 662 McQueen v. McDaniel (Ky.), 35 S. W. 880 546 McKaes r. McDoland, 57 Ala. 423 295 McShane's Estate, In re, 84 Neb. 70 799 M Mackey v. Coxe, 18 How. (U. S.) 100 418, 455 Mackin v. Hobbs, 126 Wis. 216 704 Maddox v. Maddox, 114 Mo. 35 139 Madison v. Larmon, 170 111. 65 40 Madison County v. Johnston, 51 Iowa, 152 926 Magenau v. Bell, 13 Neb. 247 454 Magness v. Modern W. of A., 146 Iowa, 1 212 Magoun v. Illinois Trust & Savings Bank, 110 U. S. 283 637 Magruder v. Carroll, 4 Md. 335 553 Mahaffey v. Mahaffey, 63 Iowa, 505 626 Makepeace v. Moore, 10 111. 474 354 Malick v. McDermott's Estate, 25 Neb. 267 798 Mall's Estate, In re, 80 Neb. 232 701, 704 Malone v. Cornelius, 24 Or. 194 182, 807, 815 Mallory's Appeal, 62 Conn. 218 198 Manahan v. Gibbons, 19 Johns. (N. Y.) 766 Manatt v. Scott, 106 Iowa, 203 85, 139, 146 Mandelbaum v. McDonnell, 29 Mich. 78 94 Mann v. Mann's Estate, 53 Vt. 48 626 Manning v. Bonacum, 83 Neb. 417 747 v. Leighton, 65 Vt. 84 258 v. Manning, 61 Ga. 137 925 v. Mulrey, 192 Mass. 547 546 Manning's Estate, In re, 84 Neb. 60 579 Manser's Estate, 60 Or. 229, 239, 256, 359 60, 735 Mansfield v. Hill, 56 Or. 405 625, 629, 634 v. McFarland, 202 Pa. 173 408 Mantz v. Buchanan, 1 Md. Ch. Dec. 202 602 Manwell v. Briggs, 17 Vt. 176 301 Marietta v. Marietta, 90 Iowa, 201 449, 450 Markover v. Krause, 132 Ind. 294 934 Marks v. Coats, 37 Or. 611 239, 264, 268, 311, 359 1018 TABLE OF CASES. Page Mark's Estate, Tn re, 63 Or. 256 239 Mark's Estate, In re, 66 Or. 344 236, 237, 359, 675 Marrey's Estate, In re, 65 Cal. 237 689 Marsellis v. Thalheimer, 2 Paige (N. Y.), 35 733 Marsh v. Marsh, 92 Neb. 189 56 v. People, 15 111. 284 236 Marshall v. Berry, 13 Allen (Mass.), 43 590 v. Crow's Adrar., 29 Ala. 278 209 Marshall County v. Hanna, 57 Iowa, 372 330, 574 Marston v. Marston, 17 N. H. 503 97 Martin v. Bond's Estate, 64 Neb. 868 500 v. Gage, 147 Mass. 204 404, 407, 409 v. Davis, 89 Mass. 376 853 v. Grover, 9 Neb. 265 2 v. leaking, 1 Hagg. Ecc. 244 105 v. Long, 53 Neb. 694 732, 792 v. Martin, 70 Neb. 207 152 v. Martin, 108 Wis. 204 449 v. Scott, 12 Neb. 42 454 Martin's Estate, In re, 56 Minn. 420 425 Martley v. Martley, 77 Neb. 183 43 Marvel v. Phillips, 162 Mass. 299 348 Marvin v. Bowlby, 170 111. 18 709 v. Schilling, 12 Mich. 356 25, 554, 898 Marx v. McGlynn, 88 N. Y. 357 134, 141, 148 Mason v. Buchanan, 62 Ala. 112 SCO Mason's Estate, In re, 52 Or. 178 321, 683 Masters v. Jones, 158 Ind. 647 857 Matthews v. Duryea, 46 Barb. (N. Y.) 69 602 Matthis v. Bennett, 21 N. H. 199 684 v. Pitman, 32 Neb. 191 156, 448 Mattison v. Mattison, 50 Or. 254 49 Mattoon v. Cowing, 13 Gray (Mass.), 387 927 Mattox v. Patterson, 60 Iowa, 434 915 Mauarr v. Parrish, 26 Ohio St. 636 899 Maulfairs' Appeal, 110 Pa. 402 922 Maurer v. Reif Schneider, 89 Neb. 173 79 Maus v. Heilman, 39 Neb. 222 510, 520 Maxwell v. Higgins, 38 Neb. 671 583 v. Hill, 89 Tenn. 584 63 May, In re, 45 Ch. Div. 499 461 TABLE OF CASES. 1019 Page May v. Kelley, 61 Ala. 489 768, 782 Maynard v. Davis, 127 Mich. 579 606 v. Vinton, 49 Mich. 139 92, 135 Meach v. Meach, 24 Vt. 591 590, 591 Mead v. Bakewell, 8 Mo. App. 549 921 v. Byngton, 10 Vt. 116 330 v. Weaver, 42 Neb. 149 , 455 Mearler v. Archer, 65 N. H. 214 732, 947 Meadows v. Meadows, 81 Ala. 451 484, 519 Meek v. Lange, 65 Neb. 783 626 Meisner v. Hill, 92 Neb. 435 4C2, 468, 530, 623, 635 Melberg's Appeal, 86 Pa. 129 ; 239 Melcher v. Schluter, 5 Xeb. Unof. 445 542 Mells, In re, 64 Iowa, 391 856 Mendenhall's Will, In re, 43 Or. 452 117, 123, 126, 130 Merchant v. Merchant, 2 Brad. Sur. (N. Y.) 432 592 Merchant, In re, 39 N. J. Eq. 506 259 Merchants' Nat. Bank v. Weeks, 53 Vt. 115 352 Merriam, In re, 136 N. Y. 58 150 Merrick v. Kennedy, 46 Neb. 264 707, 746, 791 Merrifield v. People, 242 111. 400 641 Merrill v. Harris, 65 Ark. 335 877 v. New England Mutual Life Ins. Co., 103 Mass. 245 413 Metz' Appeal, 11 Serg. & R. (Pa.) 201 444 Meyers v. Carter, 37 N. C. 146 544 Michel v. Borders, 129 Ind. 529 898 Michener v. Dale, 23 Pa. 59 592 Michigan Land and Iron Co. v. Nester, 147 Mich. 599 348 Michoud v. Girod, 4 How. (U. S.) 503 545 Middleton v. Eobinson, 1 Bay (S. C.), 58 447 Miller v. Congdon, 14 Gray (Mass.), 114 694 v. Hanson, 89 Neb. 224 480, 510 v. Hoberg, 22 Minn. 249 296 v. Janney's Exr., 15 Mo. 235 368 v. Miller, 82 111. 463 277 v. Miller, 3 Serg. & R. (Pa.) 267 144 v. Miller's Estate, 69 Neb. 441 162, 165, 168 y. Osterloh, 157 Pa. 264 91 v. Rich, 204 111. 444 547 v. Williamson, 5 M-l. 219 354 Miller, In re, 32 Neb. 480 215, 225, 226 1020 TABLE OF CASES. Page Miller's Appeal, 113 Pa. 459 656 Miller's Estate, In re, 69 Neb. 441 122 Miller's Exr. v. Simpson, 8 Ky. Law Rep. 518 353 Miller's Will, In re, 49 Or. 456 96, 105 Millett v. Early, 19 Neb. 266 569 Milligan v. McLaughlin, 94 Neb. 171 936, 944, 948 Mills v. Mills, 22 Or. 210 236 v. Van Voorhies, 30 N. Y. 412 602 Mills' Estate, In re, 40 Or. 428 237, 242 Miltonberger v. Elam, 11 La. Ann. 668 350 Minot v. Tappan, 122 Mass. 535 55 Missouri Pac. Ry. Co. v. Bradley, 51 Neb. 596 245 v. Jay's Estate, 53 Neb. 747 243, 790 v. Lewis, 24 Neb. 848 ,218, 219, 300, 301, 407 v. Palmer, 55 Neb. 559 821 Mitchel v. Campbell, 19 Or. 213 532, 534 v. Kaufman -(Neb.), 145 N. W. 247 212 Modern Woodmen v. Hester, 66 Kan. 129 823 Moffitt v. Moffitt, 69 111. 641 485, 540 Mohr v. Porter, 51 Wis. 487 881 Moline v. Carlson, 92 Neb. 419 465, 466, 468 Mollering v. Kinneberg, 78 Neb. 758 83, 133 Monastes v. Catlin, 6 Or. 119 3, 883 Moncrief v. Moncrief, 73 Ind. 587 478 Monell v. Monell, 5 Johns. Ch. (N. Y.) 283 766, 913 Money v. Turnipseed, 50 Ala. 499 486, 542 Monroe v. Barclay, 17 Ohio St. 302 91 v. Hudart, 79 Neb. 569 66, 67 v. Jones, 8 R. I. 526 51 Montgomery v. Cloud, 27 S. C. 188 676, 707 Montgomery's Appeal, 92 Pa. 202 326 Montour v. Purdy, 11 Minn. 384 511, 543 Montoya v. Miller, 7 N. M. 289 915 Moody v. Butler, 63 Tex. 210 545 Mooney v. Olsen, 22 Kan. 69 147 Moore v. Alden, 80 Me. 301 585, 586 v. Beckwith, 14 Ohio St. 135 577 v. Burrows, 34 Barb. (N. Y.) 173 264 v. Burrows, 89 Tenn. 101 597 v. Fields, 42 Pa. 472 423 v. Flock, 77 Neb. 52 730 TABLE OF CASES. 1021 Page Moore v. Neil, 39 HI. 256 550 T. Philbrick, 32 Me. 102 538 v. Shields, 69 N. C. 50 913, 925 v. State, 46 Ind. 458 766 v. Willamette C. Co., 7 Or. 59 219, 243 v. Waller's Heirs, 1 A. K. Marsh. (Ky.) 488 772 Moore's Estate v. Moore, 33 Xeb. 509 218, 219, 230, 231, 232, 407 Moore's Estate, In re, 72 Cal. 335 688 Moore's Estate, In re, 96 Cal. 522 324 Moore's Exrs. v. Blauvelt, 15 N. J. Eq. 367 136, 146 Moran, In re, 151 N. Y. 555 934 Morefield v. Harris, 126 N. C. 625 407 Moreland v. Brady, 8 Or. 312 61, 62 Morey v. Sphier, 63 N. H. 507 99 Morgan v. Dodge, 44 N. H. 255 18, 163, 245 v. Ireland, 1 Idaho, 786 101 v. Johnson, 68 111. 190 920 v. Sackett, 57 Ind. 580 602 Morgan, In re, 104 N. Y. 74 594 Morgan's Estate, 46 Or. 236 18, 426, 427 Morgan's Will, 110 Wis. 7 146 Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153 872 Merrill v. Foster, 33 N. H. 379 273 v. Otis, 12 N. H. 466 748 Morris v. Chicago R. I. & P. Ry. Co., 65 Iowa, 727 300 v. Dooley, 59 Ark. 483 948 v. Garrison, 27 Pa. 226 863 v. Hogle, 37 111. 150 483 v. Morton's Exrs. (Ky.), 20 S. W. 287 131 v. Mowatt, 2 Paige (N. Y.), 586 422 v. Simpson, 3 Houst. (Del.) 586 580 Morrisey v. Mulhern, 168 Mass. 412 446 Morrison v. Kinstra, 55 Miss. 71 920 Morrison's Estate, In re, 48 Or. 612 667, 804 Mortenson v. Bergthold, 64 Neb. 208 773 Morton v. Hatch, 54 Mo. 408 414 T. Johnston, 124 Mich. 561 694 v. Preston, 18 Mich. 60 287 v. Rainey, 82 111. 215 450 Morton, Estate of, v. Morton, 62 Neb. 420 731 Moses v. Julian, 45 N. H. 52 9 1022 TABLE OF CASES. Page Mote v. Kleen, 83 Neb. 585 533, 534 Motley v. Motley, 45 Ala. 455 917 v. Motley, 53 Neb. 375 500, 504, 529, 600, 601, 604 Mott v. Ackerman, 92 N. Y. 539 327 Moulton v. Holmes, 57 Cal. 352 307 Mower's Appeal, 48 Mich. 441 695 Mowrey v. Peck, 2 R. I. 260 570 Moyle v. Moyle, 2 Buss. & M. 710 911 Mulf ord v. Beveridge, 78 111. 455 894 v. Minch, 11 N. J. Eq. 16 547 Mulholland's Estate, 217 Pa. 65 83 Mullan v. Walker, 69 Iowa, 92 91 Mullan's Will, 140 Wis. 291 85 Mullanphy v. St. Louis Co., 6 Mo. 563 242 Mullenschlader's Estate, In re, 137 Wis. 32 119 Mulligan v. Leonard, 46 Iowa, 692 79 Mulloy v. Kyle, 26 Neb. 313 259, 500 Munden v. Bailey, 70 Ala. 63 336 Munger's Estate, In re (Iowa), 150 N. W. 447 689, 691 Municipal Court v. Henry, 11 R. I. 563 770 Munteith v. Rahn, 14 Wis. 210 33 J Murdock v. Murdock, 219 111. 123 716 Murphy v. Hanrahan, 50 Wis. 485 319 v. Hill, 77 Ind. 229 544 v. Murphy, 2 Mo. App. 156 925 v. Nathans, 46 Mo. 508 594 v. Walker, 131 Mass. 341 864 Murray v. Oliver, 3 B. Mon. (Ky.) 1 244 Murray's Estate, In re, 56 Or. 138 424, 430, 551 Murry v. Hennessey, 48 Neb. 608 61, 127 Musick v. Beebe, 17 Kan. 47 679 Musselman v. Eshelman, 10 Pa. 301 515 Musser v. Oliver, 21 Pa. 362 336 Myers v. McGavock, 39 Neb. 843. . .542, 821, 876,881, 882, 886, 889, 891 Myrick's Heirs v. Boyd, 3 Hayw. (Tcnn.) 179 263 N Nagle v. Robbins, 9 Wyo. 211 911, 925 Nail v. Maurer, 25 Md. 322 715 Naiman v. Bohlmeyer (Neb.), 150 N. W. 829 623, 625, 627, 628 TABLE OF CASES. 1023 Page Nash v. Sawyer, 114 Iowa, 742 784 National Bank v. Bradshaw, 91 Neb. 714 211, 439 National Christian Assn. of Illinois v. Tomas, 63 Neb. 585 40 National Life Ins. Co. v. Fitzgerald, 61 Neb. 692 433 Naundorf v. Schuman, 41 N. J. Eq. 14 328 Neal v. Davis, 53 Or. 525 600, 610, 735 v. Knox & Lincoln R. R., 61 Me. 298 265 v. Patten, 40 Ga. 363 544 Neary v. Neary, 70 Neb. 349 384, 900 Nebraska Loan & Trust Co. v. Smassall, 38 Neb. 516 627 Nebraska Mfg. Co. v. Maxon, 23 Neb. 224 13 Nebraska Wesleyan University v. Bowen> 73 Neb. 598 '. 470 Necker's Estate, In re, 80 Neb. 123 453, 456 Needham v. Belote, 39 Mich. 487 309 Neeley v. Blair, 157 Pa. 417 574 Neff's Appeal, 48 Pa. 501 332 Neff's Appeal, 57 Pa. 91 353 Neighbors v. Neighbors (Ky.), 65 S. W. 607 444 Neill v. Neill, 31 Miss. 36 853 Neilson v. Cook, 40 Ala. 498 925 Nelson v. Boynton, 54 Ala. 368 187, 248 v. Bronnenberg, 81 Ind. 193 512 v. Hurkel, 30 Kan. 456 436 v. McClanahan, 55 Cal. 308 148 v. Nelson, 18 Ohio St. 282 44 v. Wyan, 21 Mo. 347 597 Nelson's Estate, In re, 75 Neb. 298 83, 86 Nettleton v. Nettleton, 17 Conn. 542 593 Neville v. Kinney, 125 Ala. 149 483 Newans v. Newans, 70 Iowa, 32 236 Neweomb v. Williams, 9 Met. (Mass.) 525 780 Newcomb's Lessee v. Smith, 5 Ohio, 448 899 Newel v. Johns, 128 Ala. 584 496 Newlove v. Woodward, 9 Neb. 505 809 Newman v. Reed, 50 Ala. 297 924 Newport v. Newport, 5 Wash. 113 555 Newsom v. Thornton, 82 Ala. 402 578 Newton v. Cox, 76 Mo. 352 762 Nicholas v. Adams, 2 Whart. (Pa.) 17 588 Nichols v. Shepard, 63 N. H. 391 729 Nicholson's Appeal, 20 Pa. 50 845 1024 TABLE OF CASES. Page Nickerson v. Nickerson, 34 Or. 3 298 Nicks v. Martindale, Harp. (S. C.) 135 436 Nicrosi v. Phillips, 91 Ala. 299 324 Niles' Estate, In re, 115 N. Y. 547 765 Nillson's Estate, In re, 81 Neb. 809 50 Nine v. Starr, 8 Or. 49 821 Noble v. Jackson, 132 Ala. 230 688 Noon's Estate, In re, 49 Or. 293 497 Non-she-po v. Wa-win-ta, 37 Or. 213 743, 933 Nordquist, Estate of, v. Sahiboom, 114 Minn. 329 719 Norfolk State Bank v. Schwenk, 51 Neb. 146 624 Norman v. Qlney, 64 Mich. 533 543 Normand's Admr. v. Grognard, 17 N. J. Eq. 425 226, 414 Normile v. Osbon, 207 Pa. 367 449 Norris v. Towle, 54 N. H. 290 321 Norris' Appeal, 71 Pa. 106 682, 684 North v. Angelo, 75 Neb. 381 435 v. Joslin, 59 Mich. 624 834 Northcott v. Lemery, 8 Or. 316 541 Ncrthrup v. Markham, 16 Or. 173 327, 725 Norton v. Norton, 5 Gush. (Mass.) 524 552 Norval v. Zinsmaster, 57 Neb. 158 854 Noteware v. Colton, 95 Neb. 541 724 Nugent v. Powell, 4 Wyo. 173 945, 947 Null v. Jones, 6 Neb. 500 433 Nunnally v. Becker, 52 Ark. 550 453 Oakes v. Gillian, 1 Neb. Unof. 893 434 O'Brien v. Bonfield, 213 111. 428 63 O'Brien's Estate, 63 Iowa, 622 215 O'Brien's Estate, In re, 80 Neb. 125 25, 867, 911, 932 O'Connor v. Boylan, 49 Mich. 209 314 v. Madison, 98 Mich. 183 149 v. Walter, 83 Neb. 224 466 O'Dea v. Washington County, 3 Neb. 122 796 Odell v. Culbert, 9 Watts & S. (Pa.) 66 469 v. Eogers, 44 Wls. 136 162 O'Donnell v. Herman, 42 Iowa, 60 431 v. Slack, 123 Cal. 285 444 TABLE OF CASES. 1025 Page O'Gorman v. Lindeke, 26 Minn. 93 772 O'Hara v. Parker, 27 Or. 174 506 Oh Chow v. Brockway, 21 Or. 448 289 Ohio Oil Co. v. Daughetee, 240 111. 361 622 Ohm v. Superior Court, 85 Cal. 545 315 Oliver v. Harvey, 5 Or. 360 794 Ollschlager's Estate, 50 Or. 580 702 Olston v. Oregon Water Power Co., 52 Or. 346 299, 305, 307 Omaha Coal and Coke Co. v. Fay, 37 Neb. 68 800 Oram v. Eothermel, 98 Pa. 300 357 Orchardson v. Cofield, 171 111. 14 88 Orcutt v. Orms, 3 Paige (N. Y.), 464 353 Ordinary v. Barcalow, 36 N. J. L. 15 771 v. Heishon, 52 X. J. L. 15 928 v. Mortimer, 4 Rich. (S. C.) 271 770 Ordroneaux v. Helie, 3 Sand. Ch. (N. Y.) 512 418 Oregon v. Simmons, 46 Or. 159 744 Orgall v. Chicago B. & Q. R. Co., 46 Neb. 4 299 Ormiston v. Olcott, 84 N. Y. 339 346 Orr v. Pennington, 83 Va. 268 91 Gsburn's Estate, In re, 36 Or. 8 331, 421, 688, 689, 695 Osgood v. Lovering, 33 Me. 469 54 O'Shea v. Bruning, 85 Neb. 156 41, 740 Osman v. Traphagen, 23 Mich. 80 519, 544 Ostheimer v. Single, 73 N. J. Eq. 539 561 Owen v. Ward's Estate, 127 Mich. 693 253 Owens v. Bloomer, 15 Hun (N. Y.), 296 446 v. Owens, 100 N. C. 240 743 Oxsheer v. Nave, 90 Tex. 568 749 Ozmun v. Galbraith, 131 Mich. 577 215 P Pace v. Klink, 51 Ga. 220 732 v. Oppenheim, 12 Ind. 533 242 Page v. Brach, 134 Mich. 51 134 v. Hodgdon, 63 Neb. 53 826 v. Page, 8 N. H. 202 594 v. Williamson, 85 L. T., N. S., 146 156 Page's Appeal, 71 Pa. 402 58 Paige, In re, 62 Barb. (N. Y.) 476 162 65 Pro. Ad. 1026 TABLE OF CASES. Page Paisley's Estate, In re, 91 Neb. 139 137, 138, 139, 146 Pailthorp, In re, 160 Pa. 316 679 Palacio v. Bigne, 15 Or. 142 358, 360 Palmer v. Bradley, 152 Fed. 193 127 v. Green, 6 Conn. 19 422 v. Holford, 4 Buss. 403 40 v. Noyes, 45 N. H. 174 567 v. Oakley, 2 Doug. (Mich.) 433 825. 898 v. Palmer, 56 Mich. 293 261, 262 v. Sawyer, 78 Neb. 250 623, 627 Palmer, In re, 183 N. Y. 238 651 Palmer's Appeal, 1 Doug. (Mich.) 422 287 Parker v. Nichols, 17 Pick. (Mass.) Ill 542 v. Starr, 21 Neb. 680 820 v. Wells, 68 Neb. 647 439 T. Wright, 62 Ind. 398 500 Parker's- Estate, In re, 72 Neb. 601 496, 501, 520 Parks v. Am. Home Miss. Society, 62 Vt. 19 47 v. Norris, 101 Mich. 71 287, 363 Parr v. United States, 153 Fed. 462 604 Parrish v. McNeil, 46 Neb. 727 456 v. Parrish, 33 Or. 186 603 v. Stone, 14 Pick. (Mass.) 198 590 Parsons v. Parsons, 66 Iowa, 754 133, 143 Partridge Estate, In re, 31 Or. 197 236, 243, 245, 695 Patten's Estate, 18 D. C. 392 242 Patterson v. Bell, 25 Iowa, 150 680, 707 v. Ellis, 11 Wend. (N. Y.) 259 46 v. Hamilton, 26 Hun (N. Y.), 665 483 v. Patterson, 13 Johns. (N. Y.) 379 445 v. Wadsworth, 89 N. C. 407 303 Patton v. Bostwick, 39 Mich. 218 472 Patrick v. Patrick, 72 Neb. 454 559 Paty v. Smith, 50 Cal. 153. 898 Paulstm v. Hall, 39 Kan. 365 544 Paup v. Sylvester, 22 Iowa, 375 . . . . 53 Pearson v. Hopwey, 11 N. J. L. 18 606 Pease v. Shirlock, 63 Vt. 622 318 v. Walker, 20 Wis. 603 271 Peay v. Morrison's Exrs., 10 Gratt. (Va.) 149 567 v. Scaife, 126 Wis. 205 216 TABLE OF CASES. 1027 Page Peck v. McKean, 45 Iowa, 18 451 Peck's Estate, In re, 31 N. Y. Supp. 407 708, 709 Pecker v. Julius, 2 Browne (Pa.), 31 460 Peckham v. Portland Electric Co., 33 Or. 458 299 Pedan v. Robb, 45 Iowa, 18 451 Peebles v. Watt's Admr., 9 Dana (Ky.), 102 198 Peeper v. Peeper, 53 Wis. 507 791 Peeples' Estate, In re, 38 S. C. 41 234 Pemberton v. Pemberton's Heirs, 76 Neb. 669 465, 467 v. Perrin, 94 Neb. 718 948 Pence v. Waugh, 135 Ind. 143 139 Pence's Appeal, In re, 11 Ohio St. 290 745 Penhallow v. Dwight, 7 Mass. 34 260, 719, 720 Penniman v. French, 17 Pick. (Mass.) 604 52 v. French, 2 Mass. 140 242 People v. Buffalo County Commrs., 4 Neb. 150 943 v. Burkhalter, 247 111. 600 642 v. De La Guerra, 24 Cal. 77 10 v. Dunlap, 13 Johns. (N. Y.) 437 769 v. Hunter, 89 111. 392 761 v. Kelley, 218 HI. 509 622, 641 v. Moir, 207 111. 180 642 v. Nelms, 241 111. 571 651 v. Olivera, 43 Cal. 492 434 v. Seeley, 146 111. 147 929 v. Wilcox, 22 Barb. (N. Y.) 178 825 People's Savings Bank v. Look, 95 Mich. 7 552 Pepper v. Thomas, 85 Ky. 539 607 Pereival v. McVoy, Dud. (S. C.) 337 568 Perkins v. Perkins, 39 N. H. 163 86, 130 Perkin's Estate v. Hollister, 59 Vt. 348 347, 353 Perrin v. Calhoun Co. Circuit Ct., 49 Mich. 342 391 v. Lepper, 72 Mich. 454 684, 685 Perry v. Wooten, 5 Humph. (Tenn.) 524 353 Perry Livestock Co. v. Biggs, 4 Neb. Unof. 440 530, 629 Peter v. Beverly, 10 Pet. (U. S.) 532 325, 708, 709 Peters v. Phillips, 19 Tex. 70 392 Peterson v. Bauer, 76 Neb. 652 467 Peterson's Estate, In re, 76 Neb. 411 125 Pettes v. Bingham, 10 N. H. 514 144 Pettit v. Black, 13 Neb. 142 14, 116 1028 TABLE OF CASES. Page Pflueger v. State, 46 Neb. 493 133 Phillips v. McCombs, 53 N. Y. 494 580 v. Phillips, 13 S. D. 231 527 Phoenix Ins. Co. v. McEvony, 52 Neb. 566 33 Pick v. Strong, 26 Minn. 303 538 Pickens v. Davis, 134 Mass. 252 37 Pickering v. Pendexter, 46 N. H. 69 213, 214 Pickett v. Gilmer, 32 La. Ann. 991 770 Pickett's Will, 49 Or. 127 61, 62, 82, 117, 130, 133 Pico's Estate, In re, 56 Cal. 413 216 Pierce v. Atwood, 64 Neb. 92 455 Pierce v. Irish, 31 Me. 254 703 v. Pierce, 38 Mich. 412 84, 91, 92 v. Prescott, 128 Mass. 140 913 Pigg v. Carroll, 89 111. 205 597 Piggotta's Case, 5 Coke, 29a 185 Pike's Estate, 45 Wis. 391 213 Pirn v. Downing, 11 Serg. & R. (Pa.) 66 843 Pinkerton v. Sergeant, 102 Mass. 568 719, 720 Pinkham v. Pinkham, 55 Neb. 729 607 Pinneo v. Goodspeed, 120 111. 524. 572 Piper v. Piper, 34 N. H. 56-3 281 Pitman v. Pitman, 81 Kan. 643 782 Pitt v. Moore, 99 N. C. 85 362 Pitts v. Hale, 3 Mass. 321 797 Plaisance's Estate, Myr. Prob. (Cal.) 117 213 Platt v. Sinton, 37 Ohio St. 353 42 Plimpton v. Fuller, 11 Allen (Mass.), 139 5^7 Plowman v. Henderson, 59 Fla. 559 213 Plunkett's Estate, In re, 33 Or. 416 708, 800, 801, 804 Pollard v. McKenney, 69 Neb. 742 38, 79 Pool v. Buffum, 3 Or. 438 61 Pooler v. Chrisman, 145 111. 405 137 Poor v. Horton, 15 Barb. (N. Y.) 485 606 Pope v. McEndree, 75 Neb. 550 249 Pope's Estate, In re, 75 Neb. 550 792 Pope's Estate, In re, 83 Neb. 723 42 Poppleton v. Jones, 42 Or. 26 260 Porter v. Dunn, 131 N. C. 314 449 v. Lazear, 109 IT. S. 84 604 v. Long, 124 Mich. 584 632 TABLE OF CASES. 1029 Page Porter v. Parker, 68 Xeb. 338 , 473 v. Powell, 79 Iowa, 151. 821 v. Throop, 47 Mich. 213 145, 158 Portis v. Cummings, 39 Tex. 139 676 Portland Trust Co. v. Beatty, 32 Or. 305 38 Possenecker v. Entemann, 64 Neb. 409 503 Post v. Mason, 91 N. Y. 539 441 Potter v. Baldwin, 133 Mass. 427 148 v. Jones, 20 Or. 239 88, 89 v. Potter, 43 Or. 148 608, 715 v. State, 23 Ind. 607 927 Potter's Appeal, 53 Mich. 106 144 Powell v. Monson & Bnmfield Mfg. Co., 3 Mason, 347 616 v. Powell, 52 Mich. 432 917 Power v. Cassady, 79 N. Y. 602 604 Powers v. Powers, 79 Xeb. 680 124, 455, 795, 799 Prante v. Lompe, 79 Neb. 377 834, 835, 839 Prather v. Hart, 17 Xeb. 598 7, 726 v. McClelland, 76 Tex. 574 84 Pratt v. Pierce, 36 Me. 448 748 v. Wright, 13 Gratt. (Va.) 175 841 Prebble v. Longfellow, 48 Me. 279 856 Prescott v. Prescott, 7 Met. (Mass.) 145 582 Price, In re, 67 X. Y. 231 746 v. Lancaster County, 18 Neb. 199 427 v. Mace, 47 Wis. 23 413 Price's Estate, 81 Pa. 263 690 Pritehard v. Norwood, 155 Mass. 339 319 Pritts v. Eitchey, 29 Pa. 71 606 Probate Court v. Angell, 14 R. I. 495 771 v. Hazzard, 13 R. I. 9 782 v.-Kent, 49 Vt. 380 769 v. Kimball, 42 Vt. 320 767 v. Mathews, 6 Vt. 269 785 v. Strong, 27 Vt. 202 762 Probate Judge v. Mathes, 60 X. H. 433 911 Proctor v. Proctor, 141 Mass. 164 66 v. Wannamaker, 1 Barb. Ch. (X. Y.) 302 18 Protestant Episcopal Church v. Eells, 68 Vt. 497 164 Prugh v. Portsmouth Savings Bank, 4S Xeb. 414 628, 629 Pruitt v. Mulderink, 39 Or. 335 426, 427 1030 TABLE OF CASES. Page Pruza T. Everett, 78 Neb. 250 251, 319 Pryor v. Downey, 50 Cal. 388 484, 536 Pugh v. Bell, 2 T. B. Mon. (Ky.) 125 605 Pulling v. Durf ee, 85 Mich. 34 277 Purcell v. Lang, 108 Iowa, 198 603 Purdin v. Archer, 4 S. D. 54 434 Purdy v. Howe, 134 111. 298 137 Pursley v. Hayes, 22 Iowa, 11 234, 924, 928 Putnam v. Pitney, 45 Minn. 242 409, 418 v. Russell, 17 Vt. 54 409 Pyatt v. Pyatt, 44 N. J. Eq. 391 912, 925 Q Quackenbush v. Ehle, 5 Barb. (N. Y.) 469 437 Quigley v. Arnold, 22 111. App. 269 451 R Radovich's Estate, In re, 74 Cal. 536 220 Rakes v. Brown, 34 Neb. 304 478 Ralphs v. Hensler, 97 Cal. 296 302 Ralston v. Wood, 15 111. 159 v . 784 Ramp v. McDaniel, 12 Or. 108 216, 231, 233, 238 Ramsay v. Parker, 20 Wis. 507 853 v. Ramsay, 196 111. 179 416 v. Thompson, 71 Md. 315 839 Ramsdill, In re, 190 111. 