/Q-X'ect; and, next, the nature and extent of the authority of those officers whom the law intrusts with the active administration of the estates of deceased persons. 104 THE LAW OF DECEDENTS' ESTATES. [§ 133 PART I. OF THE TRIBUNALS CONTROLLING THE ADMINISTRATION OF THE ESTATES OF DECEASED PERSONS. CHAPTER XIV. PROBATE POWERS AS EXISTING AT COMMON LAW UNDER ENGLISH STATUTES. § 133. Origin of the Ecclesiastical Jurisdiction over Probate of Wills. — It is indispensable to a proper understanding of the nature of Probate Courts in the United States, to examine, to some extent at least, the method of settling estates of decedents in England, in order to gain an insight into the principles and doctrines of the common, civil, and canon law constituting the unwritten presuppositions, tacitly understood and premised, of American statutes regulating the administration of the es- tates of deceased persons. j\Iuch that seems contradictory, capricious, or incomprehensible in the several enactments and decisions, will be seen to harmonize, and the principles of the civil and canon law, vitalizing the dry formulae of the common law, will serve to fill out and round off the statutory provisions.^ This branch of English jurisprudence, or rather of practice under the common law, was for a long time, and until quite recently, known as well by the name of ecclesiastical as by that of testamentary or probate law, because the clergy had assumed testamentary jm-isdiction and exercised it in their spiritual courts. In England, although the claim and practice of spiritual courts in this particular is said to have been originally a mere ^ Courts of probate "exercise many powers solely by virtue of our statutes; but they have a very extensive jurisdiction not conferred by statute, but by a general reference to the existing law of the land, that is, to that branch of the common law known and acted upon for ages, the probate or ecclesiastical law": Bell, C. J., in Morgan v. Dodge, 44 N. H. 255, 258. § 134] PROBATE POWERS IN ENGLAND. 105 usurpation, it became a privilege enjoyed by them, not as a matter of ecclesiastical right, but, as Blackstone puts it, by the special favor and indulgence of the municipal law, producing what he terms "a peculiar constitution" of the island. This jurisdiction, exercised in the county court, where the bishop and the earl sat conjointly for the transaction of business until the separation of the ecclesiastical from the secular juris- diction by William the Conqueror, was plausibly claimed by the bishop, as being in harmony with the customs of the Nor- mans, and the civil and canon law, which gave to bishops the charge of the execution of testaments containing bequests in pios usus. It is certain, says Bradford, that the constitution of the ecclesiastical tribunals was authorized by William; and that their jurisdiction included the probate of wills soon after, if not from the instant of separation from the county courts, is almost capable of direct proof.^ § 134. Origin of Administration in England. — Anciently, says Blackstone, the king, as parens yatricB, seized upon the goods of persons dying intestate and administered them through his ministers of justice, probably in the county court; and the prerogative was granted as a franchise to many lords of manors, and others, who continued to hold, by prescription, the right to grant administration to their intestate tenants and suitors in their own courts baron. While the franchise so granted remained in the prerogative and prescriptive courts for many centuries, and until the passage of the Probate Act, together with the jurisdiction to grant probate of wills of per- sonalty, the jurisdiction formerly exercised by the king or his representatives was vested in favor of the Church in prelates, "because it was intended by the law that spiritual men are of better conscience than laymen, and that they have more knowl- edge what things would conduce to the benefit of the soul of the testator than laymen have." ^ The Church, accordingly, obtained the supervision of the distribution, or administration, of the personal property of intestates; the ordinary might seize them and keep them without wasting, and also might give, alien, or sell them at his will, and dispose of the money in pios usus. \ 1 Bradf. XXII; 3 Blackst. 96. ^ Perk. Prof. Book, § 486. 106 THE LAW OF DECEDENTS' ESTATES. [§ 135 The State soon sought to limit the powers originally conferred witliout restrictions, and legislated in that direction. The Statute of Westminster II (a. d. 1285) directed tlie ordinary to pay the intestate's debts so far as his goods extend, which he could not be compelled to do before that act. Even after it, the ordinary was not accountable for the residuum after payment of debts, until by the Statute of 31 Edward III (a. d. 1358) the estates of deceased persons were directed to be administered by the next of kin of the deceased, if he left no will, and not by the ordinary or any of his immediate de- pendants. This statute originated the system of confiding the settlement of the estates of intestates by their next of blood, appointed by the ordinary, putting them, with respect to suits and accounting, upon the same footing with executors, and making them officers of the ordinary. § 135. Powers of Ecclesiastical Courts in England. — The common law of England, as affected by the statutes above named, and such of those noticed below as were enacted before the settlement of the American Colonies, is at the basis of the American statutes concerning administration, and of the law in the American States in so far as it has not been supplanted by their own statutes. It is therefore necessary to follow still further the history of the English law on this subject. The Statute of Distributions ^ destroyed the conunon-law right to the pars rationahilis, and made the estate distributable among the widow and next of kin, leaving still, however, in the hands of the administrator, for his own use, the third formerly retained by the Church, until finally, by the Statute of 1 Jac. II, c. 17, tliis third was made distributable, as well as the remainder of the intestate's estate.^ The powers of the spiritual courts were thus restricted to the judicial cognizance of the class of cases arising out of the probate of wills, the grant of administration, and the payment of legacies, and thus remained until, by the statute creating the court of probate,' their powers in this respect were wholly abrogated. The authority to appoint administrators, and to take proof of wills, resided in the bishop of the diocese wherein 1 22 and 23 Car. II, c. 10; 29 Car. II, c. 30. * 1 Bradf. XXVI. ^ 20 and 21 Vict. c. 77. § 135] PROBATE POWERS IN ENGL.\ND. 107 the testator or intestate dwelt at the time of his death, unless he left effects to such an amount as to be considered notable goods {bona noiabilia, fixed by the ninety-third of the canons at the value of £5 or over) within some other diocese or pecu- liar; in such case the will was to be proved before the metro- politan of the province by way of prerogative, whence the courts, where the validity of such wills was tried, and the offices where they were registered, were called the prerogative offices of Canterbury and York. The spiritual jurisdiction of testamentary causes is described by Blackstone as "a peculiar constitution of this island; for in almost all other, even Popish countries, all matters testa- mentary are under the jurisdiction of the temporal magistrate." ^ It was exercised by the consistory courts of diocesan bishops, and in the prerogative court of the metropolitan, generally, and in the arches court and court of delegates by way of appeal. It is divisible into three branches, the probate of wills, the grant- ing of administrations, and the suing for legacies, in respect to the latter of which the jurisdiction is concurrent with courts of equity. As the rules of the canon and ci\'il law had been adopted by the ecclesiastical courts, they gradually became the basis of the ecclesiastical law, prevailing, not propria vigore, but only so far as the custom and prescription have admitted them in the spiritual courts, " The proceedings in the ecclesiastical courts," says Blackstone,^ "are therefore regulated according to the practice of the canon and civil law; or rather, according to a mixture of both, corrected and new-modelled by their own pecul- iar usages and the interposition of courts of common law. . . . But the point in which these jurisdictions are most defective is that of enforcing their sentences when pronounced, for which they have no other process but that of excommunication; which is described to be twofold: the lesser and the greater excommunications." ^ 1 3 Bla. Comm. * 95. 2 Ibid., * 100. ' By act of 53 Geo. Ill, c. 127, the sentence of excommunication was displaced by the writ de contumace capiendo, issued out of chancery upon the significavit of the ecclesiastical court. 108 THE L.\W OF DECEDENTS' ESTATES. [§ 136 § 136. Probate Jurisdiction in Other English Courts. — The extent of jurisdiction exercised by the ecclesiastical courts of England included but a small proportion of the judicial author- ity involved in the adjudication of questions arising in the set- tlement of dead men's estates. To some extent, the power to pass upon the accounts of executors and administrators, if no trial of issues, either of fact or law, was necessary, and to grant them a discharge after a true accounting seems to have been exercised by the ecclesiastical tribunals. But the trial of dis- puted accounts, involving the testimony of witnesses, questions of devastavit, liability to creditors, legatees, and distributees, the marshaling of assets, recourse to real estate for the pay- ment of debts and legacies, etc., — in short, the control over executors and administrators in every respect not included in the probate of wills, appointment of administrators, and pay- ment of legacies, — was exclusively in the common-law and chancery courts, as well as the appointment and removal of guardians and curators to minors and persons of unsound mind, and the control over them in respect of the management of their estates. It should therefore be remembered that there is a very great difference between the totality of the powers exercised by the English courts in connection with the admin- istration of estates of deceased persons, sometimes called testa- mentary or probate jurisdiction, and the testamentary or pro- bate jurisdiction of ecclesiastical courts, — a distinction which is of the utmost importance in ascertaining the conclusiveness of the judgments and decrees of the several classes of courts in collateral proceedings, and also in comparing the relative powers of ecclesiastical courts with those of American probate courts. For although the tribunals established in the Colonies were at first modelled after those of the mother country, whose functions they were to perform, so that they were to some extent governed by the rules of the civil and canon law, and in some instances took even the name of their prototypes, yet in the course of time they were invested with greater powers and juris- diction, and to fit them for the efficient exercise of the new functions invested in them, they were made courts of record, with a public seal and a clerk; they have organized process and executive officers, stated terms, and continued functions. The § 136] PROBATE POWERS IN ENGLAND. 109 several legislatures, being at perfect liberty to adapt the consti- tution and powers of the courts to the requirements and conven- ience of the people, invested these tribunals, not only with the powers possessed by the spiritual courts in England, but, in most instances, with all the powers possessed by the English ecclesiastical, common law, and chancery courts, in so far as they were necessary to control the administration of decedents' estates; and within the sphere of the jurisdiction conferred upon them they are a branch of the judiciary of the State, as much so as any other court of general or plenary power. 110 THE Lu\W OF DECEDENTS' ESTATES. [§ 137 CHAPTER XV. NATURE OF PROBATE COURTS IN AMERICA. § 137. Origin of Probate Courts in America. — The essential characteristics of courts whose office it is to control the admin- istration of estates not owned by persons competent to act sui juris, have been indicated in an earlier chapter. It will appear from the consideration of the nature, power, and scope of the courts intrusted with this species of jurisdiction in the several American States, to what extent the principle, there mentioned as resulting from the nature of property and the office of the State, has been practically realized and found recognition in the statute-books. It is easy to understand why this principle was so inadequately recognized, and never expressed as an organic element of the law, in England. But in America circumstances have been peculiarly favorable to the rational development of this principle. Ecclesiastical courts with secular powers did not exist. Prerogatives and prescriptive rights were swept away by the republican spirit of the people. The legislatures were unhampered by the traditions and customs of the mother country, armed with full authority to carry out the views and convictions of the people, who thus exerted a controlling influence in shaping the law and regulating the practice of managing and settling estates of deceased persons and minors; for no branch of the law concerns the general public so universally, and affects their interests so directly, as this. The consequence has been a rapid development of the law of administration, particularly in those States which early cut loose from the common-law doctrines in this respect. The American courts of probate, with their extensive powers, their simple and efficient procedure, their happy adaptation to the wants of the people in the safe, speedy, and inexpensive settle- ment of the estates of deceased persons attest the marvellously clear insight of the people of the Colonies and young States into § 13S] NATURE OF PROBATE COURTS IN MIERICA. Ill the principles involved, and the genuine instinct which guided them in their reaUzation. Necessarily diverse in their details, as the systems of the several States cannot but be, since each State enacts its own code, there is a common intendment of them all in the direction of recognizing the law of administration as a distinct, independent branch of jurisdiction, based upon and de- termined by its own inherent principles. The rich and manifold experiences of over a century of unexampled national growth and development have tended to mould these systems in the national spirit conmion to all the States; as each is the reflex of the nation, so their institutions are rapidly assimilating into a national system, in wliich the incongruities incidental to the experimental enactments of the several and independent legis- latures are gradually disappearing before the light of common experience and intelligent discussion.^ § 138. American Statutes the only Source of Probate Powers in the States. — We have seen that by the common law the entire scope of jurisdiction over the estates of deceased persons vested in the ecclesiastical, common-law, and chancer^' courts. Hence, there being no ecclesiastical courts in America, all such jurisdiction, in so far as it became a part of the juridical sj-stem of the States, necessarily vested in the common-law and chancery courts, to the extent in which it was not lodged elsewhere by statute. It follows from this, that although in many of the States the constitution establishes or pro\ades for the establish- ment of courts of probate, yet they take all their powers from the statutes regulating them. From this circumstance arises an important rule to be observed in ascertaining the extent of power lodged in any one of this class of courts: they can exercise such powers only as are directly conferred upon them by legislative enactment, or necessarj' to carry out some power so conferred. Unless a warrant for the exercise of jurisdiction in a particular case can be found in the statute, given either expressly or by implication, the whole proceeding is void.^ But where jurisdiction is conferred over any subject-matter, and it becomes necessary in the adjudica- tion thereof to decide collateral matters over which no juris- * Woemer on Administration, § 141, 2 Ibid., § 142. 112 THE L-\W OF DECEDENTS' ESTATES. [§ 139 diction has been conferred, the court must, of necessity, decide such collateral issues. The courts so created took various names. In many of the States tliey are known as Probate Courts, or Courts of Probate, which is also the name given to the English court created in 1S57, to which the jurisdiction previously exercised by eccle- siastical, manorial, and other courts of testamentary jurisdic- tion was transferred. This term is indicative of one of the chief and characteristic elements of their powers, and is used in this treatise to designate all courts of this class, being at once the most convenient, familiar, and accurate. § 139. Their Dignity as Courts. — In consequence of statu- tory origin of courts of probate, they have been said to be courts of. limited, inferior, special and limited, limited though not special, or limited though not inferior jurisdiction. The result of this peculiarity, i. e., their lack of all power save as conferred by statute, has been, in some of the States, to deprive their judgments and decrees of all validity unless the facts upon which their jurisdiction depends appear affirmatively from the face of their proceedings. But this view does not seem sound on principle; it ignores the character of these tribunals as courts, and the necessity that their judgments and decrees should be binding, as authoritative announcements of the law, upon all the world. It is held that federal courts, although of limited jurisdiction, are not inferior courts in the technical sense; and that their judgments, although reversible by writ of error or appeal, are binding, although the jurisdictional facts be not alleged in the pleadings. The doctrine that judgments of pro- bate courts are void unless the facts upon which their jurisdic- tion depends appear of record arose probably from the necessity of the application of such a rule to the ecclesiastical courts of England, whose jurisdiction was exceedingly limited, which were not courts of record, possessed no means of enforcing their judgments or decrees, and whose exercise of jurisdiction was jealously scanned by the temporal courts to guard against en- croachment and usurpation. No one of these reasons exists in the United States.^ Courts of probate in America are entitled to the sanction which every court of record holds; they are not 1 Tucker v. Harris, per Lumpkin, J., 13 Ga. 1, 8. §§ 140, 141] NATURE OF PROBATE COURTS IN AMERICA. 113 to be classed with those tribunals which have no authority be- yond special powers for the performance of specific duties, little or in no wise relating to the general administration of justice, whose modes of proceeding are prescribed by the statute/ but are of that class of courts whose judgments, like those of the federal courts, are held good without a recital of the facts upon which they rest. The subject of the validity of judgments and decrees of probate courts is more fully considered hereafter. § 140. Their Powers as Judicial Tribunals. — They are in most, if not all, of the States courts of record, having a public seal and a clerk, or authority in the judge to act as clerk, organized process, and executive officers, as well as stated terms and continuing functions. Within the field of their juris- diction they are as much a branch of the judiciary of the State as any court of general or plenary powers. As judicial tribunals they have the inherent power as such to punish for contempt to the same extent as common-law courts, to compel obedience to their orders and decrees, and their judgments upon matters within their jurisdiction are enforced, usually, by the same means which are at the disposal of common-law and chancery courts. Their orders, judgments, and decrees are therefore as conclusive upon the parties to the record, until reversed or an- nulled on appeal, writ of error, or direct proceeding in chancery for fraud, as decrees in chancery or judgments at law; ^ but if want of jurisdiction appears from the face of the proceedings, they are, like the judgments of any court under like circum- stances, merely void. Although these courts are courts of record, it does not follow that they recognize an "attorney of record." Parties in interest may appear in person, by agent, or attorney at law; they may appear by one attorney at one hearing, and by another on the next. Notice or process served upon an attorney is of no more avail than if served upon a stranger, unless the party respond to the notice or summons. § 141. Conclusiveness of their Judgments in Collateral Pro- ceedings. — The development and growth of the jurisdiction of * Such a-s commissioners, surv^eyors, appraisers, committees, directors, overseers, and the like: Obert v. Hammel, 18 N. J. L, 73, 79. 2 Woemer on Administration, § 144. 114 THE LAW OF DECEDEXTS' ESTATES. [§ 141 courts of probate in the United States has given occasion to con- siderable divergence in the authorities on the question whether their judgments are conclusive, or impeachable collaterally — that is, in a proceeding not directly assailing the judgment in question. The uncertainty produced by the vacillation of courts in this respect is not only perplexing to the administra- tors, practitioners, and judges, but injurious and sometimes ruinous to the interests of all persons concerned in the admm- istration of estates; and particularly to the purchasers of real estate sold under the order of probate courts, who sometimes lose the fruits of their purchase because the officers of the court are not sufficiently skilled or careful to let the record show all jurisdictional facts; and to the heirs or creditors, because the risk incurred by purchasers depresses the price of the property at the sale. On principle there seems to be no difficulty attending the question, except, perhaps, to ascertain whether the tribunal in- trusted with jm-isdiction in probate matters is a court, with judicial functions in the common-law sense, or whether its functions are ministerial only, or having no authority beyond special powers for the performance of specific duties not relating to the general administration of justice. If the latter be the case, it is ob\-ious that, to give validity to its acts, it must affirmatively appear that ever}i;hing necessary to such end has been observed. But if it be found that the tribunal is one competent to decide whether the facts in any given matter confer jurisdiction, it follows with inexorable necessity that, if it decides that it has jurisdiction, then its judgments within the scope of the subject-matters over which its authority ex- tends, in proceedmgs following the lawful allegation of circum- stances requiring the exercise of its power, are conclusive against all the world, unless reversed on appeal, or avoided for error or fraud in a direct proceeding. It matters not how erroneous the judgment: being a judgment, it is the law of that case, pronounced by a tribunal created for that purpose. To allow such judgment to be questioned or ignored collaterally, would be to ignore practically, and logically to destroy, the court. And it is not necessary that the facts and circumstances upon which the jurisdiction depends shall appear upon the face § 141] NATURE OF PROBATE COURTS IN AMERICA. 115 of their proceedings, because, being competent to decide, and having decided, that such facts exist by assuming the jurisdic- tion, this matter is adjudicated, and cannot be collaterally questioned. The English ecclesiastical and manorial courts were not courts in the common-law sense, — "they did not proceed according to the common-law," — hence the English rule requiring them to show jurisdictional facts on the face of their proceedings. Many of the American courts of probate were, in early colonial times, modelled after the ecclesiastical courts; hence the necessity of the same rule as applicable to their acts, and the early American cases so holding. In the progress of time, however, most of these courts were remodelled and vested with greatly increased judicial powers, made courts of record, etc. The reform was initiated and carried out by the legislative branch of government, — the only one having power to accomplish it, — thus compelling the judiciary to follow; and it is but natural, perhaps, that they followed reluctantly. Lawyers and judges were equally imbued with the doctrines of the common law which ignored the ecclesiastical courts as judicial tribunals; and they found it difficult to assign to the American probate courts a different status. And since the enlargement of their powers emanated from as many dif- ferent sources as there are States, and proceeded in as many different channels, it is not strange that for a long time there was very great divergence in their decisions. It is gratifying to observe, however, that, while unanimity has by no means been attained, yet the magnitude of the divergence is gradu- ally diminishing, in the proportion in which the principle upon which these courts rest is understood and practically realized. Thus it is denied by the federal courts that courts of probate are in any technical sense inferior courts, and their judgments within the sphere of their jurisdiction are as conclusive as those of the circuit or any other general court, and entitled to the same intendments and presumptions in their favor. A great majority of the States hold the same doctrine; but several still require that in order to secure the validity of judgments of probate courts against collateral assailability substantial 116 THE LAW OF DECEDENTS' ESTATES. [§§ 142, 143 compliance with the statutory requirements must be affirma- tively shown by the record.' § 142. How far Probate Courts may correct their Judgments. — The rule, applicable to all common-law courts, that during the continuance of the term the record remains in the breast of the judge, and the record as well as the judgment itself may be altered, revised, or revoked, as well as amended in respect of clerical errors and matters of form, is equally applicable to pro- bate courts. All the days of the term are considered as one, and everything is in the power of the court during its contin- uance. But this power must not be exercised unless the parties to be affected are present in court, or have notice, so that they may be heard if they desire; and the presence of the parties, or notice to them, must appear from the record itself; no presump- tion of notice arises where the record is silent. Any change or amendment must also be upon such terms as will protect the interests of third parties. But a court can neither change nor disregard its orders, judgments, or decrees after the lapse of the term at which they were rendered. It is consistent with this principle that it is the duty of a court, if the judgment, decree, or order is clearly void for the want of jurisdiction, or other defect apparent from the record, to vacate the same upon proper application. But in the absence of statutory grant of power to open orders and decrees, or to grant rehearing to litigants, they have no power to revise their decisions on the ground of error, either of law or fact; except, as will be more fully noticed below, during the continuance of the term at which they were rendered. The subject is affected by statutes in some States. § 143. Entering Judgment nunc pro tunc. — The power to record a judgment or order at any time after it was rendered, and to correct a judgment or order erroneously entered, resides in the probate courts equally with common-law courts. This power originated in the maxim, that " an act of the court shall prejudice no one," or, as worded by Freeman, "a delay of the court shall prejudice no one," and was originally employed to relieve parties from hardships arising out of the delay of courts, by entering a judgment mmc pro tunc as of the day on which ^ See Woerner on Administration, § 145. § 144] NATURE OF PROBATE COURTS IN AMERICA. 117 it ought to have been rendered; but is now resorted to for the purpose of entering of record judgments rendered, but through inadvertence not entered, and of correcting judgments errone- ously entered, nunc pro tunc, as they ought originally to have been entered of record. There is some difference of opinion as to the circumstances which shall be sufficient to authorize a nunc pro tunc entry. The purpose to be accomplished is salient enough; it is to secure a true record of the precise ruling of the judge as originally pronounced, in cases where the record is silent, or inaccurate, or false. But the question here arising. How is the truth of the entry to be established? is not so easily answered. The logical and safe rule seems to be that laid down in the English statutes on this subject. The rule deducible from these statutes is, that no amendment of the record can be made unless there be a mistake of the clerk, and something in the record by which the mistake can be rectified. This rule is adhered to in the federal courts, and in a large number of States. In other States, entries nunc pro tunc are allowed upon parol evidence or upon the memory of the judge. The correction of the record must be drawn with the view of protecting the rights of third parties acquired by virtue of the original entry and before correction thereof, and after notice to the parties to be affected by it.^ § 144. Proceeding in Rem and in Personam. — The expres- sion is often used, in asserting for th£ judgments of probate courts a validity not claimed for them in respect of judgments in personam, that from the nature of the jurisdiction exercised by them they proceed in rem. The judgment, being in rem, it is said is conclusive upon all the world, and hence all persons whatever have a right to be heard in the proceeding. Even parties not in esse at the time of the judgment have been held to be concluded. The judgment however is only as to the res or status established, as to which persons in interest could be heard, and the expression that the decree is binding on all the world does not mean that it is binding in a collateral proceeding, as to the facts found, so far as persons who were strangers in interest to the proceeding are concerned; hence the binding * Woemer on Administration, § 147. 118 THE L-\W OF DECEDENTS' ESTATES. [§ 144 effect of the decree in rem is limited to the assets within the State, and is not extended so as to conclude the courts of another State as to the assets there. Possession of the thing (custody of the res) is one of the essential conditions of jurisdiction over the thing. Every other requisite may be conceded; and if executors and administrators be looked upon as officers of the court, so that possession by them may be considered possession by the court,^ the disposition of personal property by order or judgment of the probate court is clearly a proceeding in rem. The law vests title to all personal property of a decedent in his executor or administrator, and requires the latter to notify "all the world," by publication, of his assumption of the office, — a proceeding constituting the notice, monition, or proclama- tion required to obtain jurisdiction in rem. The same principle is applicable to real estate, where, as is the case in a number of States, it passes to the personal representative. But the title to real property vests, in most States, not in the executor or administrator, but in the de\asee or heir. Hence, in all of these States, the essential requisite of jurisdiction in rem, possession, the custody of the res, is wanting in respect of real estate. It is provided in most States that notice must be given to the heirs, or others interested in real estate, either by personal service or publication, before real estate can be sub- jected to the satisfaction of debts of the decedent. When such notice has been given, the importance of the distinction between proceeding in rem and in personam disappears: if the notice was by actual ser\ace on the parties, they are parties to the rec- ord, and as such bound by the judgment of the court; if by publication, then the analogy to the proceeding in rem is com- plete; the title of the administrator is thereby' extended over the real estate, and displaces that of the heir or devisee for the purposes pointed out by the law. The judgment affects neither the person nor any other property of the heirs or devisees save that described in the notice published, which may then be said ^ Says Brewer, J., in delivering the opinion of the United States Su- preme Court in Byers v. McAuley, 149 U. S. 60S, 615: "An administrator appointed by a State court is an officer of that court; his possession of the decedent's property is a possession taken in obedience to the orders of that court; it is the possession of the court, and cannot be disturbed by any other court." § 145] NATURE OF PROBATE COURTS IN AMERICA. 119 to be in the custody of the law. But if no notice was given to parties in interest, and the administrator was not in possession of the land, under the law of the State, then the proceeding is necessarily void, being neither in rem nor in personam. It is hardly necessary to repeat that the jurisdiction exer- cised b}^ probate courts in adjudicating upon the rights of litigating parties, is, so far as such parties are present in court or represented by counsel, strictly followed by all the conse- quences attendant upon adjudications in personam, to the extent of the subject-matter over which the court has power. § 145. Method of Procedure in Probate Courts. — Although probate courts are mostly, if not universally, courts of record, having a seal, a clerk or authority to act as their own clerk, and executive officers, yet their procedure is, generally, sum- mary, requiring no pleading in the technical sense, nor adherence to artificial rules in the statement of the cause of action or defence. An intelligible statement of an existing substantial right, which the court has jm-isdiction to enforce, is a sufficient allegation of all matters necessary to sustain a judgment; and the simple appearance of the defendant usually entitles him to rebut the proof offered by the other side, or prove any matter in defence; save, perhaps, a cause of action constituting a set-off or counter claim, of which the other side must have sufficient notice to enable it to prepare any defence it may have to the same. It lies in the nature of these courts, that in the exercise of their jurisdiction they are not confined to legal principles or the rules of common-law courts, but exercise equitable powers as well. Whenever, within the scope of the statutory jurisdic- tion confided to them, the relief to be administered, the right to be enforced, or the defence to an action properly pending before them, involves the application of equitable principles, or a proceeding in accordance with the practice in chancery, their powers are commensurate with the necessity demanding their exercise, whether legal or equitable in their nature. But they possess these powers only in so far as they have been conferred by statute, or are indispensable to the exercise of such as have been conferred. They have no original chancery powers, such as to enforce a vendor's lien, no ancillary juris- 120 THE LAW OF DECEDENTS' ESTATES. [§ 145 diction in aid of common-law courts, no power to follow a trust fund through various transformations, or to require a fund to be paid into court in advance of distribution, nor to entertain an equitable bill for construction of a will, nor for interpleader, nor over any purely equitable right. The resemblance of pro- bate courts to courts of chancery consists in their practice of proceeding by petition and answer, containing the substance, but not the nice distinctions, of a bill in equity. Although the right of trial by jury is secured in most States to claimants seeking to establish their claims in probate courts, yet the power, inherent in courts proceeding according to the principles of the common law, to instruct the jury and to direct or set aside a verdict and grant a new trial, does not exist in probate courts unless affirmatively granted by statute. But the rules of evidence and of property are equally binding upon probate and conxmon-law courts. §§ 146, 147] SUBJECT-MATTER OF JURISDICTION. 121 CHAPTER XVI. OF THE SUBJECT-MATTER WITHIN THE JURISDICTION OF PROBATE COURTS. § 146. Scope of the Jurisdiction. — Logically, the jurisdiction of probate courts should extend to all matters necessarily in- volved in the disposition of the estates of deceased persons, from the time of the owner's death until the property has been placed in the possession of those to whom it devolves. We have seen that the English testamentary courts never possessed more than a comparatively small proportion of this power; and it is equally true that in no one of the American States is the whole of it vested in probate courts. Some of the elements of power necessary to the practical realization of the rights of creditors, heirs, legatees, distributees, devisees, and of the husband, widow, and minor children, are found wanting in the statutory grant of powers to these courts in each State, which therefore necessarily lodge in other courts. But the powers so withheld are not the same in all the States; those denied in some are granted in others; so that, while no one probate court possesses them all, yet the full scope of jurisdiction strictly subsumable under the principle which conditions this class of courts will be found in the aggregate of powers conferred upon them in the several States. It would involve unprofitable labor to enumerate in this place the powers directly conferred by statute, which may be readily found in the enactments of the several States conferring the powers. But it should be mentioned that as to the incidental powers there is considerable divergence in the different States, resulting from the different views taken by the courts upon the extent to which implied powers are involved in the powers granted. § 147. Jurisdiction as limited to the Devolution of Property on the Owner's Death. — Since the functions of probate courts 122 THE hXW OF DECEDENTS' ESTATES. [§ MS are limited, in respect of executors and administrators, to the control of the devolution of property upon the death of its owner, it is not their province to adjudicate upon collateral questions. The right or title of the decedent to property claimed by the executor or administrator against third persons, or by third persons against him, as well as claims of third persons against creditors, heirs, legatees, devisees, or distributees, must, if an adjudication become necessary, be tried in courts of general jurisdiction, unless such jurisdiction be expressly con- ferred on probate courts.^ It follows from this principle, that probate courts have no power to investigate the validity of an assignment of the interest of an heir or legatee ; the decree of distribution or payment should be to the legal successor of the property, leaving questions of disputed rights betw^een these and claimants against them to be adjudicated in the ordinary courts. And this is so of the assignments of creditors, of lega- tees, of distributees. But it must not be inferred from this that the probate court has no authority to decree payment to an assignee whose right is not disputed, or where the distributee is estopped by a release; for the decree in favor of the assignee, assented to by the assignor, is of the same effect as a decree in favor of the assignor. Neither has the probate court jurisdic- tion in actions where personal property is seized or claimed by the executor or administrator as a part of the estate, and claimed by others by title paramount to the deceased. So the probate court has no jurisdiction of questions between trus- tee and beneficiary, or to compel an accounting between a testamentary' trustee and the cestui que trust. The jurisdiction of the probate court ceases, when an executor, who is also trustee, has made his final settlement ; a court of equity alone can enforce the testamentary trusts; but until distribution he holds as executor, and not as trustee, and equity has no juris- diction.