492 645 Rannalls v. Rowe, 22 C. C. A. 177 718 Randolph v. Hughes, 89 N. C. 428 162 Rank v. Hanna, 6 Ind. 80 805 Rankin v. Rankin, 61 Mo. 295 138 Raper v. Dunn, 53 Or. 203 813 Rapp's Estate v. Elgutter, 71 Neb. 108 347, 689, 690, 691 Ratcliff v. McGee, 165 Mo. 461 253 Raudenbaugh v. Shelley, 6 Ohio St. 307 65 Rawson v. Piper, 34 Me. 98 778 Ray v. Loper, 65 Mo. 470 597 Raymond v. Inhabitants of Sawyer, 37 Me. 406 863 Rayner T. Pearsall, 3 Johns. Ch. (N. Y.) 578 330 Rea v. McEachron, 13 Wend. (N. Y.) 465 519 Reading v. Wilson, 38 N. J. Eq. 446 862 TABLE OF CASES. 1031 Page Rearich v. Swinehart, 11 Pa. 233 380 Rebar's Estate, 142 Pa. 208 570 Redmond v. Burroughs, 63 N. C. 242 56 Eeed, In re, 19 Neb. 397 392, 395 v. Emory, 1 Serg. & R. (Pa.) 339 569 v. Whipple, 140 Mich. 7 180, 181 Reed's Will, In re, 20 N. Y. Supp. 91 144 Rid v. Borland, 14 Mass. 208 104 Reiger v. Schaible, 81 Neb. 58 277, 626, 715, 716 Reinhart v. Seaman, 208 111. 448 515 Reischick v. Rieger, 68 Neb. 348 734 Relston v. Russell's Admr., 15 Mo. 356 571 Renaud v. Pageot, 102 Mich. 568 149 Renfro v. White, 23 Ark. 195 240 Renner v. Ross, 111 Ind. 269 . . . .- 484 Reynolds, In re, 11 Hun (N. Y.), 41 843 v. McMullen, 55 Mich. 568 404, 412 v. Reynolds' Exrs., 16 N. Y. 257 555 v. Robinson, 64 N. Y. 589 449 v. Wilson, 15 111. 394 512 Rhea v. Brown, 4 Neb. Unof. 461 793, 799, 803 Rhodes v. Childs, 64 Pa. 18 588 v. Rhodes, 137 Mass. 343 43 v. Rhodes, 3 Sand. Ch. (N. Y.) 279 466 Ribble v. Furmin, 71 Neb. 108 429, 430, 470, 472, 792, 797, 806, 818 Rice, In re, 42 Mich. 528 826, 872 v. Rice, 50 Mich. 448 84, 89 v. Tilson, 14 Wyo. 101 348 Rice's Lessee v. White, 8 Ohio St. 216 262 Richards v. Adamson's Estate, 43 Iowa, 248 573 V.Humphreys, 15 Pick. (Mass.) 133 586 Richardson v. Borden, 43 Miss. 71 261 v. Butler, 82 Cal. 174 486, 502 v. Hall, 124 Mass. 228 559 v. Hazelton, 191 Mass. 108 776 v. Johnson (Neb.), 151 N. W. 314 714 v. Orth, 40 Or. 252 465 v. Richardson, 49 Mo. 29 865 v. Welch, 47 Mich. 309 605 Richardson County v. Smith, 25 Neb. 767 . .- 727 Richmond, Appeal of, 59 Conn. 226 143 1032 TABLE OF CASES. Page Richter v. Leiby's Estate, 101 Wis. 434 764 Riddell v. Kiddell, 70 Neb. 472 453, 454, 495 Riddler v. Riddler, 93 Iowa, 347 448 Riggs v. Riggs, 135 Mass. 238 64 Rine v. Rine, 91 Neb. 248 323 Ristine v. Kurtz, 97 Iowa, 338 562 Ritchie v. Seeley, 76 Neb. 164 298 Rittgers v. Rittgers, 56 Iowa, 218 610 Rivard v. Rivard, 109 Mich. Ill 145 Rivenett v. Borquin, 53 Mich. 10 56, 57 Rivers v. Rivers Exrs., 8 Desaus. (S. C.) 190 465 Roach, In re, 139 Cal. 17 491 Roach's Estate, In re, 50 Or. 197 286, 327, 701, 804, 870 Roane v. Hollingshead, 76 Md. 369 102 Robbins v. Burridge, 128 Mich. 25 784 v. Coryell, 27 Barb. (N. Y.) 556 62 v. Robbins, 10 Ky. Law Rep. 209 43 Roberts v. Flannagan, 21 Neb. 509 116, 160 v. Greer, 22 Nev. 318 624 v. Johns, 16 S. C. 171 676 v. Lewis, 153 U. S. 367 44 v. Messinger, 134 Pa. 298 263 v. Schulz, 45 Tex. 184 921 v. Weadock, 98 Wis. 400 776 Robertson v. Epperson, 78 Neb. 279 846 v. Johnson, 56 Tex. 62 542 v. McGeoch, 11 Paige Ch. (N. Y.) 640 187 v. Robertson, 120 Ind. 333 206 Robertson, In re, Estate of, 86 Neb. 490 627, 628, 861 Robinett's Appeal, 36 Pa. 174 392 Robinson v. Adams, 62 Me. 369 83 v. Appleton, 124 111. 276 297 v. Hersey, 60 Me. 225 864 v. Hodge, 117 Mass. 222 478 v. McAffee's Estate, 59 Mich. 375 449 v. Mclver, 63 N. C. 649 597 v. Pebworth, 71 Ala. 240 919 v. Ring, 72 Me. 140 588 v. Robinson, 22 Iowa, 427 924 T. Tower, 95 Neb. 198 435 v. Zollinger, 9 Watts (Pa.), 169 847 TABLE OF CASES. 1033 Page Robinson, In re, 6 Mich. 137 577 Rockport v. Walden, 54 N. H. 167 348 Roderigas v. East River Sav. Inst., 63 N. Y. 460 231 Roe v. Sweezey, 10 Barb. (N. Y.) 247 484 Roehl v. Pleasant, 61 Tex. 45 530 Rogers v. Dickey, 117 Ga. 819 513 v. Marston, 80 Me. 404 575 v. Rediek, 10 Neb. 322 789, 807 v. Rogers, 3 Wend. (N. Y.) 503 505, 561 v. Zook, 86 Ind. 237 334 Rohlff v. Estate of Snyder, 73 Neb. 524 513, 516 Roland v. Srack, 29 Pa. 125 595 Rollwagen v. Rollwagen, 63 N. Y. 504 91, 140 Root's Will, 81 Wis. 263 577 Rose v. Oliver, 32 Or. 447 465 Rosenthal v. People, 211 111. 306 641 Ross v. Barr (Ky.), 53 S. V. 658 316 v. Boardman, 23 Hun (N. Y.), 537 602 v. Ewer, 3 Atk. 163 126 v. Miner, 67 Mich. 410 145 Rothrock v. Rothrock, 22 Or. 551 83, 85 Rowe v. Griffiths, 57 Neb. 488 897 Rowell v. Rowell, 122 Wis. 1 364 Rowland v. Carroll, 81 HI. 224 485 v. Thompson, 73 N. C. 419 919 v. Warner, 10 Or. 129 47 Rowley v. Towsley, 53 Mich. 229 919 Royer v. Potter, 91 Neb. 280 50 Royer's Appeal, 11 Pa. 36 919 Royston v. Royston, 29 Ga. 82 867 Rubottom v. Morrow, 34 Ind. 202 352 Ruby v. State, 55 Md. 484 772 Rudolph v. Malone, 104 Wis. 470 765 v. Underwood, 88 Ga. 664 530 Ruggles v. Sherman, 14 Johns. (N. Y.) 446 262, 351 Runkle v. Gates, 11 Ind. 95 96, 100 Runyan v. Winstock, 55 Or. 203 82, 609 Runyon, In re, 125 Cal. 195 652 Ruohs v. Backer's Next Friend, 6 Heisk. (Tcnn.) 395, 848 Rusling v. Rusling, 36 N. J. Eq. 603 148 Russell v. Close's Estate, 79 Xeb. 318 452 1034 TABLE OF CASES. Page Russell v. Close's Estate, 83 Neb. 252 452, 456 v. Lewis, 3 Or. 387 3, 17 v. Hoar, 3 Met. (Mass.) 187 252 v. Minton, 42 N. J. Eq. 123 583 Butenic v. Hamakar, 40 Or. 451 249, 251, 677, 698, 710, 775 Eutherf ord v. Thompson, 14 Or. 239 289 Ryan v. Allen, 120 111. 648 52 v. Ferguson, 3 Wash. 356 544 Ryder v. Flanders, 30 Mich. 336 542, 700 Ryder's Estate, 59 Hun (N. Y.), 618 450 Ryno's Exr. v. Ryno's Admr., 27 N. J. Eq. 522 166 s Saddington v. Hewitt, 70 Wis. 240 293 Sain v. Bailey, 90 N. C. 566 371 St. James Orphan Asylum v. McDonald, 76 Neb. 630 156 v. Selby, 60 Neb. 696 38, 50, 51 St. Paul Trust Co. v. Kitson, 60 Minn. 408 696 v. Mintzer, 65 Minn. 124 45 Sallady v. Bainhill, 29 Iowa, 555 537 Sammons v. Higbie's Estate, 103 Minn. 448 278 Sanders v. Dodge, 140 Mich. 356 321 San Roman v. Watson, 54 Tex. 254 253 Sanborn v. Goodhue, 28 N. H. 348 303, 353 Sanderson's Admrs. v. Sanderson, 17 Fla. 820 461 Sanderson's Estate, In re, 74 Cal. 199 676 Sanford's Estate, In re, 90 Neb. 410 637, 639, 644, 663 Sankey v. Cook, 82 Iowa, 125 150 Sappingfield v. Sappingfield, 67 Or. 156 120 Sargeant's Estate v. Kimball's Estate, 37 Neb. 321 461 Sasse v. Sasse, 93 Neb. 341 496, 497 Satorelli v. Ezagini, 64 Misc. Rep. (N. Y.) 115 308 Saulsbery, In re, 2 Johns. Ch. (N. Y.) 347 857 Saunders v. Saunders, 109 Va. 191 40 Savage v. McCorkle, 17 Or. 48. 863 v. Savage, 51 Or. 167 44 Saxe v. Saxe, 113 Wis. 557 186 Saxon v. Cain, 19 Neb. 488 516, 518, 552 Sayers y. Mead, 171 Pa. 349 495 Saylor v. Simpson, 45 Ohio St. 141 18 TABLE OF CASES. 1035 Page Scarf v. Aldrich, 97 Cal. 360 871, 895 Scarrett, In re, 76 Mo. 565 820 Schaale v. Wasey, 70 Mich. 414 509 Schaberg v. McDonald, 60 Neb. 493 437 Schafer v. Eneu, 54 Pa. 304 54 Schee v. McQuiliken, 59 Iowa, 269 860 Scheib v. Thompson, 23 Utah, 564 912 Schemmerhorn v. Merritt, 123 Mich. 310 64 Schenkl v. Danal, 118 Mass. 236 259 Scherer v. Brown, 21 Colo. 481 101 v. Ingerman, 110 Ind. 428 4S8 Scheuer, In re, 31 Mont. 606 916 Schick v. Stuhr, 120 Iowa, 392 835 v. Whitcomb, 68 Neb. 784 598 Schiefflin v. Stewart, 1 Johns. Ch. (N. Y.) 620 685 Schiffer v. Pruden, 64 N. Y. 47 559 Schill v. Reisdorf , 88 111. 411 762 Schillinger v. Bawek, 135 Iowa, 131 60 Schimpf v. Rodewald, 62 Neb. 105 43 Schmaunz v. Goss, 132 Mass. 141 43 Schmidt's Succession, 125 La. Ann. 1065 147 Schneider v. Estate of Brier, 129 Wis. 446 446 v. Vosburg, 143 Mich. 476 86 Schnitter v. McManaman, 85 Neb. 337 43 Schoenberger v. Institution etc., 28 Pac. 465 119 Schoenich v. Reed, 8 Mo. App. 356 572 Schoonmaker v. Clearwater, 41 Barb. (N. Y.) 200 10 Schroeder v. State, 41 Neb. 745 854 v. Superior Court, 70 Cal. 343 244 v. Wilcox, 39 Neb. 136 325, 327, 539, 540 Schroeder's Estate, Myr. Prob. (Cal.) 57 497 Schulz v. Pulver, 11 Wend. (N. Y.) 361 257, 303, 351, 352 Schurmier v. Connecticut Mut. Life Ins. Co., 171 Fed. 1 459 Schuyler v. Hanna, 31 Neb. 307 636 Schwab v. Pierro, 43 Minn. 520 449 Scofield v. Churchill, 71 N. Y. 565 765, 784, 780 v. "Walker, 58 Mich. 96 91, 93 Scott v. Crews, 72 Mo. 261 249, 685 v. Flowers, 61 Neb. 620 2 v. Harris, 113 111. 454 195 v. Rohman, 48 Neb. 618 473 1036 TABLE OF CASES. Page Scott v. Scott, 70 Pa. 244 458 v. Terry, 37 Miss. 65 728 Scott's Estate, In re, 76 Neb. 28 804 Scott's Exrs. v. Gorton's Exrs., 14 La. Ann. Ill 515 Scribner v. Lane, 2 Paige (N. Y.), 147 63 Sears v. Daly, 43 Or. 306 342 v. Shafer, 6 N. Y. 268 147 v. Terry, 26 Conn. 273 537 Seaver v. Lewis, 14 Mass. 83 555 Secchi, In re Estate of, Minors, Myr. Prob. (Cal.) 225 872 Second National Bank v. Williams, 13 Mich. 282 590 Secord v. Secord, 61 Neb. 615 168 Security Co. v. Bryant, 52 Conn. 311 586 Security Trust Co. v. Black River Nat. Bank, 187 U. S. 211 459 Sedgwick v. Minot, 6 Allen (Mass.), 171 728 Seebrock v. Fedewa, 30 Neb. 424 118, 123, 130, 156, 468 Seery v. Curry, 26 Neb. 353 629 Seguin's Appeal, 103 Pa. 139 870 Segur, In re, 71 Vt. 224 88 Seibert's Appeal, 110 Pa. 329 584, 642 Seidl's Estate, In re, 64 Or. 325 518 Seiker's Estate, In re, 89 Neb. 216 122 Seiter v. Straub, 1 Dem. Sur. (N. Y.) 264 142 Sellars v. Foster, 27 Neb. 118 672 Senseman's Appeal, 21 Pa. 331 830 Severance v. Carr, 43 N. H. 65 146 Severens v. Gerke, 3 Saw. 353 898 Sewall v. Buckley's Distributees, 54 Ala. 592 785 Seward v. Didier, 16 Neb. 58 538, 827, 895, 920, 928 Seymour v. Eicketts, 21 Neb. 240 539 Shacklett v. Homer, 87 Neb. 146 43 Shadden v. Hembree, 17 Or. 14 38 Shaeffer v. Weed, 3 Gilm. (111.) 511 605, 615 Shaffer's Appeal, 46 Pa. 131 352 Shailler v. Bumstead, 99 Mass. 112 156 Shallcross v. Finden, 3 Ves. Sr. 738 554, 555 Shalter's Appeal, 43 Pa. 83 763 Shandoney, In re, 83 Cal. 387 859, 912 Shanks v. Klein, 104 U. S. 18 362 v. Seamonds, 24 Iowa, 131 876 Shannon's Heirs v. Dillon, 8 B. Mon. (Ky.) 389 562 TABLE OF CASES. 1037 Page Sharmer v. Mclntosh, 43 Neb. 509 453 Sharp v. Citizens' State Bank, 70 Neb. 758 323 T. Sharp, 76 Ala. 312 424 v. Sharp, 6 Bing. 634 42 Shaw v. Camp, 163 111. 144 127 v. Spencer, 100 Mass. 382 334 Shaw, Appellant, 81 Me. 207 411 Shawhan v. Loff er, 24 Iowa, 217 230 Shearon v. Goff, 95 Neb. 417 627, 62 Sheedy v. Sheedy, 36 Neb. 373 804 Sheets v. Peabody, 6 Blackf . 120 352, 354 Sheets' Estate, In re, 52 Pa. 265 43 Shelby v. Creighton, 65 Neb. 485 333, 706 v. Shelby, 1 B. Mon. (Ky.) 266 737 Sheldon v. Dow, 1 Dem. Sur. (N. Y.) 503 85 v. Warner, 58 Mich. 444 458 Shelleberger v. Ransom, 41 Neb. 631 296, 743 Shelley's Case, 1 Coke, 104a 151 Shelley's Case, In re, 73 Cal. 594 54 Shelton v. Hadlock, 62 Conn. 143 422 Shepard v. Hanson, 9 N. D. 249 862 Shephard v. Evans, 9 Ind. 260 859 v. Parker, 35 N. C. 103 693 v. Saltzman, 34 Or. 43 558 Shepherd v. Guernsey, 9 Paige (N. Y.), 357 586 Sherburne v. Goodwin, 44 N. H. 271 334 Sherman v. Ballou, 8 Cow. (N. C.) 304 825 v. Page, 85 N. Y. 123 257 v.Sherman, 4 Allen (Mass.), 392 579 v. Willett, 42 N. Y. 146 330 Sherwood v. SmiLh, 23 Conn. 516 595 Shields v. McDowell, 82 N. C. 137 484 Shipman v. Butterfield, 47 Mich. 487 219 Shirley v. Bflsh, 16 Or. 1 795 Shoemaker v. Brown, 10 Kan. 385 470 Shoemate v. Lockridge, 53 111. 503 498 Shoonmaker v. Clearwater, 14 Barb. (N. Y.) 200 10 Short's Estate, In re, 16 Pa. 63 638 Shorter v. Frazer, 64 Ala. 74 920 Shreve v. Shreve, 176 Mass. 456 722 Shriver, Appeal of, 12 Atl. (Pa.) 553 362 1038 TABLE OP CASES, Page Shroyer T. Richmond, 1(5 Ohio St. 455 898, 930 Shumway v. Holbrook, 1 Pick. (Mass.) 115 117 Shurtleff v. Rile, 140 Mass. 214 858, 870 Siddall v. Clark, 89 Cal. 321 308 Sidle v. Anderson, 45 Pa. 464 348 Sigourney v. Sibley, 21 Pick. (Mass.) 101 163 Sill v. Sill, 31 Kan. 248 718 Silverthorne's Will, In re, 68 Wis. 372 85 Sim v. Russell, 90 Iowa, 656 139 Simmons v. Hutchinson, 231 111. 508 576, 577 v. Leonard, 91 Tenn. 183 66 v. Simmons' Admr., 33 Gratt. (Va.) 451 288 Simon's Will, In re, 55 Conn. 239 689 Simonds v. Partridge, 154 Mass. 500 456, 457 Simonton v. Brown, 72 N. C. 46 483 Simpson v. Cureton, 79 N. C. 112 278 v. Durbin, 68 Or. 518 130 v. Kelso, 8 Watts (Pa.), 252 782 v. Patten, 4 Johns. (N. Y.) 422 348 Singleton v. Love, 1 Head (Tenn.), 357 920 Singree v. Welch, 32 Ohio St. 320 607 Skidmore v. Davies, 10 Paige (N. Y.), 316 851 Skinner v. American Bible Society, 92 Wis. 209 67 Skinner's Will, 40 Or. 579 66, 89, 125, 132 Slack v. Slack, 123 Mass. 443 878 Slagle v. Entrekin, 44 Ohio St. 637 783 Slate v. Henkel, 45 Or. 434 289 Slate's Estate, 40 Or. 352 211 Slauter v. Favorite, 107 Ind. 291 869 Sloan v. Sloan, 21 Fla. 589 412 Slusher v. Hammond, 94 Iowa, 512 886 Smallman Y. McDonald, 18 Or. 367 724 Smelser v. Blanchard, 15 La. Ann. 254 512 Smith v. Barr, 83 Minn. 534 540 v. Bell, 6 Pet. (U. S.) 68 39 v. Culyer, 78 Ga. 654 352, 771 v. Drake, 23 N. J. E'q. 302 515 v. Dutton, 16 Me. 308 481 v. Ferguson, 90 Ind. 229 518 V. Flournoy's Admr., 47 Ala. 345 486 v. Gentry, 16 Ga. 31 2C2 TABLE OF CASES. 1039 Page Smith v. Grady, 68 Wis. 215 442 v. Guild, 34 Me. 443 165 v. Gummere, 39 Wis. 27 ?64 v. Haynes, 202 Mass. 531 40, 583 v. Jackson, 115 Mich. 192 577 v. James, 72 Iowa, 516 156 v. Lambert, 30 Me. 137 774 v. Perry, 52 Neb. 738 452 v. Pierce, 65 Vt. 200 468 v. Ryan's Estate, 136 Iowa, 335 34 T. Scholtz, 68 N. Y. 41 512 v. Sherman, 4 Cush. (Mass.) 408 409 v. Smith, 76 Ind. 236 336 v. Smith, 64 Neb. 673 ,. 47 v. Smith, 4 Johns. Ch. (N. Y.) 281 869 v. Smith, 48 N. J. Eq. 566 88, 131 v. Smith's Admr., 27 N. J. Eq. 445 478, 590 v. Smith's Admr., 28 N. J. L., 208 465 v. Whiting, 55 Or. 398. . .478, 480, 483, 485, 489, 495, 504, 534, 539 v. Wyckoff, 11 Paige (N. Y.), 49 555 Smith's Estate, In re, 43 Or. 595 483, 503 Smith's Will, In re, 52 Wis. 543 65 Smithers' Exrs., 9 Bush (Ky.), 230 718 Smock T. Reichwein, 117 Ind. 194 492 Smullin v. Wharton, 73 Neb. 677 49 v. Wharton, 83 Neb. 328 755 Snow v. Snow, 111 Mass. 389 727 v. Snow, 49 Me. 159 297 Snyder v. Burk, 84 Ala. 503 105 Snyder, Estate of, 73 Neb. 524 516 Solt v. Anderson, 63 Neb. 734 402 v. Anderson, 67 Neb. 103 263, 389, 390, 395, 397, 402 Somes v. Skinner, 16 Mass. 348 859 Sorells v. Collins, 110 Ga. 518 590 Sorenson v. Sorenson, 56 Neb. 729 224, 452 v. Sorenson, 68 Neb. 483 748, 749 Soule v. Benton, 44 Vt. 309 4C9 South Omaha v. Sutliff, 72 Neb. 746 672 Southern Marble Co. v. Stegall, 90 Ga. 326 878, 900 Southern Oregon Co. v. Coos County, 30 Or. 250 809 v. Gage, 31 Or. 590 809 1040 TABLE OF CASES. Page Southworth v. Adams, 11 Biss. 256 105 Soutter, In re, 105 N. Y. 514 676 Sowell v. Sowell's Admr., 40 Ala. 243 162 Sowles v. Hall, 73 Neb. 55 688 Spalding v. Brent, 3 Md. Ch. 411 918 v. Wakefield's Estate, 53 Vt. 660 351 v. Warren's Estate, 52 Vt. 29 522 Spalding, In re, 163 N. Y. 607 641, 642 Spangler v. Newman, 239 Ind. 616 577 Sparhawk v. Buel's Admr., 7 Vt. 41 706 v. Sparhawk, 10 Allen (Mass.), 155 63 Sparrow, Succession of, 39 La. Ann. 676. .- 238, 239, 250 Spear v. Spear, 9 Rich. Eq. (S. C.) 184 869 Speelman v: Culbertson, 15 Ind. 441 334 Speese's Heirs v. Shores, 81 Neb. 593 748 Speich v. Tierney, 56 Neb. 574 45, 622 Speidel's Appeal, 107 Pa. 18 277 Spellman v. Dowse, 79 111. 66 899 Spencer v. Higgins, 22 Conn. 539 57 v. Scoville, 79 Neb. 87 43, 47 v. Wolfe, 49 Neb. 8 215, 217, 219, 223 Sperry v. Fanning, 80 111. 371 862 Spitley v. Frost, 15 Fed. 299 791 Sprague v. Moore, 130 Mich. 92 597 Sprague's Estate, In re, 125 Mich. 387 98 Sprigg v. Stump, 8 Fed. 207 834, 878 Springer v. Jenkins, 47 Or. 598 289 Springer's Appeal, 29 Pa. 208" 260 Spurgin v. Bowers, 82 Iowa, 187 540 Staats v. Wilson, 76 Neb. 204 533 Stack v. Eoyce, 34 Neb. 833 481, 489, 490, 503, 541 Stackhouse v. Horton, 15 N. J. Eq. 202 55 Stacy v. Thrasher, 6 How. (U. S.) 57 458 Stafford, In re, 3 Misc. Eep. (N. Y.) 106 864 Staigg v. Atkinson, 144 Mass. 564 718 Stansburry v. Bertron, 7 Watts & S. (Pa.) 364 925 Stanton v. Weatherax, 16 Barb. (N. Y.) 2o9 87 Stanton's Estate, In re, 152 Mich. 491 644 Staples v. Fairchild, 3 N. Y. 41 537 Stark v. Gamble, 53 N. H. 605 917 Starkey, Appeal of. 61 Conn. 199 448 TABLE OF CASES. 1041 Page Starr v. Starr, 9 Ohio St. 74 590 Starrett v. Jameson, 29 Me. 504 910, 913 State v. Alston, 94 Tenn. 674 637 v. Branch, 134 Mo. 592 780 v. Brown, 80 Ind. 425 767, 772 v. Brown, 93 N. C. 81 927 v. Carpenter, 129 Wis. 189 631 v. Crensbauer, 68 Mo. 254 763, 780 v. Dailey, 7 Mo. App. 549 778 v. Dodge County, 20 Neb. 595 879 v. Dulle, 45 Mo. 269 334 v. Fulton, 35 Mo. 323 334 v. Greensdale, 106 Ind. 364 859 v. Gurney, 17 Neb. 523 10 v. Hamlin, 86 Me. 495 637 v. Hewett, 72 Mo. 603 931 v. Holt, 27 Mo. 340 785 v. John, 3 Or. 536 9 v. Jones, 89 Mo. 470 910 v. Johnson, 7 Blackf. (Ind.) 529 237 v. Kiler, 121 Iowa, 423 662 v. Lawson, 14 Ark. 114 513 v. Lansing, 46 Neb. 514 5, 7, 8 v. Leslie, 83 Mo. 60 924 v. Lewis, 73 N. C. 138 931 v. McDonald, 55 Or. 419 16, 202, 729, 744, 745 v. Meeker, 19 Neb. 106 25 v. Nulls, 82 Ind. 126 784 v. O'Day, 41 Or. 495 202, 744 v. Price, 15 Mo. 375 762 v. Eamsey County Probate Court, 42 Minn. 54 470 v. Ramsey County Probate Court, 25 Minn. 25 473 v. Reddick, 7 Kan. 143 90 v. Reinhardt, 31 Mo. 95 213 v. Reeder, 5 Neb. 203 744 v. Richardson, 29 Mo. App. 595 841 v. Roche, 94 Ind. 372 856 v. Rock County Probate Court, 67 Minn. 51 413 v. Rucker, 59 Mo. 17 205, 239 v. Saunders, 60 Ind. 562 928 v. Schielforth, 9 Mo. App. 431 722 66 Pro. Ad. 1042 TABLE OF CASES. Page State v. Scott, 12 Ind. 529 771 v. Smith, 52 Conn. 557 771 v. Stafford, 93 Mo. 658 767, 769 v. Stroop, 22 Ark. 328 240 v. Townsend, 17 Neb. 530 625 v. Vinsonhaler, 74 Neb. 675 637 T. Wilson, 38 Md. 338 14, 778 State Bank v. Hinton, 21 Ohio St. 509 602 Stayner v. Bower, 42 Ohio St. 314 594 Stearns v. Brown, 1 Pick. (Mass.) 530 687 v. Fiske, 18 Pick (Mass.) 24 213 T. Houghton, 38 Vt. 853 357 Stebbins v. Lathrop, 4 Pick. (Mass.) 33 119, 185 v. Stebbins, 94 Mich. 304 733 v. Smith, 4 Pick. (Mass.) 97 194 Steel v. Holliday, 20 Or. 467 351, 353, 689, 692, 695 v. Price, 5 B. Mon. (Ky.) 58 96 Steere v. Hoagland, 39 111. 264 38 Stenson v. Halverman (N. D.), 147 N. W. 800 749, 750 Stephen v. Beall, 22 Wall. (U. S.) 329 545 Stephens v. Hendee, 80 Neb. 754 6 v. James, 77 Ga. 139 349 Stephenson v. Axson, 1 Bail. Eq. (S. C.) 274 339 v. Stephenson, 62 Iowa, 163 148 Stevens v. Gage, 55 N. H. 175 352, 353 v. Gaylord, 11 Mass. 256 320 v. Hope, 52 Mich. 65 97 v. Myers, 62 Or. 407 22, 83, 89, 116, 804 v. Nebraska & Iowa Ins. Co., 29 Neb. 187 799 v. Smith, 4 J. J. Marsh. (Ky.) 64 606 v. Tucker, 87 Ind. 109 873 v. Underbill, 67 H. H. 68 554 Stevenson v. Leslie, 70 N. Y. 512 57 v. Polk, 71 Iowa, 378 224 v. Valentine, 27 Neb. 238 288 Stevenson's Admr. v. Phillips, 15 N. J. Eq. 236 707 Stewart v. Bailey, 28 Mich. 251 542 v. Champaign County, 4 Ohio St. 98 769 v. Daggy, 13 Neb. 290 36, 879 v. Elliott, 2 Mackey (D. C.), 307 137 T. McMurray, 82 Ala. 269 924 TABLE OF CASES. 1043 Page Stewart T. Raper, 85 Neb. 816 800 v. Stewart, 31 X. J. Eq. 398 55 Stewart, In re, 56 Me. 300 155 Stewart, Matter of, 5 Paige (N. Y.), 596 155 Stichter v. Cox, 52 Neb. 532 438, 462 Stinchfield v. Emerson, 52 Me. 465 748 Stinson v. Leary. 99 Wis. 269 915 Stirling v. Stirling, 64 Md. 138 143 Stitt v. Bush, 22 Or. 239 726 Stiver v. Stiver, 8 Ohio, 221 478 Stokes v. Van Wyck, 83 Va. 734 52 Stone v. Wood, 16 111. 179 463 Stonestreet v. Doyle, 65 Va. 356 584 Storer v. Blake, 31 Me. 289 271 Storms v. Allegan Circuit Judge, 99 Mich. 114 916 Stovall v. Banks, 10 Wall. (U. S.) 584 784, 785 Stow v. Kimball, 28 111. 93 544 Stow's Estate, Myr. Prob. (Cal.) 97 238 Strahan v. Wayne County, 93 Neb. 828 638, 661, 714 Stratton v. McCandless, 27 Kan. 296 782, 783 Strauss v. Phillips, 189 111. 9 414 Streeter v. Paton, 7 Mich. 341 296 Streiff, In re, 119 Wis. 566 805 Streng v. Moe, 8 Allen (Mass.), 125 894 Stroh v. Hearn (Mich.), 142 Mich. 865 578 Stronach v. Stronach, 20 Wis. 129 333 Strong v. Potts, 94 Neb. 742 106, 107, 118 v. Wilkson, 14 Mo. 116 782 v. Williams, 12 Mass. 391 580 Stuart v. Allen, 16 Cal. 473 484 Stuckey v. Leonard, 87 Ark. 232 545 v. Stuckey, 1 Hill Eq. (S. C.) 309 52 Stull v. Stall, 1 Neb. Unof. 380 88, 86 Stumph v. Goepper, 76 Ind. 323 856 Sturgis v. Sturgis, 51 Or. 19 858, 861, 862 Sturtevant v. State, 15 Neb. 459 754 Sugden v. St. Leonards, 1 Prob. Div. 154 105, 107 Sullivan v. Horner, 41 N. J. Eq. 299 444, 446 v. Nicoulin, 113 Iowa, 76 178 v. Ross' Estate, 98 Mich. 570 447 Sullivan's Will, In re, 114 Mich. 180 125 1044 TABLE OF CASES. Page Summers v. Babb, 13 111. 483 CIS v. Howard, 33 Ark. 490 920 Sunderland v. Hood, 84 Mo. 293 81 Sussewind v. Lever, 37 Or. 367 469 Sutherland v. Brush, 7 Johns. Ch. (N. Y.) 17 766 v. Harrison, 86 111. 363 557 Sutphen v. Ellis, 35 Mich. 456 45 Sutton v. Button's Estate, 13 Vt. 71 538 Swazey v. Jaques, 144 Mass. 135 56 v. Little, 7 Pick. (Mass.) 296 579 Sweeney v. Montgomery, 85 Ky. 55 605 Sweeney's Estate, In re, 94 Neb. 834 83 Sweetzer v. Jones, 35 Vt. 417 261 Swift, In re, 47 Cal. 629 845 Swift, In re, 1 B. Mon. (Ky.) 114 65 SwindaU v. Swindall, 43 N. C. 285 869 Sydnor v. Palmer, 29 Wis. 226 54 T Tabor, Succession of, 33 La. Ann. 343 498 v. Tabor, 85 Wis. 313 48 Taggart v. Tevanny, 1 Ind. App. 339 408 Tait v. Gardner, 119 Ga. 133 677 v. Northwick, 4 Ves. 823 555 Talmage v. Chappel, 16 Mass. 71 459 Tarbox v. Fisher, 50 Me. 236 278 Tate v. Bush, 60 Miss. 45 865 v. Hilbert, 2 Ves. Jr. Ill 591 Tawney v. Long, 76 Pa. 106 88 Taylor v. Ainsworth, 49 Neb. 496 456 v. Barren, 35 N. H. 484 417 T. Biddle, 71 N. C. 1 236 v. Brown, 55 Mich. 482 920 v. De Laney, 2 Caines Cas. (N. Y.) 143 224 v. Galloway, 1 Ohio St. 232 326 v. Hemingway, 81 Ky. 158 927 v. Jeter, 33 Ga. 195 820 v. Mygatt, 26 Conn. 184 773 v. Phillips, 30 Vt. 241 203 V. Taylor, 47 Md. 295 2o9 TABLE OF CASES. 1045 Page Taylor v. Tilden, 3 Neb. 343 13 v. Tolen, 38 N. J. Eq. 91 586 v. Trich, 165 Pa. 586 88 v. Wright, 93 Ind. 121 689 Teal v. Sevier, 26 Tex. 516 933 Tecumseh Nat. Bank v. McGee, 61 Neb. 709 320, 454 Teel v. Winston, 23 Or. 491 433 Teipel v. Vanderwier, 36 Minn. 443 926 Templeton v. Falls Land & Cattle Co., 77 Tex. 55 537 Teneick v. Flagg, 29 N. J. L. 25 264 Terrell v. Towland, 9 Ky. Law Eep. 258 694 Territory v. Valdez, 1 N. M. 539 213 Terry v. Edminster, 6 Pick. (Mass.) 355 99 v. Johnson, 73 Neb. 653 821, 854 Teschemacher v. Thompson, 18 Cal. 11 240 Teske v. Ditberner, 70 Neb. 544 465, 466, 468, 626 Tessier v. Crowley, 17 Neb. 209 189 Teverbaugh v. Hawkins, 82 Mo. 180 490 Thacher v. Dunham, 5 Gray (Mass.), 26 691 Thackary's Appeal, 75 Pa. 132 864 Tharp v. Brenneman, 41 Iowa, 251 230 Thaycr v. Finnegan, 134 Mass. 62 578 v. Hollis, 3 Met. (Mass.) 369 438 v. Homer, 11 Met. (Mass.) 104 213, 239 The Grange Union v. Burkett, 8 Or. 51 343 Theurer v. Neutre, 23 La. Ann. 749 261 Thomas v. Estate of Thomas, 64 Neb. 581 730 v. Parker, 97 Cal. 456 383 v. Reister, 3 Ind. 369 344 v. Thomas, 16 Neb. 555 212 v. Williams, 80 Kan. 632 562 v. Williams, 105 Minn. 88 127 Thompson v. Bondurant, 15 Ala. 346 768 v. Bridge, 60 Kan. 549 514 v. Brown, 16 Mass. 172 194 v. Dekum, 32 Or. 506 765,766 v. Hawks, 14 Fed. 902 138 v. Morrow, 5 Serg. & R. (Pa.) 289 616 v. Pierce, 95 Neb. 692 444 v. Pope, 77 Neb. 308 194. 793 v. Kush, 66 Neb. 753.. 783 1046 TABLE OP CASES. Page Thompson T. Thompson, 49 Neb. 157 61, 64, 83, 86, 146 v. Thompson, 4 Ohio St. 333 559 Thompson's Admr. v. Thompson, 51 Ala. 493 276 Thomsen, In re, 1 Neb. Unof. 751 830, 854 Thorn v. Garner, 113 N. Y. 198 251 Thornburn v. Doscher, 32 Fed. 810 603, 615 Thornton v. Glover, 25 Miss. 132 770 v. Mehring, 117 111. 55 257 v. Mulquinne, 12 Iowa, 549 543 v. Thornton, 27 Mo. 302 865 Thorson v. Hooper, 57 Or. 578 286, 323 Thurston v. Doane, 47 Me. 79 258 v. Wilmer, 94 Md. 455 567 Tidball v. Young, 58 Neb. 261 221, 250, 762 Tierney v. Tierney, 81 Neb. 193 835, 839 Tierney's Estate, In re, 103 Minn. 286 63 Tiffany v. Wright, 79 Neb. 10 821, 937 Tillman v. Davis, 95 N. Y. 17 55 v. Spann, 68 Ala. 102 \ 606 Tillotson v. Tillotson, 34 Conn. 335 362 Tilson v. Holloway, 89 Neb. 403 290, 295 Tindall v. Peterson, 71 Neb. 160 534, 624, 628 v. Tindall's Exrs., 23 N. J. Eq. 244 58 Tinkom v. Purdy, 5 Johns. (N. Y.) 345 514 Tippett v. Mize, 50 Tex. 361 544, 899 Titlow v. Titlow, 54 Pa. 216 133 Todd v. Martin (Cal.), 37 Cal. 872 451 Todd, In re, 237 Pa. 466 642 Todhunter v. Stewart, 39 Ohio St. 181 211 Toepf er, In re, 12 N. M. 372 101 Tolifaro, In re, 113 Iowa, 747 812, 913 Tome's Appeal, 50 Pa. 285 . 249 Tomlinson v. Simpson, 33 Minn. 443 920 Toms v. Williams, 41 Mieh. 574 57 Tong v. Marvin, 26 Mich. 35 830 Tongie's Lessee v. Nutwell, 13 Md. 415 58 Tootle, Hosea & Co. v. Jones, 19 Neb. 588 818 Torry v. Black, 58 N. Y. 185 860 Tostel v. Murat, 19 Or. 183 551 Towle v. Towle, 46 N. H. 431 784 Town of Hudson v. Hills, 8 N. H. 417 821 TABLE OF CASES. 1047 Pago Townsend v. Gordon, 19 Cal. 188 485 v.Howard, 86 Me. 285 95 v. Kendall, 4 Minn. 412 854 v. Tallant, 33 Cal. 45 492 Tracy v. Tracy, 15 Barb. (N. Y.) 503 555 Traer v. Setzer, 72 Neb. 845 731 Treadway v. Sharon, 7 Nev. 37 261 Treadwell v. Sorell, 25 Miss. 563 412, 676 Trecothick v. Austin, 4 Mason, 33 412 Triche, Succession of, 39 La. Ann. 289 680 Trow v. Thomas, 70 Vt. 580 821 Trucht v. Bunnell, 11 Or. 58 17, 863, 901 Trueman v. Tilden, 6 N. H. 201 687 Trumble v. Williams, 18 Neb. 144 232, 233, 523, 541 Trumpeter v. Cotton, 109 Cal. 250. 913 Trustees of Schools v. Snell, 19 111. 156 543 Tucke v. Bucholz, 43 Iowa, 415 918 Tucker v. Field, 51 Miss. 191 601 v. People, 87 111. 76 783 v. Stewart, 147 Iowa, 294 784 v. Tucker, 33 N. J. Eq. 235 346 Tudor v. James, 53 Ga. 302 164 Tuller's Will, In re, 79 111. 99 102 Tunnicliff v. Fox, 68 Neb. 811 295, 324, 416, 682, 701 Turbeville v. Flowers, 27 S. C. 331 353 Turner v. Alexander, 41 Ark. 254 831 v. Gibbs, 48 N. J. Eq. 526 578 v. Laird, 68 Conn. 198 555 v. Eisor, 54 Ark. 33 459 v. Turner, 57 Miss. 775 556 v. Turner, 2 Amb. 782 268 Turner's Appeal, 48 Mich. 369 596 Turney v. Williams, 7 Yerg. (Tenn.) 211 680 Turpin v. Turpin, 88 Mo. 387 596 Tustin v. Gaunt, 4 Or. 395 3, 17 Tutt v. Boyer, 51 Mo. 425 526 Tuttle v. Eobinson, 33 N. H. 104 261, 352, 589 Tyler v. Tyler, 19 111. 151 101 Tyndall v. Stanwood, 182 Mass. 534 486 Tyner v. Hamilton, 51 Ind. 259 928 Tyson T. Tyson, 61 Neb. 438 624, 629 1048 TABLE OF CASES. u Page Underwood v. Sample, 70 Tnd. 448 308 Underwood's Exrs. v. Underwood's Heirs, 22 W. Va. 303 485 Unger v. Leiter, 32 Ohio St. 210 602 Union Bank of Georgetown v. Smith, 4 Cranch C. C. 21 569 Union Mutual Life Ins. Co. v. Lovitt, 10 Neb. 301 99 Union Nat. Bank v. Vaiden, 18 How. (U. S.) 503 459 Union Pacific Ey. Co. v. Dunden, 37 Kan. 1 219 v. Smith, 5 Neb. Unof . 631 759 Union Trust Co. v. Durfee, 125 Mich. 489 637 United Brethren v. Aiken, 45 Or. 250 321 v. Aiken, 45 Or. 277 781 United States v. Barker, 2 McArth. (D. C.) 291 771 v. Coxe, 18 How. (U. S.) 100 775 v. Duncan, 12 111. 523 569 v. Duncan, 4 McLean, 99 718 v. Duncan, 4 McLean, 607 569 v. Eggleston, 4 Saw. 199 r 569 v. King, 1 McArth. (D. C.) 499 770 v. Perkins, 163 U. S. 625 637 Updike v. Tenbroeck, 32 N. J. L. 105 465 Utz'a Estate, In re, 43 Cal. 201 55 V Valentine v. Jackson, 9 Wend. (N. Y.) 302 28i6, 304, 406 Valle v. Bryan, 19 Mo. 423 500 v. Fleming, 19 Mo. 454 492, 519, 547 Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 148 87 Van Cleve v. Van Fossen, 73 Mich. 342 727 Vancy v. Smith, 124 Cal. 219 433 Van Deever v. Higgins, 59 Neb. 333 101 Van Dyne v. Vreeland, 12 N. J. Eq. 142 465 Van Harren v. Tierney (Mich.), 146 N. W. 658 438 Van Horn v. Ford, 16 Iowa, 578 544 Van Home v. Campbell, 100 N. Y. 287 43 Van Kleek v. McCabe, 87 Mich. 599 361 v. Eeformed Dutch Church, 6 Paige (N. Y.), 600 555 Van Matre v. Sankey, 148 111. 526 947 Van Meter v. Jones, 3 N. J. Eq. 520 257 TABLE OF CASES. 1049 Page Van Orsdell's Estate, In re, 94 Neb. 98 727 Van Bees v. Witzenberg, 112 Iowa, 110 917, 91S Van Riper v. Van Riper, 2 X. J. Eq. 1 582, 583 Van Swearingen v. Harris, 1 Watts & S. (Pa.) 356 469 Varner v. Johnson, 112 N. C. 570 319 Varrell v. Wendell, 20 X. H. 435 56 Vasek's Estate, In re (Neb.), 150 N. W. 110 510 Vason v. Bell, 53 Ga. 416 919 Vaughan v. Dickes, 20 Pa. 209 413 v. Northrop, 15 Pet. (U. S.) 1 405 Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892 481, 503, 515, 534, 535, 541 Verdier v. Bigne, 16 Or. 210 433 v. Roach, 96 Cal. 467 468, 552 Vermilyea v. Bunce, 61 Iowa, 605 929 Verner's Estate, 6 Watts (Pa.), 250 683 Vernor v Colville, 54 Mich. 281 327 Verplank v. Sterry, 12 Johns. (N. Y.) 536 318 Verret v. Belanger, 6 La. Ann. 109 779 Vette v. Heinrichs, 93 Neb. 551 436 Vick v. City of Vicksburg, 3 How. (Miss.) 209 198 Vickery r. Baier, 16 Mich. 50 403 Vidal v. Philadelphia, 2 How. (U. S.) 127 56 Vincent v. Starks, 43 Wis. 458 v 930, 931 v. Vincent, 70 N. J. Eq. 272 164 Vinson v. Gentry, 14 Ky. Law Rep. 804 604 Vogel v. Lehriter, 139 N. Y. 223 . 67 Vroom y. Van Home, 10 Paige Ch. (N. Y.) 49 406 W Wade v. Northrup (Or.), 140 Pac. 454 132 v. Pulsifer, 54 Vt. 45 918 Waddill v. Martin, 38 N. C. 562 694 Waddington v. Buzby, 45 N. J. Eq. 173 141 Waesch's Estate, 166 Pa. 204 446 Wagner v. Varner, 50 Iowa, 532 722 Waite v. Frisbie, 45 Minn. 361 145 v. Wills, 42 Or. 290 691 Wakefield v. Campbell, 20 Me. 393 512 Waldo v. Waldo, 52 Mich. 94 290 v. Beemer, 45 Neb. 628 496 1050 TABLE OF CASES. I Page Wales v. Newbold, 9 Mich. 83 287 Walker v. Cornelius, 21 Or. 341 803 v. Craig, 18 111. 116 2.34 v. Ehresman, 79 Neb. 775 264, 295, 743 v. Goldsmith, 14 Or. 125 895, 896 T. Hale, 92 Neb. 829 455 v. Hill, 14 Mass. 380 336 v. People, 192 111. 106 650 Walker's Appeal, 116 Pa. 419 684 Walker's Estate, 9 Serg. & B. (Pa.) 233 694 Wall's Appeal, 104 Pa. 14 910 Wallace v. Hawes, 79 Me. 177 40 v. Johns, 93 Ga. 419 877 v. Long, 105 Ind. 522 448 v. Shaud, 81 Md. 594 450 v. Sheldon, 56 Neb. 55 156, 448 Walling v. Burgess, 122 Ind. 299 363 Walling, In re, 35 N. J. Eq. 105 927 Wallis v. Neale, 43 W. Va. 529 , 856 v. Wallis, 114 Mass. 510. 77 Wally v. Wally, 41 Miss. 67 276 Walmsley v. Milne, 7 Com. B., N. S., 115 261 Walsh v. Wilson, 131 Mass. 535 615 Walter v. Marks, 29 Or. 493 423, 424 v. Walla, 10 Neb. 123 859, 865 Walters v. Wiley, 1 Neb. Unof. 235 10 Walton v. Twiggs, 91 Ga, 90 825 Walworth v. Bartholemew, 76 Vt. 1 682 Wanzer v. Howland, 10 Wis. 8 537 Ward v. Carp Kiver Iron Co., 47 Mich. 65 622 v. Laverty, 19 Neb. 249 820 Ward's Will, In re, 70 Wis. 251 102 Wardell v. Wardell, 71 Neb. 774 531, 622, 624, 635 Warfield v. Brand's Admr., 13 Bush (Ky.), 77 779 Waring v. Lewis, 53 Ala. 631 308 Warren v. Englehart, 13 Neb. 283 56, 214, 216, 726 v. Hendricks, 40 Or. 139 701 v. Powers, 5 Conn. 373 769 v. Taylor, 56 Iowa, 182 99 Washington v. Blunt, 43 N. C. 253 232 T. McCaughan, 34 Miss. 304 537 TABLE OF CASES. 1051 Page Waterhouse v. Bourke, 14 La. Ann. 358. 262 Waterman v. Dockray, 79 Me. 149 763 v. Wright, 36 Vt. 164 922 Waters v. Reed, 88 N. W. 394 92 v. Stickney, 12 Allen (Mass.), 1 116, 162 Watkins v. Holman, 16 Pet. (U. S.) 478 v. Peck, 13 N. H. 360 865 Watson v. Byrd, 52 Miss. 480 203 v. Glover, 77 Ala. 323 245 v. McClinch, 57 Or. 467 42, 99 v. Moore, 40 Or. 206 432 v. Watson, 10 Conn. 77 526 Wattles v. Hyde, 9 Conn. 10 784 Waukf ord v. Waukf ord, 1 Salk. 306 320 Weathersby v. Sleeper, 42 Miss. 732 261 Webb v. Jones, 36 N. J. Eq. 163 586 v. Hitchins, 105 Pa. 91 51 v. Keller, 39 La. Ann. 55 232 T. Peck, 131 Mich. 539 694 v. Stillan, 26 Kan. 371 792 Webber v. Noth, 51 Iowa, 375 769, 784, 785 v.Sullivan, 58 Iowa, 260 138 Webster v. Calder, 57 Me. 203 546 v. City of Hastings, 56 Neb. 245 298 v. Webster, 33 N. H. 18 622 Weeks v. Wortman, 77 Neb. 407 755 v. Sego, 9 Ga. 199 222 Weider v. Osborn, 20 Or. 310 331 Weigand's Appeal, 28 Pa. 471 352 Weil v. Clark's Estate, 9 Or. 387 495 Weisner v. Zaun, 39 Wis. 188. 728 Welch v. Anderson, 28 Mo. 293 719, 722 v. Burris, 29 Iowa, 186 855 v. Welch, 181 Mass. 27 278 v. Welch, 9 Rich. Eq. (S. C.) 133. 15 Welch, In re, 74 N. Y. 290 825 Weldon v. Keen, 37 N. J. Eq. 251 825 Weller v. Nof singer, 57 Neb. 456 47, 49 Wells v. Applegate, 10 Or. 526 427 v. Stecklenberg, 50 Neb. 670 821, 875, 880, 898 v. Wells, 4 T. B. Mon. (Ky.) 152 95 1052 TABLE OF CASES. Page Welsh v. Barrett, 15 Mass. 380 469 v. Crater, 32 N. J. Eq. 177 56 Welton v. Beltezore, 17 Neb. 401 810 Wendell v. French, 19 N. H. 20o 685 v. Fuerst (Or.), 136 Pac. 136 60, 64, 123 Wernse v. Hall, 101 111. 423 234 West v. Reavis, 13 Ind. 294 707 v. West, 89 Ind. 529 584 v. West's Admr., 75 Mo. 204 910 West Duluth Land Co. v. Kurtz, 45 Minn. 380 511, 543 Westbrook v. Comstock, Salk. (Mich.) 314 314 v. Munger, 64 Miss. 575 478 Weston v. Goodrich, 68 Hun (N. Y.), 194 657, 661 v. Stuart, 14 Me. 326 207 Westover v. Carman's Estate, 49 Neb. 397 347, 684, 701 Westurn, In re, 152 N. Y. 43 650 Wever v. Martin, 14 Barb. (N. Y.) 376 675 Weyer v. Second Nat. Bank, 57 Ind. 198 259 Whearley v. Martin's Admr., 6 Leigh (Va), 62 309 Wheaton, In re, 68 N. J. Eq. 562 86 Wheeler v. Barker, 51 Neb. 846 14, 17, 574, 803 v. Bent, 7 Pick. (Mass.) 61 67 v. Emerson, 44 N. H. 182 320 v. Ruthven, 74 N. Y. 428 581 Whipf v. Hedder, 6 Tex. Civ. App. 685 545 Whitaker v. Belt, 25 Or. 490 604, 605 v. Van Schoick, 5 Or. 113 605 White v. Ditson, 149 Mass. 351 779 v. Ladd, 32 Or. 422 432 v. Ledyard, 48 Mich. 264 567 v. McPherson, 183 Mass. 533 133 v. Moore, 23 S. C. 456 587 v. Parker, 8 Barb. (N. Y.) 48 910, 920 v. Pomeroy, 7 Barb. (N. Y.) 640 827 v. Schaberg, 131 Mich. 319 784 v. Spalding, 50 Mich. 22 242 White's Will, 121 N. Y. 406 88 Whitehouse v. Whitehouse, 90 Me. 468 586 "Whitf ord v. Kinzil, 92 Neb. 378 713 Whiting v. Barstow, 4 Pick. (Mass.) 310 261 Whitman Y. Morey, 63 N. H. 448 146, 148 TABLE OF CASES. 1053 Whitney v. Beddicord, 63 HI. 249 351 Whitney's Heirs v. Kimball, 4 Ind. 546 318 Whiton's Estate, In re, 86 Neb. 367 700, 701, 791 Wiggins v. Sweet, 6 Met. (Mass.) 194 324 Wilcox v. Matteson, 53 Wis. 23 589 v. Wilcox, 13 Allen (Mass.), 252 577 Wilcoxon v. Eeese, 53 Md. 452 252 Wiley v. Brainerd, 11 Vt. 107 235, 245 v. Wiley, 1 Neb. Unof. 235 10 Wilgus v. Gettings, 21 Iowa, 177 261 Wilkerson v. Allen, 67 Mo. 502 519 Wilkes v. Cornelius, 21 Or. 352 426 Wilkins v. Ellett, 9 Wall. (U. S.) 740 418, 505 v. Ordway, 49 N. H. 378 56 W 'ilkinson v. Conarty, 65 Mich. 614 217 v. Doming, 80 111. 342 822 v. Filby, 24 Wis. 441 897 Will's Appeal, 22 Pa. 325 859 Willard v. Nason, 5 Mass. 240 499 Willetts v. Conklin, 88 Neb. 805 48 Willet v. Brown, 65 Mo. 138 603 Williams v. Chitty, 3 Ves. 345 555 v. Ely, 13 Wis. 1 330 v. Fox, 25 Wis. 646 864 v. Hutchinson, 3 N. Y. 312 456 v. Johnson, 112 N. C. 424 546 v. Kiernan, 25 Hun (N. Y.), 335 781 v. Miles, 63 Neb. 855 17, 19, 106, 149, 707 v. Miles, 63 Neb. 859 163, 165, 166, 755 v. Miles, 68 Neb. 463 66, 97, 105, 106, 107 v. Miles, 73 Neb. 193 97, 205, 206, 806 v. Miles, 87 Neb. 455 97, 195, 107 v. State, 68 Miss. 380 779 v. Towl, 65 Mich. 204 301, 326 v. Williams, 55 Wis. 300 347, 353 Williams' Case, 3 Bland (Md.), 186 610 Williams' Devisees v. Williams' Admr., 19 Ala. 439 483 Williams' Estate, In re, 130 Iowa, 553 409 Williams' Guardianship, In re (Neb.), 151 N. W. 161 932 Williamson v. Howell, 4 Ala. 693 785 v. Jones, 52 W. Va. 563 45 1054 TABLE OF CASES. Page Williamson v. Woodman, 73 Me. 163 784 Williamson, In re, 102 Cal. 70 934 Wlllier v. Cummings, 91 Neb. 571 325 Wilmi v. Plambeck, 76 Neb. 195 25, 26, 168 Wilson v. Bumstead, 12 Neb. 1 299 v. Coburn, 35 Neb. 530 17 v. Foss, 2 Neb. Unof. 428 577 v. Holt, 82 Ala. 528 533 v. Mills, 30 Md. 82 301 v. Mitchell, 101 Pa. 495 86 T. Moran, 3 Brad. Sur. (N. Y.) 180 142 v. Odell, 58 Mich. 533 534 v. Soper, 13 B. Mon. (Ky.) 411 557 v. Staats, 32 N. J. Eq. 524 346 v. Wilson, 52 Iowa, 44 451 v. Wilson, 83 Neb. 562 452 v. Wilson, 90 Neb. 353 867, 911 Wilson's Appeal, 99 Pa. 545 140 Wilson's Appeal, 115 Pa. 95 706 Wilson's Guardianship, 40 Or. 358 856 Wilson's Estate, In re, 83 Neb. 252 690, 691, 695, 704, 705 Wilson, In re, 78 Neb. 758 86 Wiltsie's Will, In re, 122 Iowa, 423 128 Wilty v. Wllty, 10 Ky. Law Rep. 513 911 Winans v. Lupie, 47 N. J. Eq. 302 945 Winch's Estate, In re, 84 Neb. 251 132, 146 Winkle v. Winkle, 8 Or. 193 18 Winn v. Grier, 217 Mo. 420 89 W'inslow v. Crowell, 32 Wis. 639 547 v. People, 117 111. 152. 928 v. Troy, 97 Me. 130 834 Winston v. McClendon, 43 Miss. 254 483, 492, 521 Winter v. Truax, 87 Mich. 324 887 Wirsig v. Scott, 79 Neb. 322 825, 830, 831 Wisconsin Trust Co. v. Chapman, 121 Wis. 479 383 Wise v. Foot, 81 Ky. 10 91 Wisner v. Mabley's Estate, 74 Mich. 143 695 Wistar v. Scott, 105 Pa. 200 54 Witt v. Day, 112 Iowa, 110 917, 918 v. McWhirter, 57 Iowa, 545 865 Wolf, In re, 137 N. Y. 265, . . ,. 661 TABLE OF CASES. 1055 Paee Wolf v. Ogden, 66 111. 224 482 v. Van Meter, 27 Iowa, 248 514 Womble v. Trice, 112 Ky. 533 873 Wood v. Black, 84 Ind. 279 845, 846 v. Fish, 63 N. Y. 245 447 v. Myrick, 17 Minn. 408 346 v. Williams, 61 Mo. 63 764 T. Wood, 5 Paige (N. Y.), 596 155 Wood's Appeal, 133 Pa. 260 579 Woodard v. Jaggers, 58 Ark. 250 515 Woodburn v. Woodburn, 123 HI. 608 589 Woodbury v. Woodbury, 58 N. H. 44 279 Woodhull v. Longstreet, 18 N. J. Eq. 405 603 Woodruff v. Handley, 127 Ala. 640 96 v. Lounsberry, 42 N. J. Eq. 699 694 v. Snedivcor, 68 Ala. 427 870 v. Snover (N. J.), 45 Atl. 980 826 Woods v. Boot, 60 Mo. 546 865 v. Clute, 1 Sand. Ch. (N. Y.) 201 615 Woods' Estate, In re, 1 Pa. 268 356 Woods, In re, 1 Ashm. (Pa.) 314 446 Woomer's Appeal, 144 Pa. 383 913 Wooten, Estate of, 56 Cal. 322 242 Worgang's Admr. v. Clipp, 21 Ind. 119 783 Worley v. Shong, 35 Neb. 311 802 v. Taylor, 21 Or. 589 735 Worrell's Appeal, 23 Pa. 44 911 Worth v. Curtis, 15 Me. 228 887 Worthy v. Johnson, 8 Ga. 236 513, 515, 562 Wright v. Barton, 34 Neb. 776 357 v. Comley, 14 111. App. 551 865 v. Edwards, 10 Or. 298 496 v. Methodist Episcopal Church, 1 Hoff. Ch. (N. Y.) 202 56 v. Reed, 118 111. 333 457 v. Tinsley, 30 Mo. 389 465, 468 v. Wright, 72 Ind. 49 213 v. Wright, 31 Mich. 380 465 Wright's Appeal, 12 Pa. 256 555* Wright, In re Estate of, 49 Cal. 550 790 Wright's Heirs v. Ware, 50 Ala. 549 486 Wyckoff v. Hulse, 32 N. J. Eq. 697 869, 911 1056 TABLE OF CASES. Page Wyckoff v. Perrine, 37 N. J. Eq. 118 586 Wylie v. Charlton, 43 Neb. 846 600 Wyman v. Hubbard, 13 Mass. 232 683, 780 v. Wyman, 26 N. H. 253 264, 307 Wyman's Appeal, 13 N. H. 18 307 Y Yancy v. Field, 85 Va. 756 589 Yarborough v. Ward, 34 Ark. 204 235 Yardley v. Culbertson, 108 Pa. 395 142 Yarnall's Will, 4 Eawle (Pa.), 46 79 Yeatman v. Yeatman, 35 Neb. 422 473 Yeaw v. Searle, 2 E. I. 164 242 Yerkes v. Broom, 10 La. Ann. 94 242 Yoessel v. Reiger, 75 Neb. 180 38, 39, 48 Young v. Boardman, 97 Mo. 181 720 v. State, 36 Or. 424 745 v. Tarbell, 37 Me. 509 601 v. Wells, 33 Mo. 106 297 v. Young, 87 Me. 44 837 v. Young, 45 N. J. Eq. 27 389 Young's Estate, In re, 97 Iowa, 218 695, 696 Youngson v. Bond, 69 Neb. 356 19, 734 Yundt's Appeal, 13 Pa. 575 893 z Zachman r. Zachman, 201 111. 380 626 Zackary v. Chambers, 1 Or. 321 424 Zeigler v. Sprenkle, 7 Watts & S. (Pa.) 178 722 Zerbe v. Miller, 16 Pa. 488 145 Zeuske v. Zeuske, 60 Or. 57 295 Zimmer v. Saier, 158 Mich. 170 118 Zimmerman v. Trude, 86 Neb. 503 20 Zunkel v. Colson, 109 Iowa, 695 280 INDEX. A ABSENTEES. presumption concerning death of, 140, p. 211. ACCOUNTING. by administrator de l>onis non with predecessor, 428, p. 710. by ancillary administrator, 270, p. 416. by executor under a residuary bond, 410, p. 674. executors and administrators. when accounting required, 411, p. 674. who may compel accounting, 411, p. 675. presumption from lapse of time, 411, p. 676. proceedings for an accounting, 412, p. 676. annual or periodical account, 413, p. 679. effect of allowance of annual or periodical account, 413, p. 679. FORMS. General petition for an accounting by executor or administrator, No. 180, p. 677. Petition by legatee for an accounting, No. 181, p. 678. Citation to executor or administrator to account, No. 182, p. 679. Annual account of executor or administrator, No. 183, p. 680. administration account charges, property sold, 414, p. 681. increase in value of assets, 414, p. 682. income from real estate, 414, p. 683. indebtedness to the estate, 414, p. 682. assets for which he is not liable, 414, p. 683. general rule as to interest, 415, p. 683. cases where interest should be charged, 415, p. 684. when interest not chargeable, 415, p. 685. assets used in purchase of lands, 416, p. 686. administration account credits. claims allowed by the court, 417, p. 686. 67 Pro. Ad. (1057) 1058 INDEX. ACCOUNTING (Continued). amounts paid to satisfy liens, 417, p. 686. payments to distributees, 417, p. 687. expenses of administration, 418, p. 687. See COSTS AND EXPENSES OF ADMINISTRATION. general rule as to attorney fees, 418, p. 688. when attorney fees not chargeable, 419, p. 690. services by representative who is an attorney, 419, p. 690. personal liability of representative for attorney fees, 419, p. 691. rule as to amount, 419, p. 691. pay of executor when provided for by will, 420, p. 692. statutory commissions of executor or administrator, 420, p. 692. statutory commissions of Oregon, 420, p. 693. property not converted in cash or delivered in kind, 420, p. 693. when commissions deducted, 420, p. 694. services as trustee, 420, p. 694. allowances for additional compensation, 421, p. 695. services not ordinarily required, 42-1, p. 695. forfeiture of pay, 421, p. 696. hearing on account. notice of hearing and service of same, 422, p. 696. waiver by parties, 422, p. 696. hearing in absence of executor or administrator, 422, p. 698. notice and service Oregon practice, 422, p. 699. hearing, 423, p. 700. vouchers, how considered on the hearing, 423, p. 701. objections to account, 423, p. 701. trial of the issues, 423, p. 701. right to contest claims paid by executor or administrator, 423, p. 701. determining attorney fees, 424, p. 703. claims not filed, 424, p. 703. proof of additional services, 424, p. 704. personal accounts between representative and estate, 424, p. 705. fixing rental value of real estate, 424, p. 705. guardian ad litem of minors, 424, p. 705. payments of legacies by executor, 424, p. 705. effect of order allowing account, 425, p. 706. power of court over same, 425, p. 707. powers of Oregon county court over order, 425, p. 708. joint account by joint representatives, 426, p. 708. INDEX. 