- § 148. Liabilities arising from Administration. — Upon the same principle, probate courts have no jurisdiction to decree payment to persons employed by the executor or administrator to render services for him, or for the estate, in its administra- tion. Although it may be the duty of the court, in passing upon ^ Woemer on Administration, § 151. ^ Ibid. §§ 149-151] SUBJECT-MATTER OF JURISDICTION. 123 the administration account, to determine the reasonableness of payments for such services, and allow or reject the credits taken therefor, it has not the power, unless expressly granted by statute, to adjudicate upon the claims of such persons against the administrator; their remedj^, if he refuse to pay, is in another court. Debts created after the death of the intestate or testator cannot be proved in the probate court; nor can the probate court adjust the rights or equities arising out of the sale of real estate, or out of the vacation of the sale, between the purchaser and administrator; nor between coadministrators as to the com- missions allowed them in gross, unless the power is conferred by statute.^ § 149. — Adjudication of Claims against the Deceased. — The power to adjudicate upon claims against deceased persons is in most States conferred upon the courts having control over the administration of their estates, either exclusively, or con- currently with other courts; but unless such power is expressly granted, the probate courts cannot exercise it. A discussion of the subject of claims against estates is deferred to a sub- sequent chapter. § 150. Incidental Powers conferred by Necessary Implication. — The necessity of recognizing power in the probate courts to carry out the functions expressly pointed out for them, and to accomplish the express purposes for which they are created, has already been mentioned. § 151. Power to construe Wills in Probate Court. — The jurisdiction of probate courts over the estates of deceased per- sons necessarily includes the power in the first instance to con- strue wills, whenever such construction is involved in the settlement and distribution of the estate of a testator. It is obvious that distribution cannot be made nor legacies ordered to be paid, unless the rights of legatees are first adjudicated; and such adjudication involves the ascertainment of the testa- tor's intention, in order to fix the rights of legatees in accord- ance therewith, and whether a bequest is vaHd or void, or adeemed. It is the decree of distribution that determines the rights of legatees and distributees; hence such order or decree is conclusive as to the rights of heirs, legatees, and devisees ^ Woemer on Administration, §§ 153 and 356. 124 THE L.'^W or DECEDENTS' ESTATES. [§ 152 subject only to be set aside or modified on appeal.^ It may be here observed that this power to construe wills is given, how- ever, only to the extent of determining to whom the executor must pay or deliver the funds of the estate in the first instance and does not extend to the determination of questions between legatees themselves, such as whether the legacy is absolute or for life only, or subject to trusts or conditions. § 152. Construing Wills in Equity. — It may be proper to note in this connection the power of courts of equity in respect of the construction of wills, upon the application of an execu- tor, administrator, or other trustee, or even of a cestui que trust, to determine questions of doubt in carrying trusts into effect. The power arises out of the jurisdiction of courts of equity to decree the payment of legacies (because the ecclesiastical courts could neither take the accounts necessary sometimes to ascer- tain the amount of legacies, nor enforce their decrees), and to entertain bills of interpleader (in cases of conflicting trusts, to save trustees from hazardous responsibility and future litigation, or of conflicting legal claims against one who has no interest in the thing claimed, but is a mere stakeholder). It is'deduced from the equity jurisdiction given by statute in cases of trust arising in the settlement of estates, where the trustees are actors and seek the aid and direction of a court of equity in cases of doubt and difficulty, and where conflicting claims are asserted by different parties to the same property or rights under the instrument creating the trust; and is expressly con- ferred by statute in some of the States. Where equity juris- diction to construe wills is conferred upon the probate court, it may be applied to for instructions as to the construction of a will; but the power does not reside in such courts unless ex- pressly, or by necessary implication, conferred, and even when it is, the distinction between probate courts proceeding as such, and the same courts when exercising statutory jurisdiction in equity, is a broad one. Thus an executor, administrator c. t. a., or any party claiming against him, may apply to a court of equity to have his rights in the estate ascertained and settled in respect of testamentary trusts which may be valid or invalid; 1 The effect of the order of distribution will be more fully stated in connection with that subject: post, §§ 558-559. § 153] SUBJECT-MATTER OF JURISDICTION. 125 for the executor holds the property in trust for the persons to whom it is legally bequeathed, and for those who are entitled to it under the Statute of Distributions if not effectually dis- posed of by the will. Where the application is made by an executor in good faith, under circumstances creating a doubt as to the intention of the testator or the rights of legatees or heirs, the costs are payable out of the estate; not so, however, where the proceeding was unnecessary or frivolous, in which case the party causing it must bear the costs. § 153. Exclusive and Concurrent Jurisdiction. — The jurisdic- tion exercised by probate courts in the matter of admitting wills to probate, appointing administrators, and taking adminis- tration bonds, is exclusive of all other courts or tribunals in all the States. Other matters committed to their jurisdiction are, generally, within their exclusive original jurisdiction, any party interested having, in most States, a right to appeal and have a trial de novo in the appellate court. From the nature of the jurisdiction so conferred, it is evidently essential that the ad- judications upon the subject-matter, not appealed from or reversed in direct proceeding, shall be final, not only in the courts in which they are pronounced, but in all other courts where the same question arises. Hence a superior court has no power, in the exercise of its chancery jurisdiction, to set aside a will which has been admitted to probate, or to remove an executor, enjoin a will from being probated, or to control an administrator in the discharge of the ordinary duties of his office, while the administration is pending in the probate court, or to subject the lands of heirs to the payment of debts of the ancestor, if the creditors have failed to present their claims for allowance in the probate court; nor to allow and en- force payment of a claim against an estate; nor has a common- law court power to try an action purely probate in its character, having for its object the recognition of heirs, legatees, or dis- tributees, and establishing their rights judicially. In some States, courts of equity have retained concurrent jurisdiction with probate courts in some respects, chiefly in the matter of compelling executors or administrators to ac- count. The general tendency, however, is to vest exclusive original jurisdiction over executors, administrators, guardians, 12G THE LAW OF DECEDENTS' ESTATES. [§154 curators, etc., in probate courts, arming tliem with amprie powers, both in the extent of their jurisdiction and their mode of procedure, for the accompHshment of those purposes wliich could not be attained in the EngHsh testamentary courts and rendered necessary the interference of equity courts. Hence, in this country, courts of equity do not generally interfere in the administration of estates, except in aid of the probate courts, where the powers of these are inadequate to the pur- poses of perfect justice, and then for the same reasons which induce them to interfere with tlie jurisdiction of common-law courts. But where the jurisdiction of the probate court has once properly attached, no other court will interfere or go behind its judgments or decrees, without special and sufficient reasons.^ § 154. Probate Jurisdiction of Federal Courts. — The jurisdic- tion of federal courts is conferred upon them by the Constitu- tion of the United States, and the laws of Congi-ess in pursuance thereof; and where the requisites of jurisdiction exist, this juris- diction cannot be ousted or annulled by statutes of the States, though assuming to confer it exclusively on their own courts. A citizen of another State may, therefore, establish a debt against the estate in a federal court; or a foreign distributee may establish in a federal court his right to a share in the estate, and enforce such adjudication against the administrator per- sonally and his sureties, or against any other parties subject to liability, so long as the possession of the property by the State court (holding through the administrator) is not interfered with. It has even been held that in an exceptional case where assets in an ancillary State are in danger of being lost to cred- itors because of non-administration resulting from neglect and litigation, preventing protection by the probate court, a Fed- eral court, in the exercise of its chancery jurisdiction, may appoint a temporary receiver pending action by the probate court, in the State where the assets are situated.^ But, as established by the Supreme Court of the United States in an exhaustive opinion delivered by Justice Brewer, the Federal courts have no original jurisdiction with respect to the administration of the estates of deceased persons; they 1 Woemer on Administration, § 156. 2 Underground v. Owsley, 176 Fed. (C. C. A.) 26. § 154] SUBJECT-IL'^TTER OF JURISDICTION. 127 cannot draw to themselves, by reason of any of the powers enumerated, the res, or administration itself; nor make any decree looking to the mere administration of the estate, nor can they in any way distm-b the possession of the decedent's property held by an administrator appointed by a State court, and thus, through him, dispossess that court of its custody.^ Hence the claims established by a resident of another State in the United States Court cannot be enforced by direct process against the decedent's property, but must take its place and share in the estate as administered in probate court. A non- resident who delays until the period of proving claims fixed by the State statute has expired, the representative's final account passed, and the order of distribution made in the probate court, will be barred from proceeding to have his claim allowed in the Federal court.^ So also it is fii*mly established that the Federal courts have no jurisdiction to grant original probate or letters. Such pro- ceeding for probate or contest of a will in the testamentary court (including a direct review or continuation thereof by ap- peal or otherwise) is in rem, and, not being between parties, can- not be removed to the Federal court; but yet, where such will may under the State law be contested by original proceedings in a court of general jurisdiction, and becomes an independent action or suit inter partes residing in different States, the Federal courts take jurisdiction as they would in any other controversy between the parties.^ After a will has been established in a State court, the Federal courts have jurisdiction to interpret its provisions in an action between citizens of different States. But it is held that where the exercise of federal jurisdiction depends upon diverse citizen- ship, it must be confined to the administration of the rights of such diversely domiciled citizens, and to them alone.* 1 Byers v. McAuley, 149 U. S. 608. 2 Security Trust Co. v. Bank, 187 U. S. 211, 230. 3 Farrell ;;. O'Brien, 199 U. S. 89, 110. " * Security Co. v. Pratt, 65 Conn. 161. 128 THE L.\W OF DECEDENTS' ESTATES. [§§ 155, 156 CHAPTER XVII. DOMICILIARY AND ANCILLARY JURISDICTION. § 155. Authority of Representatives limited to the State grant- ing it. — The property of deceased persons is vested by law in representatives who, for the purposes of its devolution, continue the person of the defunct. The authority of these representa- tives emanates from the law of the State or country under which they hold letters testamentary or of administration; and since it is universally recognized that the laws of every State affect and bind directly all property within its territorial limits and all persons residing therein, whether natural-born citizens, subjects, or aliens; and that a State may, therefore, regulate the manner and circumstances under which property within it, whether real or personal, shall be held, transmitted, and enforced, — it is evident that no one can, in a representa- tive capacity, whether a testato or ah intestato, meddle or inter- fere with a succession before probate of the will or grant of administration, or some other formal induction into the prop- erty in the forum of the country or State where it is found. This is the necessity of the rule, recognized in England as well as in the Federal and State courts of America, that letters testamentary and of administration have no legal force or effect beyond the territorial limits within which the authority of the State or country granting them is recognized as law. § 156. Administration of Same Succession in Different Coun- tries. — It follows from this doctrine that where a person dying leaves property in several different jurisdictions, the legal repre- sentatives of such person must derive their authority from each of as many sovereignties as may have jurisdiction over the property so left, because the territorial element of the law, or rather of the sovereignty from which the law emanates, permits no other sovereignty to exercise authority over it, and each therefore must itself create the legal ownership necessary in § 156] DOMICILIARY AXD ANXILLARY JURISDICTION. 129 its devolution. This authority or legal ownership may be, and except in the States in which non-residence disqualifies a person from the office of executor or administrator generally is, conferred upon the same person in several or all of the States in which the deceased person left property; for a testator may appoint the same or different executors in different countries, and it is held that ex comitate, and in order to preserve as far as possible the singleness of administration, the person who obtains administration as next of kin in the jurisdiction of the intestate's domicile, or his appointee, is entitled to a similar grant in any other jurisdiction where the deceased has personal estate; but the administration in each State is wholly independent, whether in the hands of the same or of different executors or adminis- trators, in no wise impaired, abridged, or affected by a previous, and a fortiori by a subsequent, grant of administration in an- other State.^ There is no privity between administrators in different States, although there may be between executors of the same testator in different States,^ who, at common law, are said to be in privity as to the creditors. The administration granted in the State of the domicile of the decedent, is the principal, primary, original, or chief ad- ministration, because the law of the domicile governs the dis- tribution of the personal property, whether to heirs, distributees, or legatees; while that granted in any other country is ancillary or auxiliary. Both are local, however, to the jurisdiction in which they are granted, being limited to the chattels ha\dng a particular situs,^ independent of each other, save that the origin and devolution of the property in each may be the same. It follows from this want of privity that a judgment obtained against one furnishes no cause of action against another, so as to affect assets under the control of the other. Nor will a judgment in favor of a foreign administrator against the debtor of his intestate support an action against the debtor by an ad- ministrator in another State. But a question determined by the courts of a sister State, so as to become res judicata between 1 Brow-n v. Fletcher, 210 U. S. 82. 2 This is not true in those States, now comprising the larger number, where the authority of the executor is deduced like that of the adminis- trator from his appointment by the court. 3 Overby v. Gordon, 177 U. S. 214. 130 THE LAV,' OF DECEDENTS' ESTATES. [§ 157 the parties, cannot be reopened by the same parties in another State.^ Hence, where the domicihary court, having jurisdic- tion to construe a will, adjudicates thereon, such adjudication is binding upon the courts of other States; but this doctrine must not be understood as going to the extent of depriving the courts of a State in which lands lie from construing the will as to such realty within its jurisdiction. A decree of distribution obtained in one State cannot be attacked on the ground of fraud and mistake in another State. A judgment on final accounting in one State, or the disallowance of a claim, is a judicial proceeding entitled to full faith and credit in the courts of another State, under the Constitution and acts of Congress. But this constitutional provision does not give a judgment or proceeding any greater force and efficacy than it has in the State where had, nor does it preclude inquiry into the jurisdic- tion of the court in which the judgment is rendered, over the subject matter, or the parties affected by it, or into the facts necessary to give such jurisdiction;^ and it is held that the bare appointment of an administrator in one State cannot fore- close inquiry into the fact of the domicile of the decedent in the courts of another sovereignty, nor has the Probate Court of one State power to conclusively bind all the world as to the fact of the decedent's domicile there by finding such to be a fact in a proceeding iji rem in granting letters,^ or admitting wills to probate. § 157. Jurisdiction over Property removed to Another Country after Owner's Death. — But it may be that the situs of property is changed after the death of the owner, and before any admin- istrator reduces it into possession. In such case, since every administration operates on such property of the deceased as is at the time of the grant, or shall be at any time diu-ing its ex- istence, within the jurisdiction of the court granting the same, the question determining the jurisdiction is whether there is or is not any vacancy in the legal title to the property where and when found. For if goods are once in the legal possession of an administrator duly appointed, they cannot afterward be » Carpenter v. Strange, 141 U. S. 87. 2 Thormann v. Frame, 170 U. S. 350, 356. 3 Overby v. Gordon, 177 U. S. 214. § 15S] DOMICILIARY AND ANCILLARY JURISDICTION. 131 affected by an administration granted in another jurisdiction to which they may be removed, because there is then no va- cancy in the legal ownership; they are, technically, no longer the goods of the deceased, but of the administrator of the juris- diction from which they were removed. But if the goods have never been in the possession of the administrator, although they be removed from the jurisdiction where he might, but did not, take possession of them, an administrator of the jurisdiction to which they are taken may do so, without regard to priority in the grant of the respective administration. Thus, where stage-coaches and stage-horses belonged to a line running from one State to another, it was said that, if there had been different administrators in the two States, " the property must have been considered as belonging to that administrator who fu-st reduced it into possession within the limits of his own State." ^ So, also, ships and cargoes, and the proceeds thereof, may be situated in a foreign country at the time of the owaier's death ; but since they proceed according to their usage, on their voyages and return to the home port they are properly taken possession of and administered by the administrator of the forum domicilii? § 158. Legal Status of Foreign Administrators. — No executor or administrator can, in his official capacity, originate or main- tain an action in the courts of any country, save that which has granted him letters testamentary or of administration, AA^thout authority from the country in which he brings the action; nor collect rents, or in any manner intermeddle with the property of the deceased in such country. The strict correlative of this proposition is, that no executor or administrator can be sub- jected to an action, in his official capacity, in the State or coun- try in which he is not recognized as such; nor is he accountable except in the forum from which he obtained his authority, for assets collected in a foreign State by virtue of his office. By the comity of States the authority of domiciliary administrators is recognized in different jurisdictions to a greater or less ex- tent; and it is a matter concerning which the authorities differ, whether an administrator is guilty of laches or negligence in faihng to collect assets beyond the jurisdiction of his forum, 1 Orcutt V. Orms, 3 Paige 459, 465. 2 See Woemer on Administration, § 159 and authorities. 132 THE LAW OF DECEDENTS' ESTATES. [§§ 159, 160 or obtaining letters in a foreign jurisdiction in which there may be property belonging to the estate. If he collect such property in a foreign jurisdiction without authority, either under his domiciliary letters, or by new letters there obtained, he is liable to be sued in the courts of the foreign State, as one un- la^^-fully intermeddling with the eflFects, by any creditor or other person interested.^ § 159. Validity of Voluntary Payment to Foreign Administrator. — Upon the question of the validity of the voluntary payment of a debt to a foreign executor or administrator, the authori- ties are not unanimous. The tendency is, however, in the di- rection of recognizing the validity of such payments, when not conflicting with the home administration. Chancellor Kent so ruled,2 and it is so held in many states, and in the Supreme Court of the United States.^ Some decisions limit their sanction to the validity of the payment when made in the decedent's domicile, refusing to decide one way or the other that the pay- ment would have been valid if made to the foreign administrator of the decedent in the debtor's domicile. On the other hand, it is held in other States directly and unqualifiedly that payment to a foreign executor or administrator is void, and no defence to the demand of an administrator duly appointed in the State of the debtor's domicile. On principle, it would seem to result from the limitation of the validity of letters testamentary and of administration to the State or country granting them, that foreign executors and administrators can bind the estate of a decedent to the extent only to which the law under author- ity of which they act is recognized by the comity of the State in which the property ma}' be found; and such comity may be expressed by act of its legislature, or the decisions of its courts. Hence a voluntary payment to a foreign executor or adminis- trator, unless authorized by such comity, is void, and no de- fence against the claim of an administrator of the State where the debtor or property is found; but will be good where it does not conflict with such administration. § 160. Extra-territorial Validity of Title once vested. — "WTiere * Woemer on Administration, § 160. 2 Doolittle V. Lewis, 7 John. Ch. 45, 49. 3 Wilkins i-. Ellett, 9 WaU. 740, 742; Wyman v. Halstead, 109 U. S. 654. § 160] DOMICILIARY AND ANCILLARY JURISDICTION. 133 the legal title to the intestate's or testator's chattels has been fully vested in the executor or administrator, it is obvious that he may remove them, or follow them into a foreign jurisdiction without forfeiting or losing this ownership, for "the title to personal property duly acquired by the lex loci rei sites will be deemed valid and be respected as a la^\'ful and perfect title in every other country." ^ Hence he and his assignee or vendee may sue for and recover them in a foreign jurisdiction without a grant of new administration there. Upon this principle, a foreign executor or administrator may maintain an action on a judgment recovered against the debtor in another State, for such suit need not be brought in the representative capacity of the plaintiff, as well as on a contract made by the defendant with the foreign executor or administrator personally. Where the foreign executor can sue upon such a contract he may be sued upon it; the remedy must run to either party or neither .^ So an executor may maintain an action for lands devised to him in another State, without qualifying in such State as executor, because in such case he may sue as de\dsee, and the executor or administrator holding a note indorsed in blank or payable to bearer may sue thereon, as indorsee or owner; and a fortiori as payee, where the note is given or payable to him in person; for in such case the full legal title is in the personal representative, and the addition of his official capacity mere description of the person. For the same reason, the assignee of a chose in action assigned by a foreign executor or administrator may maintain an action on the chose transferred, although the assignor could not bring such suit himself, on the ground that the disability of the foreign executor or administrator to sue does not attach to the subject of the action, but to the person of the plaintiff. But this is true only in cases where the title to the chose has fully attached, and may be asserted without trenching ujwn the authority of the forum rei sites; where, for instance, the prop- erty of an executor or administrator is wrongfully removed into another State, or where such property is removed after due administration thereon. In such case the title of the owner is not affected by any question of administration, and is as full 1 Story Conflict of Laws, § 516. 2 Johnson v. Wallis, 112 N. Y. 230, 232. 134 THE LAW OF DECEDENTS' ESTATES. [§§ 161, 162 as that of any owTier sui juris. In general, however, simple contract debts are bona notahilia in the State where the debtor resides, and neither an administrator appointed in a foreign State, nor the assignee of such, can control or release them. § 161. Statutory Authority of Foreign Executors and Adminis- trators. — Statutory provisions of many of the States enable foreign executors and administrators, under such conditions and restrictions as may be imposed, to assign, transfer, collect, and sue for the property of their testators and intestates found within the jurisdiction of such States.^ It follows from this authority of foreign executors and administrators, that the Statute of Limitations runs against them just as though they had been appointed in such States. In some of the States the foreign executor or administrator is permitted to act, but must first qualify according to the laws of such State, or file his letters testamentary or of administration in the county where he brings suit. For further detail reference must be had to the statutes. § 162. Liability of Foreign Administrators. — The principle that executors and administrators are not liable to actions as such in States where they have obtained no letters is not per- mitted to protect them against the consequences of their own wrong or default. Thus, where an executor or administrator removes the property of the estate in his charge, without hav- ing completed the administration, to another State, and fails to obtain new letters of administration there, a court of equity will grant relief to any person whose interest is thereby jeop- arded, on the ground that, where a trust fund is in danger of being wasted or misapplied, the court of chancery, on the ap- plication of those interested, will interfere to protect the fund from loss. The exercise of this authority is in no way incon- sistent \\ith the general principle announced as governing the powers and liabilities of executors and administrators, who, as such, derive their powers from, and are amenable only to, the forum of the State under whose laws they hold their office. They are in such proceeding treated, not in their official capac- ity which is co-extensive only with the State in which they re- ceived their appointment, but as persons who, by withdrawing themselves from the jurisdiction of the court ha\'ing power over 1 Woemer on Administration, § 163. §§ 163, 164] DOMICILIARY AND ANCILLARY JURISDICTION. 135 them, are unlawfully in possession of the property which is to be protected, or adjudged to its lawful owner. It may be stated, however, as a general proposition, that the liability of an administrator for property fraudulently, or without ha\dng been fully administered, brought from the State in which he received his appointment to another State, is to the creditors and distributees alone, and does not author- ize the grant of letters in the latter State. § 163. Procedure governed by the Law of the Forum. — Al- though the law of the domicile of the decedent governs the devolution of personal property to heirs and legatees, yet it follows from the exclusive authority of each nation over the property and persons within its jurisdiction, that the mode of administration, including the method of pro\ing debts, their right to priority of pajment, and the marshalling of assets for this purpose, is governed altogether by the law of the country in which the executor or administrator acts, entirely independ- ent of that in the domicile of the decedent, or in any other State. Thus in Smith v. Bank the deceased owed in his domicile, Virginia, on a bond. In Virginia the debt would be preferred. There was ancillary administration in the District of Columbia and there the debt on bond was not a preferred one, but w^as of equal dignity with general debts. Accordingly the bond was not entitled to preference in administration of the assets in the District.^ § 164. Payment of Debts and Distribution to Non-Residents. — From these principles it results that the administration of the assets of a deceased person is conducted according to the laws of the State in which they may be found, and applied first to the pajTnent of the expenses of administration, and such debts as may be proved against the estate by creditors residing there; and if there be legatees or heirs there also, their claims will be determined according to the law of the decedent's domicile, and distributed to them. The residue may then be remitted from the ancillary to the domiciliary executor or administrator. But it is not obligatory upon courts to transfer the assets to the domicile for distribution; in their judicial discretion, to be guided by the circumstances of each particular case, they may 1 5 Peters 518. 136 THE LAW OF DECEDENTS' ESTATES. [§ 164 be thus remitted, or ordered to be distributed by the ancillary administrator to the parties in interest seeking their remedy there. Where the estate administered on in more than one State or country is fully solvent, the rule referred to is of easy appli- cation, and there seems to be no occasion to doubt the correct- ness of the principle. " For," says Parker, C. J., of the Supreme Judicial Court of Massachusetts, "it would be but an idle show of courtesy to order the proceeds of an estate to be sent to a foreign countr}', the province of Bengal, for instance, and oblige our citizens to go or send there for their debts, when no possible prejudice could arise to the estate, or those interested in it, by causing them to be paid here; and possibly the same remark may be applicable to legacies payable to legatees living here, unless the circumstances of the estate should require the funds to be sent abroad." ^ But with reference to effects col- lected by an ancillary administrator of an insolvent estate the question is more difficult. "We cannot think, however," says the same learned judge, "that in any civilized country advan- tage ought to be taken of the accidental circumstance of jjro])- erty being found within its territory, which may be reduced to possession by the aid of its courts and laws, to sequester the whole for the use of its own subjects or citizens, where it shall be known that all the estate and effects of the deceased are insufficient to pay his just debts. . . . Creditors of all coun- tries have the same right as our citizens to prove their claims and share in the distribution." 2 But to send the effects of an insolvent estate to the domiciliary administrator, to be there re- apportioned among all the creditors according to the laws of the State of the domicile would work equal injustice and greater inconvenience to the creditors in the State of the ancillary administration, "whose debts might not be large enough to bear the expense of proving and collecting them abroad; and in countries where there is no provision for equal distribution, the pm-suit of them might be wholly fruitless. As in Great Britain, our citizens, whose debts would generally be upon simple contracts, would be postponed to creditors by judgment, 1 Dawes v. Head, 3 Pick. 128, 144. 2 Ihid. § 1G5] DOMICILIARY AND ANCILLARY JURISDICTION. 137 bond, etc., and even to other debts upon simple contract which might be preferred by the executor or administrator. It would seem too great a stretch of courtesy to require the effects to be sent home, and our citizens to pursue them under such disad- vantages." ^ To avoid the injustice and inconvenience attend- ant upon either course, Chief Justice Parker suggested the rule, now adopted by courts in some States and in some enacted by statute, to retain the funds in the State of the ancillary admin- istration for a jiro rata distribution according to the laws thereof among its citizens, having regard to all the assets in the hands of the principal as well as of the auxiliary administrator, and also to all of the debts which by the laws of either country are payable out of the decedent's estate, without regard to any preference which may be given to one species of debt over another, considering the funds in each State as applicable, first, to the payment of the just proportion due to its citizens, and, if there be any residue, that should be remitted to the principal administrator, to be dealt with according to the laws of his country. Non-resident creditors of an insolvent estate may, in some States, prove their claims against the ancillary administration, and subject the real estate of the intestate to their payment, without showing that the personal property of the estate in the State of the domicile has been exhausted. A fortiori may resident creditors do this in case of a solvent estate. § 165. Real Estate governed by the Lex Rei Sitae. — It is a rule conditioned by imperative necessity, that immovable property should be governed, especialh' in respect of its trans- mission, by the law^ of the country in which it is situated. For this reason the execution and probate of a will must conform strictly to the law of the State in which land is therein devised, and this law is also to govern as to the capacity of the testator and the extent of his power to dispose of the property. So the descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situate. No person can take, except those who are recognized as legiti- mate heirs by the laws of that country; and they take in the proportions and in the order which these laws prescribe. All 1 Dawes v. Head, 3 Pick. 128, 144. 138 THE LAW OF DECEDENTS' ESTATES. [§ 165 the authorities, both in England and America, so far as they go, recognize the principle in its fullest import, that real estate, or immovable property, is exclusively subject to the laws of the country within whose territory it is situate. The reason of the rule includes leasehold and chattel interests in land, servitudes, and easements, and other charges on lands, as mort- gages and rents, and trust estates; all of these are deemed to be, in the sense of the law, immovables and governed by the lex rei sites. And as to what constitutes immovable or real property resort must also be had to the lex loci rei sites. §§166, 167] NATURE OF TITLE VESTING IN REPRESENTATIVE. 139 PART II. OF THE OFFICE OF EXECUTORS AND ADMINISTRATORS. CHAPTER XVIII. NATURE OF THE TITLE VESTING IN EXECUTORS AND ADMINISTRATORS. § 166. Conduit of the Inheritance. — In England and the United States the real estate descends to the heirs and devisees, subject to the power of the executor or administrator to convert the same into personalty for the payment of the decedent's debts; the real or personal property set apart for the widow and minor children goes to them absolutely, and the personal prop- erty goes to the executor or administrator to be distributed, after payment of debts, to legatees or next of kin. It will now be proper to inquire into the nature and extent of the authority conferred upon the officers employed by the law to give effect to the will of a decedent in respect of his property, and whose function it is to personate the deceased in all matters touching the posthumous disposition of his affairs. § 167. Distinction between Executors and Administrators. — The functions, powers, liabilities, rights, and duties of execu- tors are in most respects identical with those of administrators. But however great the similarity between the two offices may be, there are some essential distinctions which cannot be ignored or abolished even by legislation, without a change in the law of administration so radical as to be improbable, at least for many years to come. The decisive difference between them arises out of the method of their appointment; executors represent their testators by virtue of the act of the testator himself, while the authority of the administrator is derived exclusively from the appointment by some competent court. An executor can derive his office from a testamentary appointment only; the administrator, on 1 10 THE LAW OF DECEDENTS' ESTATES. (§168 the other hand, derives his authority wholly from the probate court; he has none until letters of administration are granted. From this distinction important questions frequently arise with regard to the time when the authority or liability of the one or other originated, which will be more fully considered hereafter. An important distinction exists also in respect of the power to hold, manage, and alienate the property of the deceased; the authority of the administrator is commensurate with the provisions of the law on the subject, as existing and recognized in the forum of his appointment; but the will of the testator is in itself a law to the executor, which may enlarge or circum- scribe the authority or discretion which an administrator would have, and which, to the extent in which it is not repugnant to the law of the State, he must strictly observe. § 168. When the Title vests in the Executor, and when in the Administrator. — An executor is a person appointed by a testa- tor to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease. As his interest in the estate of the deceased is derived from the will, it \^ests, according to the common law, from the moment of the testator's death. The will becomes operati\'e, including the appointment of the executor, not by the probate thereof, nor by the act of the executor in qualif}ung, v.hich are said to be mere ceremonies of authentification, but by the death of the testator. On the other hand, an adminis- trator is one to whom the goods and effects of a person djang intestate, or wathout appointing an executor who survives and accepts the office, are committed by the probate court. De- riving his authority wholly from his appointment by the court, his title to the property of the deceased vests in him only from the time of the grant. In respect of executors, however, the common law has been materially modified in many of the States, and the doctrine that their powers are conferred directly by the will is mostly repudiated. " The fact that one is named in the will as executor does not, as at common law, make him executor in fact, but only gives him the right to become executor upon complying with the conditions required by law." ^ "At death, a man's 1 Stagg V. Green, 47 Mo. 500, 501. § 169] NATURE OF TITLE VESTING IN REPRESENTATIVE. 