1059 ACCOUNTING (Continued). by executors and administrators. separate accounts of joint representatives, 426, p. 708. action by creditor for accounting, 427, p. 710. FORMS. Waiver of notice of Scaring on final account, No. 181, p. 697. Final account of executor or administrator, No. 185, p. 698. Citation on hearing of final account, No. 186, p. 699. Objections to executor's or administrator's account, No. 187, p 702. Appointment of commissioners to determine rent due from executor or administrator, No. 188, p. 705. Order allowing final account, No. 189, p. 707. partnership administrators. proceedings for an accounting, 238b, p. 300. approval of account, 238b, p. 300. special administrator to collect, 1120, p. 180. for partnership matters, 241, p. 364. for mortgaging real estate, 250, p. 386. by guardians. annual account, 550, p. 909. how far binding on parties, 550, p. 910. charges. property received, 551, p. 910. investments, 551, p. 910. interest, 551, p. 911. credits. payments made by order of court, 552, p. 912* attorney fees and expenses, 552, p. 912. services, 552, p. 912. jurisdiction of court to compel interlocutory accounting, 553, p. 913. jurisdiction over final accounting, 558, p. 921. citation to guardian, 558, p. 921. hearing in absence of guardian, 559, p. 923. proof of the account, 559, p. 924. order allowing final account, 560, p. 924. appeal by guardian or ward, 560, p. 924. enforcement of order, 560, p. 925. j irisdiction of court to set aside order, 560, p. 925. 1060 INDEX. ACCOUNTING (Continued). FORMS. Guardian's annual account, No. 252, p. 914. Order allowing annual account of guardian, No. 253, p. 915. Petition to require guardian to account, No. 254, p. 922. Order to guardian to file his final account, No. 255, p. 923. Petition by guardian for release from liability, No. 256, p. 925. Order approving final account and releasing guardian, No. 257, p. 926. ACTIONS. See, also, JUDGMENTS. against the personal representative or estate, to revoke probate of will, 111, p. 164. actions which may be revived with representative as defendant, 201, p. 297. duty of representative to defend, 219, p. 323. defense by ancillary administrator, 267, p. 411. .to recover general claims, 273d, p. 427. to recover contingent claim, 363, p. 562. to recover claim when notice to creditors not given, 363, p. 669. to recover inheritance tax, 408, p. 669. for specific performance of executory contracts, 257, p. 401. for specific performance of contract to devise or bequeath, 302, p. 464. for enforcement of contract to sell or purchase real estate, 257, p. 401. See, also, SPECIAL PROCEEDINGS; VENDORS AND VENDEES. FORMS. Petition against executor or administrator to recover contingent claim, No. 163, p. 566. by executor or administrator. See, also, SPECIAL PROCEEDINGS. general right to bring actions, 196, p. 289. debt of heir or legatee to the estate, 196, p. 290. revivor of actions pending, 202, p. 297. survival of causes of action, 201, p. 297. action for causing death of decedent, 203, p. 298. foreclosure of mortgages, 204, p. 300. rule as to diligence in bringing suits to recover assets, 206, p. 302. proceedings for disclosure of assets, 197, p. 291. special proceedings to recover personalty, 207, p. 303. ejectment, 199, p. 294. forcible detention, 220, p. 324. INDEX. 1061 ACTIONS (Continued). damages to real estate, 200, p. 296. necessary allegations of petition, 205, p. 301. by creditor of an estate. for recovery of property fraudulently transferred by decedent, 213, p. 314. when action may be brought to recover assets, 216, p. 319. against executor or administrator, 273c, p. 426. against heirs or devisees, 228b, p. 344. claims for which such action lies, 228b, p. 344. enforcement of judgment against heir or devisee, 228b, p. 345. against heir, devisee or legatee, 361, p. 560. against executor or administrator when no notice to creditors given, 363, p. 565. on bond of personal representative, 458, p. 766. See, also, BONI> OFFICIAL. to set aside executors' and administrators' sales, party entitled to bring suit, 340, p. 532. limitation of time, 340, p. 534. void sales, 340, p. 534. voidable sales, 340, p. 535. statutory requirements of a valid sale, 341, p. 535. statutory requirements under Oregon practice, 341, p. 535. general rule concerning collateral attack, 342, p. 536. irregularities in appointment of administrator, 342, p. 537. sufficiency of petition, 343, p. 539. order to show cause and service of same, 344, p. 540. jurisdictional irregularities, 345, p. 541. failure to give bond, 346, p. 542. failure to take statutory oath, 347, p. 542. sufficiency of notice of sale, 348, p. 543. compliance with the order of sale, 349, p. 544. proof of confirmation, 349, p. 544. purchase by disqualified party, 350, p. 545. fraud or misrepresentations by executor or administrator, 351, p. 546. rights of purchaser at voidable sale, 352, p. 547. for recovery of property transferred to defraud creditors, 212, p. 310. for recovery of gifts causa mortis, 382, p. 592. by special administrator, 119, p. 177. 1062 INDEX, ACTIONS (Continued). by foreign executor or administrator, 260, p. 404. revivor of suits by foreign administrator, 268, p. 412. action brought in representative capacity, 205, p. 301. action against executor de son tort, 195, p. 288. to adjust indebtedness of insolvent representative, 217, p. 321. to enforce contribution between heirs or devisees, 228, p. 339. for dissolution of partnership, 239, p. 362. to set aside election, 431, p. 718. for enforcement of contracts. See SPECIFIC PERFORMANCE. guardianship. for recovery of property of ward, 515, p. 859. right to maintain special proceedings, 515, p. 860. by foreign guardian for sale of real estate, 524, p. 872. to obtain order for delivery of personal property, 524, p. 872. duty of guardian in actions against ward, 516, p. 861. judgment against minor not represented by guardian or guardian ad litem, 516, p. 861. to set aside settlement between guardian and ward, 556, p. 917. to set aside guardians' sales. when action may be brought, 539, p. 895. statutory requirements of a valid sale, 539, p. 895. when former ward estopped from bringing action, 540, p. 897. effect of act of legislature curing defects in guardians' deeds, 539, p. 896. party claiming adversely to ward, 541, p. 897. defective letters of guardianship, 542, p. 898. defective description of property in the license, 542, p. 899. failure to give bond or take oath, 543, p. 899. proof of notice of sale, 544, p. 900. purchase of lands by guardian, 544, p. 900. ADMINISTRATORS. See, also, EXECUTORS AND ADMINISTRATORS. definition, 139, p. 210. dispensing with appointment of, 132, p. 202. See DISPENSING WITH ADMINISTRATION. jurisdiction of county court to appoint, 140, p. 211. persons capable of administering, 141, p. 212. indebtedness to the estate, 141, p. 213. right of widow to administer, 142, p. 214. IXDEX. 1063 ADMINISTRATORS (Continued). right of surviving husband, 142, p. 215. corporation administrator, 142, p. 215. right of next of kin, 143, p. 216. right of creditor, 144, p. 216. renunciation of rights, 144, p. 216. rule as to nonresidents, 145, p. 217. persons disqualified by Oregon statute, 144, p. 216. assets consisting solely of cause of action for causing death of the decedent, 146, p. 218. petition for grant of letters, 147, p. 219. notice of hearing and service thereof, 148, p. 221. hearing, 149, p. 222. right to contest appointment, 149, p. 223. discretion of court in making appointment, 150, p. 224. procedure for appointment in Oregon, 150, p. 224. order granting letters, 151, p. 225. bond, 152, p. 226. bond Oregon practice, 152, p. 228. oath, 153, p. 228. effect of entry of order, 154, p. 230. FORMS. Petition for letters of administration, No. 57, p. 220. Notice of hearing, No. 58, p. 228. Order for appointment of administrator, No. 59, p. 229. Administrator's bond, No. 60, p. 227. Oath of administrator, No. 61, p. 228. Letters of administration, No. 62, p. 229. Letters of administration Oregon, No. 2a, p. 230. ancillary. jurisdiction of county court, 263, p. 407. purposes for which appointment made, 264, p. 407. petition for appointment, 265, p. 408. hearing, 266, p. 410. rules governing ancillary administration, 267, p. 411. general powers and duties, 268, p. 412. rule of privity between administrators in different states, 268, p. 413. payment of local creditors, 269, p. 414. payment when estate insolvent, 269, p. 414. 1064 INDEX. ADMINISTRATORS (Continued). accounting, 270, p. 416. See, also, ACCOUNTING, payment of legacies by, 271, p. 417. distribution of residue, 271, p. 417. FORMS. Petition for appointment of ancillary administrator, No. 132, p. 410. Decree for payment of debts ancillary administration, estate in- solvent, No. 133, p. 415. Petition for order for payment of residue of estate, No. 134, p. 418. Decree of distribution of ancillary estate, No. 135, p. 419. de bonis non. See, also, EXECUTORS AND ADMINISTRATORS. definition, 169, p. 251. powers and duties, 169, p. 251. jurisdiction of court to appoint, 170, p. 252. petition for appointment, 170, p. 253. bond, 170, p. 263. accounting with predecessor, 169, p. 251. inventory, 184, p. 272. FORMS. Petition for appointment of administrator de bonis non on account of death, resignation or removal of executor or administrator, No. 71, p. 254. Petition for appointment of administrator de bonis non after dis- charge of administrator, No. 72, p. 254. Order for appointment of administrator de bonis non, No. 73, p. 255. Letters of administration de bonis non, No. 74, p. 255. of partnership. definition, 238a, p. 358. right of survivor to appointment, 258a, p. 358. supervisory control of court, 238, p. 358. powers and liabilities, 238b, p. 359. accounting, 238b, p. 359. special for collection and care of assets. when appointment may be made, 115, p. 171. jurisdiction of county court over, 116, p. 172. petition for, 117, p. 172. hearing, 117, p. 173. bond, 118, p. 174. powers and duties, 119, p. 177. INDEX. 1065 ADMINISTRATORS (Continued), accounting by, 120, p. 180. fees of, 120, p. 180. discharge of, 121, p. 182. FORMS. Petition for appointment of special administrator, No. 34, p. 172. Order for appointment of special administrator, No. 35, p. 174. Bond of special administrator, No. 36, p. 175. Letters of special administration Oregon, No. 37a, p. 177. Petition of special administrator for leave to sell personalty, No. 38, p. 179. Order granting special administrator leave to sell personalty, No. 39, p. 179. Account of special administrator, No. 40, p. 181. Order approving account of special administrator, No. 41, p. 182. Receipt to special administrator, No. 42, p. 183. Discharge of special administrator, No. 43, p. 183. special for mortgaging real estate. See, also, MORTGAGING REAL ESTATE. when appointment made, 247, p. 379. hearing on petition and application, 248, p. 381. duties of, 249, p. 283. report of special administrator, 250, p. 385. For forms, see MORTGAGING REAL ESTATE. special for settlement of partnership interests. when appointment necessary, 242, p. 368. powers and duties of, 242, p. 368. report and discharge, 243, p. 370. fees, 243, p. 370. For forms, see PARTNERSHIPS. with will annexed definition, 122, p. 184. jurisdiction of court to appoint, 129, p. 197. powers and duties, 129, p. 198. preferential right to the appointment, 130, p. 198. procedure for appointment, 131, p. 198. FORMS. Petition for letters of administration with the will annexed, No. 49, p. 199. 1066 INDEX. ADMINISTRATORS (Continued). Order admitting will to probate and for appointment of adminis- trator with the will annexed, No. 50, p. 199. Order for appointment of administrator with the will annexed on account of failure of executor named to give bond, No. 51, p. 200. Letters of administration with the will annexed, No. 52, p. 200. ADOPTION OF CHILDREN, defined, 564, p. 933. who may be adopted, 564, p. 934. parties capable of adopting, 565, p. 934. consent of parents, 566, p. 935. consent of guardians, 566, p. 935. authorizing guardian to give consent, 566, p. 936. consent of next of kin or next friend, 566, p. 936. jurisdiction of county court over adoption proceedings, 567, p. 938. petition for adoption, 567, p. 937. right of court to proceed as if parents dead, 567, p. 937. notice of hearing and service of same, 568, p. 943. notice under Oregon practice, 568, p. 943. hearing, 569, p. 944. proof of abandonment, 569, p. 944. presence of child in court, 569, p. 945. hearing under Oregon practice, 569, p. 945. effect of decree of adoption, 570, p. 947. when subject to collateral attack, 570, p. 948. appeal from decree, 570, p. 947. FORMS. Relinquishment by parents and consent to adoption, No. 259, p. 938. Relinquishment by one parent and consent to adoption, No. 260, p. 939. Relinquishment of custody of child by parent, No. 262, p. 940. Petition by corporation guardian for consent to adoption, No. 263, p. 941. Order authorizing guardian to consent to adoption, No. 264, p. 942. Consent of child over fourteen years to adoption, No. 265, p. 942. Petition for adoption of child, No. 266, p. 942. Notice of hearing on petition for adoption, No. 267, p. 944. Decree of adoption, No. 268, p. 946. INDEX. 1067 ADVANCEMENTS. defined, 383, p. 593. real estate, 383, p. 593. how charged, 383, p. 593. to whom made, 383, p. 594. death of donee before ancestor, 383, p. 594. revoking or rescinding advancement, 385, p. 594. evidence necessary to prove an advancement, 386, p. 595. doctrine of intent, 385, p. 595. application of advancement to testate estates, 387, p. 596. determining value of advancements, 387, p. 596. how advancements considered on distribution, 385, p. 597. jurisdiction of county or district court over, 9 385, p. 598. ALIENS. limitations on right of inheritance, 442, p. 737. proceedings by alien for sale of his inheritance, 442, p. 738. proceedings by county for appraisement and sale, 442, p. 738. ALLOWANCE FOR SUPPORT OP SURVIVING SPOUSE OR FAMILY. right of spouse or heirs to specific property, 186, p. 274. specific property under Oregon statutes, 186, p. 274. right of widow to allowance, 187, p. 275. rights of minor children to allowance, 187, p. 275. purpose of allowance, 188, p. 276. how allowance barred, 189, p. 277. right of court to modify order, 190, p. 278. precedence of allowance, 191, p. 279. procedure for obtaining allowance, 192, p. 280. nature of the order, 192, p. 281. appeals, 192, p. 281. power of court to sell real estate for payment, 309, p. 471. FORMS. Petition of widow for allowance and assignment of personal prop- erty, No. 82, p. 282. Petition for allowance for support of minor children, No. 83, p. 283. Notice of application for allowance and assignment of personal property, No. 84, p. 284. Order granting allowance and assigning personal property to widow, No. 85, p. 285. 1068 INDEX. APPEALS. jurisdiction of district court, on appeals, 5 473, p. 789. jurisdiction of the circuit court, 473, p. 790. rights of parties to an appeal, 474, p. 790. what are final orders, 475, p. 791. when personal representative a proper appellant, 474, p. 791. appeals by personal representative, 476, p. 793. appeals from decisions adverse to parties, 477, p. 795. bond of appellant, 477, p. 796. appeals by interested parties from decisions adverse to the estate, 478, p. 797. special bond, 478, p. 797. transcript, 479, p. 799. failure to docket appeal, 479, p. 799. notice of appeal, 476, p. 793. oral notice, 476, p. 794. appeal without bond, 476, p. 794. when appeal deemed perfected, 476, p. 795. filing transcript, 479, p. 800. jurisdictional requirements, 479, p. 800. effect of appeals on petition for probate of will or letters of ad- ministration, 480, p. 801. effect of supersedeas bond, 480, p. 801. sufficiency of transcript, 481, p. 802. questioning appeals without bond, 481, p. 802. trials of appeals in district court, 481, p. 803. jury trial, 481, p. 804. when tried as appeals in civil cases, 481, p. 803. when tried as appeals in equity, 481, p. 804. failure to perfect appeal, 482, p. 804. judgment of appellate court, 483, p. 806. FORMS. Notice of appeal by executor or administrator, No. 208, p. 793. Bond of appellant, No. 209, p. 796. Bond of creditor on appeal from allowance of the claim of another creditor, No. 210, p. 798. by guardians. right of guardian to appeal to the district court, 563a, p. 932. INDEX. 1069 APPRAISERS. general appraisers of the estate, appointment of, 182, p. 268. duties, 183, p. 270. of estate of ward, 510, p. 852. FORMS. Petition for appointment of appraisers, No. 77a, p. 269. General order, No. 78, p. 269. Appointment of appraisers, No. 79, p. 270. Oath of appraisers, No. 80, p. 271. Certificate of appraisers, No. 81, p. 272. inheritance tax appraisers. See, also, INHERITANCE TAX. appraisers to set out homestead, 393, p. 631. when appointed, 400, p. 646. appointment under Oregon practice, 401, p. 649. notice to interested parties, 401, p. 648. general duties, 402, p. 650. power to issue process, 400, 401, p. 648. fees of appraisers, 23, p. 33. costs and expenses, 403, p. 660. Forms, see INHERITANCE TAX. ARBITRATION. right of executor or administrator to submit claim to arbitration, 210, p. 308. right of special administrator, 119, p. 178. ASSETS OF THE ESTATE. inventory of. See INVENTORY. appraisement of. See APPRAISERS. personal property. custody of by special administrator, 119, p. 177. right of possession by executor or administrator, 193, p. 285. exceptions to general rule, 193, p. 286. possession previous to grant of letters, 194, p. 287. property not subject to debts, 196, p. 289. limitation on right of executor or administrator, 196, p. 290. debt of heir or legatee, 196, p. 290. proceedings for disclosure of assets, 197, p. 291. 1070 INDEX. ASSETS OF THE ESTATE (Continued). damages for causing death of decedent, 203, p. 298. mortgage foreclosures, 204, p. 300. general rule of diligence in collecting assets, 206, p. 302. special proceedings for recovery of personalty, 207, p. 303. See, also, SPECIAL PROCEEDINGS. compromising debts due estate, 209, p. 307. See, also, COMPROMISE. property transferred to defraud creditors, 215, p. 318. See, also, FRAUDULENT CONVEYANCES. right of creditor to collect assets, 216, p. 319. debt of executor or administrator to the estate, 217, p. 320. general powers of executor or administrator over assets, 218, p. 322. delivery to heirs or legatees pending administration, 227, p. 335. delivery pending administration Oregon rule, 227, p. 336. right of representative to repossession, 227, p. 335. recovery of assets from distributees, 228a, p. 342. investments of assets, 229, p. 345. See, also, INVESTMENTS. assets used in carrying on decedent's business, 232, p. 349. liability of executor or administrator, 233, p. 350. right of creditor to follow assets, 226, p. 333. sales, 223, p. 329. See, also, SALES OF PERSONAL PROPERTY. real estate. rights of possession under the statutes, 198, p. 294. when possession taken by executor or administrator, 199, p. 295. ejectment, 200, p. 296. action for trespass, 200, p. 296. management of, 220, p. 323. leases, 220, p. 324. taxes and insurance premiums, 220, p. 324. eales by executor, 221, p. 325. sales by administrator with the will annexed, 222, p. 327. delivery of deed deposited in escrow, 251, p. 388. contract for purchase or sale, 252, p. 389. See, also, VENDORS A.ND VENDEES. options as to remedy of executor or administrator, 252, p. 389. rights of devisees in. See DEVISEES. descent of. See DESCENT. ATTESTATION OF WILL. definition, 44, p. 65. INDEX. 1071 ATTORNEYS. persons entitled to practice in county court, 15, p. 24. as guardians ad litem, 16, p. 25. fees of in will contests, 104, p. 156. services for executor or administrator, 418, p. 688. general rule as to amount, 419, p. 688. fees when party is also executor or administrator, 419, p. 690. liability of executor or administrator, 419, p. 691. fees of attorneys for beneficiaries, 424, p. 704 B BLIND PERSONS. testamentary capacity of, 49, p. 82. BONDS APPEAL. of adverse party, 477, p. 795. of appellant from order adverse to the estate, 478, p. 797. of appellant Oregon practice, 476, p. 794. effect of, 480, p. 801. supersedeas bond in error proceedings, 486, p. 810. from order assessing inheritance tax, 404, p. 661. Forms, see APPEALS; WRIT oy ERROR; INHERITANCE TAX. BONDS INDEMNITY. in action to set aside fraudulent transfers, 214, p. 315. on delivery of property to heir or legatee, 227, p. 335. to stay sales of real estate, 318, p. 493. on sale of contract interest in lands, 333, p. 521. to secure payment of inheritance tax, 405, p. 663. Forms, see FRAUDULENT CONVEYANCES; HEIRS; SALES; INHERIT- ANCE TAX. BONDS OFFICIAL. actions on. liability on separate bonds of joint executors and administrators, 457, p. 765. necessary allegations of petition on, 471, p. 783. effect of recitals in bond, 471, p. 783. privity between sureties and principal, 471, p. 784. termination of liability, 471, p. 784. 