141 property really passes into the hands of the law for administra- tion, as much when he dies testate as when he dies intestate; except that, in the former case, he fixes the law of its distribution after payment of his debts, and usually appoints the persons who are to execute his will But even this appointment is only provisional, and requires to be approved by the law before it is complete; and therefore the title to the office of executor is derived rather from the law than the will." ^ ]Most States announce this doctrine.^ § 169. Relation of the Appointment to the Time of Death. — For particular purposes the letters of achninistration relate back to the time of the death of the intestate, and vest the property in the administrator from that time. On this principle, an administrator may maintain trespass for injiu-ies to the goods of the intestate committed after his death and before the ap- pointment; or trover for property so wrongfully detained; or an action on a contract made with the defendant before ap- pointment; or for money belonging to the estate collected by defendant before grant of letters; or assumpsit for money paid to defendant's order. "This doctrine of relation is a fiction of law to prevent injustice, and the occurrence of injuries where othen\ase there would be no remedy; and would not be applied in cases where the rights of innocent parties intervened;" nor "to recognize, validate, and bind the estate by the unauthorized acts which have been done to the prejudice of the estate, by any one, while the title was in abeyance;" ^ nor to give effect to the Statute of Limitation, which in some States does not run dur- ing the period intervening between the death of the intestate and the grant of letters. The principle is applicable, a fortiori, to executors in all of the States in which they are required to give bond before induction into office, or where, for any reason, the common-law rule, according to which they derive their authority from the testator, and not from the coiu-t, is modified by statute. A conveyance under a power of sale in a will, before probate of such will, by one nominated as executor, will be validated by a subsequent probate of the will.^ ^ Schoenberger v. Lancaster, 28 Pa. St. 459, 466. 2 Woemer on Administration, § 172. 3 Gilkey v. Hamilton, 22 Mich. 283. * Woemer on Administration, § 173. 142 THE LAW OF DECEDENTS' ESTATES. [§§ 170, 171 § 170. Title of Executors and Administrators in Atiter Droit. — The interest which an executor or administrator has in the es- tate of the deceased is in aider droit merely: he is the minister or dispenser of the goods of the dead. Since the property is not his own, it follows that he may maintain an action therefor in aider droit, although he himself be disabled from suing proprio jure; and any one claiming the same under a title from him in his private or personal capacity must show that he has ceased to hold it in a representative capacity. If the executor or administrator become banlo-upt, having property in posses- sion of his testator or intestate distinguishable from his own, it is not liable to the bankrupt's creditors, though it should be money; nor can the property so distinguishable be seized in execution of a judgment against the executor or administra- tor in his own right. Since an administrator stands in the relation of trustee to all those interested in the estate, property misapplied by him and converted into other property, or sold and the proceeds thus misapplied can, in his hands, be followed, wherever it can be traced through its transmutations, and w411 be subject, in its new form, to the rights of those interested in the estate; and proof of substantial identity is sufficient. § 171. Power of Alienation. — But an executor or adminis- trator has at common law power to dispose of and alien the assets of the decedent; he has absolute power over them for this purpose, and they cannot be followed by the creditors of the deceased. And he may convert them to his own use, thus making himself chargeable for the amount, and subjecting them thus converted to the same incidents and liabilities, in all re- spects, as if they had never belonged to the estate of the de- ceased.^ But this common-law doctrine, as hereafter shown, is materially modified in America. * Woemer on Administration, § 175. §§ 172, 173] OF SPECIAL AND QUALIFIED ADMINISTRATORS. 143 CHAPTER XIX. OF SPECIAL AND QUALIFIED ADMINISTRATORS. § 172. Administrators cum Testament© Annexe. — It has been shown that the chief distinction between an executor and an administrator Ues in the source of their appointment, and in the fact that the one disposes of the estate according to the directions of the testator, while the other is governed in this respect by the general law. The distinction is still fainter in cases where a will exists and, from any cause, there is no execu- tor. In such case the probate court designates a person to carry out, or execute, the will, which is then annexed to and be- comes part of his letters; from which circumstance he is known as administrator (not executor, because not nominated by the testator) cum testamento annexo, or administrator with the will annexed. Since it is his duty to dispose of the property of the testator in accordance with the provisions of the will, it is obvious that his powers can differ but slightly from those of an executor. Since all the duties of an executor, pertaining to his office as such, devolve to the administrator with the will annexed, the latter possesses, generally, the same powers, is bound by the same duties, and subject to the same liabilities as the former, whether appointed originally, or upon the death, removal, or resignation of the executor; but the powers and duties not neces- sarily connected with the functions of an executor devolve upon the administrator with the will annexed only when it appears clearly from the will that the testator so intended; as where, for instance, he directed an act to be done at all events, without leaving any discretion to the executor. § 173. Administrators de Bonis Non. — Upon the death, re- moval, or resignation of a sole executor or administrator, or of all of several joint executors or administrators, before the estate has been fully administered, it becomes necessary to appoint a 144 THE LAW OF DECEDENTS' ESTATES. [§ 173 successor, to the end that the administration may be completed. Such an officer is known as administrator de bonis non {admin- istratis), — administrator of the unadministered effects; or, if he succeed an executor or an administrator cum tcstaviento annexo, he is known as administrator de bonis non cum testa- mento annexo — administrator with the will annexed of the unadministered goods. At common law there is a distinction in this respect between executors and administrators, growing out of the doctrine that an executor's executor succeeds to the estate of the deceased executor's testator, but not the de- ceased executor's administrator, nor does a deceased adminis- trator's executor or administrator succeed to the estate of the original intestate. This distinction disappears, of course, with the rule from which it springs,' and now exists in very few of the American States; where it is not recognized, the necessity for the appointment of an administrator de bonis non is the same, whether it was an executor or administrator who left the estate unadministered. It is to be observed, hoAvever, that a successor to an executor provided for in the will by the testator, completes the administration as executor, not as administrator. An estate is not fully administered so long as anything re- mains to be done to vest the title of the decedent's estate in the beneficiary, whether creditor, next of kin, legatee, or devisee, which no one but an executor or administrator can lawfully do; such as paying a legacy, or distributing the effects or assets, although the assets had been reduced to money, paying debts, collecting debts, or the like. But it has been held in several cases that, where all that remains to be done is some mere formality, the appointment of the administrator de bonis non should be refused.^ The administration de bonis non may be granted after any length of time, but lapse of time and other circumstances may raise a presumption that all debts against an estate are barred or paid, and that the remaining assets belong to the heirs, in 1 Thus where an asset supposed to be valueless acquired value after final settlement, it was held that the distributees of the estate could sue for it; and that an administrator de bonis non should not be appointed. Jordan v. Hunnel, 96 Iowa 334; but contra: Mallory's Appeal, 62 Conn. 218. §§ 174, 175] OF SPECIAL AND QUALIFIED ADMINISTRATORS. 145 which case the administration cannot be reopened by the ap- pointment of an administrator de bonis non. If nothing remains to be done to complete administration, the grant of letters de bonis non is merelj' nugatory. Since there can be but one vahd administration in the same State of the same succession at the same time, the appointment of an administrator de bonis non before the death, removal, or resignation of the executor or original administrator is a nullity. § 174. Public Administrators. — Where no person is entitled to administer on the estate of a deceased person, in the juris- diction; or where those so entitled for any reason decline to act, the State must supply some person whose duty it is to conduct such administration. In some States some official, for instance the sheriff, is charged with this duty ex officio. In most a special officer is elected or appointed to whom the name of Public Administrator is usually given. The general scope of his duty is to administer on estates otherwise without admin- istration. But States vary widely in fixing the kinds of estates on which this official must administer, in determining the method of his taking charge, in determining his relations to his successor in office, and many similar questions. These matters depend on the local statutes, and cannot here be pursued in detail. § 175. Administrators Pendente Lite.— The authority of testa- mentary courts to grant administration -pendente lite — during a controversy concerning the right to the administration — seems to have always been admitted; and since the case of Walker v. Woolaston,^ the power of the court to grant adminis- tration pendente lite in cases touching an executorship also has been settled. The safety of the estate requires that some person be charged with the duty and armed with the necessary au- thority to protect and preserve it until the termination of the contest touching the administration or executorship shall place it in the charge of the permanent administrator or executor; hence they are also known as administrators ad colligendum, and the general duties of such an administrator have been described as being simply to represent the estate during the pendency of the litigation and to see that no detriment comes to the goods 1 2 P. Wms. 576. 146 THE LAW OF DECEDENTS' ESTATES. [§ 176 or effects of the estate, and administrators pendente Hie com- pared to receivers in chancery. Their authority ceases, of course, upon the termination of the contest, and they must then sur- render the estate into the hands of the rightful representative. But until such termination of their office they may maintain suits for debts due the deceased, and bring ejectment for lease- hold estates against the heirs, next of kin, or any other person who may be in possession or pay the widow's award. Whatever they may lawfully do is binding upon the estate. In the ab- sence of statutory authority, they have no power other than may be necessary to collect the effects. § 176. Temporary and Limited Administration. — Special ad- ministrators, known as administrators ad litem, are sometimes appointed for the sole purpose of defending or prosecuting par- ticular suits instituted by or against a person who may die while such suit is pending; or where a pressing necessity is sho^Ti for carrying on proceedings in chancery, and there is no general personal representative; or where the interest of the general administrator or executor conflicts with that of the estate. In several States the administrator ad litem is well kno\Mi for the last-named purpose, that is, to defend the estate when the administrator or executor has a claim against the estate to present in court. Of course such administrator ad litem has no control over assets of the estate; nor indeed any powers or duties beyond those of the litigation. There are other temporary administrations knowm to the common law, and of importance in England, which are not so important in America, because the theory of administration differs in the two countries in some important particulars, chief among which is the time during which the authority of personal representatives continues. In England the adminis- tration extends, in general, to the whole personal estate of the deceased, and terminates only with the life of the grantee; while the authority of limited administrators is confined to a particular extent of time, or to a specified subject-matter. At the conmion law, too, executors, and at one period of time ad- ministrators, possessed an interest in the residuum of the es- tates in their charge which has rarely or never been recognized in the United States. It is the policy in this country, declared § 176] OF SPECIAL AND QUALIFIED ADMINISTRATORS. 147 and emphasized by the statutes of the several States, echoed by the courts, and warmly approved by the people, to reduce the time allowed executors and administrators to close up their administrations to the briefest period compatible with justice to creditors. So at common law, as also under the statutes of some States, when the person named as executor is a minor, administration will be granted until the minor attains majority, to a tempor- ary administrator, designated as durante minore estate. And at common law an administrator durante absentia could be ap- pointed in the absence from the country of the person entitled to administer. Such an administrator does not exist in America. Prolonged absence in America would be cause for removal; or if the party absent had never qualified, for forfeiture, and con- sequent appointment of a regular permanent administrator. § 177J WHAT MAY BE DONE BEFORE PROBATE OR LETTERS. 149 TITLE THREE. OF THE DEVOLUTION TO THE LEGAL REPRESENTATIVES. PART I. OF THE ESTATE WITHOUT OFFICIAL REPRESENTATION. CHAPTER XX. WHAT MAY BE DONE BEFORE PROBATE OR GRANT OF LETTERS. § 177. To whom the Real and to whom the Personal Property descends. — Upon the death of an owner of property his real estate descends, at common law, to his heirs or devisees, sub- ject, under a series of EngHsh statutes, to be converted into assets for the payment of the owner's debts, if the personalty be insufficient for that purpose. This habiUty, however, does not deflect the course of descent: the personal representative possesses only the naked power to sell or lease the real estate, if it become necessary, to pay debts, and until this power is executed, by order of the court having jurisdiction, the title and its defence, the possession, rents, and profits, belong to the heirs and devisees. The title of the heir or devisee vests instantly upon the death of the ancestor or testator; and when the executor or administrator sells, the sale does not relate back to the death of the deceased, but takes effect from the time when made. The law is substantially the same in most of the American States, although some of them have abolished the artificial common-law rule distinguishing, in this respect, be- tween real and personal estate, and subject both classes of property aUke to the title of personal representatives for the 150 THE LAW OF DECEDENTS' ESTATES. [§§ 17S, 179 purpose of administration. These exceptions will be more conveniently noted in connection with the subject of the liabil- ity of real estate for the debts of its deceased owner. The personal estate of a decedent, however, passes, as at common law, so in all the States (with the exception, in some particulars, of Louisiana), to the executor or administrator. We have already seen, however, that as to the time when the personal estate vests in the representatives there is, at common law, a broad distinction between executors and administrators. It results from the English doctrine ascribing the executor's authority to the will itself, of which the probate is but the authenticated evidence, that the property of the deceased vests in the executor from the moment of the testator's death; while the administrator, whose sole source of authority is the appointment by the probate court, can have no power to act before the grant of letters. § 178. Authority of Executors before Grant of Letters Testa- mentary. — In most of the American States executors are re- quired to qualify by giving bond and taking the oath of office; until they have complied with these conditions they have no' legal power to act, except decently to bury the deceased and to do what may be necessary to preserve the estate. Where the statute authorizes the executor to act without bond, the grant of letters testamentary by the probate court is the source of his authority, which does not depend for its validity upon the manual issuance of the letters. Hence the sale or transfer of property by an executor who has not qualified is void, and his assent to a specific legacy does not pass the legal title to the thing bequeathed. It has also been held that an executor before probate, if legally competent to qualify, may be treated as representing his estate so far as relates to acts in which he is merely passive, such as receiving notice to an indorser of the dishonor of a note. § 179. Authority of Administrators before Grant of Letters. — It is, of course, inaccurate to predicate any authority of an administrator who is shown by the statement not to be an administrator; the phrase is employed to designate those per- sons who, having a legal preference or exclusive right to the appointment as administrator, act for the protection and in § 179] WHAT MAY BE DONE BEFORE PROBATE OR LETTERS. 151 the interest of the estate in anticipation of such appointment. The principle upon which the acts of an executor are validated upon subsequent probate of the will or grant of letters testa- mentary is extended to administrators, and has been enlarged upon in an earlier chapter treating of the nature of the title of executors and administrators. The decisive test to ascertain whether the acts done before appointment are legalized or ratified by the subsequent grant of administration is whether such acts would have been valid had he been the rightful ad- ministrator; the consequences both to the person acting and to the estate must be the same as if he had been legally in charge of the estate. The doctrine is stated to be, that the title to the personal property of a decedent is in abeyance until his executor qualifies, or an administrator is appointed, when it vests in him by relation from the time of the death. It has already been pointed out, that this doctrine is a fiction of the law to prevent injustice and injimes to estates, and will never be resorted to where it might unjustly affect the rights of inno- cent parties intervening, or to recognize or validate unauthor- ized acts in prejudice of the estate. 152 THE LAW OF DECEDENTS' ESTATES. [§ ISO CHAPTER XXL OF EXECUTORS DE SON TORT. § 180. Extent of Doctrine of Executor de son Tort in America. — The common-law doctrine ascribing to an executor authority to act without first quaHfying, or going through any ceremony of authentication or induction into office whatever, which might serve as notice to the pubHc of his official character, has given rise in the English law to what Mr. Schouler terms "an official name to an unofficial character; styling as executor de son tort — executor in his own wrong — whoever should officiously intermeddle with the personal property or affairs of a deceased person, having received no appointment thereto." ^ The theory of holding an intermeddler liable in the character which he has himself voluntarily assumed, is not unjust to him, and may be necessary to the protection of the interests of cred- itors, heirs and legatees of the deceased person, not only be- cause strangers may naturally conclude that the person so acting has a will which he has not yet proved, but for the sub- stantial reason that, by holding him liable in the assumed char- acter, the remedy of parties injured is, at least at common law, much simplified, and circuity of action avoided. Distinguished American writers on this subject have expressed their disapprobation of the doctrine of liability as executor de son tort in strong terms, and intimate that it meets with little favor in American courts. There can be no doubt that in many of the American States, in which the common-law system of the administration of the estates of deceased persons has been entirely done away with, this doctrine should disap- pear with the conditions which called it into being. There is neither occasion nor room for it in those States which have vested complete jurisdiction in probate courts to control the settlement of estates of deceased persons. It is quite apparent that in such States it would be irrational to apply the doctrine ^ Schouler on Executors, § 184. § ISl] OF EXECUTORS DE SON TORT. 153 of executor de son tort to one who unlawfully appropriates the property left by a deceased person, and thereby renders himself liable as a wrongdoer to the one upon whom the law casts the title: which, by relation, attaches to him from the time of the decedent's death. No one's interest would be subserved. The office of executor de son tort is accordingly abol'shed in New York, and declared by the courts of Arkansas, California, Kansas, Missouri, Ohio, Oregon, and Texas, and perhaps others, to be repugnant to the letter and spirit of the law of these States. In other States, whose administration laws present the same or similar features as those above men- tioned, neither the legislature nor courts have abolished the doctrine, at least not in express terms; but it is gradually passing out of notice, for the reason that it meets no practical want. In those States, however, in which the common-law mode of administration is still more or less adhered to, — where, for instance, the executor has power to act before qualifying, and even before probate of the will, where he may pay debts not proved before a court or without order of the court, where he is not required to give bond, etc., — the doctrine of executor de son tort is a natural and essential element of their law. § 181. Executor de son Tort — how constituted. — " If one who is neither executor nor administrator intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in the law an executor of his own wrong, or, more usually, an executor de son tort." ^ Very slight circumstances of intermeddling with the goods of a deceased person will make one liable as executor de son tort. Mr. Williams alludes to some ancient cases in which the milking of a cow by the widow, taking a dog, a bedstead, a Bible, were held sufficient, as indicia of being the representative of the deceased. But there are many acts which a stranger may perform without incurring the hazard of making himself liable as executor de son tort; notably, all acts or offices of mere kindness and charity, and looking to the preservation of the property. » Williama on Executors [257]. 154 THE LAW OF DECEDENTS' ESTATES. [§§ 1S2, 1S3 § 182. The Liability of the Executor de son Tort. — An execu- tor de son tort lias all the liabilities, though none of the privi- leges, that belong to the character of executor. He is liable to be sued by the rightful executor or administrator, by a creditor, or by a legatee; but not, it seems, to the next of kin, so long as any debts remain unpaid, though otherwise where there are no debts owing. The liability of an executor de son tort to creditors of the de- ceased does not, at common law, extend beyond the goods which he has administered; for while he is not allowed, by his own WTongful act, to acquire any benefit, yet he is protected, if he pleads properly, for all acts other than those for his own advantage, which a rightful executor might do. The liability of an executor de son tort at the suit of a rightful executor or administrator is necessarily different from that to a creditor, for this among perhaps other reasons, that the inter- meddling with the assets of an estate under legal administration involves an element of wrong not included in the intermeddling when there is no lawful representative; viz. the infringement of the rights of the executor or administrator. Hence to an action by the rightful executor or administrator the executor de son tort cannot plead in bar the payment of debts, etc., to the value of the assets, or that he has given the goods in satisfaction of the debts. He may prove, however, under the general issue, in mitigation of damages, payments made by him in the rightful course of administration, because it is no detriment to the ad- ministrator dejure that such payments were made by the execu- tor de son tort. § 183. Effect of Appointment of Executor de son Tort upon his Previous Acts. — It has already been mentioned, that the grant of letters to an executor or administrator relates back, so as to legalize all previous acts within the authority and scope of a rightful representative. This doctrine is obviously appli- cable to the acts of executors de son tort who may subsequently obtain a grant of letters; for the executor who was not qualified to act, and the person who had not been appointed adminis- trator, were equally executors de son tort if they intermeddled. The intermediate acts, which were tortious or unlawful for the want of competent authority before appointment, become, by § 183] OF EXECUTOES DE SON TORT. 155 relation, lawful acts of administration, for which the actor must account; the liability to account, involves a validity in his acts which is a protection to those who have dealt with him. It would seem to result from the doctrine holding the lawful acts of an executor de son tort to be good, that the alienation of goods by him for the payment of debts is indefeasible. 15G THE LAW OF DECEDENTS' ESTATES. [§§ 1S4, 185 CHAPTER XXII. OF THE NECESSITY OF OFFICIAL ADMINISTRATION. § 184. Why Administration is Necessary. — The necessity of official administration, that is to say, of obtaining a grant of letters testamentary or of administration, as the case may be, and the judicial sanction of payment of debts and legacies out of the estate and the distribution of the residue, arises out of the common-law doctrine that the personal property of a dece- dent descends to the executor or administrator, while his real estate descends to the devisees or heirs, subject, under English and American statutes, to the payment of his debts and leg- acies. This doctrine is recognized substantially in all the States, except Louisiana, where, under circumstances pointed out by law, the title to personal as well as real property descends directly to the natural or instituted heirs. The direct conse- quence of this principle of the law is, that without due course of administration the claims of creditors cannot be lawfully sat- isfied, and neither heirs nor legatees can obtain a legal title to their legacies or distributive shares; and that neither devisees nor heirs can hold the real estate to which they succeed free from the claims of creditors of the deceased, against whom limi- tation does not, in some States, run after the debtor's death, until there be lawful administration of his estate. Another consequence is, that the payment of debts to the deceased can be coerced by no one but the lawfully appointed executor or ad- ministrator, even in equity, because there is no privity between the debtors and any person other than the legal representative. § 185. Administration not Necessary under Certain Circum- stances in Some States. — Apart from specific statutes, the rulings of most States dispense with administration where it is unnecessary. The right of creditors to the assets of a deceased person is usually the principal reason for requiring official ad- ministration, and courts, therefore, sanction the disposition of § 185] THE NECESSITY OF OFFICIAL ADMINISTRATION. 157 the property of a decedent without the appointment of an ad- ministrator where it is certain that no debts are owing. Thus, upon the death of an infant intestate, administration is held unnecessary, because an infant is presumed not to have in- curred any HabiHty; but that presumption is rebutted where he was married and leaves a widow, and of course when the actual existence of debts can be shown. More broadly, "a court of equity will dispense with an administration, and decree dis- tribution directly, when it affirmatively appears that, if there was an administrator, the only duty devolving on him would be distribution. Then administration is regarded as 'a useless ceremony.'" ^ This rule is recognized in decisions of numerous States.^ It is, however, difficult to perceive how it can be de- termined as a matter of law that there are no debts which can be proved against a decedent's estate, before the period allowed for proving claims has expired. There are also statutes in many States legally dispensing with administration under certain circumstances. In one class of these statutes it is provided that when the person nominated in the will as executor is also the residuary legatee, he may, at his option, instead of the regular administration bond required of executors, give bond with sufficient sureties conditioned that he will pay the testator's debts and legacies (including, either expressly or by implication, funeral expenses and the allowances to the widow and children), and will then be relieved from the necessity of returning an inventory, or further accounting in the probate court. An executor giving such bond at once becomes liable for all of the debts of the testator, but the lia- bility of the estate is not extinguished; and it operates as an admission of sufficient assets and a guarantee to pay all debts, since the executor files no inventory of assets, the only means from which it could be ascertained whether they equal the debts and legacies. Provision is made by statute in some of the States that, where the property of an estate does not exceed in value the amount which is secured to the widow or minor orphans for their imme- diate support, the probate court may dispense with adminis- 1 Fretwell v. McLemore, 52 Ala. 124. 2 See Woemer on Administration, § 201. 158 THE LAW OF DECEDENTS' ESTATES. [§ 185 tration, and authorize the widow, or minor children by next friend, to collect and appropriate to their own use all such prop- erty. The soundness of the principle upon which such provi- sions rest, or rather the absurdity of a contrary view, is self- evident. Why should the law compel administration where there is nothing to administer? The appointment of an ad- ministrator in such case could have no possible effect but to diminish or eat up what the law intends for the support of widows and orphans. The descent of property is not governed by the same rule in Louisiana as in the other States, but is modelled after the law prevalent on the continent of Europe. That law differs so radically in its fundamental standpoint from the system preva- lent in the other States, that it cannot be fairly stated without a treatment extending beyond the permissible limits of this treatise. To avoid repetition, it may here be said of the doc- trines laid down in this book, that they do not necessarily apply in Louisiana. § 186] THE PRELIMINARIES TO THE GIt\NT OF LETTERS. 159 PART II. OF THE INDUCTION TO THE OFFICE OF EXECUTOR AND ADMINISTRATOR. CHAPTER XXIII. OF THE PRELDIINARIES TO THE GRANT OF LETTERS TESTAMENTARY AND OF ADMINISTRATION. § 186. Local Jurisdiction to grant Letters Testamentary and of Administration. — Whatever may have been the law in ancient times, it is certain that at the time of the passing of the Court of Probate Act, the ecclesiastical court was, in Eng- land, the only court in which the validity of wills of personalty, or of any testamentary paper whatever relating to personalty, could be established or disputed, except certain courts baron. In the United States this jurisdiction, and the power to appoint executors and administrators, are vested in probate courts, or courts having probate powers, by whatever name known. The rule in America is universal, that administration may be granted in any State or Territory where unadministered personal property of a deceased person is found, or real property subject to the claim of any creditor of the deceased; ^ and that probate of the will of any deceased person may be granted in any State where he leaves personal or real property. As between the several courts within the same State or sov- ereignty, jurisdiction attaches primarily to that tribunal which is invested with probate powers for the county or territorial district which includes the domicile of the testator or intestate at the time of his death, without regard to the place of his death or situs of his property. » Thormann v. Frame, 176 U. S. 350, 355. See Woemer on Adminis- tration, § 204. IGO THE LAW OF DECEDENTS' ESTATES. [§ 187 To grant letters on the estate of a deceased person the probate court must find as a fact, and thus judicially determine, that the deceased had his domicile in the county or territorial district over which the jurisdiction of the court extends, for otherwise the court would have no jurisdiction to grant letters, or take probate of a will. It was formerly held in many States, that notwithstanding this finding and adjudication by tlie court, proof might be made in a collateral proceeding showing that such finding and adjudication was erroneous, and that as a matter of fact the decedent was at the time of his death domiciled in a different county; and that in such case the grant of letters, was void ah initio for the want of jurisdiction. But the more reasonable doctrine is gaining ground, and is now held in nearly all the States, that letters so granted, while they are voidable when properly assailed, are valid until revoked in a direct proceeding. If the deceased had, at the time of his death, no fixed place of residence, letters may be granted in the county where he died; or if he died abroad, in any county where his property may be found; and if he left property in more than one county, then in any of them. It is obvious, however, that there can be but one grant of administration on the same estate at one time in the same sov- ereignty or State; and since the jurisdiction which has once attached remains until final completion of the administration, the court first exercising jurisdiction will retain it to the exclu- sion of every other court in the State. § 187. Jurisdiction over Estates of Deceased Non-Residents. — No administration can be granted in the case of a deceased non-resident unless he left property within the jurisdiction of the court making the appointment. The situs of real estate confers jurisdiction to take probate of a will affecting it. And although realty goes to the devisee or heir, and the Probate Court in the process of administration has nothing to do with realty unless it becomes necessary to sell land for payment of debts, yet since the existence of debts can only be ascertained in due course of administration, and the title to the realty can generally only be cleared by adminis- tration, the fact that there is real estate belonging to the estate § 1S7] THE PRELIMINARIES TO THE GR.\NT OF LETTERS. IGl and within the jurisdiction, is in this sense property which will support the grant of letters testamentary or of adminis- tration by the proper probate court, although it may develop that there are no debts and no personal property.^ The situs of personalty as conferring jui-isdiction presents a matter of conflict, apparent rather than real. The term bona notahilia, which was originally used in England to designate the assets of the deceased which were sufficient to draw juris- diction from the Bishop's Court to the Archbishop's, is now applied to cover such property as confers local jurisdiction for administration. Clearly each sovereignty has the right to determine for itself what are bona notabilia, and cannot be directly controlled in its decisions by any other sovereignty. But in the interests of an orderly administration according to principles of universal justice and for avoidance of unseemly conflicts, certain principles are recognized in all jurisdictions by comity. As regards goods and chattels of the deceased, the principle is universally recognized that they are assets in the jurisdiction where they are physically situated at the decedent's death. As to choses in action the general doctrine is that judgments are bona notahilia where the record is; specialties where they are at the time of the creditor's decease; and simple contract debts where the debtor resides. But since the doctrine rests on comity, the sovereignty is under no legal compulsion to follow it; and can and will set the rule aside, whenever substan- tial justice, the interest of its citizens, or the policy of the State is sufficiently important to warrant such a departure. That the general principle will not be followed when justice requires a departure is illustrated by the case of Miller v. Hoover} A judgment was rendered in Virginia, and after the ^ It is to be remembered, of course, as stated in the preceding section, that within the respective counties of the State, the letters must be granted . by the probate court of the county where the decedent died domiciled, which is of force throughout the State, and that there can be but one such grant of letters within the same State, though the real estate may be situated in another county, and there is no personalty or other property in the county of the domicile. It is only as to a non-resident of the State that the existence of property confers jurisdiction without reference to the domicile. 2 121 Mo. App. 5GS. 162 THE L-YW OF DECEDENTS' ESTATES. [§ ISS judgment creditor's death, and grant of administration on liis estate in his Virginia domicile, the judgment debtor moved to JNIissouri. Administration was granted in the hitter State on the judgment creditor's estate, though the onl^- claim for an asset there was this judgment rendered in Virginia; a claim which of course was an asset in Virginia at the time adminis- tration was granted on the creditor's estate, the debtor then living there. No other remedy was practicable. The doctrine that specialties are bona nolahilia in the juris- diction where they may be physically found at the decedent's death, though it has ample authority back of it, is not of uni- versal reception. In cases of stock certificates it has been held that the certifi- cates are merely the evidence of the property right, hence stock is bona notahilia at the home of tho corporation, and not where the certificates were found.^ Again it has been held in the case of insurance policies that while they are bona notabilia in the home State of the insuring company, yet they are also such in the State where the policy — the document itself — is located and where the defendant corporation can be served; and that when jurisdiction has been taken under the latter theory, the State of the home office should decline jurisdiction through comity.^ § 188. Claims for Injury resulting in Death as Asset. — In transitory torts which survive, the residence of the defendant confers jurisdiction. Some conflict arises in the decisions under the so-called Lord Campbell Acts, existing in every State, whereby an action is given for death occasioned by neglect or default, in contraven- tion of the common law. When the action is given by the statute to the administrator for the sole benefit of the estate of the deceased, there should be no question that the cause of action given by the law of the State where the injury occurred (if it has any extra-territorial force) should constitute bona notabilia in a State where the defendant resides, so that adminis- 1 Richardson v. Busch, 198 Mo. 174; Jellenck v. Huron Copper Co.. 177 U.S.I. 2 Sulz V. Ins. Ass'n, 145 N. Y. 563; New England Co. v. Woodworth, 111 U. S. 138. § 1S9] THE PRELIMINARIES TO THE GRANT OF LETTERS. 163 tration can be taken out in the latter State on the strength thereof. Where the statute of the State where the injury occurred vests the cause of action in the widow or children of the deceased for their benefit, and not for the benefit of the estate, the death loss is clearly not bona notabilia, and no ad- ministration on the estate of the deceased in another State can be based thereon. But it is very common for the statute to vest the cause of action in the administrator, not for the estate, and he then sues rather in the nature of a trustee for the exclu- sive benefit of the family of the deceased. Technically such a claim for the benefit of widow and children, not being assets, would seem not to be bona notabilia in another State, even though the administrator be the only plaintiff provided by statute; and there are holdings to that effect. But a different conclusion is reached in other States, where "the fact that the statute gives such a right of action to the personal representa- tive and to him alone, implies the right to appoint, if necessary, an administrator to enforce it," ^ and "where there is property or a fund or right of action which cannot otherwise be made available, it is competent for the Probate Court to appoint an administrator for the sole purpose of collecting and receiving assets which will not be assets of the estate of his intestate or liable for his debts, but which will belong to particular persons who by law or by contract with the deceased will be entitled thereto." - In such case it is for the Probate Court to determine whether there is an apparent claim, a bona fide intention to pursue it, and that administration is necessary for its pursuit. So far as the proceeds of action for death are concerned, as we shall hereafter see, they do not constitute assets in the ordi- nary sense of the term.^ § 189. What constitutes Domicile or Residence. — It is not always easy to prove what was the domicile or place of residence of a person at the time of his death, so as to fix the jurisdiction over his estate in the proper forum. It has been defined as being, in the common-law sense, the place where one has his true, fixed, and permanent home and principal establishment, to which whenever he is absent he has the intention of return- ^ Hutchins v. St. Paul R. R., 44 Minn. 5. 2 Sargent v. Sargent, 168 Mass. 420, 424. » Post, § 284. 164 THE LAW OF DECEDENTS' ESTATES. [§ 190 ing. When once acquired, it continues until by free choice another is substituted therefor. Hence there can be no aban- donment or acquisition of a domicile by one who is adjudicated of unsound mind, or by one not sui juris; the domicile of the child follows that of its parents, and the domicile of the wife follows that of her husband. Absence from the domicile, and residence elsewhere for reasons of health, comfort, business, recreation, temporary convenience, and the like, do not consti- tute or indicate an abandonment of the domicile. To work a change of domicile, there must be a concurrence of the intention to acquire a new domicile with the fact of having acquired one and abandoned the former one, without the intention of re- turning thereto.^ § 190. Proof of Death. — The death of the testator whose will is to be proved, or of the intestate whose estate is asked to be subjected to administration, is a question of fact of which proof must be made before the jurisdiction of the court attaches. Ordinarily, the death of a person leaving property for admin- istration is a matter of such notoriety that proof is of easy ac- cess among the neighbors, relatives, and persons interested in the estate. But where the testator or intestate was domiciled abroad, or died away from home in a remote country, direct proof is not always attainable; and death must in such cases be established by circumstantial evidence, the most usual of which is such person's prolonged and unexplained absence from home without being heard from. When such absence from home has continued for above seven years, within which time no intelli- gence of his existence has reached his relatives, friends, or ac- quaintances, it will be presumed that he is dead, and proof of these circumstances, unrebutted, will support the adjudication of the probate court necessary to give it jurisdiction. This pre- sumption does not, obviously, attach to any particular time within the seven years, but in the absence of facts indicating the time of death, assumes the absentee to have lived through the whole period. Death may also be inferred from the absence of a person from his home, without being heard from for a period less than seven years, if proof be made of other circumstances tending to show 1 Woerner on Administration, § 206. § 191] THE PRELIMINARIES TO THE GRANT OF LETTERS. 165 his death. Thus, evidence of one's long absence without com- municating with his friends, of character and habits making the abandonment of home and family improbable, arid of want of all motive or cause for such abandonment, was held sufficient to support the presumption of death. The factum of death may, it seems, be proved by hearsay evidence; "for, as has been said, that a person has been missing at a particular time, accompanied with a report and general belief of his death, must be, in many cases, not only the best but the only evidence which can be supposed to exist of his death." It is so held by the Supreme Court of the United States and in several of the State courts. The civil law entertains presumptions, based on age and sex, of survivorship among different persons perishing in the same event, who would inherit from each other. The doctrine in England, as stated in the syllabus of Wing v. Angmve,^ is as follows: "there is no presumption of law arising from age or sex as to survivorship aipong persons whose death is occasioned by one and the same cause; . . . nor is there any presumption of law that all died at the same time; . . . the question is one of fact, depending wholly on evidence, and if the evidence does not establish the survivorship of any one, the law will treat it as a matter incapable of being determined. The onus prohandi is on the person asserting the affirmative." The same doctrine, of non-presumption of survivorship, prevails in America. One claiming through a survivorship must prove the survivorship; hence in the absence of evidence from which the contrary may be inferred all may be considered to have perished at the same moment, not because the fact is presumed, but because, from failure to prove the contrary by those asserting it, property rights must necessarily be settled on that theory, and descent and distribution take the same course as if the deaths had been simultaneous.^ § 191. Administration on the Estates of Living Persons. — The court may be in error in finding that a man is dead, and administer on his estate. Are acts under such an administra- tion valid against the man who returns to assert his rights? 1 8 H. L. 183. 2 Young Women's Christian Home v. French, 187 U. S. 401. IGG THE LAW OF DECEDENTS' ESTATES. [§ 192 It is agreed, as a general proposition, that the finding of a court as to jurisdictional facts is not open to collateral attack ; and its application to the case where a probate court assumes jurisdiction of the estate of a deceased person which properly belongs to another probate court within the sovereignty is discussed ante, § 180. In Woerner on Administration, § 211 of the First Edition, a powerful argument is made for applying the same principle to the case of a person erroneously pronounced dead by the probate court. But the question, as our author admits, is authoritatively settled by a series of decisions in the State courts and the United States Supreme Court. Such proceedings are held void against the person erroneously declared dead. The jm'isdiction is said to depend on the fact of death. Such a proceeding, it is held, would deprive a person of property without due process of law.^ § 192. Administration on Estates of Absent Persons. — Admin- istration of property becomes necessary, as we have seen, when its owner is, for any reason, incapable of exercising control over the same, — of asserting his jus disponendum. The practical reason which demands the interposition of the State is fully as strong when the o^\^ner of personal property — or of real prop- erty liable for his debts, or for the support of his family — has voluntarily or by compulsion absented himself, so that it is be- yond his power to provide for his family or satisfy his creditors, as if he were dead, insane, or a minor. But, apart from stat- utes, the law does not provide for administration, through the probate court, of the estates of absent persons. Several States pro\dde by statute for such administration on the estates of absent persons. Where such statutes are reasonable as to the period of absence necessary to create the presumption of death, and provide proper safeguards for the protection of his interests in case the absentee should return, they do not violate the due process clause of the Federal Constitution; and their validity seems to be established by the great weight of authority .- 1 Scott V. McNeal, 154 U. S. 34. 2 Cuimius V. School District, 198 U. S. 458, disapproving two State decisions to the contrary. §§ 193-195] OF THE PROBATE OF THE WILL. 167 CHAPTER XXIV. OF THE PROBATE OF THE WILL. § 193. Necessity for Probate. — A will takes its legal validity from its probate; that is, the certification by the court or tri- bunal clothed with authority for such purpose that it has been executed, published, and attested as required by law, and that the testator was of sound and disposing mind. Without sufch proof it is not a will in the legal sense. The will may dispose of real estate, or of personal property, and in a few States different proof or a difference in the proce- dure to obtain the probate may be necessary as to the one or the other; or it may not affect property at all, but only appoint a guardian for a minor and still require probate to give it validity. § 194. Validity of Probate in Probate Courts. — Pre\aous to the act creating the Court of Probates, no will or testamentary paper whatever relating to personalty could be established or disputed in any other than the ecclesiastical or prescriptive manorial courts of England; these courts, however, had no jurisdiction over wills affecting real estate, — their sentences and decrees were wholly inoperative as to such. Under the act referred to, jurisdiction to take probate of wills, without distinguishing between them on the ground of their disposing of real or personal property, is vested in the Court of Probate thereby created. This power had long before been exercised by the probate courts of nearly all the States; the distinction between wills of realty and of personalty is now practically ignored in the proceedings to obtain probate, except, perhaps, in Maryland and District of Columbia, where a will of person- alty may be admitted to probate in the Orphan's Court, and on the testimony of one of the attesting witnesses, while a will of real estate must be proved by the testimony of all of them. In some of the States, however, there is still a distinction observed as to the conclusiveness of such probate. § 195. Production of the Will for Probate. — In many States 168 THE LAW OF DECEDENTS' ESTATES. [§ 195 the judge of probate or register of wills is, by statute, made the custodian of wills deposited with him to that end. In such States, it is his duty, as soon as he receives information of the death of any testator whose will he has in custody, to institute proceedings for the probate thereof, and to that end compel the attendance of the necessary witnesses to prove its execution and the death of the testator. If the judge of probate is not the custodian, or, being so, neglects to proceed with the probate, it is the duty of the executor nominated in the will, as well as of any other person who may have it in possession, to produce it for probate. The time fixed by law for such production is different in the different States, varying from the time when the custodian shall learn the testator's death, to ten days, fifteen days, thirty days, or three months, after the day on which he died. Any person interested in a will may demand its produc- tion and probate. In most of the States the secreting, witliliolding, or refusal to produce a will for probate, in the possession of the executor or other person, is a violation of the law subjecting such persons to various penalties. In regard to the time within which a will is allowed to be proved, there is considerable divergence in the several States, depending on their statutes. Thus in Maine, Oregon, and Ten- nessee no probate can be granted after the expiration of twenty years from the testator's death. Again, in Indiana, New York, and Ohio bona fide purchasers from heirs can hold against de- visees if the will has not been produced within a limited period. From a case in Kentucky it would appear that the general Stat- ute of Limitations is there applied to probating wills.^ The ruling seems exceptional. The general Statute of Limitations is held elsewhere not to apply. Thus a will was admitted to probate in Illinois thirteen years after the testator's death,^ and in Massachusetts sixty-three years thereafter.^ But in this connection it must again be said that the question for any particular State can be settled only by consulting its statutes and the decisions thereunder. ^ Allen V. Freeman, 96 Ky. 313. 2 Robbin v. Mueller, 114 111. 343. 8 Haddock v. Boston & M. R. R. Co., 146 Mass. 155. §§ 196-198] OF THE PKOBATE OF THE WILL. 169 § 196. Jurisdiction for Probate in Common and Solemn Form. — The probate may be in the "common," or "non-contentious" form, granted upon the affidavit of the appHcant showing the testator's domicile and death; or it may be in the "solemn," or "contentious " form, upon citation to the widow and next of kin, and a regular trial. Courts of probate have original exclusive jurisdiction in all of the States to take probate of wills in common form. In some States, where notice to the widow and next of kin is required even in this form of proof, the probate obtained in the probate court seems to have all the force and validity of a proof in solemn form, and is conclusive, both as to real and personal estate, if not appealed from or annulled in equity for fraud, or some cause which gives equity jurisdiction over judgments at law. But elsewhere parties interested after the will is established in common form can demand proof afresh in solemn form. In a number of States the probate court has jmisdiction over the proof in solemn form, but in most of them the probate originally obtained ex parte or in common form, in the probate court, may be contested either in chancery, or by action in a court of law; and the proceedings in such court constitute the proof in solemn or full form, or, as is sometimes said, per testes} § 197. Jurisdiction over Probate of Lost Wills. — The probate of wills lost, suppressed, or destroyed is ordinarily within the juris- diction of probate courts, as coming within the scope of their general jurisdiction. But in most of the United States chancery courts exercise the power to establish wills on the ground that they have been lost, suppressed, or destroyed, and the juris- diction in such cases seems to be concurrent, unless the statute restricts the jurisdiction to one of these courts. § 198. Method of Proof in Common Form.— The probate of a will in common form is in its nature ex parte, without notice to any one interested in or against it, and resting, in some States, upon the evidence or affidavit of a single witness, which in some instances may be the executor or proponent himself. It "ap- plies only for convenience, expedition, and the saving of ex- pense, where there is apparently no question among the parties * See Woerner on Administration, § 215. 170 THE LAW OF DECEDENTS' ESTATES. 19S interested in the estate that the paper propounded is the gen- uine last will and as such entitled to probate. For contentious business before the court, probate in common form would be quite unsuitable."^ According to the English ecclesiastical practice, in which this form of probate originated, a will is proved when the executor presents it before the judge and pro- duces more or less proof that the testament presented is the true, whole, and last testament of the deceased, whereupon the judge passes the instrument to probate, and issues letters testa- mentary under the official seal. Under the Court of Probate Act the executor may at his pleasure prove the will in common or in solemn form, the difference in effect being that the probate in common form may be impeached at any time within thirty years by a person having an interest, whereupon the executor will be compelled to prove it per testes in solemn form; whereas, if once proved in solemn form of law, the executor is not to be compelled to prove the same any more, and the instrument re- mains in force, although all the witnesses be dead. According to the practice in American probate courts, a similar course is pursued in most of the States; usually, the executor (but it may be any other person having an interest) presents the will, and sets forth in a petition (which may be a printed blank provided for such purpose) the facts of the death of the testator, his last domicile, the names and places of resi- dence of the surviving widow or husband, if there be such, and of the next of kin; and alleging that the paper or papers pre- sented constitute the last will of the deceased, prays for the probate thereof and for appointment of executor or adminis- trator, as the case may be. It is held in some of the States, as has already been mentioned, that proof may be made by a single subscribing witness; but in most of them the testimony of both or all subscribing witnesses is required, if they are living and within the reach of the process of the court. Whether the will be proved by the testimony of one or all of the witnesses, or by the affidavit of the executor, or by other witnesses, the facts necessary to be proved are in all instances the same; that the testator was of sound mind, and that he and the subscrib- ing witnesses complied with all the requirements of the statute 1 Schoul. Ex. § 66. §§ 199, 200] OF THE PROBATE OF THE WILL. 171 respecting the execution and attestation by the requisite num- ber of witnesses. The essential quaUties of a will have been con- sidered in a former chapter of this work, to which reference is hereby made.^ § 199. The Probate in Solemn Form. — While the proof in common form is ex jmrte, in the proof in solemn form all persons interested in the will, as well as all persons who in the absence of a will would be entitled to inherit, must be made parties by service of personal notice or by publication, unless they vol- untarily appear. Creditors of the deceased as such are not made parties, since their interests are not affected whether the will stand or fall. The difference in the result of these two forms of proof is this: The proof in common form, while good as long as it is not questioned, is virtually set aside by demand for proof in solemn form; whereas the proof in solemn form is an ultimate judgment. In the mode of proving the will there is the distinction that in proof in solemn form all attesting witnesses competent to testify and within reach of the process of the court must be examined; though this is not insisted on in some States: in proof in common form, on the other hand, this requirement is generally not made. In a few States this distinction fails. It is there necessary to produce all accessible subscribing witnesses for proof in common form. Parties are generally entitled to a jury when the will comes up for proof in solemn form. This is not true of the proof in common form. § 200. Contest of Probate. — The ex parte probate cannot be attacked in a collateral proceeding, but only in a direct pro- ceeding brought to annul, set aside, or revoke such probate. This may be by appeal from the decree establishing or reject- ing the probate, by any person interested in the will, but which since the right thereto is purely statutory must be piu-sued in strict compliance with the requirements of the statute; or it may be by contest, which any interested person may institute who was not a party to the original proceeding resulting in the probate or rejection of the will, or in some States even by one 1 Ante, §§ 26-43. 1~- THE LAW OF DECEDENTS' ESTATES. [§ 200 who was a party, had either in the court which granted the probate, or in a superior court of law, or in a court of chancery, as may be provided by statute. These proceedings are in mok instances limited to a given period of time after which the pro- bate becomes absolutely conclusive. The original or ex jmrte probate is in rem. But on a contest "whenever a controversy in a suit between the parties arises respecting the validity of the will" it becomes in some respects inter imrtcs,^ requiring notice to all parties interested in the will or against it. In other respects these proceedings, also, are in rem, the issue being will or no will; and though as in some States such contest be regarded in the nature of an appeal and trial de novo, and be considered an action at law (partaking in some respects however of a proceeding in equity) and effect given to the verdict of the jury accordingly, yet the court must proceed either to establish or reject the will. Hence the contestant cannot be permitted to dismiss or to take a voluntary non-suit; nor, for the same reason, can contestant be compelled to give security for costs; nor can the issue be varied or restricted by averments in the pleadings or by the consent or acquiescence of the parties; nor can the parties by stipulation authorize a Judgment whereby the will is annulled as to some and not others; nor can the contest be determined by stipulation, at least not where one of the beneficiaries is not sui juris. But the contest of probate may be confined to a part of the will, when such part only is attacked as having been made under undue influence or obtained by fraud; so also when a will is annulled at the in- stance of one in whose favor a longer time is given to make con- test by reason of his having been under disability, the will must be set aside as an entirety, and the action enures to the benefit of all others interested, though as to them the time within which the will could be attacked has elapsed; but on this point the con- trary has also been held. This right to contest the validity of a probate granted, in the method pointed out by the statute, may be exercised by any person whose interests are substantially affected by the will so established, whether domestic or foreign. But since a person cannot hold under a will and also against it, one who accepts a beneficial interest under a will thereby bars himself from § 201] OF THE PROBATE OF THE WILL. 173 setting up a claim which will prevent its full operation, at law or in equity; and such person will not, therefore, be allowed to contest a will, unless he has acted in ignorance of his rights, and, restoring conditions in statu quo ante, he return without unreasonable delay the benefits received. A creditor of the decedent is not a party in interest so as to authorize him to invoke the power to revoke, annul, or contest the probate of a will, nor one who is incapacitated to take by descent from the decedent; nor a purchaser from an heir, after the probate. Neither, for the same reason, can such proceedings be instituted by the general creditor of a disinherited heir, although it is held that a judgment or lien creditor of the heir, whose lien rights in the property itself would be cut off by the probate, is a party in interest who may contest the validity of the will of the ancestor of the heir. Neither can the widow, who is en- titled to take against the will as in case of intestacy, (although she could in such case administer) contest the will; nor where one is given by the Avill precisely the same interest he takes by de- scent in case of intestacy. Such right to contest can only be exercised by one having a pecuniary interest in the estate, and in some States, as above stated, by such persons only as were not made parties to the original proceedings resulting in the probate or rejection. § 201. Proof v/hen Testimony of Subscribing Witness cannot be obtained. — It is self-evidently indispensable to achnit aliunde evidence to prove the will, if any one or more of the attesting witnesses are dead, insane, or cannot, for any reason, be com- pelled or permitted to testify on the probate thereof. Thus where one of the attesting witnesses is probate judge, the will may be proved by the other witnesses; where any of them are dead, insane, or incompetent to testify, or where their place of residence or whereabouts is unknown, so that their testimony cannot be obtained, proof may be made of their handwriting, and of the handwriting of the testator, and the will admitted to probate upon such proof. But in order to make such testi- mony admissible, it must be shown that it is impossible to ob- tain that of the subscribing witnesses, either by taking their de- positions, as is provided for in some States in case of attesting witnesses being beyond the reach of the process of the court, 174 THE LAW OF DECEDENTS' ESTATES. [§ 202 or b}^ securing their personal attendance. \Miere the statute does not authorize the taking of the depositions of subscribing witnesses, secondary evidence is admissible, upon proof of their being beyond reach of process of the court in which proceedings are pending. In all such cases the absence of the witnesses must be satisfactorily accounted for, after proof of such diligence in the search for them and endeavor to obtain their testimony as is required ordinarily before evidence of a secondary nature is admitted. For the same reason the validity of a will cannot be permitted to rest upon the veracity or memory of the attesting witnesses: to do so would be subversive of justice and destructive of the rights of the testator as well as of the beneficiaries under the will. Hence a will may be established although some or all of the subscribing witnesses fail to remember the essential facts to be proved, or where their testimony, biased by prejudice, interest, or ill will, negatived such facts. It is held that where there is a failure of recollection by the subscribing witnesses, the probate of the will cannot be defeated if the attestation clause and the surrounding circumstances satisfactorily estab- lish its execution.^ The testimony of an attesting witness in- validating a will ought to be viewed with suspicion, because such person by his act of attestation solemnly testifies to the sanity of the testator; it was said that no fact stated by such a witness can be relied on when he is not corroborated by other witnesses. But of whatever effect the recitals in the attesta- tion clause may be where the witness fails to remember what occurred, they are not sufficient to outweigh his positive state- ments in contradiction thereof. § 202. Witnesses disqualified by Interest. — In discussing the qualifications of the witnesses who subscribe the will it was pointed out that the statutory provision, now almost universal, abrogating the common-law disqualifications of witnesses gen- erally on account of interest, did not apply to those witnesses who subscribe the will.^ The competence of interested parties, apart from subscribing witnesses, to testify in will contests, is determined by the statutes of the several States, and is not a » Rugg V. Rugg, 83 N. Y. 592, 594. 2 Arne, § 38. §§ 203, 204] OF THE PROBATE OF THE WILL. 175 subject for discussion here, save as such witnesses are called on to perform the part of attesting witnesses, that is, prove the execution of the will. In some States the legatees and heirs at law, in a contest to set aside a will, are not competent wit- nesses to show the testamentary^ incapacity of the testator; in others they are held competent witnesses to the testator's capacity. There seems to be no reason why a legatee or other person interested in the will should not be competent to testify against a will, on the same ground which renders an heir competent to testify in its favor, where his interest is diminished by the probate of the will. So the incompetency of the deceased's attorney or physician to testify to professional communications is waived by the testator's request to him to sign as an attesting witness; and it is generally held that the executor may waive the statutory inhibition against such testimony by the testator's physician. § 203. Proof of the Testator's Sanity. — Attention has been called to the conflict of authority as to where the bm-den of making -prima facie proof on the issue of sanity hes. How far the non-expert witness can ex-press his opinion as to the testa- tor's sanity generally has also been discussed.^ In this connec- tion it may be observed that the rule of evidence limiting the witness to the statement of concrete facts, and excluding all expression of conclusions therefrom, so often applied in trials with irritating narrowness on other issues, is liberally construed in will contests. § 204. Proof of Lost Wills. — The presumption arising, where a will which was in the possession of the deceased cannot be found at the time of his death, that it was destroyed by the testator animo revocandi, may be rebutted by proof that it was destroyed after his death, or during his lifetime without his knowledge or consent; or by the testator himself while he was under the fraudulent influence of another, or in a fit of insanity, when he was incapable of understanding the nature and effect of his act, and such a will may, upon positive proof of destruc- tion, or of diligent search and non-existence, be admitted to probate. » Ante, § 20. 17G THE LAW OF DECEDENTS' ESTATES. [§ 204 The presumption of destruction anirno revocandi may be rebutted by such evidence as produces a moral conviction to the contrary, and the acts and declarations of the testator are admissible for such purpose. So also it may be proved by cir- cumstantial evidence that the will has been lost or destroyed without the knowledge of the testator. Where a will is detained by a foreign court, so that the proponent cannot produce it for probate, secondary evidence thereof is admissible, as much so as if it were a lost will. The execution and attestation of the lost wall must be proved with the same certainty and fulness as in case of proving an existing will, including proof of the testator's sanity or testa- mentary capacity; and by the same witnesses which are re- quired to prove a will produced for probate. Thus the sub- scribing witnesses must be called, if within reach of the process of the court; and if not, depositions of such as may be reached must be taken, and if the law does not require the depositions of witnesses residing abroad, then proof may be taken as in case of the death or insanity of subscribing witnesses. The contents of the lost wall upon which probate is prayed must be proved clearly and distinctly, with a sufficient degree of certainty to establish the legacies and devises, and that none have been omitted. It was laid down by Swinburne, that, "if there be two unexceptionable witnesses who did see and read the testament written, and do remember the contents thereof, these two witnesses, so deposing to the tenor of the will, are sufficient for the proof thereof in form of law; " but it seems now to be held in England that the contents of a lost will, like those of any other instrument, may be proved by secondary evidence; that they may be proved by the evidence of a single witness, though interested, whose veracity and competency are unim- peached. In the absence of statutory provisions on this subject this is recognized in the several States to be the law, at least to the extent of establishing the contents by the testimony of a single witness. The rule that, where one destroys a ^mtten instrument, an innocent party will not be required to make strict proof, in a judicial inquiry concerning its contents, against the spoliator, is sometimes applied to a will; where part of the heirs of a testator connive at the destruction of his will, an § 205] OF THE PROBATE OF THE WILL. 177 innocent legatee may obtain probate of the same upon proof in general terms of the disposition which the testator made of his property, and that the instrument purported to be his will and was duly attested by the requisite number of witnesses. It appears from a discussion on the revocation of wills, in a former chapter, that the execution of a later will inconsistent with a former one operates as a revocation of the former will, though the revoking will is not produced. It seems to result from the necessity of proving the contents of a lost will with sufficient certainty and clearness to admit of their legal construction, that a part only of a lost or destroyed will where other parts cannot be proved, or where it is not known whether the instrument contained other or contradictory pro- visions, cannot be admitted to probate. It is so held in several States. But in others, isolated portions of lost wills clearly proved have been established, although other portions could not be proved.^ The subject of proving lost wills is now regulated by statute in many of the States. § 205. Proof of WUls in Part. — Although it is not the prov- ince, of the court of probate to pass upon or determine the legal validity of the provisions of a will, or whether they are rational and capable of being carried into effect, yet it becomes neces- sary sometimes to admit the will to probate in part, and reject it in part. For if a court of probate be satisfied that a particular clause has been inserted by fraud, in the lifetime of the testator, without his knowledge, or by forgery, after his death, or that he has been induced by fraud or undue influence to make it a part of his will, probate wall be granted of the instrument, with the reservation of that clause. And so where a page is torn from an executed will and another substituted without re-execution, the wall, as originally executed, will be admitted to probate; the contents of the destroyed page being proved by competent testimony, no effect being given to the invalid substituted page. Or where a clause is inadvertently introduced in a testamentary paper, which the testator has not directed to be inserted, and he executes the paper, not having been read over to him, pro- bate will be granted of the remainder of the paper, omitting * This is specially permitted as against the spoliator of a will in favor of an innocent legatee: Jones v. Casler, 139 Ind. 382, 393. 178 THE LAW OF DECEDENTS' ESTATES. [§ 206 such clause. So while a document referred to in the will and shown to have been in existence at the time of its execution, and which is clearly identified as the document to which refer- ence was made by the testator, may be adjudged to form part of such will, yet if such extraneous paper be not in existence at the time of the execution of the will, it is not entitled to probate as part of the will, though the will be admitted to probate. This principle of probate in part has been extended to cases in which part of a destroyed will only could be proved, and pro- bate granted as to so much of such will ; and relied on as justi- fying the rejection of clauses held void as being inconsistent with public policy, or impossible of execution, while the re- mainder of the will was admitted to probate. But this seems inconsistent with the functions of a court of probate, which determines only whether the instrument propounded has been executed by the testator and attested by the witnesses in the manner prescribed by the statute, and that he possessed suffi- cient testamentary capacity, — in other words, whether the instrument is the testator's spontaneous act, expressing his last will in the form recognized by law. Its approval of the will relates only to the form: void bequests are not validated there- by, nor should the probate distinguish between valid and void, certain and uncertain, rational or impossible, dispositions of the testator. All such questions are for the courts of construc- tion, which are bound by the judgments of courts of probate only as to the due execution. Hence, although the court of probate may reject such portions of the paper as are not the testator's spontaneous act or will, it cannot, even by consent, order any passage to be expunged which the testator, being of sound mind, intended to form part of it. Several testamentary papers and codicils may together con- stitute the last will of the testator, and should all receive pro- bate together, as constituting one will. § 206. Probate in Fac-simile. — The effect of interlineations and erasures in a will have been pointed out in an earlier chap- ter. Where alterations are satisfactorily shown to have been made before execution, it is usual to engross the probate copy of the will as altered, inserting the words interlined in their § 207] OF THE PROBATE OF THE WILL. 179 proper places, and omitting words struck through or obhter- ated. But in cases where the construction of the will may be affected by the appearance of the original paper, the court will order the probate to pass in facsimile, so as to assist the court of construction in finding the meaning of the testator. This is obviously of great importance where the will is to receive con- struction in a court different from that which grants the probate, and the court of construction is denied access to the original will. § 207. Testator's Declarations as Evidence in Probate of Will. — The conversations, statements, and declarations of the testator are always admissible on the question of his testamentary ca- pacity, since they are the most direct manifestations of his men- tal condition; their value as evidence being, in this respect, fully equal, if not superior, to that of his acts, conduct, be- havior, or appearance. Many phases of insanity — delusions, hallucinations, and the like — are capable of proof by this means only. Hence great latitude is allowed in proving decla- rations, acts, and statements of a testator, sometimes extending over many years, to establish the status of his mind when he made his will. Of course the declarations are not competent to prove the truth of the matter stated in them, and when the content of a statement or declaration concerns a fact in issue in the proceeding, the jury should be cautioned on this point. Diaries kept and letters wTitten by a testator, either before or after the execution of the will, are, like his verbal declarations, proper evidence as bearing upon his mental capacity, and the condition of his mind with reference to objects of his bounty, but not competent to prove the facts stated in them.