1072 INDEX. BONDS OFFICIAL (Continued), available defenses, 471, p. 784. when action barred, 472, p. 788. FORMS. Application for permission to bring suit on a probate bond, No. 202, p. 776. Application of administrator de bonis non for leave to bring suit on bond of his predecessor, No. 203, p. 777. Order granting permission to bring suit on bond, No. 204, p. 777. Certificate of permission to bring suit on bond, No. 205, p. 778. Petition by creditor against sureties on administration bond, No. 206, p. 785. Petition for conversion, No. 207, p. 786. administrators. amount and conditions, 152, p. 226. ancillary administrator, 205, p. 408. partnership administrator, 238a, p. 358. special administrator, 119, p. 177. special administrator, partnership assets, 242, p. 368. Forms of bonds, see titles of different administrators, county judge. amount, 2, p. 3. conditions, 2, p. 4. liability of sureties on, 3, p. 5. For forms, see JUDGES. guardians. See, also, SALES OF REAL ESTATE. amount and condition, 504, p. 839. testamentary guardian, 504, p. 840. general rule of construction of, 504, p. 840. action on bond of predecessor, 509, p. 850. BONDS^PROBATE. purpose for which given, 453, p. 761. omitted conditions, 454, p. 762. informalities and irregularities, 454, p. 763. application for reduction of penalty on bond, 126, p. 192. common-law bond, 455, p. 763. additional or cumulative bond, 456, p. 764. proceedings for release of sureties, 455, p. 763. INDEX. 1073 BONDS PKOBATE (Continued). liability of new bondsmen, 455, p. 763. proceedings for obtaining new bond, 164, p. 241. new or additional bond Oregon, 164, p. 241. sales for payment of debts domestic representatives, 324, p. 500. sales for payment of debts foreign representatives, 335, p. 524. actions on. parties entitled to bring, 458, p. 766. determining liability of executor or administrator, 459, p. 767. when liability attaches, 469, p. 768. proceedings required by common law to fix liability, 459, p. 768. decree of court as a judgment fixing liability, 460, p. 769. conversion of assets, as basis of liability, 461, p. 77Q. failure to administer according to directions of will, 461, p. 771. nonpayment of legacy or share, 462, p. 772. misapplication of proceeds of sales of lands, 462, p. 772. demands not liabilities of the bondsmen, 463, p. 773. liability on residuary legatee's bond, 464, p. 774. liability of suit of administrator de bonis non, 465, p. 774. obtaining permission to bring suit on bond, 466, p. 775. when permission not required, 466, p. 778. when action accrues, 467, p. 778. general rule as to liability of sureties, 468, p. 779. liability when executor also a trustee, 468, p. 780. liability when letters granted on the estate of a living person, 468, p. 781. liability for debt of insolvent representative, 468, p. 781. liability in regard to management or sale of real estate, 468, p. 782. liability for proceeds of lands sold for debts, 470, p. 782. cf joint bond of executors and administrators, 457, p. 765. guardians. additional bond, 525, p. 872. effect of new bond, 525, p. 873. new bond Oregon rule, 525, p. 873. bond on sale of real estate, 533, p. 884. liability on bond after settlement has been set aside, 556, p. 918. when liability terminates, 561, p. 927. general rule of liability of sureties, 561, p. 927. release of cosurety, 562, p. 928. when action accrues, 363, p. 929. estoppel of bondsmen, 563, p. 930. 68 Pro. Ad. 1074 INDEX. BONDS PROBATE (Continued). FORMS. Petition on guardian's bond, No. 268, p. 931. aupersedeas. when required, 486, p. 810. under Oregon practice, 486, p. 813. BOOKS OF ACCOUNT. admissibility in proof of claim, 305, p. 468. presumption of regularity, 305, p. 469. BURDEN OF PROOF. execution of wills, 81, p. 122. testamentary capacity, 85, p. 130. undue influence, 89, p. 138. on petition to revoke probate of will, 112, p. 168. order dispensing with administration, 134, p. 205. hearing for letters of administration, 149, p. 222. application for removal of executor or administrator, 167, p. 245. establishing claim against estate, 282, p. 448. property transferred to avoid inheritance tax, 398, p. 642. hearing on final account, 423, p. 701. application of posthumous child for share in the estate, 440, p. 733. application of child omitted from will for share, 440, p. 733. rule under Oregon statute, 440, p. 735. hearing on decree for distribution, 449, p. 748. hearing on guardian's account, 559, p. 924. BURIAL. right to determine place of, 284, p. 443. duty of next of kin, 284, p. 443. CHILDREN. See, also, DESCENT; DISTRIBUTION; GUARDIANS. meaning of term as used in wills, 38, p. 54. right of parent to disinherit, 90, p. 138. rights of in specific property, 186, p. 274. allowances for support, 187, p. 275. descent of property of an illegitimate, 437, p. 729. INDEX. 1075 CHILDREN (Continued). acknowledgment of illegitimate child, 438, p. 729. inheritance by illegitimate child from mother. 438, p. 730. inheritance by illegitimate child from father, 438, p. 730. rights of posthumous child, 440, p. 733. rights of pretermitted child, 440, p. 733. removal of from houses of ill-fame, 494, p. 824. determining custody of by habeas corpus, 511, p. 854. adoption of. See, also, ADOPTION. FORMS. Petition for order setting out share of posthumous child, No. 194, p. 734. Notice of hearing on petition of posthumous child, No. 195, p. 735. Order setting out share of posthumous child, No. 196, p. 736. Petition by child omitted in the will for a share in the estate, No. 197, p. 737. CLAIMS. See DEBTS or DECEDENT. CLERK OF COUNTY COURT. See COUNTY COUBT. CODICIL. definition, 25, p. 38. when it republishes will irregularly executed, 46, p. 67. COLLATERAL ATTACK OX SALES OF LANDS FOR PAYMENT OF DEBTS. See ACTIONS TO SET ASIDE EXECUTORS' AND AD- MINISTRATORS' SALES. COLLATERAL ATTACK ON GUARDIANS' SALES. See ACTIONS TO SET ASIDE SALES OF LANDS BY GUARDIANS. COMMISSIONER TO SET OFF DOWER, appointment of, 388i, p. 612. COMPROMISE OF DEBTS AND DEMANDS, compromise by order of court, 208, p. 305. compromise without order, 209, p. 307. claims which may be compromised, 209, p. 308. liability of representative, 209, p. 308. 1076 INDEX. COMPROMISE OF DEBTS AND DEMANDS (Continued), compromise of real estate contract, 211, p. 309. compromise of claims by guardians, 518, p. 863. FORMS. Petition to compromise debt, No. 91, p. 306. Order permitting compromise of debt, No. 92, p. 307. CONSTABLES. service of process by, 14, p. 23. fees of, 21, p. 32. CONSTRUCTION OF WILLS. See WILLS PREPARATION. jurisdiction of county court, 11, p. 19. CONTEMPT OF COURT. powers of county court to punish for contempt, 11, p. 18. failure to produce will, 76, p. 142. failure to disclose assets, 198, p. 293. CONTESTS OF WILLS. See WILLS. CONTRACTS. See, also, DEBTS OF DECEDENT; SPECIFIC PERFORMANCE; VENDORS AND VENDEES. of executor or administrator in matters pertaining to the estate, 230, p. 349. exception in ease of nonresident, 230, p. 348. liability of estate on contracts of decedent, 231, p. 348. liability on express contracts, 288, p. 448. liability on implied contract, 289, p. 450. to devise or bequeath, 302, p. 464. to make party an heir or give him a share in the estate, 303, p. 466. when enforced as claims against the estate, 302, p. 465. consideration of such contracts, 303, p. 466. of guardians. natural guardians, 491, p. 821. judicial guardians, 517, p. 862. for necessaries, 512, p. 887. of wards. of spendthrift pending hearing on complaint, 502, p. 838. INDEX. 1077 CONTRACTS (Continued). for necessaries, 512, p. 857. contracts by minor for his own services, 514, p. 858. between guardian and ward for sale of ward's property, 556, p. 917. COSTS OF ADMINISTRATION, court fees. See COSTS OF COURT. executors' and administrators' commissions, 420, p. 692. fees for special services, 421, p. 695. special administrators' fees, 120, p. 180. attorney fees, 419, p. 688. traveling expenses, 418, p. 688. agents and bookkeepers, 418, p. 688. care and custody of property, 518, p. 688. taxes, repairs and insurance, 220, 424, pp. 324, 705. COSTS OP COURT. items of county court costs, 20, p 31. items of costs of clerk of county court, 23, p. 33. of officers of the court. See under title of each officer. costs in will cases, 104, p. 156. in proceedings to set aside fraudulent conveyance of decedent, 214, p. 315. mortgaging real estate under license, 250, p. 385. special proceedings for transfer of real estate, 256, p. 397. sales of real estate under license of court, 336, p. 526. of inheritance tax appraisement, 401, 403, p. 648. COSTS OF GUARDIANSHIP, guardians' fees, 552, p. 912. when fees forfeited. 552, p. 913. attorney fees, 552, p. 912. costs of management of property, 552, p. 912. expenses of investments, 552, p. 912. COUNTY ATTORNEY. duties of, collection of inheritance tax, 400, pp. 646, 669. in regard to escheats, 442, p. 738. COUNTY COURT. organization, 1, p. 2. 1078 INDEX. COUNTY COTJET (Continued), terms and sessions, 1, p. 2. jurisdiction, statutory and constitutional, 9, p. 14. k under Oregon statute, 9, p. 16. jurisdiction, equitable, 10, p. 17. jurisdiction, inherent or implied, 11, p. 18. power over its decrees, 11, p. 19. power to construe wills, 11, p. 19. practice and procedure, 13, p. 21. practice and procedure Oregon, 13, p. 22. process and service of same, 14, p. 23. records of, 17, p. 26. records of Oregon practice, 17, p. 28. certifying records, 18, p. 29. fees of, 20, p. 30. official depository of wills, 73, p. 108. clerk of. appointment, powers and duties, 12, p. 19. county clerk as ex officio, 12, p. 20. fees of ex-officio clerk, 23, p. 35. FORMS. Oath of clerk of county court, No. 9, p. 20. COUNTY JUDGE. See JUDGES. COUNTY TREASURER. duties in regard to property alleged to be liable for an inherit- ance tax, 400, p. 646. payment of inheritance tax to, 406, p. 667. payment by foreign representative on transfer of stocks, 406, p. 667. receipts of, 406, p. 667. payment of costs of appraisement, 401, p. 648. refunding overpayments, 407, p. 668. CREDITORS. See, also, ACTIONS BY CREDITORS; DEBTS OF DECEDENT; HEIRS; LEGATEES; DEVISEES. appointment of as administrator, 142, 144, pp. 214, 217. as petitioner for removal of executor or administrator, 165, p. 242. INDEX. 1079 CREDITORS (Continued). as plaintiff in action to set aside fraudulent conveyance, 213, p. 314. right to follow assets into the hands of third parties, 226, p. 333. rights of foreign creditor in local assets, 269, p. 413. general lien of on assets of the estate, 272, p. 421. right to contest claims, 282, p. 440. appeals from orders allowing claims, 477, 478, pp. 795, 797. legacy to, 373, p. 579. right to contest administration account, 423, p. 700. action on bond of representative, 458, p. 766. CURTESY. See, also, DOWER. definition, 388a, p. 593. in equitable estates, 388d, p. 605. requisites of, 388e, p. 605. how barred, 388f, p. 606. election, 388g, p. 609. assignment of by county court, 388i, p. 611. Forms, see DOWER. DEATH. allegations of in petition for probate of will, 79, p. 119. on appointment of administrator, 140, 149, pp.211, 222. absence or disappearance of party, 140, p. 211. DEBTS OF DECEDENT. claims of unsuccessful proponent of will, 104, p. 156. of general creditors, 272, p. 421. of holders of specific liens, 276, p. 431. of cestui que trust, 278, p. 435. for trespass or in tort, 2&6, p. 447. for an accounting, 286, p. 447. claims becoming due after death, 287, p. 447. for breach of covenant, 296, p. 458. of nonresident, 297, p. 458. of nonresident, when administration is ancillary, 269, p. 414. joint liabilities, 298, p. 459. of executor or administrator, 299, p. 460. contingent claims, 300, p. 461. 1080 INDEX. DEBTS OF DECEDENT (Continued). services rendered under an express contract. general demands, 288, p. 448. amount of recovery, 288, p. 449. when payment to be made by bequest or devise, 302, p. 465. See, also, CONTRACTS; SPECIFIC PERFORMANCE. recovery on quantum meruit, 303, p. 466. services rendered under an implied contract. general rule as to continuance of family relation, 289, p. 449. circumstances from Tvhich contract will be implied, 290, p. 450. persons not related, 290, p. 451. amount of recovery, 290, p. 451. establishment of claims. creditor's interest in assets, 272, p. 421. jurisdiction of county court over, 273, p. 422. times and places for hearing claims, 274, p. 428. notice to creditors, 275, p. 429. claims secured by liens, 276, p. 432. See, also, LIENS. property held by bailee, 276, p. 433. judgments against decedent, 276, p. 433. See, also, JUDGMENTS. demands on which actions are pending, 276, p. 431. liabilities of holders of corporate stock, 277, p. 435. claim for real estate, 277, p. 434. claim under land contract, 277, p. 434. property held in trust, 278, p. 435. bar of statute of limitations, 279, p. 436. See, also, STATUTE o LIMITATIONS. bar of the statute of nonclaim, 280, p. 437. bar of two-year limitation, 281, p. 439. stating demands, 282, p. 440. duty of executor or administrator, 282, 283, p. 441. pleadings, 283, p. 441. dismissal of actions and filing same as claims, 283, p. 442. prosecution of claims by assignee, 283, p. 442. proof of judgments, 283, p. 442. proof of uncontested claim, 283, p. 443. burden of proof, 283, p. 443. statutory rule regarding transactions and conversations with dece- dent, 291, p. 451. what constitutes a transaction, 291, p. 452. INDEX. 1081 DEBTS OF DECEDENT (Continued). what constitutes direct legal interest, 293, p. 454. competency of claimant, 292, p. 453. who is an adverse party, 293, p. 454. rule when part of transaction is proved by the representative, 294, p. 456. declarations to third parties, 295, p. 457. proof of contingent claim, 301, p. 463. books and writings, 305, p. 468. appeals to district court. See, also, APPEALS. FORMS. Notice to creditor, No. 136, p. 430. Affidavit verifying claim, No. 137, p. 441. allowance by executor or administrator, 273a, p. 423. what constitutes presentation, 273a, p. 423. duty of representative, 273b, p. 424. proof before executor or administrator, 273a, p. 423. right of claimant to summary proceedings before county court, 273c, p. 426. proceedings, 273c, p. 426. proof of claim, 273c, p. 426. action against administrator, 273d, p. 427. hearing claim before referee, 273d, p. 428. notice for presentation of claims, 275, p. 430. FOEMS OREGON. Verification of claim, No. 135a, p. 425. Claim on a promissory note, No. 135b, p. 425. Notice of filing claim Oregon, No. 135c, p. 427. Agreement for reference of claim Oregon, Xo. 135d, p. 428. Notice to creditors Oregon, No. 136a, p. 431. payment. when payable, 353, p. 548. extension of time for payment, 353, p. 549. payment after filing first periodical account, 353, p. 551. subsequent orders for payment, 353, p. 551. time granted an administrator de ftonis non, 354, p. 552. assets liable for payment, 355, p. 552. assets set apart by will for debts, 355, p. 553. 1082 INDEX. DEBTS OF DECEDENT (Continued). order of application of personalty of a testator for debts, 356, p. 554. property constituting a primary fund for debts, 357, p. 554. directions to executor to pay, 357, p. 555. debts charged on real estate, 358, p. 555. general intention to release personalty, 358, p. 556. assets not liable for debts, 359, p. 556. mortgage liens. power of administrator to satisfy mortgage, 360, p. 557. rule in regard to mortgage liens, testate estates, 360, p. 558. common-law rule, 360, p. 559. redemption of mortgages by order of county court, 360, p. 557. proceedings for obtaining order to redeem, 360, p. 558. payment of taxes, 360, p. 559. liability of heirs, legatees or devisees for debts, 361, p. 560. measure of liability, 361, p. 561. right to follow assets into the hands of third parties, 361, p. 562. when action accrues, 362, p. 562. how liability determined, 362, p. 563. * recovery of contingent claim from executor or administrator, 363, p. 564. liability of executor or aflministrator when no notice to creditors given, 363, p. 565. classification of claims for payment. funeral expenses, and expenses of last illness, 365, p. 568. debts having preference by laws of the United States, 365, p. 568. other demands, 365, p. 569. Oregon classification, 365, p. 570. interest on claims, 366, p. 570. payment when estate insolvent, 367, p. 571. modification of order, 367, p. 571. payments out of order, 367, p. 572. personal liability of executor or administrator, 367, p. 572. retention of money to pay claim appealed to a higher court, 367, p. 573. how payment made, 368, p. 573. liability of representative, 369, p. 574. how payment enforced, 369, p. 574. notice to creditors to call for their money, 369, p. 575. INDEX. 1083 DEBTS OF DECEDENT (Continued). FOBMS. Application for extension of time for payment of debts, No. 159, p. 549. Notice of application to extend time for payment of debts, No. 160, p. 550. Order extending time for payment of debts, No. 161, p. 550. Petition to recover from heirs, received from administrator, No. 162, p. 563. Petition against an executor or administrator on a contingent claim, No. 163, p. 566. Decree for payment of debts, No. 164, p. 572. Decree for further distribution to creditors, No. 165, p. 573. Notice to creditors to demand their claims, No. 166, p. 575. DECLARATIONS OF DECEDENTS. See, also, DEBTS or DECEDENTS TRANSACTIONS AND CONVERSATIONS; WITNESSES. by testator as to proposed disposition of his property, 96, p. 147. by devisee or legatee, 97, p. 149. by testator as to revoking will, 61, p. 96. by testator as to revivor of wills, 69, p. 103. as to marriage, 150, 388e, p. 224. declarations against interest, 295, p. 457. gifts causa mortis, 382, p. 593. in regard to parentage of child, 437, p. 729. DEEDS. See, also, VENDORS AND VENDEES; SALES; POWEBS or SALE. delivery of by representative, 5 251, p. 388. decree of specific performance operating as a deed, 257, p. 402. of executor or administrator on sale for payment of debts, 337, p. 525. of guardian, 535, p. 891. For forms, see SALES; VENDORS AND VENDEES. DESCENT AND DISTRIBUTION. descent to surviving spouse, 429, p. 712. nature of interest of surviving spouse in decedent's estate, 429, p. 713. descent to survivor Oregon statute, 429, p. 714. barring inheritances by antenuptial contract, 430, p. 714. barring inheritances by conveyance by parties, 430, p. 714. 1084 INDEX. DESCENT AND DISTRIBUTION (Continued). barring inheritances by separation agreement, 430, p. 715. election between will and distributive share, 431, p. 717. See, also, ELECTION. descent to issue or descendants, 434, p. 723. descent of estate of child dying under age, 434, p. 723. descent to collaterals, 434, p. 723. descent under Oregon statute, 434, p. 724. next of kindred, 435, p. 726. rule as to descent per capita, 435, p. 727. property of infant not inherited from parent, 435, p. 727. kindred of the half blood, 436, p. 728. descent of estate of an illegitimate, 437, p. 729. descent of estate of an illegitimate Oregon statute, 437, p. 729. inheritance by illegitimate from the mother, 438, p. 730. when entitled to inherit from the father, 438, p. 730. inheritance by adopted children, 439, p. 732. inheritance by posthumous children, 440, p. 733. inheritance by pretermitted children, 440, p. 733. children omitted from will Oregon statute, 440, p. 735. limitation on inheritances by aliens, 442, p. 737. See, also, ALIENS. distribution of property not subject to disposal by will, 443, p. 739. distribution of other personal estate, 443, p. 739. selection of exempt property, 443a, p. 741. distribution under Oregon statute, 443a, p. 742. personalty distributed as realty, 446, p. 745. exceptions to the right to inherit, 444, p. 743. escheats, 445, p. 743. See, also, ESCHEATS. necessity for decree of distribution, 447, p. 746. petition for distribution, 448, p. 747. how heirship established, 449, p. 748. indebtedness of heir, 449, p. 749. decree of distribution, 450, p. 750. special proceedings for determining succession to property, 450a, p. 750. See, also, SPECIAL PROCEEDINGS. the decree as a judgment, 451, p. 755. advancements, 549, p. 749. See, also, ADVANCEMENTS. setting aside decree, 451, p. 755. garnishment of representation, 451, p. 756. FORMS. Petition for distribution of residue of the estate, No. 198, p. 747. INDEX. 