^ Another question is presented when the declarations of the deceased are offered, not to show the condition of the testator's mind, in which case the truth of the statement is not involved, but as e\'idence of the fact stated, as bearing on the main issue. Where for instance the issue is undue influence or whether the propounded will is a forgery, declaration of the testator that he had never made a will, uttered subsequent to the alleged exe- cution of the document under investigation, are not offered to show the mental state of the deceased, but are admissible if ^ See Woemer on Administration, § 225, and numerous cases there cited. ISO THE LAW OF DECEDENTS' ESTATES. [§ 20S at all for the sole purpose of establishing the fact stated by the deceased. When the testator's declarations are thus offered upon the issue of undue influence, fraud, or forgery in the mak- ing of the will, the authorities are not in accord. In the lead- ing case of Sugden v. St. Leonards ^ the testator's declarations were admitted to establish the provisions of a lost will. In Throckmorton v. Holt^ on an issue as to the forgery of a proffered vnW, evidence of the testator's declarations wholly inconsistent with the provisions of the document in question (thus tending to show that it was not his will) were rejected. A full collection of authorities on both sides will be found in the latter case. Clearly the physical fact of revocation of a will cannot be proved by declarations of the testator. His expressions of ap- proval or dissatisfaction have been held admissible in several cases as bearing on his intention in destroying the will, or prov- ing that a lost will is not revoked. This is but a phase of the question whether a testator's declarations are receivable to prove his intentions, and the rulings seem in conflict with Throckmorton v. Holt. § 208. Admissions by Beneficiaries under Will. — In will con- tests the question arises whether admissions by beneficiaries under the will, tending to show lack of capacity in the testator or the exercise of undue influence over him, should be received in e\idence. Such admissions against interest should clearly be received where the person maldng them is the only one seeking to uphold the will. So too if there is a showing of a conspiracy to procm-e the will among all the beneficiaries, admissions by one of the conspirators during the conspu*acy can be offered in evidence against all on a well-settled rule of evidence. But the beneficiaries under a propounded will have no joint interest in the legal sense of the term ; and the rule is clear that the admissions by one cannot be used against others on the same side unless the interest is joint. The admissions of one beneficiary should not injmiously affect others. Since the issue is merely will or no will, such admission must affect all claim- ants under the will, and cannot be limited to the person maldng the admission. It is accordingly held by the weight of authority 1 L. R. 1 Prob. Div. 154. 2 ISO U. S. 572, 585. § 209] OF THE PROBATE OF THE WILL. 181 that the admissions of one of several beneficiaries are not re- ceivable in evidence in a suit as to the establishment of a will, save in case of a conspiracy involving all beneficiaries. § 209. Wills proved in Foreign Jurisdiction. — The principle requiring the title and disposition of real property to be governed exclusively by the law of the country or state in which it is situated, — lex loci rei sifce, — and that requiring personal prop- erty to follow the law of the owner's domicile, — lex domicilii, — together with the extra-territorial invalidity of municipal laws and regulations, have heretofore produced considerable divergence in respect of wills which have been executed and admitted to probate in sister States or foreign countries, and operate upon property situated within the jurisdiction of the forum where they are sought to be enforced. It is now a fully established rule in England, that in order to sue in any court of law or equity, in respect of the personal rights or property of a deceased person, the plaintiff must appear to have obtained probate of the will, or letters of administration in the court of probate there; and this is so in America in all the States with the exception of those in which the statutes confer certain powers upon foreign executors and administrators, which may be exercised by virtue of such statutory regulations, or give validity to a foreign probate. It follows that a will made in another State or foreign country, and proved there, disposing of property elsewhere, must, except in the States holding as above, also be proved in the State where the property is situ- ated, or com-ts cannot enforce the provisions of such will. Generally, the court in which the will is to be proved anew will adopt the decision of the court in the foreign country where the testator died domiciled as to the probate of a will disposing of personal property; for it is a clearly established rule, that the law of the country in which the deceased was domiciled at the time of his death not only decides the course of distribu- tion or succession as to personalty, but regulates the decision as to what constitutes the last will without regard to the place either of birth or death, or the situation of the property at that time. In most States it is provided by statute that the will of a non-resident, admitted to probate according to the law of the State in which he resided at the time of his death, may be ad- 1S2 THE LAW OF DECEDENTS' ESTATES. [§ 209 mitted to probate upon the production of a duly authenticated copy thereof together with the probate, without other proof or notice. In other States notice is required to be given to persons interested. In many States it is affirmatively provided that the foreign probate is conclusive only in so far as the will concerns personal property; to pass title to real estate, it must appear, either by proof furnished in the forum loci rei sitcB, or by the authenticated copy of the evidence upon which the foreign probate was granted, that in the execution, attestation, and proof of the will the requirements of the law of the State in which the land lies have been complied with. In some of the States the foreign probate seems to be made conclusive as to real as well as to personal property; but unless such be the express or necessary import of the statute, it must affirmatively appear from such foreign probate, or other proof, that the law of the forum has been observed in making and proving the will in order to give validity to its disposition of real estate. There are some States, also, in which the probate of the foreign jurisdiction, duly authenticated, either according to the act of Congress, or in accordance with the regulations prescribed in the statutes of such States, are allowed to be given in evidence without probate anew, or previous approval by the probate court of the loci rei sitoe. In several of the States the statutes seem to provide only for the recording of a foreign will. A will is admissible to original probate in the jurisdiction of the testator's domicile at the time of his death, without re- gard to where he died or where the will was made. And it is held in some jurisdictions that while the courts of the ancil- lary State have jurisdiction, in the sense of power, to probate a will there before it is admitted to probate in the testator's foreign domicile, and if there is special occasion will do so, yet as a rule the probate court of an ancillary State should, as a matter of comity, refuse to entertain a petition for pro- bate of a will before it has been proved in the State of the domicile, where it should be primarily established. And in most States it has been held that the proof must be in accord- ance with the law of the domicile at the time of death, § 210] OF THE PROBATE OF THE Vv'ILL. 183 although the statute provides that property may be be- queathed if the will be executed and proved "according to the laws of this State, or of the country, State, or Territory in which the will shall be made." The provision of the Constitution of the United States re- quiring full faith and credit to be given in each State to the public acts, records, and judicial proceedings of every other State, and the act of Congress relating thereto, do not give such acts, records, or proceedings any greater force and efficacy in the courts of other States than they possess in the States from which they are taken, and apply only so far as such courts have jurisdiction. Hence while the judgment of a court ad- mitting a wall to probate is binding on the courts of every State in respect of all property under its jurisdiction, whether real or personal, yet it establishes nothing beyond that, and does not take the place of the necessary formalities to make the will valid in respect of real property in other States, if wanting.^ § 210. Revocation of Probate. — The power to revoke probate of a will is exercised by English courts of chancery in cases where it is clear that probate courts are powerless to afford adequate relief against injury in consequence of fraud or per- jury committed in obtaining the probate. But in the United States there is no such power in chancery, except as pointed out by statute in some of the States. " Wherever the power to probate a will is given to a probate or surrogate's court, the decree of such court is final and conclusive, and not subject, except on an appeal to a higher court, to be questioned in any other court, or to be set aside or vacated by the court of chan- cery on any ground." ^ This language is quoted and approved by Justice Bradley of the Supreme Court of the United States.^ Judge Story, the stanch vindicator of the most comprehensive chancery powers, says that there is but one exception to the concurrent jurisdiction of chancery courts in all matters of fraud, which is fraud in obtaining probate of a v/ill; and he finds it "not easy to discern the grounds upon which this ex- ception stands in point of reason or principle, although it is ^ For details and authorities see Woemer on Administration, § 226. ^ State V. McGlynn, 20 Cal. 233, 268. » In Broderick's Will, 21 Wall. 503. 184 THE LAW OF DECEDENTS' ESTATES. [§ 211 clearly settled by authority." ^ The common-law rule Is stated to be that the remedy for fraud in obtaining a will is exclusively vested, in wills of personalty, in the ecclesiastical courts; and in wills of real estate, in the courts of common law. The power to revoke exists, however, in the probate court it- self, in all cases where the court acted without jurisdiction, without notice, where the statute requires notice, or in disre- gard of some statutory requirement, so that the decree or judg- ment rendered is void; and so where a later will is discovered subsequently to the probate of an earlier one, there is no doubt of the power of the probate court to establish the later will. But where a will has been conclusively established, the produc- tion of a later will for probate, not in terms revoking the former, does not raise the question of revocation, and such revocation cannot be determined in such proceeding if there is room for dispute as to construction. The probate of the former will should be left to stand for what it is worth, and its effect decided elsewhere. It has been held that no lapse of time will bar an application for the revocation of the invalid probate of a will, in the court which granted it; but unless the power to review or revoke is conferred by statute, no merely erroneous probate can be set aside by the probate court after the term at which it was granted has expired. The contest of probate has been heretofore discussed in §200. § 211. EfiEect of Probate. — It has already appeared that at common law, without the constat of the probate court, no other court can take notice of the rights of representation to personal property, and that wills devising real estate must be proved in the common-law courts. By the statute of 20 & 21 Vict. c. 77, § 13, all wills, whether of real or personal property, are required to be proved in the court of probates. Similar statutes had long before existed in most of the American States, and the constat of the probate court is necessary to the validity of wills of per- sonalty in all, and of wills of realty in nearly all of them. In a few States the probate of the probate court is neither essential nor conclusive as to the validity of wills in proving title to real estate; such will may be contested, if it has been . 1 Story's Eq. Jur., § 440. § 211] OF THE PROBATE OF THE WILL. 185 admitted to probate in the probate court, or proved originally if not, in all common-law courts in which the title to land thereby affected is in issue. With these exceptions, however, neither courts of law nor of equity will take cognizance of testamentary papers, or of the rights depending upon them, until after pro- bate in the probate court. That such probate is conclusive, unless appealed from, set aside, or annulled, in the method pointed out by the statute, has already been stated. It may be mentioned, in connection with this subject, that the efflux of time, in some instances, operates to confirm a probate other- wise assailable for informality, or renders the probate conclusive after a certain period. It has already been remarked that it is the function of a court of probate to determine whether the instrument propounded has been executed by the testator and attested by the subscrib- ing witnesses in accordance with the statutory requirements, and whether he possessed sufficient testamentary capacity to make a valid will. It is no part of the proceeding on probate to construe or interpret the will or any of its provisions, or to distinguish between valid and void, rational and impossible, dispositions; if the will be properly executed and proved, it must be admitted to probate, although it contain not a single provision capable of execution, or valid under the law. Hence the probate does not establish the validity of any of its pro- visions : this is to be determined by the courts of construction, when any question arises requiring their interposition. 186 THE LA'W OF DECEDENTS' ESTATES. [§ 212 CHAPTER XXV. OF THE GRANT OF LETTERS TEST.UIENTARY. § 212. How the Executor is Constituted. — Upon probate of the will, letters testamentary may be granted to sueli of the ex- ecutors named by the testator as are willing to assume the trust. The court has no discretion in this respect, but must grant the letters to the person or persons nominated, unless such person is disqualified by law. One named as executor is entitled to letters testamentary, although the will contain no other pro- vision of any kind, and an executor has power generally to administer all the personal property of the deceased, although the testator die intestate as to a portion thereof. There need be no appointment by the testator in direct terms; it is sufficient if a person is designated to discharge those duties wdiich apper- tain to the office of executor, or that any language is used from which the intention of the testator may be inferred to invest such person with the character of executor. The test of a constructive appointment as executor, or of an executor according to the tenor of the will, may be found by considering whether the acts to be done or the powers to be ex- ercised by the person are such as pertain to the office of an executor. Thus, the testator's declaration "that A. B. shall have his goods after his death to pay his debts, and otherwise to dispose at his pleasure," and the like expressions, may suffice for this purpose. The appointment to a trust under the will, not essential to the office of an executor, does not constitute the trustee an executor according to the tenor, for the offices of an executor and of a trustee are distinct, and may be vested in different persons, and when they are vested in the same person, the functions of each are nevertheless to be performed by him in the respective capacity, the probate court having Jurisdiction over him in the one, but not in the other capacity. But where the testator uses the word "trustee," and imposes duties in- §§ 213-215] OF THE GRANT OF LETTERS TEST.UIEXTARY. 187 volving the functions of an executor, this will be held a good appointment as executor. As a testator may nominate several executors to execute his will jointly, so he may direct a substitution of several, one after the other, so that, if the first will not act, the next may, and so on. Indeed he may delegate the appointment of an executor to some third person, and letters testamentary will be granted to the person by him named. The executors may be given power to fill vacancies in their number. The testator may provide that upon the death of his executor another shall complete the administration. In these cases the successor upon his appointment possesses all the powers of, and is, an executor, and not an administrator de bonis non} § 213. Residence as Qualification of Executor. — At common law non-residence of the testator's appointee does not disqualify him as executor. The same rule prevails in many American States. But in many States non-residents of the State are not permitted to act as executors, and in some others there are varying restrictions as to non-resident executors, to be found in the respective statutes.^ § 214. Infancy as disqualifsdng Executor. — At common law and in many of the American States infancy does not operate as a disqualification to the eventual right of executorship; but the authority to qualify or act as such remains in abeyance until the infant reach the age of majority, or such age as may be fixed by law or statute as necessary to qualify. Previous to the Statute of 38 Geo. III. c. 87, § 6, this age was fixed in Eng- land at the age of seventeen years, and this is the law in several of the States; in others the age of eighteen years is fixed; in many it is twenty-one years, and in most of the others the age of legal majority. § 215. Coverture as disqualifying Executrix. — According to the canon law, a married woman may sue and be sued alone, without her husband, and it was held in the spiritual com-ts of England that, in the absence of a WTit of prohibition, she may take upon herself the executorship of a will without, or even against, the husband's consent or will. At common law, how- * Kinney v. Keplinger, 172 111. 449. * For details, see Woemer on Administration, § 230. 1S8 THE LAW OF DECEDENTS' ESTATES. [§ 216 ever, the consent of the husband is necessary to enable the wife to assume the office of executrix; but he cannot compel her to assume tlic office against her will, although she will be bound, if the husband administers as in the wife's right, though against her consent, in so far that she cannot during his lifetime avoid or decline the executorship. In many of the American States married women are not com- petent to act as executrices, and if a /erne sole executrix marries, her authority is thereby extinguished; while in others she can do so only with the consent of her husband. In some a married woman may become executrix independently of her husband. The common-law doctrine, that the husband becomes executor in right of his wife upon marrying a feme sole executrix, is recognized in a few States, but does not prevail generally. § 216. Mental Incapacity, Immorality, and other Disqualifi- cations for Executorship. — In most of the States there are statutory provisions disqualifying persons named as executors, on account of mental incapacity and immorality. Insane per- sons, persons convicted of infamous crime, and such as are incompetent on account of drunkenness, improvidence, or want of understanding or integrity, cannot be admitted as executors. American courts give a liberal interpretation to statutes authorizing the rejection of unsuitable executors. Idiots and lunatics are deemed incapable of becoming execu- tors, both at the common and the civiliaw. Poverty, or even insolvency, constitutes no legal disqualification. It is said to be settled law in England that where a corpora- tion aggregate is nominated as executor, it may appoint persons styled syndics to receive administration with the will annexed, who are sworn like other administrators, because they cannot prove the will, or at least cannot take the oath for the due exe- cution of the office. In the United States the prevalence of authority, once against the competency of corporations ag- gregate to act as executors, seems now to turn the other way. Corporations or trust companies may now be found in mo.st States, permitted by statute to exercise the functions of exec- utors and administrators in connection with trust funds. It has also been held that a firm may be nominated as executors, § 217] OF THE GR.^T OF LETTERS TESTAMENTARY. 1S9 and that in such case letters testamentary will be granted to the individual members of the firm. And so of a corporation sole; the individual composing it may be admitted as executor. § 217. Acceptance or Refusal of Executorship. — At common law, and in those of the States in which the authority of the executor is recognized as emanating from the will without a formal grant of letters testamentary, the question whether a person named in the will as executor has or has not accepted the office is sometimes difficult of solution. He cannot, of course, be compelled to accept the executorship, since it is a private ofiice of trust named by the testator, and not by the law; he may refuse, even if in the lifetime of the testator he has agreed to accept the office. The right to refuse may be lost by the executor, if he do any act which amounts to administra- tion; for if he once administer, it is considered that he has already accepted the executorship, and the court may compel him to prove the will; but if the court accept his refusal, not- withstanding he may have acted, the grant of administration to another will be valid. In the United States this subject is, on the one hand, of far smaller unportance than at the common law, because in most of the States an executor has no authority to bind the estate of his testator without a formal grant of letters testamentary; and is, on the other hand, more readily determined, since it is mostly regulated by statutes. But since administration with the will annexed can only be granted in default of an ex- ecutor named in the will, it is necessary that the court, before granting such administration, shall be informed that the exec- utor, or all of several executors named, have renounced the trust, or are incompetent to serve. No formality is necessary in making such proof beyond compliance with the require- ments of the statute; it is sufficient if the intention to renounce is clearly expressed in writing, and filed in the court at any time before he undertakes the office or intermeddles with the estate, even after propounding the will for probate, or being sworn as executor. A renunciation may be inferred from the conduct of the executor after being informed of his nomination, without formal communication from him. For the purpose of granting letters, either testamentary or of administration, the 190 THE L.\W OF DECEDENTS' ESTATES. [§ 217 probate court may, at the instance of a person interested, or perhaps upon its own motion, summon the executor before it to prove the will ; and as the executor cannot avoid a will by refusing to accept the trust, he may thus be compelled either to accept or renounce it, so that administration with the will annexed may be granted. But the executor should be cited to show cause why he should not accept or decline the trust before letters with the will annexed are granted. The time when it becomes imperative for the executor named to accept or renounce is when he is cited to do so ; mere inaction and delay unaccompanied by act of intermeddling with the estate cannot amount to an acceptance against his consent. It seems ob- vious that the death of one nominated as executor in a will before the grant of letters, and a fortiori before the probate of the will, amounts to a renunciation. An executor nominated in the will, who has renounced, may retract his renunciation, and assume the office at any time before the grant of letters testamentary to other executors, or of letters of administration with the will annexed. So if an acting executor has been removed for cause, or died, the renun- ciation of one named as co-executor may be retracted, and letters granted as if it had not been made ; and, in the absence of stat- utory regulation to the contrary, one of several executors named in a will, not taking letters testamentary when his co-executors do, may come in at any time afterward and do so. § 2 IS] LETTERS OF ADMINISTRATION. 191 CHAPTER XXVI. LETTERS OF ADMINISTRATION. § 218. Principles governing the Grant of Letters of Admin- istration. — Administration is granted upon the estates of per- sons dying intestate, and cum testamento annexo upon the estates of those who left a will, but no executor competent or willing to assume the office. Before letters of administration can properly be granted, there must be proof to the satisfaction of the probate court that the decedent died intestate while domiciled within the territorial jurisdiction of such court, leaving property; or that he died elsewhere, leaving property within such jurisdiction. If he left a will, it must also be shown that there is no executor competent or willing to execute it. Aside from the statutory regulations, which in every State determine what persons are entitled to the administration, and which of course must be observed in appointing an admin- istrator to office, the discretion vested in probate courts in this respect is to be governed by well-known general principles. The most important of these is, that administration should be committed to those who are the ultimate or residuary bene- ficiaries of the estate, — those to whom the property will go after administration. To secure to them the right to administer is the paramount object of the statutes fixing the order of pref- erence, and constitutes the aim and intention of courts in the exercise of such discretion as is vested in them. It is obvious that those who will reap the benefit of a wise, speedy, and eco- nomical administration, or, on the other hand, suffer the con- sequences of waste, improvidence, or mismanagement, have the highest interest and most influential motive to administer properly. Hence it is said that the right to administer follows the right to the personal property, — a rule the binding force of which is recognized in America, as well as in England. The correlative of the rule is equally true, — that administration 192 THE LAW OF DECEDENTS' ESTATES. [§ 219 should not be granted to one whose interests are adverse to the estate. The prominence of the right of the surviving to administer the estate of a deceased spouse is strongly corroborative of the vahdity of this rule. In England the right belongs to the hus- band exclusively of all other persons, and the court of probate has no power or election to grant it to any other. This right is said not to be an ecclesiastical, but a civil right of the hus- band, though administered in the court of probate. In the United States the right of the surviving husband or wife to administer on the deceased spouse's estate is generally, but not universally, accorded by statute; and whether the reason be found in the husband's marital right to the wife's personalty, extending in some States to her choses in action, or in any of the other causes suggested, it is undeniable that they have, be- sides their personal interest in the estate, the control of the interests of the minor heirs, where there are such, being the natural guardians of their persons and estates, and thus unite in themselves, as the surviving centre and head of the family, a greater interest in the estate than any other single person — in all cases, at least, where the deceased leaves minor children. The exceptions to the right of husband or wife to administer still further corroborate the principle upon which the rule is founded. It is held, in several States, that where by ante- nuptial agreement or by articles of separation the property of the husband or wife does not pass to the survivor, he or she is not entitled to the administration; ^ but if it gave the wife a power of disposal of her separate property which she has not executed, or where a devise to a trustee for the wife's use ends with her death, the husband's right to administer is not af- f ected.2 For the same reason the widow is not entitled to letters cum testamento annexo if she takes no part of the personal es- tate under the will.^ § 219. Husband's Right to Appointment. — It appears from 1 In re Davis, 106 Cal. 543, 547. But in Illinois the statute has been held mandatory: O'Rear v. Crum, 135 111. 294. In Missouri it is held that the husband can waive his right to administer by ante-nuptial con- tract: Estate of Evans, 117 Mo. App. 629. 2 Hart V. Soward, 12 B. Monr. 391. 2 Estate of Crites, 155 Cal. 392, 101 Pac. 316. § 220] LETTERS OF ADMIXISTRATION. 193 the preceding section that in England the husband's right to administer on the estate of his deceased wife is absolute, being expressly confirmed by statute. The statutes of many of the American States embody the same or similar provisions; but in others the principle that administration should follow the right to the personal property prevails over the husband's absolute right. Thus, the husband is not entitled to administer the wife's estate to the exclusion of her children, if they in- herit; nor if he is excluded from any share in her estate; but unless the statute expressly or by necessary implication deprive him of this right, it cannot be denied him. That a marriage was voidable does not militate against the husband's right to administer the wife's personal estate, unless sentence of nullity was pronounced before her death; but a marriage absolutely void ab initio confers no rights upon the husband. So, also, notwithstanding a divorce a mensa et tkoro, or his abandonment of the wife, he is entitled to administer. § 220. Widow's Right to Appointment. — Under the English statute, the ordinary is directed to grant administration "to the widow or the next of kin, or to both," at his discretion; and although, by the seventy-third section of the Court of Probate Act, the power of the probate court in making grants of administration, and deciding to whom they shall be granted, has been much enlarged, yet even under it the court is precluded from making a joint grant to a widow and one of the persons entitled to distribution (but not next of kin). If a joint grant is to be made to the widow and one of the next of kin, all the other next of kin must consent thereto; and the modern Eng- lish practice is to favor the widow under ordinary circumstances. In the United States the widow is usually preferred to all others as administratrix of her deceased husband, but her claim is neither so generally recognized, nor based upon the same ground, as that of the husband to the estate of a deceased wife, but has its basis in the division of interests between her and the kindred. As the husband's right to administer on the deceased wife's estate depends upon a valid marriage, so the widow, to entitle her to administer her husband's estate, must be the surviving 194 THE L.\W OF DECEDENTS' ESTATES. [§§ 221, 222 wife of an actual marriage. Hence one who cohabited with a man who had a wife Hving from whom he was not divorced, although unknoAATi to her, and although she fully believed herself to be his lawful wife, is not entitled to administer; nor one divorced a vinculo. A divorce a mensa et thoro does not, as appears from the preceding section, deprive the husband of the right to administer, nor destroy the relation of marriage, but merely suspends some of the obligations arising out of that relation; and the right of succession is not impaired. It seems, therefore, that in such case, and where the marriage was void- able, but not dissolved during the husband's lifetime, the wid- ow's right to administer is not affected. Where discretion is vested in the court granting letters of administration, it is generally exercised in favor of the ^vidow, unless some good reason be shown demanding a different course. If the one of those entitled be competent, and the other not, the appointment will of course be confined to the one compe- tent; but if neither the w^idow nor next of kin be under legal disability, their personal suitableness is to be considered. § 221. Right of Next of Kin to Appointment. — In an ear- lier chapter of this treatise the principle is indicated according to which the property of the intestate descends or is distribu- table as far as the course of descent is not fixed by the statute eo nomine. Under the fundamental principle that the right of administration follows the right of property, the rules there pointed out determine who is next of kin for piu-poses of admin- istration. In States where the husband is entitled to his wife's property, if the next of kin be a married woman and she re- nounces, the grant is made to the husband; for he has an inter- est, and the grant must follow the interest, and the wife cannot by renouncing deprive her husband of his right to the grant. The preference given by statute to the next of kin is obligatory upon the court, and it is error to appoint a stranger where a son, who is eligible and qualified, asks to be appointed. § 222. Right of Creditors to Appointment. — It follows from the principle, repeatedly stated above, of committing adminis- tration to those who have the ultimate interest in the estate, that creditors or their nominees are preferred when the assets of an estate are not more than sufficient to pay the debts, and §§ 223, 224] LETTERS OF ADMINISTRATION. 195 funeral and administration expenses. They are accordingly preferred to the next of kin in some States, in others their right is subordinate to that of the next of kin, but superior to that of other persons, and the right of a creditor is generally recognized where neither husband nor wife, nor any of the next of kin, will qualify. If those who are preferred by statute are willing to qualify, it is error to appoint a creditor. § 223. Right of Public Administrator to administer. — It appears from the consideration of the functions of public ad- ministrators in a previous chapter, that they are public officers in a sense different from that in which executors or adminis- trators are also considered public officers, in this, that they are elected or appointed directly by the people, or the political appointing power, and assume the administration of estates ex officio, or, when they receive their authority over a particular estate from the probate court, the grant to them is virtute officii. In two of the States ^ the public administrator takes charge of estates, under circumstances pointed out by the statute, without judicial order, thus conferring upon him quasi judicial authority, subject, however, to the control of the probate court; while in other States his authority in each particular estate is derived from appointment by the probate court. The circumstances under which the public administrator is entitled to appointment, or is preferred in the discretion of the court, have been discussed in connection with the statement of the functions of that office. § 224. Disqualifications excluding from Appointment as Ad- ministrator. — The persons entitled to the grant of administra- tion according to the rules above set forth may be disqualified by statutory provision, such as infancy, coverture of a female, non-residence, etc., in which case letters of administration must be granted to some other person. It is safe to assume that what will disqualify one from acting as executor will equally defeat the right to administer; but not all persons competent as executors are likewise competent as administrators. Thus, insolvency has been held to disqualify one for the office of ad- 1 New York and Missouri. 196 THE LAW OF DECEDENTS' ESTATES. [§ 224 ministrator, on the ground that the beneficiaries of the estate are entitled to the security of an administrator's personal lia- bihty, as well as that of his bail; illiteracy, because one who can neither read nor write would be forced to trust to agents, and would be at the mercy of designing persons, thereby exposing the interests of the estate to danger of loss from mismanage- ment and corruption; and so subjection to undue influence of one charged with fraudulent designs against the estate. Neither poverty nor illiteracy, however, is ordinarily deemed to deprive one, otherwise preferred, of the right to administer an estate. Another disqualification in administrators, though not in executors, or in a less degree, is that of adverse or in- consistent interest. Where, for instance, one person represents two estates between which litigation ensues: in such case, he would necessarily be both plaintiff and defendant, to the mani- fest detriment of justice, and the jeopardy of the interests of one or both the estates. And so it would be highly improper to appoint one, whether next of kin or not, who claims in his own right assets of the estate, or which were in possession of the intestate at the time of his death, or whose interests are in antagonism to the estate. Such considerations are not per- mitted to interfere with the right of the executor. What has heretofore been said concerning the statutory dis- qualifications of executors, applies with equal force to admin- istrators. In most of the States an infant can neither act as, nor nominate, an administrator; married women arc in many of the States disqualified, and likewise non-residents. Under statutes excluding persons convicted of infamous crime from the right to be appointed, no degree of legal or moral guilt is sufficient to disqualify, short of conviction after indictment or other criminal proceeding within the State. Intermeddling with the goods of an estate, so as to render one liable as an executor de son tort, does not per sc destroy the right to admin- istration. "Want of understanding" must amount to a lack of intelligence, and cannot be presumed from a lack of infor- mation or misinformation of the law; and "improvidence," as a ground of exclusion, is such a want of care and forethought as would be likely to render the estate and effects liable to be lost or diminished in value; it refers to such habits of the mind § 225] LETTERS OF ADMINISTRATION. 