1085 DESCENT AND DISTRIBUTION (Continued). Decree for distribution, No. 199, p. 754. Petition to revoke decree of distribution, No. 200, p. 757. Discharge of executor or administrator, No. 201, p. 759. DEVASTAVIT. defined, 234, p. 351. acts constituting, 235, p. 352. sales of real estate when deficiency of assets caused by, 320, p. 498. how considered in fixing liability of bondsmen, 460, p. 769. DEVISES. See, also, ESTATES; WILLS PREPARATION; DEVISEES; LEGATEES. possession of by executor, 199, p. 294. liability for debts, 355, p. 552. direction to executor to pay debts, 357, p. 555. acceptance of devise charged with payment of legacy, 370, p. 576. adjustment of mortgage liens, 360, p. 558. devises given which are subject to mortgage, 360, p. 558. order in which lands sold for payment of debts, 323, p. 501. charges when legacies given generally and devises after payment, 371, p. 577. charges on when legacies greatly exceed personalty, 371, p. 578. charges on specific devises, 371, p. 578. lapsed devises, 376, p. 584. inheritance tax on estates for years and remainders, 397, p. 639. bond to secure payment of tax on remainder, 405, p. 664. payment of tax, 406, p. 666. DEVISEES. See, also, LEGACIES; LEGATEES; WILLS PREPARATION. rights in regard to probate of will, 79, p. 119. rule in regard to possession of devise, 200, p. 296. contribution by for payment of debts, 228, p. 338. liability for share of insolvent, 228, p. 339. when and where action brought, 228, pp. 339, 392. liability on contingent claims, 361, p. 560. liability on property charged with debts, 361, p. 560. action against to recover claim, 362, p. 562. contribution between devisees, 32, p. 563. liability for payment of inheritance tax, 406, p. 665. appeals by from orders allowing claims, 478, p. 797. liability for debts of the estate, 228b, p. 344. 1086 INDEX. DEVISEES (Continued). FORMS. Petition for payment of legacy pending administration, No. 98, p. 337. Bond of heir or legatee on receipt of share, No. 99, p. 337. Petition for legatee of devisee to pay share of insolvent, No. 100, p. 339. Notice to devisee or legatee, No. 101, p. 341. Order requiring legatee or devisee to contribute to payment of debts and expenses, No. 102, p. 341. DISPENSING WITH ADMINISTRATION. rights of heirs to divide personal property, 132, p. 202. estates which need not be administered, 132, p. 203. proceedings for dispensing with administration, 133, p. 204. hearing, decree, 134, p. 205. jurisdiction of county court to determine heirship to real estate where no administration has been had, Appendix, p. 964. petition for determining heirship, Appendix, p. 964. citation, hearing, Appendix, p. 965. effect of decree, Appendix, p. 965. FORMS. Petition for order dispensing with administration, No. 53, p. 204. Order for hearing, No. 54, p. 205. Order dispensing with administration, No. 55, p. 206. Petition for decree Determining succession, No. 56, p. 208. DOWEB. defined, 3S8a, p. 599. vesting of dower interest, 388a, p. 600. dower in lands exchanged, 388a, p. 600. in lands mortgaged before marriage, 388b, p. 601. in lands mortgaged after marriage, 388b, p. 601. in surplus from mortgage foreclosure, 388b, p. 602. aliens and nonresidents, 388c, p. 602. property to which dower attaches general rule, 388d, p. 603. in lands sold on execution against the husband, 388d, p. 604. in lands conveyed to defraud creditors, 388d, p. 605. requisites of dower, 388e, p. 605. barring dower by deed, 388f, p. 606. INDEX. 1087 DOWER (Continued). jointure, 388f, p. 607. antenuptial contract, 388f, p. 607. conveyances taking effect after death, 388f, p. 607. contracts and agreements between husband and wife, 388f, p. 608. election, 388g, p. 609. assignment by contract between widow and heirs, 388h, p. 610. jurisdiction of county court to assign dower, 388i, p. 611. appointment and duties of commissioners, 3S8i, p. 612. assignment of dower by circuit court, 388j, p. 614. dower in lands that have enhanced in value, 388k, p. 615. dower in lands that have depreciated in value, 3881, p. 616. dower in property not capable of division, 3"88m, p. 616. damages for withholding dower, 388n, p. 621. incidents of dower, 388o, p. 621. liability for waste, 388o, p. 622. dower recovered by default or collusion, 388p, p. 622. FORMS. Jointure barring dower, No. 166a, p. 608. Petition for assignment of dower by widow County court, No. 166b, p. 612. Notice of pendency of petition for dower County court, No. 166c, p. 613. Answer setting up defense to dower, No. 166c, p. 613. Petition for assignment of dower Circuit court, No. 166d, p. 616. Petition by heir for assignment of dower, No. 166e, p. 617. Decree for dower County court, No. 166f, p. 618. Warrant to commissioners, No. 166g, p. 619. Oath of commissioners to set off dower, No. 166h, p. 619. Report of commissioners on assignment of dower, No. 188i, p. 620. Order confirming assignment of dower, No. 166j, p. 620. E EJECTMENT. by executor or administrator, 199, p. 295. by heir or devisee, 200, p. 296. ELECTION. See, also, DESCENT AND DISTRIBUTION; DOWEB. between dower and provisions of will, 388g, p. 609. between will and distributive share, 431, p. 717. 1088 INDEX. ELECTION (Continued). when and how made, 431, p. 718. right of widow to revoke her election, 431, p. 718. for incompetent widow, 432, p. 720. effect of election, 433, p. 722. making up statutory share, 433, p. 722. FORMS. Election to take under the statute, No. 191, p. 719. Petition by guardian of incompetent widow for authority to elect, No. 192, p. 720. Order directing guardian of incompetent widow to take statutory share, No. 193, p. 721. EMBLEMENTS. inventory and appraisement of, 175, p. 260. ENFORCEMENT OF REAL ESTATE CONTRACTS. See VENDOR AND VENDEES. EQUITY. See ACTIONS. ESCHEATS. escheating of lands of alien heirs or devisees, 442, p. 737. escheating on account of failure of heirs, 445, p. 743. administration of escheated estates, 445, p. 744. action to declare property escheated, 445, p. 744. sale of escheated property, 445, p. 745. recovery of proceeds by heir, 445, p. 745. ESTATES. estates in fee, 29, p. 42. determinable fee, 31, p. 44. life estate, 32, p. 45. remainder, 33, p. 46. executory devises, 33, p. 46. estates upon conditions, 34, p. 47. spendthrift trusts, 35, p. 49. eonstructive trusts, 35, p. 49. rule in Shelley's Case, 28, p. 41. IXDEX. 1089 EXECUTORS. See, also, EXECUTORS AND ADMINISTRATORS. definitions, 122, p. 184. appointment when not designated in the will, 122, p. 184. persons competent to act, 123, p. 185. rule in regard to nonresidents, 123, p. 186. right not assignable, 124, p. 187. bond, 126, p. 188. dispensing with bond, 126, p. 189. competent sureties, 126, p. 190. when penalty of bond may be reduced, 126, p. 192. bond of residuary legatee, 128, p. 193. residuary legatee bond cannot be withdrawn, 128, p. 195. administrator with the will annexed, 129, p. 197. See ADMINIS- TRATOR WITH THE WILL ANNEXED. FORMS. Eenuneiation of executor, No. 44, p. 187. Retraction of renunciation, No. 45, p. 187. Bond of executor, No. 46, p. 190. Undertaking of executor, No. 46a, p. 191. Application for reduction of penalty of bond, No. 46b, p. 192. Oath of executor, No. 46c, p. 193. Bond of residuary legatee, No. 47, p. 195. Letters testamentary, No. 48, p. 196. Letters testamentary Oregon, No. 48a, p. 197. EXECUTOR DE SON TORT. defined, 195, p. 287. liabilities, 195, p. 288. action against, 195, p. 288. EXECUTORS AND ADMINISTRATORS. See, also, FOREIGN EXECU- TORS AND ADMINISTRATORS. liabilities. See, also, ACCOUNTING. compromise of debts without leave of court, 208, p. 307. liability on his own contract concerning the estate, 230, p. 347. rule when executor is a nonresident, 230, p. 348. liability on notes taken in settlement of claims, 236, p. 353. liability on indorsements of negotiable instruments, 236, p. 354. notes of representative not a charge on the estate, 236, p. 354. when liable for default of corepresentative, 426, p. 708. 69 Pro. Ad. 1090 INDEX. EXECUTOES AND ADMINISTRATORS (Continued), powers and duties. See ACTIONS; ASSETS, and other separate heads, removal. resignation, 144, p. 232. notice of intention to resign, 155, p. 233. removal by revocation of letters, 156, p. 234. statutory causes for removal, 157, p. 234. for nonresidence, 158, p. 235. for failure to observe statutes, 159, p. 235. culpable management, 160, p. 236. errors of judgment, 160, p. 238. incapability and unsuitableness, 161, p. 238. subsequent probate of will, 162, p. 239. marriage of executrix or administratrix, 163, p. 239. insufficiency of bond, 164, p. 240. petition for removal, 165, p. 242. notice and service, 166, p. 243. hearing, 167, p. 245. order of removal, 168, p. 249. effect of appeal, 168, p. 250. FORMS. Petition to remove executor or administrator, No. 63, p. 244. Order to personal representative to show cause why he should not be removed, No. 64, p. 246. Order removing personal representative, No. 65, p. 246. Application for additional security on executors' or administrators' bond, No. 66, p. 246. Order to show cause why new bond should not be given, No. 67, p. 247. Order removing executor or administrator for failure to strengthen bond, No. 69, p. 248. Order requiring new bond, No. 68, p. 247. Order to former executor or administrator to render an account, No. 70, p. 249. P FATHER. right to disinherit child, 90, p. 138. descent of property to, 434, p. 723. rights as natural guardian, 491, p. 820. right to letters of guardianship, 495, p. 825. INDEX. 1091 FATHER (Continued). right to custody of child, 511, p. 854. duty to support minor child, 512, p. 855. consent to adoption, 566, p. 935. abandonment of child, 569, p. 944. FEES. of executors and administrators. statutory commissions, 420, p. 692. for special services, 421, p. 695. proof of special services, 424, p. 704. under Oregon practice, 420, p. 693. forfeiture of fees, 421, p. 696. of county court, Appendix, p. 963. of clerk of county court, 23, p. 33. of sheriff or constable, 21, p. 32. of printer, 22, p. 32. of appraisers, 23, p. 33. of witnesses, 23, p. 33. of special administrator, 120, p. 180. of special administrator for adjustment of partnership, 242, p. 368. of special administrator for mortgaging real estate, 250, p. 385. of guardian, 552, p. 512. guardian ad litem, 16, p. 25. of inheritance tax appraisers, 33, p. 23. of inheritance tax appraisers Oregon, 408, p. 669. FIXTURES. inventory of, 176, p. 260. trade fixtures, 176, p. 261. FOREIGN EXECUTORS AND ADMINISTRATORS. See, also, AN- CILLARY ADMINISTRATORS. rights of at common law, 259, p. 403. powers to collect assets and commence and prosecute suits, 260, p. 404. limitations on powers, 261, p. 405. home representative in foreign states, 262, p. 406. sales of real estate by, 335, p. 524. FOREIGN GUARDIANS. powers of in this state, 524, p. 872. sales of real estate by, 526, p. 8C1. 1092 INDEX. FRAUDULENT CONVEYANCES. survivor of causes of action for, 201, p. 297. power of representative to bring suit to set aside conveyances of his decedent, 212, p. 309. theory of the action, 212, p. 313. when action may be brought, 212, p. 313. what constitutes a fraudulent transfer, 215, p. 318. indemnity bond, 214, p. 315. preliminary proceedings Oregon practice, 212, p. 311. notice of application, 212, p. 311. FORMS. Petition for order to bring action to set aside fraudulent conveyance of decedent, No. 92a, p. 311. Order authorizing suit to set aside conveyances, No. 62b, p. 313. Petition for order requiring executor or administrator to bring suit to set aside fraudulent transfer, No. 94, p. 316. Bond to secure costs and expenses of suit to set aside fraudulent conveyance made by decedent, No. 95, p. 317. FUNERAL EXPENSES. rule in regard to filing, 284, p. 444. payment by executor de son tort, 195, p. 288. proper items of, 285, p. 445. duty of court to disallow when exorbitant, 235, p. 445. a GARNISHMENT. when writ of lies against representative, 364, p. 567. GIFTS CAUSA MORTIS, definition, 379, p. 588. what constitutes delivery, 379, p. 589. acceptance of gift, 379, p. 590. property subject to gift, 380, p. 590. effect of gift, 381, p. 591. recovery when estate insolvent, 381, p. 592. how validity of gift determined, 382, p. 592. conversations of donee with donor, 382, p. 592. declarations of donor, 382, p. 593. INDEX. 1093 GUARDIANS. accounts. See ACCOUNTING. definitions, 490, p. 819. powers and duties of natural guardians, 491, p. 820. limitation of powers, 491, p. 821. testamentary guardians, 492, p. 822. general rule as to powers of, 492, p. 822. appointment minors. jurisdiction of county court over, 493, p. 823. jurisdiction of county court, children of criminal or vicious parents, 494, p. 824. right of minor to nominate his guardian, 495, p. 824. right of parent to letters, 495, p. 825. nonresidents, 495, p. 826. corporations, 495, p. 826. petition for letters, 496, p. 827. when notice of hearing required, 497, p. 830. hearing, 497, p. 831. FORMS. Nomination of guardian. No. 217, p. 828. Petition for appointment of guardian under fourteen, No. 218, p. 825. Petition for appointment of other person while parent living, No. 219, p. 829. Petition by minor over fourteen years for appointment of guardian, No. 220, p. 830. Order for appointment of guardian of a minor, No. 221, p. 831. Guardian's bond, No. 228, p. 841. Oath of guardian, No. 229, p. 842. Letters of guardianship, No. 230, p. 842. appointment incompetent persons, when letters may issue, 498, p. 832. temporary guardian, 499, p. 834. notice to alleged incompetent, 500, p. 834. hearing, 500, p. 835. rule as to what incompetency sufficient to authorize appointment of guardian, 500, p. 835. FORMS. Petition for appointment of a guardian of an insane or incompetent person, No. 222, p. 832. 1094 INDEX. GUARDIANS (Continued). Order fixing date for hearing, No. 22/3, p. 833. Notice of hearing on petition for appointment of guardian, No. 224. p. 833. Order for appointment of guardian, No. 225, p. 836. appointment nonresidents. when appointment may be made, 506, p. 844. to whom letters may issue, 506, p. 844. appointment spendthrifts. when appointment proper, 501, p. 836. proceedings for letters, 501, p. 837. contracts of alleged spendthrift pending application, 502, p. 838. FORMS. Complaint for spendthrift, No. 226, p. 837. Order for appointment of guardian of spendthrift, No. 227, p. 838. appeals from order for appointment of guardian of a minor, 503, p. 839. appeal from order for appointment of guardian of incompetent per- son, 503, p. 839. joint guardians, 505, p. 843. bond of guardians, 504, p. 839. bond of testamentary guardian, 504, p. 840. discharge of guardian. ending of minority of ward, 554, p. 915. removal of disability of ward, 554, p. 915. application by ward for discharge of his guardian, 554, p. 916. duties. inventory and appraisement, 510, p. 852. custody of incompetent or spendthrift ward, 511, p. 853. custody of minor, 511, p. 853. determining right of custody of minor, 511, p. 854. support of minor when father living, 512, p. 855. when entitled to support from his estate, 512, p. 855. proceedings for obtaining allowance for support, 512, p. 856. support of incompetent or spendthrift, 513, p. 857. labor and services of ward, 514, p. 858. possession of ward's estate, 515, p. 859. compromise of debts due ward, 515, p. 860. INDEX. 1095 GUARDIANS (Continued). special proceedings to recover assets, 515, p. 860. defense of actions against ward, 516, p. 861. payment of debts, 518, p. 862. management of real estate, 519, p. 863. execution of leases, 519, p. 864. redemption of mortgaged property, 519, p. 865. investments of personal property, 520, p. 865. See, also, INVEST- MENTS BT GUARDIANS. right to bring partition, 519, p. 865. accounting. See ACCOUNTING GUAEDIANS. irregular and fraudulent transactions of guardian. remedies of former ward, 557, p. 919. transfers to third parties, 557, p. 919. ratification of irregular transactions, 557, p. 920. liabilities. See, also, ACCOUNTING BY GUARDIANS. personal indebtedness to ward, 510, p. 853. contracts for education and maintenance of ward, 517, p. 862. unauthorized sales, 520, p. 867. unauthorized investments, 521, p. 868. negligence, 522, p. 870. ill-treatment of ward, 523, p. 870. FORMS. Information against guardian for neglect or abuse of ward, No. 236, p. 871. removal. resignation, 507, p. 845. incapability, 507, p. 845. unsuitableness, 507, p. 845. proceedings for removal, 508, p. 847. appointment of predecessor, 509, p. 850. authority of new guardian, 509, p. 850. transfer of guardianship to another county, 509a, p. 851. FORMS. Petition for removal of guardian, No. 231, p. 846. Notice of hearing on petition for removal of guardian, No. 232, p. 848. 1096 INDEX. GUARDIANS (Continued). Order removing guardian for neglect or abuse of ward, No. 233, p. 848. Order removing guardian, No. 234, p. 849. settlement between guardian and former ward. right of parties to settle out of court, 555, p. 916. action to set aside settlement, 556, p. 917. sales to guardian, 556, p. 918. gifts to guardian, 556, p. 918. revivor of liability of bondsmen when settlement set aside, 556, p. 919. sales of real estate. See SALES BY GUARDIANS. HEIRS. See, also, DESCENT AND DISTRIBUTION; DEVISEES; LEGATEES. definition, 38, p. 55. surviving spouse, 429, p. 713. liability for assets in their possession, 194, p. 281. right to possession of assets pending administration, 227, p. 335. liability for assets delivered by representative pending administra- tion, 227, p. 335. proceedings for procuring delivery of personalty, 227, p. 336. contribution by heir for payment of debts or share of child, 228, p. 338. action against to recover personalty, 228a, p. 342. measure of liability, 228b, p. 344. debts for which a liability exists, 22-8b, p. 344. the judgment, 228b, p. 345. liability for contingent claims, 361, p. 560. FORMS. Bond of heir or legatee on receipt of his share of the estate, No. 99, p. 337. Petition for recovery from heirs of money paid them pending admin- istration, No. 162, p. 563. See, also, Forms Nos. 100, 101 and 102, under DEVISEES. Recovery of share from bondsmen of representative. See BONDS PROBATE ACTIONS. Appeals from decisions adverse to the estate, 478, p. 797. Special proceedings for determining heirship, 450a, p. 750. See, also, SPECIAL PROCEEDINGS. INDEX. 1097 HOMESTEAD. right of succession to, 389, p. 623. definition, 389, pp. 623, 624. area and value, 389, p. 625. succession to homestead exemption, 389, p. 625. barring homestead right by abandonment, 390, p. 625. barring homestead right by contract or conveyance, 390, p. 626. rights of surviving spouse in homestead, 391, p. 626. abandonment after death of the holder of the fee, 391, p. 627. liens and encumbrances, 391, p. 628. right to continue in possession, 391, p. 628. right to possession Oregon, 391, p. 628. assignment of. jurisdiction of county court over, 392, p. 629. petition and notice, 392, p. 630. setting out homestead from larger tract, 393, p. 631. setting out homestead Oregon practice, 393, p. 634. jurisdiction of district court to assign homestead, 394, p. 635. descent of the remainder, 395, p. 636. FORMS. Petition for assignment of homestead, No. 167, p. 630. Order assigning homestead, No. 168, p. 631. Order for assignment of homestead and appointment of appraisers, No. 169, p. 632. Report of appraisers, No. 170, p. 633. Order confirming report and assigning homestead exemption, No. 171, p. 633. HUSBAND. right to administer estate of wife, 142, p. 215. presumption as to ownership of personalty by, 178, p. 263. rule as to liability of wife's funeral expenses, 285, p. 446. nature of interest in wife's estate, 429, p. 713. I ILLEGITIMATE CHILDREN. See CHILDREN. INFANT. not capable of making a will, 49, p. 82. appointment of as executor, 123, p. 185. 1098 INDEX. INFANT (Continued). administration during minority, 123, p. 186. allowances for support of, 187, p. 275. right to his wages, 514, p. 858. defense of suit against by guardian or guardian ad litem, 516, p. 861. liability for torts, 516, p. 861. adoption of. See ADOPTION. INHERITANCE TAX. definition, 396, p. 637. tax on gifts and inheritances to descendants and relatives, 397, p. 638. share of surviving spouse, 397, p. 638. collateral heirs, 397, p. 639. gifts to persons not relatives and to corporations, 397, p. 639. rates of tax in Oregon, 397, p. 640. estates for years and remainders, 397, p. 640. property transferred in contemplation of death, 398, p. 641. meaning of term "contemplation of death," 398, p. 641. tax on property transferred by deposit or trust company, 398, p. 642. real estate or interests therein, 399, p. 643. personal property, 399, p. 643. corporate stocks and bonds, 399, p. 644. situs of personal property, 399, p. 644. property in other states, 399, p. 645. jurisdiction of county court over inheritance tax, 400, p. 645. duty of executor or administrator to give notice to county treasurer of property liable for tax, 400, p. 646. duty of county treasurer, 400, p. 646. duty of county attorney," 400, p. 646. notice to state treasurer when property appears subject to taxation, 400, p. 647. appointment of appraisers, 401, p. 647. general powers of appraiser, 401, p. 648. power of court to appoint appraiser, 401, p. 649. notice to parties, 401, p. 649. fees of appraisers, 401, p. 649. general rule for valuation of property, 402, p. 650. corporate stocks, 402, p. 650. life estates, 402, p. 51. INDEX. 