197 and body as render a man generally and under all ordinary circumstances unfit to serve. § 225. Considerations governing Discretion. — Between ap- plicants of the same class, all of whom are equally entitled, it is discretionary with the probate court who shall be selected, and no appeal lies from the exercise of such discretion except in case of gross abuse. But it is obvious that, in the exercise of the power of appointing administrators, the court is limited to the selection of such persons as are competent under the statute, in the order therein pointed out. Thus, if the widow constitute a class by herself, as she does in many States, she must be appointed if willing to serve, and not disqualified under the statutory regulations of the subject, no matter what objections exist to her administration, or how plausible they be. There is, in a case where priority is given by statute, no discretion. So where the statute makes a distinction of sex between those otherwise equally entitled, the indi\'iduals composing the fa- vored class must be appointed, if they apply, no matter how desirable the appointment of one of the other sex might be to the majority of those interested, unless the favored class are under some statutory disability. And where an unmarried is preferred to a married female, the court cannot reject the ap- plication of the former, although it is objected against her that she is a professed nun, and the inmate of a convent. WTiere the widow and next of kin are placed in the same class as to the right of appointment, the widow, as has already been stated, is preferred, other things being equal; a sole being like^sise preferred to a joint administration. The rule which is the foundation of the preference accorded by the statutes — i. e., to commit the administration to those who are eventually entitled to the property — is equally bind- ing upon the court, in the exercise of the discretion vested in it in choosing between several individuals placed by the stat- ute in the same class of preference. If this class include the widow, together with children or other next of kin, the widow is, as we have seen before, generally preferred; but the preference must yield where she is unsuitable, in which case one or more of the next of kin will be entitled. In selecting from among the next of kin, the preference may be determined 198 THE LAW OF DECEDENTS' ESTATES. [§ 226 by the ratio in which the parties are entitled to distribution; for if one be entitled to more than another, he will have a greater interest in the proper administration of the estate. And in cases of conflicting claims, the applicant upon whom a majority of the parties in interest agree will generally be pre- ferred, but not, of course, unless the nominee belong to the same class ; for the order of preference enacted by statute cannot be changed or ignored to the postponement of any person in- cluded therein. Other things being precisely even, the scale may be inclined by the preference of an older over a younger person; or of a male over a female; of an unmarried over a mar- ried woman; and of one accustomed to business over one inex- perienced. CoEteris 'paribus, the fact that an applicant had twice been a bankrupt militates against him, to the preference of one who had not been bankrupt; and so does the fact that one, in addition to being of the next of kin, is also a creditor. Nor will one be appointed who is in such hostility to the others as will disqualify him from fairly considering their claims. The antagonism in interest, which in some States amounts to a statutory disqualification, is an important circumstance to consider in passing upon the relative claims of applicants in equal degree under the statute, although, if such person be the only applicant, the court may have no power to reject him; or, having once appointed him, though in ignorance of his un- suitableness in this respect, no power to remove him except for cause arising after his appointment.^ § 226. Renunciation of the Right to Administer. — The pref- erence given by statute may be waived or renounced. Unless it is, the appointment of any other person is irregular, and will be vacated upon demand of a person having the preference. The renunciation may be spontaneous, or upon citation by some person interested ; and it will be presumed — that is, the ex- clusive right to administer will be deemed — to have been waived, if letters are not applied for by the party preferred within the period prescribed for such purpose by statute. But until letters have been granted to some one else, such person may still apply for and demand letters, although the statutory ^ The authorities for the illustrations given in this section can be foxuid in Woemer on Administration, § 242. g 227] LETTERS OF ADMINISTRATION. 199 period may have expired. Renunciation should be in writing and entered of record: a mere parol renunciation does not amount to a waiver of the right. And where the renunciation is coupled with a condition, which condition is not performed, the parties renouncing are not thereby bound, but may insist on their prior right. Citation to parties having a prior right to administer cannot ordinarily be issued before the expiration of the period fixed by statute within which they must make appli- cation. Under an established rule of the English ecclesiastical courts, no letters will be granted to any person in derogation of the right of those having priority, unless such parties are cited, or consent, even where the party who has the right has no in- terest in the property to be administered; but this rule is not invariably applied to cases where the selection is in the discre- tion of the court. In America the rule is the same. Before any one can be appointed administrator, who is not in the pre- ferred class, notice must be given to those having a prior right, to appear and claim their privilege, or show cause why the ap- plicant should not be appointed. To dispense with the cita- tion, those having the preference should renounce their claim, or signify their consent to the grant of the petitioner's request by indorsement upon the petition, or some other writing of record. But no notice is necessary to the other parties in the same class with the applicant; the appointment may be made ex parte to any of those who are equally entitled. Accordingly, letters granted to strangers, or to persons having no preference under the statute, without notice to those being preferred, will, upon the application of those having the right, be revoked, in order that the grant may be made in accordance with the stat- ute; but such grant is no ground for revocation if the party applying therefor had notice of the original grant, either con- structively in the mode prescribed by the statute, or actually in any method, or failed to apply within the time required by the statute, or actually renounced the right; nor can there be such revocation, except for cause otherwise, where the court has made the appointment in the exercise of its statutory juris- diction in selecting one or more from a class equally entitled. § 227. Effect of Renunciation or Waiver. — If the person, or all of a class of persons, entitled by preference, have waived 200 THE LAW OF DECEDENTS' ESTATES. [§ 228 or renounced their privilege, it becomes the duty of the court to appoint the one, or one or more of a class, having the next right, if there be such; the discretion to select between several equally entitled being governed by the same considerations as if no renunciation or waiver had occurred, limited, however, to the applicants before the court, because the court has no right to reject an applicant on the mere ground that there may be others equally entitled who are better qualified. The right given by the statute cannot be delegated ; the widow or any of those entitled by preference, may renounce their right, but when they do so, the power to appoint under the regulations of the statute, and the duty to exercise the discretion thereby conferred, is still in the probate court; hence the person re- nouncing cannot substitute another person and demand his appointment. But while the court is in no wise bound by the nomination of the party having renounced, yet the wishes and preferences of those whom the statute points out as the fittest persons to administer the estate will have great weight in guiding the discretion of the court. Wliere the statute, as interpreted, does not prevent, it is usual where the husband, widow, or next of kin reside abroad, to grant the administration to the nominee of such relative. So a stranger may be appointed at the request of one who has him- self the preference, if there be no others having preference over the stranger so appointed. Agreements to transfer the right of administration from those entitled under the statute to other parties, for a consid- eration, — for instance, of receiving from such party the com- missions to be allowed by the court, — are against public policy and will not be sustained; an agreement between two parties, both equally entitled, to take joint administration, and where the principal labor and responsibility would fall on one, that the other would take such portions of the commissions as his associate would thmk fair was held valid. But there can be no partnership in the office of administrator. § 228. Administrators cum Testamento Annexo. — The dis- tinction between an administrator generally and an adminis- trator cum testamento annexo is, as the name implies, and as has already been remarked, that the former distributes the effects § 229] LETTERS OF ADMINISTRATION. 201 according to the law of descent and distribution, while the latter is bound in this respect by the provisions of the will. Since ad^ ministration with the will annexed is granted only in default of an executor named in the will, it is necessary, before such grant can be made, that the court be fully satisfied that the executor named, if any, or where several are named, all of them, have renounced the trust, or are unwilling to serve, or incapable. No formality is necessary in making such proof, beyond the compliance with the statutory requirements on this subject; but it is necessary that the record show the renunciation, or waiver, otherwise letters cum testamento annexo may be declared void. In granting letters cum testamento annexo, the court is gov- erned by the same principles which determine the appointment of general administrators, chief among which is, that in the absence of regulation, the right to administer follows the right to the personal property. Hence residuary legatees are pre- ferred, in the grant of letters cuvi testamento annexo, to the next of kin or widow; and this preference extends to the repre- sentatives of residuary legatees who survive the testator and have a beneficial interest, such representatives being entitled to letters cum testamento annexo in preference to the next of kin, unless otherwise determined by statute. § 229. Administration of Estates of Non-Residents. — The ne- cessity of administration on the property of a non-resident in the sovereignty where it may be found, and the relation of such administration to that of the domicile of the deceased have been heretofore discussed. Since the law of the domicile at the time of an intestate's death governs the devolution of per- sonal property, the selection of an administrator in an ancillary jurisdiction where property of the deceased may be found, will be affected to some extent by the law of the domicile. But in other respects there is no essential difference in the rules gov- erning the grant of letters on the estates of deceased residents and non-residents. It has also been pointed out, that by the comity of States the person who obtains administration in the State of the domicile, or his attorney, is entitled to a similar grant in any other jurisdiction where the deceased has personal property, unless such person is disqualified by the law of the ancillary forum. 202 THE LAW OF DECEDENTS' ESTATES, [§§ 230, 231 § 230. Administrators de Bonis Non. — If a sole or all of sev- eral executors or administrators die, or resign, or be removed from office before the estate is fully administered, it becomes necessary to appoint an administrator de bonis non — simply, or with the will annexed, as the case may be — to complete the administration. The circumstances under which such letters are granted, as well as the powers and duties of the officers so appointed, have been fully considered in connection with the subject of administrators generally; it is sufficient, therefore, to recapitulate, in this connection, that there must be an estate remaining unadministered, and a vacancy in the office of executor or administrator, otherwise there can be no grant of letters de bonis non. The considerations governing the preference in ordinary cases govern also in respect of ad- ministrators de bonis non, whether of testate or intestate estates, except as otherwise indicated by statutory rules. § 231. Administrators with Limited Powers. — It will appear from a previous passage, that limited administrations may be granted under certain circumstances, although discouraged by courts and text-writers in America, because here the tendency is to commit administration at once to those who may be under no present disability, with full authority to complete the set- tlement of the estate without disturbing the course of admin- istration by placing it in the hands of persons claiming a su- perior right. But the authority to appoint administrators ad colligendum, ad litem, durante absentia, durante minore ostate, or for some special purpose, is sometimes resorted to. The rules governing the court in selecting proper persons for ap- pointment in such cases are necessarily different from those controlling the appointment of general administrators, because the fundamental principle of having the administration follow the right of property is inapplicable. The discretion of the court seems to be limited only by the bounds of propriety, and ex- tends to any discreet, qualified person. §§ 232, 2331 OF THE ADMINISTRATION BOND. 203 CHAPTER XXVII. OF THE ADMINISTRATION BOND. § 232. Origin of the Law requiring Administration Bonds. — The English statute, requiring bond to be given to the ordinary upon committing administration of the goods of any person dying intestate, is incorporated into the statutes of every State in the Union. So great has at all times been the anxiety of leg- islators and judicial tribunals in this country to protect the just demands of creditors on the one hand, and to \'indicate the law- ful inheritance and dower to the widow and next of kin, on the other, and so appropriate and eflBcient in accomplishing this desired end is the administration bond considered to be, that not a single State has ever ventured upon the experiment of substantially changing the law in this respect. With few exceptions the law in the several States is uniform, requiring the administrator, whether with the will annexed, de bonis non, temporary, or permanent, to give bond with two or more suffi- cient sureties, in a sum at least double the value of such per- sonal property as may come into his possession belonging to the estate of the decedent. § 233. Bonds of Executors. — But under the English law ex- ecutors derive their authority from the will, and not from the grant of the ordinary, or probate court; hence in England executors are not required to give bond. The English rule is followed in a few States. In most States, however, no distinction is made in the matter requiring bonds between administrators and executors, unless the testator ex- pressly direct, by provision in the will, that the executors by him appointed shall not be required to give bond, in which case the desire of the testator is complied with, unless the court, upon complaint of some creditor, legatee, or other person in- terested, or even upon its own knowledge, suspect that the estate would be fraudulently administered or wasted, when it 204 THE LAW OF DECEDENTS' ESTATES. [§§ 234, 235 is made the duty of the court to cite the executor to show cause why bond should not be given, and in its discretion compel it, or refuse letters. It is ob\'ious that the exemption in these States is based upon the testator's right to dispose of his property in the manner deemed best by him, saving the rights of creditors and of those having legal claims upon him; which includes the power to exempt from the. necessity of giving bond, as a method of gift to the executor. From this it follows, that the exemption in such cases is personal to the executor named in the will, be- coming inoperative on the failure or refusal of such person to accept the trust, and has no application to other executors or administrators. But in other States the requirement to give bond before an executor can lawfully take charge of an estate is as imperative and" absolute as it is upon administrators.^ § 234. Power of Court to order Bond. — In those of the States in which an executor is permitted to administer without giving bond, whether the exemption arise under the statute or by express direction of the testator, his office is one of special trust and confidence, for wliich reason no bond is required of liim. But if a com-t become satisfied that the executor, who was solvent when named in the will, is likely to become insol- vent, and that there is danger that he may abuse his trust, or has ground to suspect that he will indirectly and fraudulently administer the estate to the prejudice of creditors or legatees, he will be ordered to give bond with sufficient surety to protect the estate. In such case any person who has an interest in the estate may interpose to move for an order requiring security. § 235. Circumstances rendering Bond Necessary. — It is not possible to define with accuracy the precise circumstances which should induce the probate court to demand sureties from an executor who is otherwise exempt under the law or the direc- tion of the testator. Of these the probate judge must neces- saril}^ be the primary, and in most cases the sole arbiter, since an appellate court will not interfere with the exercise of his discretion unless his decision be plainly in conflict with the letter or spirit of the law. If the probate judge have reason to * The States in which the varying views mentioned in this section are upheld are hsted in Woemer on Administration, § 250. g§ 236, 237] OF THE ADAIIXISTRATION BOND. 205 suspect the integrity, the mental capacity, or even the financial ability of the executor, he should protect the estate and the interests of those concerned in it by an order requiring bond with sufficient sureties. The mere poverty of an executor, which existed at the time of the testator's death, without maladminis- tration or loss or danger of loss from misconduct or negligence, does not authorize the requirement of a bond; nor the fact that an executor is not possessed of property of his own equal in value to that of the estate he is to administer, if there is no ground to fear that the trust funds in his hands are in danger from improvidence and want of pecuniary responsibility. But where other circumstances concur, and insolvency arises after the appointment by the testator, it may become decisive on the question of ordering security to be given. § 236. Invalidity of Administration without Bond. — Usually it is held that the failure of the administrator to give proper bond does not avoid the letters of administration, but only makes them voidable. The cancellation of the bond is held not to revoke the appointment yer se. Of course the probate court has power to revoke the appointment for failure to give bond. § 237. When Additional Bond may be ordered. — Whenever it becomes apparent .that the sureties of an administration bond have become insolvent, or that the penalty in the bond is in too small an amount, or that the bond is from any cause in- sufficient or inadequate, the executor or administrator should be ruled to give other or further security. For failure to comply with such an order, the executor or administrator may be re- moved from office by the judge of probate. Am- person in interest may petition the probate com-t for an order to compel additional or better security, and on the trial of such motion it is sufficient that their interest be alleged under oath. As to the statement of facts necessary to authorize the probate court to order additional security, it is sufficient to refer to the pro- visions of the statutes upon the subject, which generally indi- cate the circumstances under which further or other security may be required with sufficient clearness. Insolvency, death, or removal from the State of the sureties, and inadequacy of the penalty, are the most usual. The insolvency of the principal 20G THE LAW OF DECEDENTS' ESTATES. [§§ 238, 239 in the bond, while the sureties remain solvent, is no ground for increasing the amount of the bond. § 238. Nature of Liability of Sureties. — The liability of a surety on an administrator's bond is co-extensive with the lia- bility of the principal in the bond. The general rule appears to hold judgments against principals alone competent, but not conclusive evidence against the sure- ties, although it has also been held that such judgment is not evidence at all against the sureties. But since, by the terms of the administration bond, the refusal or neglect of the adminis- trator to obey or comply with the judgment or decree of a court of competent jurisdiction constitutes in itself a breach of the bond, that judgment against the administrator alone must generally be conclusive e\ddence, and questions as to its force can rarely arise. Where the bond was not expressly conditioned to obey judgments, the admission has been upheld on the theory that sureties are the privies of the administrator, and precluded from questioning any lawful order made by the court having jurisdiction over the principal. But the judgment, to bind the sureties, must self-evidently be one that is enforceable against the principal; unless there be a judgment to be satisfied de bonis projmis, the sureties are not liable ; their liability does not arise until the default of their principal has been fixed. Hence sureties, though not parties to the record, nor beneficially interested in proceedings against executors or administrators, are allowed to appeal from judg- ments against their principals; and the Statute of Limitations runs from the decree or order fixing the liability, and not from the death of an administrator who dies before the estate is finally settled. If there was fraud or collusion in obtaining the judgment, where the failure to comply with it constitutes the breach of the bond complained of, the judgment cannot be attacked col- laterally in the suit on the bond, but must be set aside in a direct proceeding. § 239. Ordering Further Bond. — The court cannot relieve a surety from liability for the future save in pursuance of some statutory provision which must be strictly complied with. It is obvious that the purpose of a new or additional bond § 239] OF THE ADMINISTRATION BOND. 207 ordered by the court ex mero motu, or moved by some interested person for the better protection of the estate, or voluntarily given by the principal in anticipation of such an order, is to add the security resulting from the new to that afforded by the old bond. Hence the estate is protected, after the giving of the new bond, by both sets of sureties; those on the first bond remaining, and those on the second bond becoming, liable for any breach happening after the new bond is given. Where the condition of the bond is that the principal shall "account for, pay, and deliver all money and property of said estate," the sureties on the last bond are liable for the loss following any defalcation, conversion, or devastavit committed by the principal, whether before or after the giving of the last bond, because the non- payment after an order by the court having jurisdiction con- stitutes a distinct breach of the bond; the same result follows where the terms of the bond are to "do and perform all other acts which may be required of him at any time by law." In such case both sets of sureties are liable: the first, because the conversion or other misconduct leading to the loss of the assets occurred during the time when they were sureties; the last, because the non-payment constituted a breach while they were such. The probate court everywhere has authority to order a new bond when the existing bond for any reason ceases to constitute the protection contemplated by the law. It can do this at the instance of parties interested in the estate, but sureties on a bond cannot call for another bond as substitutionary for theirs, unless the statute provides for such a proceeding, as is the case in many States. There is an important distinction between further bonds given at the instance of sureties in an existing bond, and those given in the interest of the estate. When given under statute at the instance of sureties, it is often provided that the former bond is discharged from any misconduct of the principal after the new bond is accepted and filed. If given in compliance with an order of court in other cases, wherever it shall appear neces- sary and proper for the protection of the estate, the new bond is simply cumulative, and the old sureties remain liable for subsequent breaches by the administrator. 208 THE LAW OF DECEDENTS' ESTATES. [§§ 240, 241 Before any order for a new bond can be made, there must be notice, or citation to, or appearance by the administrator or executor. If upon revocation of the letters of an administrator for want of a new bond ordered on the motion of his surety, letters de bonis non be granted to the same person, the former sm-eties are thereby fully discharged, because the administrator and his successor are the same person, so that there can be no ac- counting between the old and the new administration, and it must be presumed that the administrator de bonis non has received from himself all the assets belonging to the estate. § 240. Contribution between Different Sureties in the Same Estate. — The contribution between sureties, and of subroga- tion, liability of sureties on different bonds in the same estate, etc., are matters hardly within the scope of this work and the reader desiring to pursue it is referred to the larger work.^ § 241. Bonds given in Successive Trustee Capacities. — It is sometimes of importance to ascertain in what capacity a prm- cipal, who has given bond as executor or administrator, and also as guardian, trustee, or other fiduciary, with different sure- ties, is chargeable with assets. In such case it is to be remem- bered that, where the obligation to pay and the right to receive are united in the same person, the law operates the appropriation of the fund to the discharge of the debt. Hence, where an administrator who is also guardian of a minor dis- tributee, has made final settlement, and there is an order direct- ing the payment of the distributive shares, such order will operate to charge him in his capacity as guardian, and relieve his sureties on the administration bond; but until such final settlement is made, or the assets accounted for, the former sureties remain liable. But the efficacy of bonds cannot be permitted to be endan- gered or destroyed by apphing this doctrine to the transfer of the mere indebtedness of a fiduciary from himself in one, to himself in another capacity, so as to exonerate his sureties in the former capacity, and either throw the burden on another set of sureties, or entail the loss on the beneficiaries, without some overt act manifesting the transfer of actually existing assets. ^ Woemer on Administration, § 255. §§ 242, 243] OF THE ADMINISTRATION BOND. 209 § 242. Technical Execution of the Bond. — The form in which bonds are to be taken from executors and administrators is generally prescribed by statute, and errors may be avoided by the exercise of ordinary care and attention on the part of the probate judge or clerk. In some instances, these bonds have been construed with technical strictness against the obligees, and held void as statutory bonds where they deviated from the statutory form; but the general rule is to construe them rig- orously against the obligors, and with the utmost liberality in favor of the parties to be protected by them. Errors and omissions in the bond can be controlled by other records in the case. It is not the function of this work to go into the details of the subject of bonds, and if such are desired the reader is re- ferred to the larger work on Administration.^ § 243. Amount of the Penalty. — The amount in which se- curity is to be given is necessarily left to the discretion of the probate court, the statutes generally fixing a minimum only, below which the amount must not be ordered. In almost all States this minimum penalty is fixed at double the value of the personal property of any kind, including the proceeds of sale of real estate, where the power to sell is given by will, which may come into the hands of the executor or administrator by virtue of his office. The clerk and court taking the bond are required to satisfy themselves of the solvency of the sureties offered, and for this purpose may examine the sureties them- selves, the principals, or any other person, under oath; and the bond should not be accepted unless signed by a sufficient num- ber of sureties who appear to be perfectly solvent, owning prop- erty in excess of their debts and liabilities, and of what may be exempt from execution under the law; and the aggregate amount of the property so owned by the several sureties should equal at least the penalty of the bond. It is generally required that the sureties be inhabitants of the State; and certain classes of persons are in some States forbidden from being received as sureties on administration bonds. But such proxasions are considered directory merely, and not designed to invalidate the bond where the law is disregarded. ^ Woemer on Administration, § 256. 210 THE LAW OF DECEDENTS' ESTATES. [§ 244 § 244. Joint or Separate Bonds. — When there are several ex- ecutors or administrators, they may, in some of the States, either give one joint bond, or each a separate bond. Where separate bonds are given, each must be in a penalty as high as that required for a joint bond, because each executor or ad- ministrator is lawfully entitled to take into possession and ad- minister any or all of the assets, and the court cannot control them in this right. At common law, under which executors were not required to give bond, an executor was not liable for the malfeasance of a co-executor, unless it could be shown that he had concurred therein, or that there had been joint possession of the estate, from which it would be inferred that one executor had yielded to the control of the other, who squandered it. The same rule is adhered to in America as to co-administrators and co-execu- tors; the executor or administrator, as 5z^A, is not liable for waste committed by his co-executor, nor for assets which the latter received and misapplied, without his own knowledge or fault. How far the giving of a joint bond affects the liability of one executor for the acts of the other is variously held, the subject being largely influenced by construction of local statutes. The mere gi\dng of the joint bond has been held to be an agreement to join in all acts of administration, thus rendering each qua executor liable for the acts of the other under the law stated in the preceding paragraph, without reference to liability to suit on the bond. In most States it is held that the effect of giving a joint bond is to make the principals liable for each other as sureties as long as the joint administration continues. Devel- oping this view, principals are held bound to protect the joint sureties from the effects of each other's acts. Under this view sureties would not be liable to one of the joint principals for default of the other. But in some States the doctrine that each principal is surety for the other is denied, and it is asserted that they are jointly liable for joint acts, and each separately liable for separate acts, because they signed as principals and not as sureties. The bond is analyzed into two bonds which are merely physically united. Under this view one executor could recover on the bond against the sureties for the default of the other. §§245,246] OF THE ADMINISTRATION BOND. 211 § 245. Approval and Custody of Bonds. — The administration bond must be approved and attested or certified by the court, judge, or clerk taking the same; If taken by the judge or clerk in vacation, it should be reported to and approved by the court at its next regular term; It should be recorded In a book kept for that purpose, and the original filed with the papers pertain- ing to the estate, and a careful compliance with the require- ments of the statute with reference to the taking of bonds is the duty of judges and clerks. But, while the courts of some States require a strict and technical adherence to the directions of the statute, and hold bonds insufficient which are not taken in conformity therewith, these formalities are generally deemed to be directory only, and a variance from them In matters not essential to the nature of the contract of the sureties will not affect the validity of the bond. An administrator's bond Is an official document, and cannot be removed from the office; If needed as evidence a certified copy Is sufficient. If It as well as the record thereof Is lost or destroyed, it may be substituted as the record of a probate court. § 246. Special Bonds. — In some States the administrator's bond does not cover liability arising for sales of real estate under order of court. A special bond Is required. The subject Is discussed hereafter in connection with sale of real estate to pay debts. 212 THE L.\W OF DECEDENTS' ESTATES. [§ 247 CHAPTER XXVIII.' OF THE PROCEDURE IN OBTAINING LETTERS AND QUALIFYING FOR THE OFFICE. § 247. The Petition for Grant of Letters Testamentary or of Administration. — There was occasion in a former chapter to point out the diversity of decisions upon the question of the vahdity or conclusiveness of the judgments and decrees of probate courts, and to show that in some of the States these are assailable in collateral proceedings, and will be held void unless the record recites all the facts upon which the jurisdic- tional power of the court to render them depends. In these States the rule is stated to be, that the record must show the facts giving jurisdiction, or the judgment rendered will be held void. In the majority of States, however, the rule is less strin- gent, and jm-isdiction will be either presumed or inferred from such facts as may be stated, or from the judgment or decree itself. So, for instance, the statement in the petition referring to the decedent as "late of " a county named, is held a sufficient averment of the decedent's domicile in such county at the time of his death. Although the petition must be verified, and the averment of the applicant "to the best of his knowledge and belief" is insufficient, yet objection on this score cannot be made in a collateral proceeding, and does not avoid the surro- gate's jurisdiction. But while it may not in all cases be absolutely necessary to support the jurisdictional power of the court by a recital of all the facts, yet it is of the highest importance that a record should be made of all facts and circumstances which call forth the judicial powers of the court. The petition of the applicant for letters affords the most convenient means for proper allegations, so that the finding upon it may constitute an adjudication of all the necessary facts. The averments should include, among other tilings, first, the death of the person whose estate is to be ad- § 21S] THE PROCEDURE IN OBTAINING LETTERS. 213 ministered, his place of domicile at the time of his death, and whether he died testate or intestate; next, if he left a will, that it has been admitted to probate, and the name or names of the persons nominated executors; third, if the application be for letters of administration with the will annexed, that no executor has been named, or that all so named have renounced, died, or are incompetent to serve, and the circumstances conferring upon the apphcant the right to administer the estate; fourth, the names of the widow, husband, next of kin, or heirs, as the case may be; fifth, the nature of the goods, effects, or other es- tate left by the deceased, and its estimated value; sixth, if the application be for letters of administration generally, the re- lation or kinship between the deceased and the applicant; seventh, if the application be for letters de bonis nan, the death, removal, or resignation of the former executor or administrator, or, if there were several, of all of them; eighth, if the decedent was at the time of his death a non-resident of the county, the existence of property within the county, or other circumstance showing the necessity of administration; and, generally, what- ever facts may exist which, under the law of the State and the particular circumstances, may have a bearing upon the jims- diction of the court to grant letters, the right of the applicant to be appointed, and the amount of the bond to be required, or whether any bond be necessary. § 248. Notice to Parties entitled to administer. — It has al- ready been shown that letters granted to a stranger, or to one whose claim to the administration is inferior to that of another, will be revoked upon the application of one having a superior right, unless such applicant had been notified or cited before the grant was made. The grant to one of several parties having equal claims will not, as a general thing, be revoked for the want of notice, on the application of another, unless there be a statu- tory requirement to give notice or issue citation to all entitled; but it is evidently wise and just that notice should be given to all who are in the same degree of preferment, so that the most suitable person may be selected, and possible disqualifications or objections pointed out before the appointment is made. The petition of the applicant must, as already stated, show, among the other facts necessary to give the court jurisdiction, his 214 THE L.\\\* OF DECEDENTS' ESTATES. [§ 249 interest in the estate to be administered; on the same principle, one sho'v\'ing no interest cannot intervene or object to an ap- pointment. And where the statute provides for citation, it must be served upon all of those ha\'ing a prior right, who have not renounced, and must conform to the requirements of the statute. Failure to cite the widow, or the next of kin, is an irregularity, for which the letters may be revoked, but does not generally render them absolutely void; yet it has sometimes been held to avoid the achninistration. But one having such notice as would be conveyed by the statutory mode of serxice cannot complain that the statute was not observed; nor one who voluntarily enters an appearance. All parties to whom citation or notice is given, or who have a beneficial interest in the estate to be administered, may ap- pear and oppose the appointment of a particular applicant; and the interest giving such a person a standing in court may be shown at the hearing, without having been previously adjudicated. The statute, in some of the States, prescribes a limitation to the right of granting administration in a given number of years after the decedent's death. § 249. Nature of the Proceeding. — The grant of letters is said to be a proceeding in rem in the strictest sense, and in a contest for the right of administration there are strictly no parties plaintiff or defendant. The applicants are all actors, some of whom may withdraw and others come in at any time during the progress of the cause, even after appeal. The decedent's property rights should not be litigated in such pro- ceedings. Objections to the grant of letters will be heard from any person claiming under oath to be interested. If his right to appear is disputed, the question will be decided upon proof, and if it be found that he is a mere stranger, and not interested as creditor, heir, or legatee, he cannot be heard even to object that there are other persons having priority over the applicant under the law. The grant must be during the term succeeding the publication of notice and citation by the clerk, where such notice and citation are required; but the application may be continued from term to term by order of the court, without new notice: parties in interest are bound to take notice of such con- §§ 250, 251] THE PROCEDURE IN OBTAINING LETTERS. 215 tinuances; but if nothing is done in pursuance of the notice given and no continuance or postponement had, the notice given lapses and subsequent proceedings are void. § 250. Nature of the Decree, and its Authentication. — Letters testamentary or of administration can be granted only by the decree or order of the probate court in term time ; but pro\ision is made in most of the States, that during vacation letters may be issued by the judge or clerk of the court, which will be rati- fied by the court at the next regular term thereof unless valid objection be made against the appointee. The delivery of letters is not necessary. Possession of letters by the person to whom they purport to have been granted, is prima facie proof of delivery; and the proper proof of appoint- ment is the letters of administration or a certified copy thereof, or of the order of appointment. § 251. Oath of Office. — The oath of office which executors and administrators are required to take before entering upon the discharge of their duties is the decisive ceremony clothing them with the title to the personal property of the deceased testator or intestate, and all the authority and responsibility connected with their office. The refusal of an executor to take this oath is, even in England, tantamount to a refusal of the executorship, and must be so recorded. So the refusal to give bond and take the oath required by the law amounts to the refusal of the office of administrator. The form of the oath is usually prescribed by statute, and may be administered by the judge or clerk of the probate court; but this is not essential; it may be taken before any officer competent to administer oaths, and transmitted to the probate court. Unless they qualify, neither an executor nor an administrator hasauthority to act; what they attempt to do as such is void, or the act of an executor de son tort. 216 THE LAW OF DECEDENTS' ESTATES. [§§ 252, 253 CHAPTER XXIX. ON THE REVOCATION OF LETTERS TESTAMENTARY ANT) OF ADMINISTRATION. § 252. Conclusiveness of the Decree or Order granting Letters. — Letters testamentary and of administration, granted by a court lia\4ng jm-isdiction for such purpose, are, while unrepealed, conclusive evidence of the authority of the grantees, and cannot be impeached collaterally, even for fraud, although they may be revoked or annulled in the method pointed out by statute to that end, in a direct proceeding, or by appeal. Until such revocation by the decree of a competent court, or appeal, it cannot be questioned in either a common-law or chancery court, and it follows that the acts of an executor or administrator are valid, even though the probate of the will or the grant of letters was erroneous, or obtained upon fraudulent representations, or under a forged will. Letters granted by a court having no jurisdiction, being void, gain no validity by the mere lapse of time. Sales of real estate have been held void, and the purchaser for that reason held to have obtained no title, more than twenty years afterw^ard. An appointment made by a court having no jurisdiction is a nullity; hence the appointment of another, by a court having jurisdiction, as administrator of the same estate, is good without formally annulling the first appointment. § 253. Jurisdiction to revoke Letters. — The power to revoke the authority of executors (which in England is usually termed the revocation of probate) and of administrators is in some States exercised by courts of equity, when they obtain juris- diction over the executor or administrator, under the well- known rule, that, where a court of equity obtains jurisdiction for one purpose, it will retain it until full and satisfactory jus- tice is rendered to all the parties concerned. Thus, in a case calling for the intervention of chancery, an executor may be § 254] ON THE REVOCATION OF LETTERS. 217 restrained from squandering and disposing of the property of his testator, and removed, or a receiver appointed; and an administrator may be removed. But where this authority exists in courts of chancery at all, it will be exercised in extreme cases only. In most of the States, however, the power to revoke the letters granted, or, as it is more usually termed, to remove an executor or administrator, is vested exclusively in the probate courts; superior courts exercising, in such cases, appellate jurisdiction only, or granting the assistance of equity where the lower court is -^\'ithout the necessary power to accomplish justice. § 254. Recall of Letters granted without Authority in the Court. — It is evident that the judgment or decree of any court is conclusive and binding upon the court rendering it, as well as against all the world. Hence, where the probate court has once regularly conferred the appointment, it cannot remove the in- cumbent except for causes recognized by the law as sufficient, and in the manner authorized by statute. But it is an inlierent power in every judicial tribunal to correct an error which it may have committed, when no positive rule of law forbids it. It is, therefore, the duty of the court, upon the application of any party in interest, or even ex mero motu, to annul or revoke letters granted upon proof of the death of a person who subse- quently appears alive; or where it is shown that there was no jurisdiction, the decedent being domiciled at the time of his death in another county, or that he was a non-resident of the State having no property therein, or that the will was admitted to probate tlirough fraud or error, or that a later will or codicil should be admitted; or where a will is found to have been al- ready probated, or is discovered after grant of letters of ad- ministration generally; or where an administrator with the vrA\ annexed is appointed in derogation of the executor's right, or one not preferred is appointed administrator before the ex- piration of the period during which preference is given by stat- ute to others; or where administration is improperly granted, there being no estate to administer; or where it is granted to a person or by a judge disqualified, or by mistake to one not pre- ferred, or who refuses to give bond; or where an administrator de bonis non was appointed while there was an acting executor 21S THE L.\W OF DECEDENTS' ESTATES. [§ 255 or administrator. In all of these cases the letters granted are either void — in which event it is the duty of the court to re- voke, or rather to declare null, its appointment, so as to correct the record and prevent further mischief from being done, as soon as the true facts become known to it, whether by evidence, or otherwise — or they are voidable, and may be revoked upon the application of some person having an interest in the estate, and upon notice or citation to the person to be removed. § 255. Theory of Removal for Cause. — The grounds upon which an executor or administrator will be removed for cause are manifold, and are commonly designated in the statutes. In the nature of things, a power which may be invoked in such a variety of instances must largely depend upon the dis- cretion of the judge for its proper exercise. Such discretion vested in judges of probate is on the one hand not an arbitrary one, as at one time it was supposed to be in the ordinary at common law, who might repeal an administration at his pleas- ure, nor on the other is it so narrow as to prevent liim from exercising it in furtherance of the paramount end and aim of the law, which is the safety and efficient administration of the estate. Where the appointment of an administrator is left to the unconditioned discretion of the judge, he will be controlled by such considerations in making the selection; but having made it, the appointee can be removed only upon proof of such facts as constitute a breach of the trust, in ascertaining which the judge may be aided by considering v/hether the conduct or acts complained of render the principal liable on his bond; since, as a general proposition, the liability of the surety arises only upon misconduct of the principal. And there should never be a revocation without due notice to the party, informing him of the matters alleged against him, and enabling him to defend. Due notice, however, as far as the removal of the executor or administrator is concerned, as distinguished from the power to render a personal judgment against him, need not always be personally served. When he has left the State, notice by pub- lication as provided by statute is sufficient. He submitted to that form of service when he accepted appointment under the statute.^ 1 Michigan Trust Co. v. Ferry, 175 Fed. 667. §§ 256, 257] ON THE REVOCATION OF LETTERS. 219 § 256. What Misconduct justifies Revocation of Letters. — There are numerous adjudications indicating the particular acts or Hne of conduct which require the removal from office of an executor or administrator, as well as those which do not Justify the revocation of their authority. The most fruitful source of trouble and litigation is the unwarranted application of the trust funds to the private use of the executor, adminis- trator, guardian, or curator, and one which but too often leads to their own financial ruin, as well as the destruction of the estates committed to their care. Absurd as it may appear, yet many of the cases under this branch of the law concern those who in good faith believe, and many more those who make a specious pretence of believing, that a guardian or administrator, having been appointed to take charge of an estate, and, it may be, given bond for its faithful administration, may legally treat the funds as their own, being liable only to produce them when the proper time shall arrive. An estate in the hands of such a person is not safe, and it would seem that he is "unsuitable to execute the trust reposed in him." However, errors of judgment not amounting to malfeasance are not ground for removal. An executor may commit errors in his accounts, or make mistakes in his construction of the vdll; these the court will correct, but will not remove the executor, unless there is wilful misconduct, waste, or improper disposition of the assets. Bankruptcy and insoh'ency may be good cause for the removal of an administrator, although it does not ipso facto impair his official authority; but poverty is not, unless the condition of the appointee has subsequently become changed. The spirit in which courts exercise their judicial discretion on motions to remove executors and administrators can best be studied in illustrative cases.^ § 257. Who may move for Revocation. — Courts will not per- mit one who has no direct interest in the estate or who cannot be benefited by the order which he prays for, to prosecute for the removal of an executor or administrator. Hence it is re- 1 Numerous authorities are collected in the text and notes of Woemer on Administration, §§ 270 and 271. 220 THE LAW OF DECEDENTS' ESTATES. [§ 257 quired that in the petition or motion the interest of the party presenting it shall be stated, and wherein it has been or is about to be affected by the party to be removed. And it is not suffi- cient to charge mismanagement, misapplication of funds, or maladministration in general terms, but the facts must be stated which constitute the alleged cause for removal, and must be supported by affidavit. Nor will a motion for removal be heard in a collateral proceeding, but only by direct action, upon pe- tition and citation, the service of which is a jurisdictional fact. Having appeared, however, he cannot subsequently object that he had no notice. The motion may be made by a creditor for the removal of an administrator who was appointed in contravention of the creditors' right within the time during which they have priority over strangers, or when he has been injured by the maladministration alleged; by the widow of the decedent; by a legatee under a will, when the judgment de- claring it null has been appealed from; by the assignee of a devisee or legatee; by sureties conceiving themselves in danger from the conduct of the administrator; and, a fortiori, by any of the heirs of a solvent estate. But only next of kin may con- test the appointment of an administrator on the ground that he is not next of kin. One not of the next of kin has no right to ask for the removal of the authority of the public administrator. One whose appointment as administrator is void because an administrator had already been appointed by a court whose appointment was voidable but not void, has no such interest in the estate as to enable him to move for revocation of the voidable appointment. Where a non-resident is disqualified, he is incompetent to petition for the revocation of letters granted to others. The creditor of an executrix, but not of the testator, has no interest in the estate. If the application for the removal is on the ground of premature appointment, it must be made within such time after the party in priority learns of the ap- pointment as the statute gives him originally after the death of the intestate.^ It seems that any person interested in the estate may prose- cute for the removal of an executor or administrator, independ- ^ The cases on which the illustrations in this section are based are cited in Woerner on Administration, § 272. §§ 258, 259] ON THE REVOCATION OF LETTERS. 221 ently of other parties having a hke interest, unless the court should require such other parties to be brought in. § 258. Resignation of Executors and Administrators. — At the common law, any act of intermeddling with the effects of an estate by the person nominated as executor bound him as an acceptance of the executorship, and he could not subsequently renounce his character as executor, nor resign the trust. So with regard to the office of administrator; the probate court has no power to accept the resignation of an administrator once duly appointed and qualified, without statutory authoriza- tion. But where the common law as thus stated is in force, the courts in several cases have treated an accepted resignation as the substantial equivalent of a removal by the court. It is now generally provided by statute in the several States, that for reasons deemed sufficient by the probate court it may accept the resignation of an executor or administrator, and relieve him, after settlement of his account, from the trust. The right to resign is not, however, an absolute or arbitrary right; it can only be accorded upon proof of circumstances showing it to be consistent with the interests of the estate. Hence the parties interested in the estate should have notice of the intended resignation, either by publication or otherwise. § 259. Consequences of the Revocation of Letters. — The most important distinction to be considered in determining the con- sequences of the revocation of letters is between grants which are void, and such as are merely voidable, — the mesne acts of an executor or administrator between the grant and its rev- ocation being, in the former case, of no validity, and in the latter protecting those acting in reliance thereon. The neces- sity of this rule is self-evident: a void grant is no grant, and acts depending for their validity upon official authority in the actor are wholly void in the absence of such authority, while on the other hand acts before revocation, under an appointment merely voidable — that is, one good until revoked — are en- titled to full protection. The cases giving rise to the application of this principle in America turn mostly upon the question of the residence of the decedent at the time of his death; for it was formerly held in many States, that the probate court has no jurisdiction to 222 THE LAW OF DECEDENTS' ESTATES. [§ 259 grant probate or letters unless the decedent died an inhabitant of the county, or lea\'ing property therein, and that letters granted where such was not the fact, and all acts done upon the authority thereof, are void. This doctrine, as we else- where have seen, is now very generally giving way to the safer one of holding them voidable, but good until revoked. So, also, the discovery of a will will not make void letters of administration granted generally; but until revoked all persons acting in good faith with the administrator will be protected. If the grant is only voidable, another distinction is taken be- tween a proceeding by citation to revoke the letters granted, and an appeal from the judgment of the coiui; of probate, which is taken to reverse a former sentence. The appeal suspends, until its termination, the powers of the i^erson against whose appointment it is taken, and all of his intermediate acts are ineffectual. A revocation upon citation, where the grant of letters was voidable only, leaves all la-u-ful acts done by the first adminis- trator valid and binding, as though his authority had not been questioned. This is self-evident, and it would be a waste of time and space to examine the very numerous cases so holding. Since the removed executor or administrator has no fm-ther authority to act, or bind the estate, he cannot be held liable for any act affecting the estate after his removal. To a suit pending against him at the time of his removal he may plead the revo- cation of his authority in bar, at least if he has settled his ac- count; and such suit must be further prosecuted in the name of a new representative of the estate, or be dismissed. Hence a decree for the sale of lands to pay debts, on application of the decedent's creditors, is void, if the administrator's resignation has been accepted before the rendition of the decree. After revocation, removal, or resignation, the former executor or administrator cannot complete a sale wliich he has been nego- tiating on behalf of the estate, nor collect assets; but the court has jm-isdiction to settle his accounts as though he were still in office. LAW OF DECEDENTS' ESTATES. 223 PART III. OF THE PROPERTY TO WHICH THE TITLE OP EXECUTORS AND ADMINISTRATORS EXTENDS. There is no occasion to repeat citation of authorities on the proposition that, at common law and in all the States, all mere personal property, including chattels real, goes to the executor of a testator, and to the administrator of an intestate or of a testator in case no executor accepts or qualifies. How far the widow and children of the deceased take by priority of title to the personal representative has already been discussed. 224 THE LAW OF DECEDENTS' ESTATES. [§§ 260, 261 CHAPTER XXX. OF PROPERTY IN POSSESSION. § 260. Heirlooms not Personalty. — By special custom heir- looms go to the heir or devisee, and although they are mere chattels, cannot be devised apart from the realty. Heirlooms in the strict sense are said to be rare, and seem not to be recognized in America; they are, according to the ancient authorities, such goods and chattels as, though not in their nature heritable, have a heritable character impressed upon them. This subject is not of sufficient importance in this coun- try to justify further consideration here. § 261. Disposition of the Corpse. — No one has property in its strict sense in the corpse of the deceased: neither personal representative, survi\'ing spouse, nor next of kin. But the personal representative has title to the burial clothes and may sue for an}-- injury thereto. After the burial the surviving spouse or next of kin has a legal interest in the grave and the gravestone or monument which coiu-ts will protect. But, though there is no property in the corpse, the courts fully recognize the duty of disposing of the body in a decent manner, and the right of the proper person to control such disposition. The right of an individual to make a valid and binding disposition of his own body after death is recognized, which the probate court and representative may enforce as any other testamentary pro- vision.^ In the absence of such provision and of a claim of the burial right by others, the duty as well as the right is with the personal representative of the deceased. But he cannot act as against either sur\^ving spouse or next of kin. As betv/een these two the superior right of the next of kin to control the sepulture is asserted in some cases, while the widow is given the preference in others. The proper expenses incident to burial are in any event a charge against the estate. » O'Donnell v. Slack, 123 Cal. 2S5. §§ 262-264] OF PROPERTY IN POSSESSION. 225 § 262. Joint Property. — It is one of the characteristics of joint ownership of property, personal as well as real, that, when one of the joint owners dies, his interest passes at once to the survivor or survivors, excluding the personal representatives as well as heirs and distributees from any title therein. But in equity, the owners of a mortgage made to several mortgagees jointly w^ere held to be owTiers in common of the money secured thereby, the right to which, on the death of one of them, passes to his executor or administrator. From this principle the rule is deduced that at law the right of a joint o^mer passes, on his death, to the sur\dvor or siu-\dvors, but in equity to his executor or administrator. The result of the death of a partner on the joint ownership, which has been pre\dously discussed, furnishes an illustration of this principle. § 263. Real Estate. — The general rule is that in the absence of statutory pro\dsions the real estate, or lands, tenements, and hereditaments, of a deceased person, go directly to the heirs or devisees. Exceptions to this rule are enacted in many States whose statutes direct that realty and personalty are alike subject to administration; in the others real estate is likewise subject to be administered in case it becomes necessary, from the lack of sufficient personalty, to pay the decedent's debts, so that in these States the realty descends to the heu- or devisee subject to a naked power to be sold on the happening of the contingency named. It is also to be mentioned here that executors, and under some circumstances administrators cum testamento an- nexo, are sometimes vested by will with power to dispose of real estate. In this respect it is sometimes difficult to decide whether the devise is to the executor, or to the devisee with a naked power in the executor. The question is to be determined by ascertaining from an examination of the entire vriW of the testator what his intentions were. § 264. Chattels Real, which, as already remarked, go to the executor or administrator, include all leases of lands or ten- ements for a definite space of time, measured by years, months or days, or until a day named; also estates at will, by suffer- ance, and, generally, any estate in lands not amounting to a freehold. 226 THE LAW OF DECEDENTS' ESTATES. [§§ 265, 266 By statute in some of the States leases exceeding a given num- ber of years, or certain other interests, which at common law would be personalty, are to be treated as real estate with refer- ence to the rights of the administrator. § 265. Chattels Real of the Wife. —It is familiar doctrine that at common law the wife's interest in her chattels real may be .divested by the husband at any time during coverture. But he may permit them to remain in statu quo, and if in such case the wife survive, they are hers to the exclusion of his executors and administrators, unaffected by testamentary disposition or charge. The disposition by the husband, in order to divest his wife's interest in chattels real, must, as a general principle, be such as to effect a complete change of the interest held by husband and wife jointly. If the husband survive, he is entitled to his wife's chattels real not disposed of by him during coverture, and of which he had possession jure uxoris; not as her executor or administrator, but by right of survivorship. Hence, if he should himself die without having administered on the wife's estate, her chattels real go to his executor or administrator. The foregoing state- ment of the common law is materially altered by statute in almost all States. § 266. Mortgages, as well as deeds of trust to secure the pay- ment of debts to the decedent, always go to the executor or administrator, even though the estate was in process of fore- closiue at the time of the testator's death and although the heirs obtained possession before the appointment of an ad- ministrator. So, also, the real estate acquired by an executor or administrator in satisfaction of a judgment for a debt due the deceased is held by hun in trust until it appears that it is not needed to pay debts or expenses of administration, when the title passes to the heirs. The equity of redemption in the mortgagor descends to his heirs. Hence it is usually held that, while the surplus proceeds of a sale during the lifetime of the mortgagor constitute personal property going to the executor the surplus of a sale after his death represents real estate and goes to the heirs. But, obviously in such States as give the administrator cus- tody of the real as well as of the personal estate, the surplus §§ 267-269] OF PROPERTY IN POSSESSION. 227 arising out of foreclosure after death must also go to the personal representative. The vendor's lien for unpaid purchase money, being a chose in action, goes to the executor or administrator, and not to the widow or heirs as such. § 267. Chattels Animate. — Domestic animals, being personal property, go to the executor or administrator. Of animals fercB natures only such go to the personal representative as are confined, or in the immediate possession of man ; such as tame pigeons, deer, rabbits, pheasants, partridges, etc.; or animals kept in a room, cage, or the like; fish in a box, tank, or net; doves in a dove-house ; or animals wounded so as to prevent their escape, or killed; or oysters artificially planted in a bed clearly separated and marked out for the purpose. But animals feres naturcB, in so far as they belong to a pri\dlege connected with landed possession, such as deer in a park (not so tame or re- claimed from their wild state as to become personal property), fish in a pond, and the like, will go to the heir, if the deceased held a freehold estate, or to the executor, as accessory to the chattel real, if he held a term for years. § 268. Chattels Vegetable. — Chattels vegetable, being the fruit or other parts of a plant when severed from its body, or the plant itself when severed from the ground, go to the executor or administrator. But unless they have been severed, trees and the fruit and produce therefrom follow the nature of the soil upon which they grow, and when the owner of the land dies they descend to the heir or person entitled to the land. But even growing timber, trees, and grass may, under special cir- cumstances, become chattels, and as such pass to the executor or administrator; where, for instance, the owner of the fee grants the trees on land to another, they become personalty. Or the owner in fee simple may sell the land and reserve the timber or trees, and they thereby become personalty and go to the personal representative. § 269. Emblements, as against the heir, belong to the execu- tor or administrator. The term includes everj^ product of the earth yielding an annual profit as the result of labor and manur- ing; such as corn, wheat, grain, hops, saffron, hemp, flax, melons, of all kinds, and the like. But roots, such as carrots, parsnips. 228 THE LAW OF DECEDENTS' ESTATES. [§ 2G9 turnips, skerrets, etc., are said to belong to the realty, because it is not right that the executor should "dig and break the soil," except potatoes, which are held to come within the description of emblements. The reason of the rule is, that where the occu- pant of land has sown or planted the soil with the intention of raising a crop, and his estate determines without his fault before harvest time, he should not lose the fruit of his labor; to accom- plish which the law gives to him, or, if the tenancy is ended by his death, to his executors or administrators, the profit of the crop. Hence the right is confined to that kind of crop which actually repays the labor by which it is produced within the year, excluding fruit-growing trees and growing crops of grass, clover, etc., though sown from seed, and though ready to be cut for hay. While the executor or administrator of the tenant in fee is always entitled to emblements as against the heir, he has no such claim against the devisee at common law, although this distinction has in a few States not been upheld. That the administrator is not entitled to the growing crop sown and planted after the intestate's death seems a self-e^^dent propo- sition; but whether a crop so sowm goes at the administrator's sale of the land for the payment of the intestate's debts to the purchaser, is another question, on which different conclusions have been reached.^ So it is self-evident, that where a widow or minor children are entitled by statutory provision to the product of the home- stead and messuages, the executor or administrator is excluded. In America the subject of emblements is regulated in many States by statute. In most of them it is pro\aded, that if the owner die between the last day of December and the first day of ^Nlarch, emblements go to the heir; but if he die after the first day of March, emblements severed before the last day of De- cember following are assets in the hands of the executor or administrator. The widow is entitled to the crop, growing on the land assigned to her as dower, "she being then in de optima possessione viri, above the executor." So if she, as dowress, sow the land and ^ That the purchaser does not take is held in Barrett v. Choen, 119 Ind. 56, 59. That he does take is held in Powell v. Rich, 41 111. 466, 469; Foote V. Overman, 22 lU. App. 181, 184; Page v. Culver, 55 Mo. App. 606, 610. § 270] OF PROPERTY IN POSSESSION. 229 marry, the crop will go to her on the husband's death in pref- erence to his executor or administrator; but if she marry, and her husband sow the land and die, the crop will go to his execu- tor; for it is well established that, upon the termination of a freehold estate held by the husband in right of his wife, the emblements will go to the husband or his representatives. It is hardly necessary to add, that where the law gives em- blements, it also gives the right of entry, egress, and regress so far as may be necessary to cut and remove them. § 270, Fixtures, as between Heir and Personal Representative. — Fixtures are annexations of chattels to the freehold which may, according to concomitant circumstances, assume the character of either real or personal estate. In its technical sense the word signifies such things only of a personal nature as have been annexed to the realty, and which may be afterward severed or removed by the party who united them, or his personal rep- resentatives, against the will of the o^vner of the freehold; but it is often used indiscriminately in reference to those articles which are not by law removable when once attached to the free- hold, as well as those which are severable therefrom. Questions concerning fixtures are divided by text-^^Titers into such as arise between, 1st, vendor and vendee, including mortgagor and mort- gagee; 2d, heir and personal representative; 3d, landlord and tenant ; and 4th, executor of tenant for life and reversioner or re- mainderman. The subject in hand demands the consideration chiefly of the second and fourth classes; the others will be noticed only in so far as they furnish principles or rules applicable to all. In determining whether such personal property can be re- moved from the realty, intention is the controlling test. But for determining that intention there are several subsidiary tests and presumptions. As these approach the question from differ- ent standpoints, having little logical connection with one an- other, there is apparent conflict in concrete decisions, depending on the importance attached to one or the other of these consid- erations, though the separate principles are clear enough. • 1. The test of physical attachment is important. If a per- sonal chattel is so affixed to the freehold as to be incapable of being detached therefrom without violence and injury to the freehold, it goes with the real estate. But the chattel can be- 230 THE L\W OF DECEDENTS' ESTATES. [§ 270 come realty without physical fastening to land, as for instance a huge statue in the open air, kept in place by gravity solely. Pictures, mirrors, etc., taking the place of wainscoting belong to the realty; for "the house ought not to come to the heir maimed or disfigured." 2. But personalty passes with the realty without permanent physical attaclmient when there is constructive attachment: that is, when the portable chattel is specially adapted to the use of the realty in question. That keys, doors, windows, bolts, rings, etc., belonging to a house, though temporarily detached therefrom, belong to the realty, is self-evident. 3. On old and well-established rules the courts have declared trade fixtures personalty, though affixed to the soil in a manner that would make them realty under other tests. The doctrine was later applied to agricultural fixtures, and finally to fixtures for domestic use and convenience. 4. Another consideration is the adaptability of the article in question to the uses to which the realty is put. Manure from the barn-yard of a homestead, although neither rotten nor incorporated with the ground, but in a pile for future use, belongs to the realty; but manure made in a livery stable, or in any manner not connected with agriculture or husbandry, is personalty, and goes to the executor. A fence enclosing a field, of whatever material or construction, whether having posts inserted in the ground or not, is part of the freehold; nor does it cease to be so, though accidentally or temporarily detached therefrom without intent on the part of the owner to divert it permanently from its use; but rails in stacks, not having been used for a fence, are personalty. On the same prin- ciple, hop-poles, necessary in cultivating hops, are part of the real estate, though taken down for the purpose of gathering the crop, and piled in the yard with the intention of being re-> placed in the season of hop-raising. The second proposition above, though historically independent, is logically an applica- tion of this rule. 5. Again, since intent is the governing test, the interest which the owner of the chattel has in the realty must be an important element in determining whether or not it was contemplated that the chattel should become a permanent part of the realty. §§271, 272] OF PROPERTY IN POSSESSION. 231 The maxim, Quicquid plantatur solo solo cedit, is said to apply with most rigor in favor of the inlieritance, and against the right of the personal representative to disannex therefrom and consider as a personal chattel anything which has been affixed thereto. Anciently there seems to have been no exception be- tween the executor and heir of the tenant in fee to the rule that whatever was affixed to the freehold descends to the heir, but modern cases, while still attributing great force to this consid- eration, do not refuse to weigh the other elements of the case from which the controlling intention is to be found. On this same principle there is, as between landlord and tenant for years, a leaning toward permitting the tenant to remove the chattel as personalty.^ § 271. Fixtxires as between Devisee and Personal Representative. — As between devisee and executor, the rule is that a devisee shall take the land in the same condition as it would have de- scended to the heir; hence he is entitled to all the articles affixed to the land, whether annexed before or subsequent to the date of the devise. The executor is therefore entitled to all the fixtures as against the devisee, that he would be entitled to as against the heir. But there seems to be no doubt that if, from the nature and condition of the property devised, it is apparent that the testator intended the fixtures to go with the freehold to the devisee, they will pass to him, although of a character which would go to the executor as against the heir. § 272. Fixtures as between Personal Representative of Life Ten- ant and Remainderman. — Since the heir is more favored in law than the remainderman or reversioner, in this respect, or rather, since the law is more indulgent to the executor of the particular tenant than to the executor of the tenant in fee, it follows that all the authorities which establish the executor's right to fixtures as against the heir will apply a fortiori against the remainderman or reversioner. As between landlord and tenant, there is great deviation from the rule, that what has been once annexed to the freehold becomes a part of it, and it would be erroneous to conclude that, because a fixture set up for ornament or domestic convenience has been decided to be 1 Numerous authorities on the subject of this section are collated in Woemer on Administration, §§ 2S3 and 2S4. 232 THE L.\W OF DECEDENTS' ESTATES. [§§ 273, 274 removable as between landlord and tenant, therefore such fixture may be claimed as personalty by the executor of a tenant for life, etc.; still, there is much similarity between the two classes, and although the case of a tenant for life is not quite so strong as that of a common tenant, yet the reasoning is closely analo- gous between them. It is obvious that the executor and admin- istrator of a tenant take the same property in fixtures, as against the owner of the fee, or the reversioner, as the testator or intes- tate had therein; and that the legal right of a tenant to remove fixtures may be governed by express stipulation, usually inserted in a lease for this purpose. § 273. Separate Property of the Wife. — The law in regard to the separate property of married women has of late undergone great changes, both in England and America; there has been and still is a strong tendency in both countries to supersede the common-law rules on this subject by the principles of the civil law, and to accord to married women as a legal right what formerly they could enjoy only under the a?gis of a court of equity. It is necessary, therefore, to remember, that in all cases where by statutory provision property of a married woman is secured to her against the power or control of the husband, it will survive to her after his death, and the husband's executor or administrator has no title thereto; and if the husband sur- vive the wife, such property will go to her executor or admin- istrator, and the husband has no interest therein unless he ad- minister on her estate, or take the property by virtue of some statutory provision. But at common law the husband is en- titled to and becomes the owner of all chattels which the wife owned before marriage, or which come to her during the exist- ence of the marriage, whether she survives him or not ; and con- sequently, though she survive him, they will go to his executor if he makes a will, or to his administrator if he dies intestate. But if property be conveyed or bequeathed to or settled upon her, through the intervention of trustees, or even without, for her separate use, it will not, upon his death, become a part of the beneficial estate of his executors or administrators. § 274. Ante-Nuptial Settlements. — Ante-nuptial settlements of money, jewels, furniture, or other movables, by the husband upon the wife, are valid against the husband and all claiming §§ 275, 276] OF PROPERTY IN POSSESSION. 233 under him, as well as his creditors. The title of the wife is good, even against creditors, and a fortiori against the executor or administrator, although the settlor contemplated defrauding his creditors, if the future wife had no notice and did not par- ticipate in the intent. She stands as a purchaser, the marriage being a valuable consideration. So an agreement before mar- riage, in writing, that the wife shall be entitled to specific parts of her personal estate to her specific use, will be enforced in equity, although the legal title be vested in the husband by the subsequent marriage; the husband in such case becomes trustee for his wife's separate use, and the trust will bind his executors and administrators. § 275. Post-Nuptial Settlements. — Post-nuptial settlements, as well as gifts by the husband to the wife during coverture, are valid against himself and all who claim as volunteers under or through him, and even against creditors, unless fraudulent as to them or not made for valuable consideration. Where the settlement after marriage is made for a valuable consideration, the presumption of fraud fails, though the husband be indebted at the time. A contract in consideration of the settlement of existing differences, and the avoidance of future difficulties and dissensions, or of the return of a wife who is legally justified in her absence from the husband, is founded on a valid consid- eration. In the case of Lloyd v. Fulton,^ Mr. Justice Swayne, delivering the opinion of the Supreme Coiu-t of the United States, lays down this rule upon the subject of post-nuptial marriage settlements : " Prior indebtedness is only presumptive, and not conclusive proof of fraud, and this presumption may be explained and rebutted. Fraud is always a question of fact with reference to the intention of the grantor. Where there is no fraud there is no infirmity in the deed. Every case depends upon its circumstances, and is to be carefully scrutinized. But the vital question is always the good faith of the transaction. There is no other test." § 276. The Wife's Savings from Separate Trade, Pin-Money, Gifts, etc. — A wife may also acquire separate property by carrying on a business or trade on her own account, by permission of the husband, either in consequence of an express agreement between 1 91 U. S. 479, 485. 