1099 INHERITANCE TAX (Continued), life estates Oregon, 402, p. 651. report of appraisement to state treasurer, 402, p. 656. objections to report, 402, p. 656. assessment of tax by county court, 403, p. 657. assessment of tax by county court, Appendix, p. 966. apportionment of costs of appraisement, 403, p. 660. liability of appraiser for taking any fee or reward, 402, p. 656. appeals from order assessing tax, 404, p. 661. appeals under Oregon practice, 404, p. 663. when tax due, 405, p. 663. payment by remainderman or giving security for same, 405, p. 664. payment by executor, administrator or trustee, 406, p. 665. payment of tax Oregon statutes, 406, p. 666. to whom payable, 406, p. 667. payment by foreign representative on transfers of stock, 406, p. 667. receipt for tax, 406, p. 667. refunding of erroneous payments, 407, p. 668. action for recovery of tax, 408, p. 669. proceedings under Oregon practice, 408, p. 669. inheritance tax records, 409, p. 669. inheritance tax records Oregon, 408, p. 671. FORMS. Appointment of inheritance tax appraiser, No. 172, p. 648. Eeport of appraiser, No. 173, p. 652. Keport of appraiser Remainders, charges and life estates, No. 174, p. 654. Order assessing inheritance tax, No. 175, p. 58. Order assessing inheritance tax, remainders, charges and life estates, No. 176, p. 659. Bond on appeal from assessment of tax, No. 177, p. 662. Bond of remainderman to secure payment of inheritance tax, No. 178, p. 664. Petition by county attorney for recovery of delinquent inheritance tax, No. 179, p. 670. INSANITY. definition, 53, p. 87. insane delusions, 54, p. 88. lucid intervals, 55, p. 90. as ground for appointment of guardian, 498, p. 832. 1100 INDEX. INSOLVENT ESTATES. limitation on allowances for support from, 190, p. 279. preferred debts, 365, p. 568. determining priority of claims, 367, p. 571. assets not liable for debts, 359, p. 556. gifts causa mortis, 381, p. 592. advancements, 388, p. 597. INVENTORY. first duty of representative, 172, p. 256. description of items, 172, p. 257. items of personalty, 173, p. 258. shares or interests in business, 174, p. 259. indebtedness of representative or beneficiary, 174, p. 259. emblements, 175, p. 260. fixtures, 176, p. 260. property not reduced to possession, 177, p. 261. property the title to which is questioned, 178, p. 262. property in possession of wife, 178, p. 263. real estate and interests therein, 179, p. 263. assets which need not be inventoried, 180, p. 264. proceedings to compel filing, 181, p. 267. ' appraisement, 182, p. 268. See, also, APPRAISERS. inventory of administrator de bonis non, 184, p. 272. inventory not conclusive, 185, p. 272. FORMS. Inventory and appraisement, No. 75, p. 265. Petition to compel an executor or administrator to return an inven- tory, No. 76, p. 266. Citation to administrator to return inventory, No. 77, p. 267. See, also, forms under APPRAISERS. INVESTMENTS BY EXECUTORS AND ADMINISTRATORS, general rule as to duty of representative, 229, p. 345. what are proper investments, 229, p. 346. deposit of securities with trust company, 126, p. 192-. INVESTMENTS BY GUARDIANS. general duty of guardian, 520, p. 865. power of court to authorize, 520, p. 866. INDEX. 1101 INVESTMENTS BY GUARDIANS (Continued). liability on investments made without order of court, 520, p. 867. liability on order to invest in his discretion, 521, p. 868. what are proper investments, 521, p. 869. FORMS. Application to sell personalty and reinvest same, No. 235, p. 868. ISSUE. definition, 38, p. 54. J JOINTURE. as a bar to dower, 388f, p. 607. JUDGES. of county court, election, 1, p. 3. qualification, 1, p. 3. bond and oath, 2, p. 4. liability of sureties on bond, 3, p. 5. vacancies, 4, p. 7. impeachment, 4, p. 8. filling vacancies, 5, p. 8. disqualification of judge, 6, p. 9. effect of disqualification, 7. p. 10. appointment of acting county judge, 8, p. 12. appointment of acting county judge, Appendix, p. 964. jurisdiction of circuit judge in county court cases, 8, p. 13. fees and salaries, 20, p. 30. FORMS. Oath of county judge, No. 1, p. 5. Bond of county judge, No. 2, p. 6. Justification of surety, No. 3, p. 7. Objections to county judge on account of relationship, No. 4, p. 10. Verification, No. 5, p. 10. Objections to county judge on account of bias and prejudice, No. 6, p. 11. Request for appointment of acting county judge Special case, No. 7, p. 12. 1102 INDEX. JUDGES (Continued). Eequest for appointment of acting county judge Disability of judge, No. 8, p. 12. of district court. jurisdiction over real estate contracts, 252, p. 389. jurisdiction over sales of real estate by executors and adminis- trators, 311, p. 480. sales of real estate by guardians, 526, p. 874. JUDGMENTS. against personal representative on claim against the estate, 273d, p. 427. action pending at time of death of decedent, 276, p. 431. entered before death of decedent, 276, p. 431. proof of foreign judgment, 283, p. 442. against devisee, legatee or heirs for value of assets of estate in their possession, 362, p. 563. against executor or administrator for failure to retain sufficient assets, 363, p. 564. against next of kin for value of assets received by them, 228a, p. 343. enforcement of against heirs or devisee, 228b, p. 344. L LAST SICKNESS. definition of in reference to nuncupative wills, 47, p. 78. classification of debts, 365, p. 568. LEGACIES. primary charge on personalty, 370, p. 576. when payable before administration completed, 227, p. 335. right to compel refund of, 227, p. 336. proceedings to obtain payment pending administration, 227, p. 336. legacies charged on rtal estate, 371, p. 577. enforcement of charge by sale as for payment of debts, 372, p. 578. action against devisee, 372, p. 579. legacies to debtors and creditors, 373, p. 579. when vested legacy becomes due, 374, p. '580. possession of contingent legacy before it vests in possession, 374, p. 581. INDEX. 1103 LEGACIES (Continued). legacies to issue or relations dying before the testator, 375, p. 582. gift to two or more parties without limitation or explanation, 375, p. 582. lapsed legacies passing into the residuary estate, 376, p. 583. abatement of legacies, 377, p. 585. ademption of legacies, 378, p. 586. LEGATEES. See, also, ACTIONS; DEVISEES; HEIBS. when personally liable for debts and charges, 228, 361, p. 560. FORMS. Petition for payment of legacy pending administration, No. 99a, p. 337. See, also, forms under DEVISEES AND HEIRS. LIENS. See, also, MORTGAGES; VENDORS AND VENDEES. power of representative to enforce, 204, 252, pp. 300, 390. enforcement of liens against property of the estate, 276, p. 432. LOST WILL. See WILLS. H MARRIAGE. effect of on will, 66, p. 101. of feme sole executrix or administratrix, 163, p. 239. Oregon statute, 163, p. 240. as prerequisite of dower or curtesy, 388e, p. 605. property right in real estate acquired by, 429, p. 712. MARRIED WOMEN. competency of to make wills, 49, p. 82. receive letters testamentary, 123, p. 183. letters of administration. 141, p. 214. as witness for husband as to transactions with decedent, 293 ; p. MORTGAGES. foreclosure of, 204, p. 300. property bid in on foreclosure, 204, p. 301. powers of executor to execute, 245, p. 375. proceedings in county court for grant of license, 246, p. 376. 1104 INDEX. MORTGAGES (Continued). appointment of special administrator to execute, 247, p. 379. hearing and grant of license, 248, p. 3S1. mortgage and notes, 249, p. 383. report and discharge of special administrator, 250, p. 385. FORMS Petition for order to mortgage real estate Oregon, No. 115a, p. 377. Order granting license to mortgage property Oregon, No. 115b, p. 377. Petition for license to mortgage real estate, No. 116, p. 378. Petition for appointment of special administrator and for license to mortgage real estate, No. 117, p. 380. License to executor or administrator to mortgage real estate of his decedent, No. 118, p. 381. Order for appointment of special administrator to execute notes and mortgage, No. 119, p. 382. Letters of special administration, No. 120, p. 382. Mortgage by personal representative, No. 121, p. 384. Mortgage notes of executor or administrator, No. 122, p. 385. Report of executor or administrator on mortgaging real estate, No. 123, p. 386. Confirmation of report, No. 124, p. 387. foreclosure of mortgages on property of the estate, 276, p. 432. filing same as claims against the estate, 276, p. 433. redemption of mortgages. rule in intestate estates, 360, p. 557. testate estates, 360, p. 558. redemption by order of court, 360, p. 558. sales of mortgaged property, 360, p. 558. See, also, SALES. application of proceeds of sale, 360, p. 558. MORTGAGING REAL ESTATE. guardians. jurisdiction of district court to grant license, 545, p. 901. notice of hearing and service, 545, p. 901. hearing on petition, 546, p. 903. bond, 546, p. 903. power not possessed by Oregon county court, 545, p. 901. mortgages for purpose of paying off encumbrance, Appendix, p. 966. INDEX. 1105 MORTGAGING REAL ESTATE (Continued). FORMS. Petition by guardian for authority to mortgage real estate, No. 246, p. 902. Notice to ward, No. 247, p. 903. Order authorizing guardian to execute mortgage, No. 248, p. 904. MURDER, when it changes right of inheritance, 444, p. 743. N NEGOTIABLE INSTRUMENTS. See, also, ASSETS PERSONAI/TY. as payments of debts due the estate, 236, p. 353. indorsement of by representative, 236, p. 354. transfer of notes taken as representative, 236, p. 354. NEXT OF KIN. definition, 39, p. 55. rights of to letters of administration, 142, 143, pp. 214, 216. tables of next of kin, pp. 957, 958. NONRESIDENTS. See, also, ANCILLARY ADMINISTRATION; FOREIGN WILLS; FOREIGN GUARDIANS. administration of estates of, 145, p. 217. sales of real estate of for payment of debts, 335, p. 524. powers of guardians of, 506, p. 844. NUNCUPATIVE WILL. See, also, WILLS. definition, 25, p. 38. execution of, 47, p. 79. o OATHS OFFICIAL. of county judge, 2, p. 5. acting county judge, 8, p. 12. clerk of county court, 12, p. 20. of executor, 127, p. 193. of administrator, 153, p. 228. 70 Pro. Ad. 1106 INDEX. OATHS OFFICIAL (Continued). of executor or administrator on sale of real estate, 327, p. 510. of guardian, 504, p. 840. of guardian on sale of real estate, 533, p. 884. For forms, see titles of the different officers. PARTNERSHIP. dissolution by death of partner, 237, p. 356. right of surviving partner in firm assets, 237, p. 357. duty of surviving partner, 238, p. 357. right of surviving partner to administration of the partnership, 238a, p. 358. powers of partnership administrator, 238a, pp. 358, 359. supervisory powers of the county court, 238a, p. 358. limitation on powers, 238b, p. 359. settlement by remedies at law, 238b, p. 360. right of inspection of partnership books, 238b, p. 360. settlement of partnership administration, 238b, p. 360. settlement between surviving partner and executor or administrator, 239, p. 361. adjustment of accounts by action in equity, 239, p. 362. possession of partnership real estate, 240, p. 362. when and how such real estate sold, 240, p. 362. appointment of special administrator of partnership interest, 241, p. 364. title of executor or administrator who is surviving partner, 241, p. 364. liability of such executor or administrator to the estate, 241, p. 364. notice of application for appointment of special administrator, 241, p. 365. account of special administrator, 242, p. 368. fees of special administrator, 242, p. 368. sale of interest of estate in partnership property, 243, p. 370. proceedings for sale, 244, p. 370. FORMS. Report of settlement of partnership interests, No. 103, p. 363. Petition for appointment of special administrator to administer partnership assets, No. 104, p. 365. Order for appointment of special administrator, No. 105, p. 366. INDEX. 1107 PARTNERSHIP (Continued). Bond of special administrator to administer partnership assets, No. 106, p. 366. Appointment of special administrator to administer partnership as- sets, No. 107, p. 367. Notice of hearing of report of partnership settlement, No. 108, p. 368. Order confirming report of settlement of partnership, No. 109, p. 369. Discharge of special administrator, No. 110, p. 369. Petition for license to sell partnership property, No. Ill, p. 371. License to executor or administrator to sell interest of his decedent in a partnership, No. 113, p. 362. Report of executor or administrator on sale of partnership property, No. 115, p. 373. Confirmation of executor's sale of partnership interest, No. 115, p. 374. PAYMENT OF DEBTS. See DEBTS or DECEDENT PAYMENT. PAYMENT OF LEGACIES. See LEGACIES. POSSESSION OF PROPERTY OF DECEDENT. See, also, ASSETS. right of equitable owner of personalty, 193, p. 286. bailee or holder under contract for purchase, 193; p. 286. right of possession before grant of letters, 194, p. 286. right to real estate, 199, p. 294. letters as authority to take possession, 199, p. 295. right of devisee when residuary legatee bond is given, 199, p. 295. recovery of real estate, 200, p. 296. See, also, EJECTMENT. POSTHUMOUS CHILD. See CHILDREN. POWER OF SALE. See, also, SALES PERSONAL PROPERTY; SALES- REAL ESTATE. when added to a life estate does not convey the fee, 30, p. 44. not an inherent power of executors and administrators, 221, 310. p. 325. implied power of executor to sell real estate, 221, p. 325. general power, 221, p. 325. limited powers, 221, p. 326. sales under powers, how conducted, 221, p. 326. report and confirmation, 221, p. 327. by administrators with the will annexed, 222, p. 327. 1108 JNDEX. PRESENCE OF TESTATOR. what conditions constitute, 43, p. 64. PROBATE. general definition, 1, p. 1. of wills, 77, p. 115. See, also, WILLS PROBATE. PROCESS OF COUNTY COURT, how issued, 14, p. 23. service, 13, 14, p. 23. PRODUCTION OF WILL IN COURT. See, also, WILLS PRODUCTION. proceedings, 74, p. 110. PRESENTATION OF CLAIMS TO REPRESENTATIVE, facts constituting a sufficient presentation, 273a, p. 423. PRESUMPTIONS. general presumption attaching to probate decrees, 1, p. 2. regularity of appointment of acting county judge, 8, p. 13. regular attestation clause to will, 44, p. 66. of devise of an estate in fee, 30, p. 42. from failure to find will known to have been in existence, 70, p. 105. of mental capacity on probate hearing, 81, p. 123. of continuation of insanity, 81, p. 123. of unjust provisions in a will, 90, p. 138. from large gift to person holding trust relation, 91, p. 141. from gift to draftsman of a will, 92, p. 143. from absence of party for seven years, 140, p. 211. regularity of letters of administration, 154, p. 230. ownership of separate property of wife, 178, p. 263. gift causa mortis, 379, p. 590. in regard to appraised value of property, 414, p. 681. from giving of bond by residuary legatee, 464, p. 774. of residence of minor child, 497, p. 831. from the relationship of guardian and ward, 556, p. 917. INDEX. 1109 R REAL ESTATE. See ASSETS REAL ESTATE; POWERS or SALE, RECORDS. of county court, 17, p. 26. of Oregon county court, 17, p. 28. certifying records, 18, p. 29. public character of county court records, 19, p. 29. inheritance tax records, 409, p. 670. inheritance tax records Oregon, 409, p. 671. REMOVAL OF EXECUTORS AND ADMINISTRATORS. See EXECU- TORS AND ADMINISTRATORS. REMOVAL OF GUARDIANS. See GUARDIANS. REPUBLICATION OF WILL, when required, 46, p. 67. effect of codicil on irregularly executed will, 46, p. 67. RESIDUARY ESTATE, definition, 40, p. 57. residuary gift to two or more persons, 40, p. 58. lapsed legacies, 376, p. 583. void legacies, 376, p. 584. REVIVOR OF ACTIONS. actions which survive, 201, p. 297. actions which survive Oregon, statute, 201, p. 298. REVOCATION OF PROBATE. See WILLS PROBATE. REVOCATION OF WILLS. See WILLS. s SALES BY EXECUTORS AND ADMINISTRATORS. personal property. rights of representative at common law, 223, p. 329. jurisdiction of county court to order sale, 223, p. 329. 1110 INDEX. SALES BY EXECUTOES AND ADMINISTRATORS (Continued), purchase of real estate with personal assets, 223, p. 330. sales in bulk, 223, p. 331. sales under order of court Oregon rule, 223, p. 330. purchases by representative, 224. p. 333. the rule of caveat emptor, 225, p. 333. right of party to follow assets fraudulently sold, 226, p. 333. FORMS. Application of executor or administrator for leave to sell personalty, No. 97, p. 332. Order for sale of personalty, No. 98, p. 332. real estate. sales by executors, 221, p. 325. See, also, POWERS. sales by administrator with the will annexed, 222, p. 327. See, also, POWERS. for payment of debts. liability of real estate for, 309, p. 477. duty of executor or administrator to procure license, 310, p. 478. nature of proceeding, 311, p. 479. jurisdiction of district court or judge thereof, 311, p. 480. jurisdiction of county court, 311, p. 480. jurisdiction of district judge at chambers, 312, p. 481. time for filing petition, 312, p. 481. necessary parties to the proceeding, 313, p. 482. necessary allegations of petition, 314, p. 483. personalty received, 314, p. 484. description of lands, 315, p. 485. condition of lands, 315, p. 486. allegations as to liens, 314, p. 485. sales of realty before personalty is sold, 314, p. 485. names and residence of heirs, 314, p. 485. order to show cause, 316, p. 489. citation to parties, 316, p. 489. contents of order, 316, p. 490. service of order, 317, p. 491. proof of service, 317, p. 492. service under Oregon practice, 317, p. 494. bond to prevent sale, 317, p. 493. payment of debts to prevent sale, 318, p. 495. hearing, 319, p. 495. INDEX. 1111 SALES BY EXECUTORS AND ADMINISTRATORS (Continued), general duty of court, 319, p. 496. proof of insufficiency of assets, 320, p. 497. insufficiency caused by misuse of assets by administrator, 321, p. 497. proof of costs and indebtedness of estate, 321, p. 497. lands subject to sale, 322, p. 499. attacking title of the estate, 322, p. 499. discretion of court, 322, p. 500. order of sale, 323, p. 501. sale of entire tract, 323, p. 502. description of lands, 323, p. 502. filing order in office of clerk of court, 323, p. 502. when additional bond required, 324, p. 503. penalty of bond Oregon practice, 324, p. 503. when bond may be given after sale, 324, p. 504. delivery of copy of license to representative, 325, p. 506. notice of time and place of sale, 325, p. 507. right of representative to fix terms of sale, 325, p. 507. posting notices, 325, p. 508. publication and posting notice Oregon statute, 325, p. 508. notice of private sale, 325, p. 508. sales of encumbered property, 326, p. 510. oath of representative, 327, p. 510. duty of representative in conducting sale, 328, p. 511. sale by parcels, 328, p. 512. duty in regard to consummating sale, 328, p. 513. payment of purchase price, 328, p. 513. right to adjourn sale, 329, p. 514. notice of adjournment, 329, p. 514. Bale by personal representative to himself, 330, p. 515. parties disqualified as purchasers, 330, p. 515. confirmation of sale, 331, p. 516. matters passed on by court in confirming sales, 332, p. 518. irregularities cured by confirmation, 332, p. 519. date when purchaser takes title, 332, p. 520. when payment of purchase price made, 332, p. 520. return and confirmation Oregon, 331, p. 517. sale of contract interest, 333, p. 521. completing sale after death of representative, 334, p. 523. right of foreign representative to sell real estate, 335. p. 524. proceedings for sale by foreign representative, 335, p. 524. 1112 INDEX. SALES BY EXECUTOES AND ADMINISTRATORS (Continued), taxation of costs, 336, p. 525. contents of representative's deed, 337, p. 525. interest conveyed by the deed, 338, p. 529. rule as to secret equities, 338, p. 529. sales of property in which there is a homestead exemption, 339, p. 530. FORMS. Petition by executor or administrator for license to sell real estate, No. 143, p. 487. Petition for license to sell real estate Oregon, No. 143a, p. 488. Order to show cause why license should not be granted to sell realty, No. 144, p. 491. Order of judge of district court fixing amount of bond on applica- tion to prevent sale, No. 145, p. 493. Bond to prevent sale of real estate, No. 146, p. 494. License to sell real estate, No. 147, p. 504. Bond of executor on sale of realty, No. 148, p. 505. General bond on sale of realty, No. 149, p. 506. Notice of executor's or administrator's sale, No. 150, p. 509. Affidavit of posting notices, No. 151, p. 509. Oath of executor or administrator on sale of real estate, No. 152, p. 511. Eeturn of executor or administrator on sale of real estate, No. 153, p. 517. Confirmation of sale, No. 154, p. 520. Bond of purchaser of vendee's interest in land contract, No. 155, p. 522. Confirmation of sale of contract equity in real estate, No. 156, p. 523. Executor's or administrator's deed Oregon, No. 156a, p. 527. Executor's or administrator's deed, No. 157, p. 527. Assignment of land contract by executor or administrator, No. 158, p. 528. guardians. jurisdiction of courts over sales of real estate, 526, p. 874. right of guardian to petition for sale, 527, p. 875. special proceedings for sale of real estate of incompetent ward, 527, p. 876. interests in real estate subject to sale, 528, p. 877. necessary allegations of petition, 529, p. 878. . verification of petition, 529, p. 879. INDEX. 1113 SALES BY EXECUTORS AND ADMINISTRATORS (Continued), order to show cause, 530, p. 880. service of order, 530, p. 880. hearing on application for sale, 531, p. 882. discretion of district judge, 531, p. 882. contents of license, 532, p. 883. bond of guardian, 533, p. 884. oath of guardian, 533, p. 885. notice of sale, 534, p. 886. terms of sale, 534, p. 886. agreement with intending purchaser, | 534, p. 887. purchase by guardian, 534, p. 887. confirmation of sale, 535, p. 889. irregularities cured by confirmation, 535, p. 890. guardian's deed, 535, p. 891. rule of caveat emptor, 537, p. 893. use of proceeds for maintenance and support of ward, 537, p. 893. investments under order of court, 538, p. 894. when proceeds deemed real property, 538, p. 894. foreign guardians. jurisdiction of court to authorize, 536, p. 891. procedure for sale, 536, p. 891. additional bond, 536, p. 892. Oregon practice, 536, p. 892. FORMS. Petition to county commissioners for approval of proposed sale of incompetent person's real estate, No. 237, p. 876. Certificate of approval by commissioners of proposed sale, No. 238, p. 877. Petition by guardian for leave to sell real estate of his ward, for his education and maintenance and for reinvestment, No. 239, p. 879. Order to show cause why license should not issue to guardian for sale of his ward's real estate to raise funds for his maintenance, No. 240, p. 881. License to guardian to sell real estate of ward, No. 241, p. 883. Guardian's bond on sale of real estate, No. 242, p. 885. Return of guardian on sale of his ward's real estate, No. 243, p. 888. Confirmation of sale, No. 244, p. 890. Bond of foreign guardian on sale of real estate, No. 245, p. 892. 1114 INDEX. SALES BY EXECUTORS AND ADMINISTRATORS (Continued). guardians of interest of insane spouse in real estate, jurisdiction of district court over, 547, p. 904. petition, 547, p. 905. service of order to show cause, 548, p. 906. hearing, bond, 548, p. 906. sale and confirmation, 549, p. 908. FORMS. Petition for license to sell interest of insane spouse in real estate, No. 249, p. 905. Bond of guardian on sale of interest of insane spouse in real estate, No. 250, p. 907. Order empowering guardian of insane person to sell interest in lands, No. 251, p. 907. SETOFF. proof of when claim is filed against the estate, 283, p. 441. cannot be set up by debtor when claim not presented or filed, 279, p. 439. SETTLEMENT. of estate within what time required, 411, p. 674. between guardian and ward out of court, when permitted, 555, p. 916. how set aside, 556, p. 917. SHERIFF. service of process by, 14, p. 23. fees of, 21, p. 32. SIGNATURE TO A WILL. See WILLS. SOUND MIND. definition, 50, p. 83. See, also, WILLS TESTAMENTARY CAPACITY. SPECIAL PROCEEDINGS. for production of will, 75, p. 110. See, also, WILLS PRODUCTION or. INDEX. 1115 SPECIAL PROCEEDINGS (Continued). for disclosure of assets, when begun, 197, p. 291. examination of party cited, 198, p. 293. order of county court, 198, p. 293. proceedings under Oregon practice, 198, p. 293. FORMS. Petition for disclosure of property of a decedent, No. 86, p. 291. Citation, No. 87, p. 292. Oath of person cited to disclose, No. 88, p. 294. Caption for interrogatories, No. 89, p. 294. for recovery of personalty from heir or legatee, liability of heir or legatee, 207, p. 303. proceedings before county court, 207, p. 304. FORMS. Petition for accounting for personalty, No. 90, p. 304. to enforce contribution. liability of heirs, legatees and devisees to contribute to make up share of posthumous or pretermitted child, 228, p. 338. liability when distributee insolvent, 228, p. 339. jurisdiction of county court, over, 228, p. 339. of court of equity, 228, pp. 339, 342. notice and service, 228, p. 341. FORMS. Petition for legatee or devisee to pay share of insolvent, No. 100, p. 339. Notice to legatee or devisee, No. 101, p. 341. Decree requiring legatee or devisee to contribute for the payment of debts and expenses, No. 102, p. 341. for enforcement of contracts for sale of real estate. See VENDORS AND VENDEES. for collection of claims, 275c, p. 426. See, also, DEBTS OF DECE- DENT PAYMENT. SPECIFIC PERFORMANCE. See, also, VENDORS AND VENDEES. liability of heirs or devisees on contracts for sale of real estate, 257, p. 401. 1116 INDEX. SPECIFIC PERFORMANCE (Continued). action by executor or administrator, 257, p. 401. of contracts to devise or bequeath, 302, p. 465. rule governing their enforcement, 302, p. 465. consideration of contract, 303, p. 466. contract to make party an heir, 303, p. 467. relief granted, 304, p. 467. when a homestead interest is included in the property, 304, p. 468. SPENDTHRIFT. appointment of guardian for, 501, p. 836. notice, and hearing on application, 501, p. 837. contracts of spendthrift pending application for appointment of guardian, 502, p. 838. STATUTE OF LIMITATIONS. bar of as to allowance of claims, 279, p. 436. effect of death of decedent, 279, p. 437. taxes on personalty, 279, p. 437. recovery of lands sold by executor or administrator, 340, p. 532. void sales, 340, p. 532. voidable sales, 340, p. 533. recovery of lands sold by guardian, 539, p. 895. STATUTE OF NONCLAIM. definition, 280, p. 437. as a bar to allowance of claims, 280, p. 438. failure to file setoff, 280, p. 438. neglect of creditor to apply for administration for two years, 281, p. 439. filing claims when letters granted on application of next of kin, 281, p. 439. SURETIES. See BONDS. T TABLES. process and service in probate matters in Nebraska, p. 949. process and service in guardianship matters in Nebraska, p. 951. process and service in probate matters in Oregon, p. 953. process and service in guardianship matters in Oregon, p. 955. INDEX. 1117 TABLES (Continued). table of descent Nebraska, p. 957. table of descent Oregon, p. 958. life expectancy tables, p. 959. interest tables, p. 961. TAXES. liability of personal representative for, 220, p. 324. duty of owner of life estate to pay, 32, p. 45. personal, not barred by statute of limitations, 280, p. 437. personal, rank with claims of general creditors, 365, p. 569. TESTAMENTARY CAPACITY. See WILLS. TORTS. liability of estate for, 286, p. 447. liability of ward for, 515, p. 860. TRANSACTIONS WITH DECEASED PARTIES, what is a transaction, 291, p. 452. what constitutes direct legal interest, 293, p. 454. evidence of entire transaction or conversation admissible when part has been introduced, 294, p. 456. declarations or admissions to third parties, 295, p. 457. See, also, DEBTS OF DECEDENT ESTABLISHMENT OF CLAIMS; WITNESSES. u UNDUE INFLUENCE. defined, 87, p. 134. See, also, WILLS PBOBATI. V VENDORS AND VENDEES. See, also, SPECIFIC PERFORMANCE. inventory of land contract, 179, p. 263. right of vendor or vendee to maintain special proceedings for enforce- ment of contract, 252, p. 389. option of executor or administrator of vendor in case of default, 252, p. 390. who may bring special proceedings under the statute, 252, p. 389. 1118 INDEX. VENDORS AND VENDEES (Continued), petition by vendee, 253. p. 391. petition by vendor, 233, p. 3iH. necessary parties, 253, p. 391. allegations of the petition, 253, p. 392. notice of hearing and service thereof, 254, p. 395. hearing, 255, p. 396. indemnity bond, 255, p. 397. dismissal without prejudice to action for specific performance, 255, p. 397. taxation of costs, 256, p. 398. contracts for sale of property which includes the homestead, 258, p. 402. petition for order authorizing completion of contract, 252, p. 389. FORMS. Petition by vendee to require executor or administrator to execute deed, No. 125, p. 392. Petition by executor for authority to execute deed to land sold under contract, No. 126, p. 394. Notice of hearing, No. 127, p. 396. Decree directing executor or administrator to convey realty, No. 128, p. 398. Decree authorizing executor or administrator to complete conveyance of realty and convey realty, No. 129, p. 399. Bond on executing deed to realty, No. 130, p. 400. Executor's or administrator's deed on sale of real estate, No. 131, p. 400. w WARD. See GUARDIANS. WASTE. liability of owner of life estate or estate for years for, 32, p. 45. liability of owner of estate of dower or curtesy for, 388o, p. 622. WILLS. definitions, 25, p. 37. codicil, 25, p. 38. execution. statutory requirements, 41, p. 60. signing, 42, p. 61. INDEX. 1119 WILLS (Continued). witnessing, 43, p. 62. who are competent witnesses, f 43, p. 63. removal of incompetency, 43, p. 63. presence of testator, 43, p. 64. attestation, 44. p. 65. attestation clause, 44, p. 66. alterations, 45, p. 06. ropiiMication, 40, p. 67. nuncupative will, 47, p. 78. soldiers and mariners, 48, p. 80. execution in foreign state, 103, p. 155. joint, 25, p. 37. lost. I>n -sumptions from failure to find, 70, p. 105. jurisdiction of county court over, 71, p. 106. proof of execution and contents, 72, p. 107. prolate of portion of instruments, 8 72, p. 107. nuncupative. witnesses to, $ 47, p. 78. dial elements of, 47, p. 78. cannot devise property, 47, p. 79. FORMS. Nuncupative will, No. 14, p. 80. preparation. general rules of construction, 26, p. 38. gifts to unlawful objects, 27, p. 40. perpetuities, 27, p. 40. failure to provide for surviving spouse, 27, p. 40. rule in Shelley's Case, 28, p. 41. devise of an estate in fee, 29, p. 42. presumption as to conveyance of fee, 30, p. 42. conflicting clauses, 30, p. 43. determinate fee, 31, p. 44. life estates, 32, p. 45. future interests, 33, p. 45. executory devises, 33, p. 46. life estate with power of appointment, $ 33, p. 46. estates upon conditions or contingencies, 34, p. 47. 1120 INDEX. WILLS (Continued). limitation on devise in fee, 34, p. 48. trusts, 35, p. 48. spendthrift trust, 35, p. 49. constructive trust, 35, p. 49. charities, 36, p. 50. particular words and phrases referring to real estate interests, 37, p. 51. gifts to children, issue or heirs, 38, p. 54. gifts to next of kin or relations, 39, p. 54. gifts to a class, 26, p. 39. residuary estate, 40, p. 57. gifts or residuary estate to two or more persons, 40, p. 58. FORMS. Will bequeathing everything to wife, No. 11, p. 68. Will giving life estate to widow and remainder to heirs, No. 12, p. 68. ~ Will placing property in control of trustees, No. 13, p. 69. Nuncupative will, No. 14, p. 80. Residuary clause, No. 13a, p. 70. Devise of life estate with power of sale, No. 13b, p. 71. Devise of life estate with limited power of disposition of the fee, No. 13c, p. 71. Devise of life estate with full power of disposition, No. 14d, p. 71. Devise subject to an annuity, No. I3e, p. 71. Devise Condition precedent, No. 13f, p. 72. Devise of defeasible fee, No. 13g, p. 72. Devise of remainder with conditional limitation over, No. 13h, p. 72. Gift to executors for the benefit of the children and with power to sell and divide proceeds, No. 13i, p. 72. Gift to wife of statutory share, No. 13j, p. 73. Gift to a church, No. 13k, p. 73. Gift to a church with limitation over on failure of condition, No. 141, p. 73. Devise discharged from liens of debts of devisee, No. 13m, p. 74. Bequest to trustee for reasons which terminate the trust when they occur, No. 13n, p. 74. Spendthrift trust, No. 13o, p. 74. Bequest in trust for invalid son, No. 13p, p. 75. Devise to children vesting when they attain fixed ages, No. 13q, p. 75. Devise with restriction against sale of liquor on the premises, No. 13r, p. 75. INDEX. 1121 WILLS (Continued). Devise to widow of life estate or estate for years charged with sup- port and education of the children, No. 13s, p. 76. Gift to widow with power of sale for specific purposes, No. 13t, p. 76. Appointment of sole trustee with provisions for a successor, No. 13u, p. 77. Appointment of joint trustees with oowers to survivor or survivors, No. 13v, p. 78. probate. definition, 77, p. 115. probate in common form, 77, p. 116. probate under Oregon statutes, 78, p. 117. delay in applying for, 78, p. 117. the proponent, 79, p. 118. duty of beneficiaries, 79, p. 119. petition for probate, 79, p. 118. notice of hearing, 80, p. 120. service of notice, 80, p. 121. facts required to be proved, 81, p. 122. presumption of sound mind 81, p. 123. taking testimony, 81, p. 124. how proved when not contested, 82, p. 124. presumption from apparent regularity of will, 82, p. 125. testamentary character of the instrument, 83, p. 126. proof in common form in Oregon, 82, p. 125. who may contest, 84, p. 127. agreement not to contest, 84, p. 128. objections, 84, p. 128. proceedings for contest, 84, p. 129. petition and pleadings, 84, p. 130. burden and order of proof, 85, p. 130. circumstances showing lack of mental capacity, 85, p. 131. conditions previous and subsequent to the execution, 85, p. 132. opinions as to mental capacity, 86, pp. 132, 133. undue influence defined, 87, p. 134. Nebraska rule, 87, p. 134. conditions tending to show undue influence, 88, p. 135. importunities and threats, 88, p. 136. fraudulent intent as an element, 88, p. 137. undue influence and impaired mental capacity, 89, p. 137. undue influence and delusions, 89, p. 138. 71 Pro. Ad. 1122 INDEX. WILLS (Continued). unjust provisions as proof of undue influence, 90, p. 138. presumption from unjust provisions, 90, p. 139. unexplained gifts to strangers, 90, p. 140. influence of medical, legal or spiritual adviser, 91, p. 141. presumption from relative amount of gift, 91, p. 141. presumption of gift to draftsman of will, 92, p. 142. obtaining signature of testator by trick or device, 93, p. 143. presumptions when will not read to or by testator, 93, p. 144. general relation between undue influence and fraud, 94, p. 145. testimony of subscribing witnesses, 94, p. 146. effect of guardianship proceedings, 95, p. 147. declarations of testator previous and subsequent to date of will, 96, p. 148. letters and diaries of testator, 96, p. 148. heir or devisee as witness to transactions with testator, 97, p. 148. draftsman as a witness, 97, p. 149. declarations of beneficiary against interest, 97, p. 149. acknowledgment of fraudulent will, 98, p. 150. effect of invalid gift, 99, p. 150. effect of omitting to mention children, 100, p. 151. probate of foreign wills, 101, p. 151. foreign wills in Oregon, 101, p. 153. probate of nuncupative wills, 102, p. 154. those executed outside the state by a resident of the state, 103, p. 155. taxation of costs in will contests, 104, p. 156. reducing testimony to writing a useless expense, 105, p. 157. order admitting will to probate, 106, p. 157. probate as evidence of title, 107, p. 160. FORMS. Petition for probate of will, No. 23, p. 120. Order for hearing, No. 24, p. 121. Notice of hearing, No. 25, p. 122. Objections to the probate of a will, No. 26, p. 129. Petition for probate of foreign will, No. 27, p. 154. Order admitting will to probate and for letters testamentary, No. 28, p. 158. Order admitting foreign will to probate, No. 29, p. 159. Order refusing probate of will, No. 30, p. 159. Order admitting will to probate Oregon, No. 28a, p. 159. Certificate of probate of will, No. 31, p. 160. INDEX. 1123 WILLS (Continued). revocation of probate, definition, 108, p. 162. grounds for revocation, 109, p. 162. power of county court to revoke probate of will, 110, p. 163. contest as a revocation, 110, p. 163. power of circuit court to revoke, 110, p. 164. proceedings for setting aside order, 111, p. 164. revocation by act on in equity, 111, p. 165. facts necessary to be proved, 112, p. 168. revocation because testator is living, 114, p. 170. effect of revocation, 113, p. 169. FORMS. Petition for revocation of will, No. 32, p. 166. Decree revoking probate, No. 33, p. 169. proceedings to compel production. custody of will by county court, 73, p. 108. duty of person named as executor, 74, p. 110. petition to compel production of will, 75, p. 110. proceedings in court, 75, p. 111. enforcement of order, 76, p. 112. FORMS. Indorsement of wrapper containing will, No. 15, p. 109. Certificate of deposit of will, No. 16, p. 109. Order for delivery of will, No. 17, p. 109. Petition for delivery of will into court, No. 18, p. 111. Summons to produce will in court, No. 19, p. 112. Order for commitment for contempt, No. 20, p. 113. Warrant for contempt, No. 21, p. 113. Commitment for contempt, No. 22, p. 114. republication, 46, p. 67. revocation. definition, 59, p. 94. statutory provisions, 60, p. 94. destruction or cancellation of will, 61, p. 95. intent of testator, 61, p. 96. effect of execution of new will, 62, p. 97. doctrine of implied revocation, 63, p. 97. 1124 INDEX. WILLS (Continued). effect of death of devisee or legatee, 65, p. 100. sales or conveyances of property devised or bequeathed, 8 64, p. 98. changes in the character of the estate, 64, p. 99. marriage of man, 66, p. 101. marriage of woman, 66, p. 101. birth of issue, 67, p. 102. divorce, 68, p. 102. the doctrine of revivor, 69, p. 103. testamentary capacity. general rule as to competency of testator, 49, p. 82. sound mind defined, 50, p. 83. memory, 50, p. 83. ability to transact business, 50, p. 84. physical weakness, 51, p. 85. old age, 52, p. 85. mental weakness, 52, p. 86. insanity, 53, p. 87. delusions, 54, p. 88. eccentricities, 54, p. 89. lucid intervals, 55, p. 90. drunkenness and use of drugs, 56, p. 90. lawful influence, 57, p. 91. distinction between lawful and unlawful influence, 58, p. 92. WITNESSES. See, also, WILLS; TRANSACTIONS AND CONVERSATIONS WITH DECEASED. fees of, 23, p. 33. competency of witnesses to wills, 43, p. 63. removal of incompetency, 43, p. 63. competency of witnesses to will as to mental condition of testator, 86, p. 133. expert witnesses on mental capacity, 86, p. 133. nonexperts, 86, p. 133. heirs as to transactions and conversations with decedent, 97, p. 148. incompetency of devisees or legatees who are not heirs, 97, p. 149. extent of disqualification when personal representative is adverse party, 291, p. 451. removal of disqualification, 294, p. 456. declarations or admissions to third parties, 295, p. 457. wife or husband of interested party, 293, p. 454. INDEX. 1125 WITNESSES (Continued). witnesses to books of account, 8 305, p. 468. person claiming as widow by common hiw marriage, 9 150, p. 224. competency of claimant Oregon rule, 9 273c, p. 420. WRIT OF ERROR. when it lies to the district court, 9 404, p. 806. when issued, 9 485, p. SOT. petition and transcript, 9 485, p. SOS. supersedeas bond, 9 486, p. 810. issue and service of summons, 9 487, p. 812. proceedings in district court, 9 488, p. 815. enforcement of judgment of the court, 9 489, p. 817. FORMS. Petition in error, No. 211, p. 808. Bond of plaintiff in error, No. 212, p. 811. Praecipe for summons in error, No. 213, p. 813. Summons in error, No. 214, p. 814. Judgment affirming order of county court, No. 215, p. 816. Judgment reversing order of county court, No. 216, p. 816. WRIT OF REVIEW. when it lies to the circuit court, 9 485, p. 809. bond, 9 485, p. 811. order for issue of writ, 9 487, p. 813. service of writ, 9 487, p. 815. hearing on return of writ, 488, p. 816. concurrent with appeal, 9 488, p. 816. judgment of circuit court, 9 488, p. 817. FORMS. Petition for writ of review, No. 211a, p. 809. Writ of review, No. 214a, p. 814. WRITINGS. See, also, BOOKS or ACCOUNT. letters and diaries of testator, 9 96, p. 148. acknowledgment of illegitimate child, 9 438, p. 730. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. OCT 101971 2 2 1988 Form L9-Series 4939 LAW LIBRARY .UNIVERSITY OF CALIFOHNCT LOS ANGELES MONOLITH PORTLAND CEMENT COMPANY UC SOUTICRN REGKMAL L0URY ? / r** "