234 THE LAW OF DECEDENTS' ESTATES. [§ 277 her ■and her husband before the marriage, in which case it will be binding also against creditors, or where he consents during the marriage, in which case it will be void against creditors, but binding on him and his personal representatives. And the savings of the wife arising from her separate property, gifts from the husband to the wife, pin-money, and similar allow- ances to her, or jewels or other things purchased by her out of her separate estate, belong to her, and do not constitute assets in the hands of the husband's executor or administrator. But in the United States there is little or no occasion for the ap- plication of any rules concerning pin-money; this subject, as well as that of paraphernalia, is generally merged in, and governed by, the statutory provisions for the protection of married women and the support of the family upon the death of the husband. § 277. The Wife's Paraphernalia. — Paraphernalia of the wife include her wearing apparel and ornaments, suitable to her station in life. It is held in England that what constitutes par- aphernalia is a question to be decided by the court, depending upon the rank and fortune of the parties; and the books are full of cases distinguishing between the nature and value of the jewels, ornaments, and garments as constituting, or not, the wife's paraphernalia. In America, as with regard to the analo- gous subjects of pin-money and other allowances by the hus- band, the statutes of most States contain specific, and in some cases very minute, provisions on the rights of the wife and widow to her paraphernalia, which are considered, in their con- nection with the estates of deceased persons, in a separate chapter. At common law, gifts as paraphernalia are distinguish- able from gifts by the husband for the wife's separate use in this, that she may dispose of the latter absolutely, but can neither give away nor bequeath the former by her will; and that the husband may sell or give them away during his lifetime, but cannot during her life dispose of them by will. So they are liable, at common law, and in States in which they are not secured to the wife by statutory enactment, for the husband's debts, but not to satisfy the husband's legacies. Nor are jewels and other gifts in the nature of paraphernalia by third persons, jor her separate use, Hable for the husband's debts. §§ 278, 279] TITLE TO CHOSES. - 235 CHAPTER XXXI. TITLE OF EXECUTORS AND ADMINISTRATORS TO CHOSES IN ACTION. § 278. Survival of Actions at Common Law. — The ancient rule of the common law, Actio personalis moritur cum persona, left only such actions to be brought by the executor or admin- istrator as were founded on some obligation or duty, including debts of all descriptions, with respect to which the executor or administrator is the only representative of the deceased recog- nized by law, so that no provision in a contract, nor any stip- ulation or agreement, can transfer to another his exclusive rights derived from such representation. Actions for injuries to the person or property of another, for which damages only could be recovered (tort, malfeasance, misfeasance), or arising ex delicto (trespass de bonis asportatis, trover, false imprisonment, assault, battery, slander, deceit, diverting a watercourse, obstructing lights, escape, etc.), in which the declaration at common law imputes tort to person or property, and the plea is not guilty, are said to die with the person by or to whom the wrong was done. This rule was modified by a series of English statutes, notably that of 4 Edw. III. c. 7, giving an action in favor of a personal representative for injuries to personal property, and 3 & 4 Wm. IV. c. 42, § 3, giving an action in favor of personal representatives for injuries to real estate, and against personal representatives for injuries to real or personal estate; so that actions are now maintainable by and against executors and ad- ministrators in all cases where the value of personal property has been reduced by injury thereto, whatever form of action may be necessary to secure the remedy, and for injury to the real estate, and the damages recovered declared to be personal estate. § 279. Reason of the Rule. — The accurate and logical im- port of the rule that actio personalis moritur cum persona, 236 THE LAW OF DECEDENTS' ESTATES. [§ 279 seems to be, that for injuries to the person alone, not affecting property of any kind, the remedy ceases upon the death of tlie doer or sufferer. Legislative enactments, both in England and, with few if any exceptions, in America, spring from a recogni- tion of the maxim in this sense, and the judiciary in both coun- tries, when not controlled by statutory enactment to the con- trary, is guided by it in its rulings. The law exacts reparation from the wrongdoer, whether the wrong affects the person or the property of another; it makes compensation by a judgment in favor of the person aggrieved against the aggressor, in a sum of money deemed to be the equivalent of the injury suffered. But, under the artificial common-law system respecting the devolution of property upon the owner's death, there can be no reparation for a wrong done (the remedy for which is an action ex delicto) where one of the parties is dead; "for," says Blackstone, "neither the executors of the plaintiff have re- ceived, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury." Ac- tions arising ex contractu were allowed to survive both to and against executors and administrators, "being indeed rather actions against the property than the person, in which the ex- ecutors have now the same interest that their testator had before." ^ In this view no action lies against or by an executor or administrator for a tort committed to one's person, feelings, or reputation. But an injury to property involves a wrong to others beside the immediate sufferer, that is to say, to all who have, from their relation to the owner, an interest in the property; and these, whether personal representatives, heirs, or devisees, are entitled to and have their remedy. Thus, as heretofore men- tioned, personal actions survive in all cases arising ex contractu, and by English statutes this is extended to actions for injury to personal or real estate. No action for a wrong done by the deceased against the per- sonal representative lies unless the estate in his hands was ben- efited by the tort; in which case the tort can be waived and ac- tion brought in assumpsit. This is well illustrated by two cases of wrongful collection of taxes by an internal revenue collector, 1 3 Blackstone 302. §§ 280, 281] TITLE TO CHOSES. 237 who died pending the suits. In Patton v. Brady, ^ the court held the personal representative liable on assumpsit; but in Bank v. Brady, ^ the claim was below the jurisdiction of the court in assumpsit, and viewed as a suit sounding in tort it was held not to survive. § 280. American Statutes regulating the Survival of Actions. — The tendency of legislation in America, wherever it diverges from the common-law rule above mentioned, is uniformly in the direction of increasing the liability of tortfeasors and their estates, and correspondingly augmenting the authority of executors and administrators to maintain action for injuries to the person or property of their deceased testators or intestates. These laws vary greatly. Georgia, for instance, declares that no action abates by reason of the death of either party to a pending suit, leaving the right of the personal representative to institute suit as at common law; while the Missouri statute allows all causes of action to survive, except slander, libel, assault and battery, false imprisonment, or actions on the case for injuries to the person. In every State it is not only a ques- tion of the statute, but of the interpretation given it by the courts of the State.^ § 281. Actions for Injury to Personalty. — It results from the preceding sections, and from the general rule that personal property descends to executors and administrators, that they alone can sue and be sued upon all personal contracts. The same principle extends to the recovery of specific personal property belonging to the decedent, upon whose death the legal title vests at once in the personal representative; and to the re- covery of its value if it has been converted, or of damages for injury thereto. This has been held to include actions in trover, replevin, trespass, case, debt for conversion, and, a fortiori, for a conversion after the intestate's death, though before the ap- pointment of the administrator. So, also, an action against a sheriff for a false return, and an action by a husband against a carrier for the loss of his wife's services and expenses paid in 1 Patton V. Brady, 184 U. S. 608. 2 Bank- of Iron Gate v. Brady, 184 U. S. 665. * Classification of such statutory provisions is given in Woemer on Administration, § 292. 238 THE LAW OF DECEDENTS' ESTATES. [§ 2S2 consequence of injuries received by her through the carrier's negligence ; but all right of action for the loss of her society and its comfort to him dies with him. § 282. Actions concerning Realty. — Any contractual right ac- cruing to the owner of the freehold goes to the personal repre- sentative. It is he, not the heir, who recovers rents accrued during the landlord's life. So the administrator sues on a bond for the payment of such rent. For injuries done the freehold during the owner's life, the personal representative sues, wherever the statute lets such tort actions survive, as is almost everywhere the case. The administrator can maintain replevin for trees wrongfully cut from the testator's land during his lifetime, and recover damages for injury to the rental value or for trespass committed upon the land before the death of the owner. As to covenants of title the question is when they are broken. If broken during the owner's lifetime, the cause of action is in the personal representative, not in the heir or other successor to the title to the realty. As to covenants which run with the land, such as warranty and the covenant for quiet enjoyment, the cause of action is in the owner at the time of the breach, not in the personal representative of the covenantee. But as to covenants not running with the land, such as the covenants of seizin and of good right to convey, which are said to be broken, if at all, as soon as made, the cause of action was complete in the covenantee, and therefore passes to the personal represent- ative, even though the assertion of the adverse title — the discovery of the fact that there was a breach — occurs after the death of the covenantee. But in an increasing number of States the courts, conceding that there is a technical breach of such covenants as soon as made, nevertheless hold that these covenants run with the land until the assertion of the outstand- ing title; and accordingly vest the cause of action in the holder of the covenantee's title at the time of such actual, substantial breach. Where the estate of the deceased in the land was not a free- hold, so that it descends as a chattel, the executor or adminis- trator may self-evidently bring action of forcible entry and detainer for an entry, or sue for a trespass committed thereon, §§283,284] TITLE TO CHOSES. 239 either before or after the decedent's death, or sell or otherwise dispose of the right. And while it is clear that, for any injury to lands descending to heirs or devisees after the ancestor's or testator's death, the heirs or devisees alone can sue, and that the executor or administrator can bring no possessory action in such case; yet where, under the statute or a testamentary provision, the executor or administrator is put in charge of the real as well as of the personal estate, any action necessary to protect the same against wrongdoers, or to recover damages for injuries thereto, including ejectment for possession, must lie in favor of such executor or administrator. So the action of ejectment is given where land becomes assets for the want of sufficient personalty to pay debts, or under license from the probate court. And on the same principle an action on street assessment is maintainable against the executor or adminis- trator, if he is in charge of the property assessed. § 283. Actions for Injuries to the Person. — All claims for in- jiu-y to the person are lost at common law when either the in- jured party or the offender dies. But no State has failed to modify this rule by statute. Any given case presents a local question depending on the statute and its interpretation. Thus rulings, always resting on statute, can be found keeping the cause of action alive after death of plaintiff or defendant when the injury arose from a defect in a highway, a carrier's negli- gence, assault and battery, malicious prosecution, libel, slander, seduction, malpractice of a physician. And in each of these cases decisions to the contrary may be found under the statutes of other States. For these and other instances the statutes of the respective States must be consulted.^ § 284. Actions for Injuries resulting in Death do not lie at Com- mon Law. — But in England and most of the American States actions are authorized by statute for the wrongful act, neglect, or default of any person or corporation resulting in the death of the person injured. The action is in nearly all of these States intended for the benejfit of the widow; in most of them for the benefit of the widow, children, or next of kin, or for the widow and next of kin; in some, for the husband, widow, and heirs; in others, if 1 Authorities are collected in Woemer on Administration, § 294. 240 THE LAW OF DECEDENTS' ESTATES. [§284 there be no widow, to children, or half to the widow and half to the children, or to be distributed among wife, husband, parent, and child. In some of the States the action may be brought by the widow, husband, parent, or other person en- titled to the proceeds; but generally the suit is brought by the personal representative for the benefit of the persons named in the statute, not as representing the estate in such cases, but the persons for whose benefit the remedy is given. Hence the amount recovered is not assets in the hands of the executor or administrator; if the persons for whose benefit the action is authorized are not in existence, the statutes of a few States provide that the amount recovered shall be assets; but in most others it is held that in- such case the action does not lie. In nearly all the States where the question has arisen the benefit of these statutes is not withheld because of the fact that the beneficiaries are non-resident aliens. In some of the States it is held that the husband has no action for the killing of his wife. In several States the statute is con- strued as abating the action by the death of the defendant; and there it is held that no action survives against the repre- sentatives of the wrong-doer. If the suit is brought by the beneficiary it is vested, and will survive his death.^ Attention may be called to the distinction between statutes giving a cause of action to the representative for injuries suf- fered by his intestate or testator during his lifetime, and such as give an action founded on his death, or on the damages resulting from his death to the widow, next of kin, or other person in whose favor the action is given. In the former case the statute is %'iewed as abolishing the common-lav/ rule as to abatement of claims for injuries by death of the claimant, and as making the original cause of action survive for the benefit of parties designated by the statute; while on the other theory the statute creates a cause of action without reference to the cause of action the injure! party might have had before his death. The measure of dam- ages is furnished in the former case by the loss and suffering of the deceased party caused by the injury up to the time of his 1 Strode v. St. Louis Transit Co., 197 Mo. 616. §§285,286] TITLE TO CHOSES. 241 death; while in the latter case death is the cause of action, and the damages are measured by the loss to the person in whose interest the action is brought in consequence of such death. Where the injured party settles or recovers for his injuries in his lifetime, it is clear, at least in those States which hold the statute as abolishing the common-law rule as to abatement, that the personal representative has no right to sue after death of the injured person. So too where the theory is that the stat- ute transfers the right of the injured party it has been held that no action lies for an instantaneous killing. § 285. Suit for Death Loss under Law of Other State. — The extra-territorial enforcement of these statutes gives rise to divergent rulings. Where the statute of the State of the in- jury on which the action must be based is viewed in the forum as penal, or as against the policy of the forum, it will not be enforced. Only the action given by the statute of the place of injury can be enforced. If that law gives the action to the widow, she only can sue, and not an administrator. The converse is also true. But if the statute gives the action to the adminis- trator, it is generally held that an administrator appointed in the forum can sue. A further examination of this question of conflict of laws seems beyond the scope of this work. § 286. Property conveyed by Decedent in Fraud of Creditors. — At common law and under English statutes the transfer of prop- erty in fraud of the rights of creditors is void as to them, but good and binding between the parties thereto. The same principle is embodied in the American statutes, from which it follows that, as the representative of a decedent, the executor or administrator cannot impeach the conveyance of his testator or intestate on the ground of fraud. But the personal represent- ative is also the representative of the creditors; hence, although he is never allowed to recover the property from the fraudulent grantee for the benefit of the heir or devisee, because they are equally bound with the grantor, yet he may consistently do so in favor of creditors of an insolvent estate. Provision is therefore made by statute, in some of the States, enabling ex- ecutors and administrators of insolvent estates to recover prop- 242 THE LAW OF DECEDENTS' ESTATES. [§ 287 erty fraudulently conveyed by their testators or intestates, and the property so recovered becomes assets for the payment of debts; and in some States it is so held in the absence of a statute to that effect. In most of these States, when the ad- ministrator refuses to bring such action, and the estate proves insufficient to pay the debts, creditors may bring suit them- selves, making the representative a party defendant, or object to the settlement of an estate as insolvent, alleging the existence of property fraudulently conveyed; while in others it is held that a creditor cannot maintain the bill; if the administrator refuses to do so, after an offer of proper indemnity, he should be removed and another appointed. In other States the creditor is driven for his remedy to a court of chancery, because the executor or administrator is not permitted to assail or impeach the acts of his testator or intestate.^ As in other cases, there must be an exliaustion of the person- alty before real estate fraudulently conveyed can be sold to pay the fraudulent grantor's debts, and the proceeds of such sale, whether on suit by a creditor or by the executor or admin- istrator, become assets for the payment of debts only. In an early case the excess over the amount necessary to pay the debts was held to be distributable to the next of kin or legatees, as an incident to the administration; but the true rule is to restore such excess to the fraudulent grantee, because the fraud- ulent conveyance is good between the parties thereto and their representatives, binding all persons but creditors. § 287. Annuities and Rent Charges. — An annuity is defined to be a yearly pa\Tiient of a certain sum of money granted to another for life, or for a term of years, and charged upon the person of the grantor only. When charged upon real estate, it is most commonly called a rent charge. As personal property, an annuity passes to the personal representative; but if granted with words of inheritance it is descendible and goes to the heir, to the exclusion of the executor. Dividends upon shares in a corporation bequeathed to the testator's widow for life, declared after her death for a period 1 The alignment of the States on either side is given m Woemer on Administration, § 296. §§288,289] TITLE TO CHOSES. 243 which expired during her Ufe, are included in the bequest, and her executor may recover them. § 288. Apprentices and Servants. — Upon the death of a mas- ter, both his servants and apprentices are discharged, and therefore the executor or administrator of the former can bring no action to enforce the contract of service after his death; nor do they take any interest in an apprentice bound to the de- ceased, unless the infant, with the consent of the father, had bound himself by indenture to a tradesman, his executors and administrators, such executors or administrators carrying on the same trade or business. § 289. Copsrrights and Patents. — Copyrights were unknown at common law. But Congress has secured to the author or inventor the absolute and indefeasible interest and property in his literary production or the subject of his invention for a specified time, which, upon certain conditions, may be extended for a further term of years. During' this period the law has impressed upon these productions all the qualities and charac- teristics of property, has enabled the author or inventor to hold and deal with the same as property of any other description, and on his death it passes, with the rest of his personal estate, to his legal representatives, becoming part of his assets. The patent may be applied for and obtained by the executor or administrator, and is then vested in him not as part of the gen- eral assets of the estate, but in trust for the heirs or devisees, " in as full and ample a manner, and under the same conditions, limitations, and restrictions, as the same was held, or might have been claimed or enjoyed, by the inventor in his or her lifetime." ^ It is obvious, that an extension of the term of let- ters patent and copyright may likewise be granted to and held by the personal representatives; and in such case the assignee of the patentee under the original patent acquires no right under the extended patent, unless such right be expressly conveyed to him by the patentee. The right of personal representatives to sell or assign a copyright or patent follows from its quality as property, and may be made by one of two or more admin- istrators. Action for infringement of a patent may be brought by the administrator, and where a moiety has been assigned by ^ Curt. L. Pat., § 177. 244 THE hA^Y OF DECEDENTS' ESTATES. [§ 290 the patentee he may sue, in* conjunction with the surviving assignee. The analogous subject of trade-marks is governed by similar principles, and the authority of personal representatives with reference thereto is much the same as with reference to copy- rights and patents. Paxson, J., passing upon the question of the right of heirs or distributees to use the trade-mark of the ancestor,^ says that, while the cases are not uniform on this subject, there is ample and recent authority that a business and accompanying trade-mark may pass from parent to children without administration; and that the business may be divided among the children, and each will have the right to the trade- mark to the exclusion of all the world except the co-heirs. He quotes from the opinion of Lord Cranworth,^ who argued that, when a manufacturer dies, those who succeed him (grandchil- dren or married daughters, for instance), though not bearing the same name, yet ordinarily use the original name as a trade- mark, and will be protected against infringement of the ex- clusive right to that mark because, according to the usages of trade, they would be understood as meaning, by the use of their grandfather's or father's name, no more than that they were carrying on the manufacture formerly carried on by him, § 290. Rents. — The general rule is, that rents accruing after the deceased owner's death belong to the heirs or devisees, as an incident to the ownership of the land which descends to them. According to this principle, the pa^Tnent of rent to an executor or administrator under a lease from him after the testator's or intestate's death is no discharge as against the heirs, and may be recovered by them even if the estate is insolvent, unless there has been some action to subject the land to the power of the executor or administrator. The right of the heirs attaches to rents accruing under a leasehold extending beyond the lessor's life, if there be a reversion to himself and his heirs; but if a lessee for years make an underlease, reserving rent, such rent accru- ing after his death goes to the executor or administrator, be- cause his estate was but a chattel interest. 1 Pratt's Appeal, 117 Pa. St. 401, 413. 2 Leather Cloth Co. v. American Co., 11 H. L. 523, 534. So Field, J., in Kidd v. Johnson, 100 U. S. 617, 620. §§291,292] TITLE TO CHOSES. 245 But if the real estate is necessary to pay the debts of the de- ceased, the executor or administrator may be ordered to take possession of it and collect the rents therefrom, and, if these are insufficient, to sell the land, or, in some States, even take possession thereof without the order of court. It will appear hereafter, in connection with the subject of the duties of ex- ecutors and administrators in respect of real estate, that in a number of States the distinction between real and personal property has been abolished, so that both go to the personal representative for administration. In such States the rents self-evidently go to the executor or administrator during the period of administration. It is also clear that, where the real estate is devised to an executor for purposes of administration, the rents must be paid to the person administering. Rents which had accrued prior to the death of the testator or intestate are mere choses in action, and therefore payable to the personal representative. § 291. Apportionment between Life Tenant and Remainderman. — At common law there could be no apportionment of rent accruing to successive owners, so that, if a life tenant died be- fore the rent reserved under a lease made by him became due, the rent was lost both to his executor and to the reversioner, — to the former, because no rent had become due to the testator when he died; to the latter, because he was not the lessor of the tenant. Statutes in England and the States of this country now provide that where any tenant for life died before the time at which rent reserved under a demise from him, determining with his death, became due, the executor or administrator of the lessor might recover from the under-tenant the proportion of rent which had accrued at the time of the lessor's death.^ § 292. The Wife's Choses in Action. — At common law, if the husband dies before the wife without having reduced her choses in action into possession, she, and not his executors or admin- istrators, will be entitled to them. Where the husband sur- vives the wife, he is entitled to administer on her estate, and as administrator takes all her personal estate remaining in action or unrecovered at her death. Where he dies without having » Woerner, § 301. 246 THE LAW OF DECEDENTS' ESTATES. ,[§293 reduced the choses in action of his deceased wife to possession, they do not go to his administrator, but to one appointed to administer her estate. In such case the wife's representatives hold the property in trust for the husband's next of kin or leg- atees, subject to the wife's debts. Close questions arise as to what constitutes reduction to possession, but the inquiry is not here pursued ; ^ for it is to be remembered that recent legis- lation in most of the States has greatly changed the law with reference to the property rights of married women, and that in many cases choses in action of the wife not reduced by the husband during her lifetime now go, upon her death, to her next of kin, in the same manner as if she had been a feme sole. § 293. Actions accruing to the Representative, oflacially or in- dividually. — It results from the ownership of all personal prop- erty of a deceased person, which by law is placed in the executor or administrator, that for any injury thereto occurring after the decedent's death, and before the final disposition to the parties entitled, the action must be brought, as we have seen, by the personal representative. And in such case, as well as in all cases where the action accrues upon a contract made by or w^ith him as such since the death of the testator or intestate, the action may be brought in the proper name of the executor or administrator, or as such: whenever the money when recov- ered will be assets, the executor or administrator may sustain a suit in his representative capacity; and may join a count for conversion before the death, and one for damages after. He cannot, however, join counts on causes of action accruing to him in his private right as individual, with counts on causes of action in his representative capacity. Since a party to a judicial proceeding is bound thereby, or is entitled to the benefit thereof, only in the capacity in which he is before the court, it is often of vital importance to determine whether one who is an executor or administrator appears in his individual or representative character. In such cases it has been held that the insertion or omission of the word "as" before the representative title was decisive of the question, and that without it the word "administrator," "executor," etc., must be regarded merely as descriptio persons. But it is now generally 1 See discussion in Woemer, § 302. §293] TITLE TO CHOSES. 247 held that the title and pleadings may be considered together to ascertain the true nature of the action, and it will be treated as an individual or representative one as disclosed upon an inspection of the whole record. So where an administrator has obtained judgment against a debtor of the estate, he may main- tain an action on such judgment, in another State, in his indi- vidual capacity, and if he describes himself as administrator the term will be surplusage and disregarded as being simply a de- scription of the person.^ ^ Woemer, Administration, § 303. § 294] WHAT CONSTITUTES ASSETS. 249 TITLE FOUR. OF THE DUTIES OF THE PERSONAL REPRESENTA- TIVE IN RESPECT OF THE ESTATE. PART I. OF ACQUIRING POSSESSION OF THE ESTATE. CHAPTER XXXII. WHAT CONSTITUTES ASSETS. !5 294. Meaning of the Term Assets. — Having In the two preceding chapters examined the nature and kind of property to which the title of the executor or administrator of a deceased person extends, it becomes necessary to point out the circum- stances which make it his duty to possess himself of such prop- erty for the purpose of disposing of it in accordance with the re- quirements of the law. While the property is in the possession of the personal representative, it is generally designated by the term "assets"; and it may be profitable to consider the nature of assets generally, before treating of the duties and liabilities of executors and administrators in respect of the management of the estate coming into their hands. In modern usage the term assets (derived from the French assez, sufficient) is equivalent to property available, not for enjoyment, but in trust or custody for the payment of demands ; thus, the property held by executors and administrators is assets for the payment of debts and distributive shares to legatees and heirs, sufficient to make the executor or adminis- trator chargeable to a creditor or party in distribution so far as such property extends. 250 THE L.\W OF DECEDENTS' ESTATES. [§294 Where property of a third person comes to the personal representative of the deceased under claim of right in the de- ceased, the question whether such property is assets in its practical application means whether, in the event that the right of the third person ultimately prevails, the recovery should be against the personal representative personally, as a matter outside of the administration, or against him in his representa- tive capacity. In the latter case not only must the estate of the deceased respond to the loss, but the bondsmen of the per- sonal representative may be liable. If the responsibility is personal, neither estate nor bond can be held. The rule is that the personal representative is held individu- ally responsible, and not as administrator, in litigation concern- ing property taken by the administrator which is ultimately adjudged to the third person by legal title. There are conflict- ing cases which decide that when the personal representative asserts his claim bona fide for the benefit of the estate, he is liable qua administrator, that is, the estate is liable, and not the administrator in his individual capacity.^ But, as yet, the weight of authority is against this view.^ But from these wrongful assertions of title by the adminis- trator those cases must be distinguished in which the adminis- trator rightfully acquires the property as of the deceased, and third persons claim the property or some interest therein under the deceased. For instance, a factor sells goods of his principal and takes a note payable in his own name. In such a case if the administrator collects that note as administrator, the lia- bility for failure to account to the principal attaches to his of- ficial position. He can also be held personally liable at the election of the claimant.^ The goods of a third person, and the proceeds of any sale of them, mixed with goods or money of the deceased, and coming with them into the hands of the administrator are not deemed assets in his hands, but continue the goods of such third person if they can be traced in specie. But if the property in the hands of the decedent belonging to others, whether in trust or other- 1 Mulford V. Mulford, 40 N. J. Eq. 163. 2 Van Slooten v. Dodge, 145 N. Y. 327; Herd v. Herd, 71 Iowa 497. 3 De Valengin's Admr. v. Duffy, 14 Peters 282, 290. §295] WHAT CONSTITUTES ASSETS. 251 wise, has no ear-marks and is not distinguishable from the mass of his own property, it falls within the description of assets, and the owner has no remedy to recover such property except to come in as a general creditor, though, by statute in some States, fiduciary debts constitute a preferred class. But under modern modifications of the rule, many decisions hold that a trust fund, or money held in a fiduciary capacity, does not lose its distinctive character merely because it is so intermingled with other funds that the particular coins or bills cannot be identified ; it is enough if the fund can be substantially followed, and the recent tendency seems not to require the same strictness of proof as formerly.^ § 295. Assets not possessed by the Decedent. — Not only chat- tels in possession, but all such which the executor or adminis- trator might by reasonable diligence possess himself of, con- stitute assets with which he is chargeable. So property which was never in the testator or intestate is regarded as assets when it comes to the executor or administrator; — such as money received from the United States government by an executor or administrator, in consequence of a treaty with a foreign nation, as indemnity for loss of property taken from the decedent by such foreign nation, when given as compensation for injuries suffered by the aggrieved parties. In like manner damages assessed during the lifetime of a tes- tator for laying out a highway through his land, but not payable until a day occurring after his death, constitute assets; salary voted to a person after his decease and paid to his executors; dividends of tolls collected by a turnpike company before the death of a stockholder; money recovered on an appeal bond given to the obligees as executors and property of an insolvent which would have been exempt in his lifetime, though at his death in the bankruptcy trustee's custody, are all assets. When the payment to be made after death is a pure gratuity, it does not constitute assets, even though payable to the personal rep- resentative of the deceased. Whether such claims be held pure gratuities or not, the right to present them must be treated as property for the purpose of giving the probate court jurisdic- tion to grant letters, especially when the tribunal charged with 1 Elizalde v. Elizalde, 137 Cal. 634. 252 THE LAW OF DECEDENTS' ESTATES. [§ 296 the distribution of the fund would not recognize any but an administrator appointed in the State as competent to receive the fund. The money due upon a policy of life insurance payable to a testator or intestate for the sole use and benefit of himself, or to his legal representatives, or according to his will, is assets wliich it is the administrator's duty to collect and inventory; and he and his sureties are liable for a failure to administer the avails of such insurance. So of insurance against loss by fire payable to the legal representatives of the insured. And a life insurance payable to a particular person other than the insured or his representatives constitutes no part of the insured's estate, but vests in the beneficiary as a gift, taking effect in possession on his death; if the beneficiary die before the in- sured, the insurance constitutes assets in the hands of the per- sonal representatives of the beneficiary.^ Realty bought by an administrator for the estate at his own sale, to satisfy a judgment in favor of his estate, may be treated as personalty until his official duties touching it are performed; and realty acquired in satisfaction of a judgment in favor of the estate is held by him in trust until it is ascertained that it is not needed to pay debts and administration expenses. So also real estate purchased by him for the estate in foreclosing a mortgage debt due the estate is assets for which he must account. § 296. Accretions, Interest, Rents, Profits. — It is obvious that goods and profits which have accrued since the death of the testator or intestate from property in the hands of the executor or administrator are likewise assets, including interest received by him, and revenues from the estate in his charge, all rents ac- cruing from real estate, proceeds of sale thereof, and damages for injuries thereto, when such real estate itself constitutes assets. Where the executor or administrator undertakes to carry on the decedent's trade, or does so in pursuance of a provision of articles of copartnership entered into by the de- ceased, or by direction of the testator in the will, or under the directions of a court of chancery, the proceeds of such trade are assets for which the executor or administrator is liable. So the ^ For authorities on points in this section, see Woemer on Admin- istration, § 306. §§297,298] WHAT CONSTITUTES ASSETS. 253 good will of the decedent's business; but a license to sell in- toxicating liquors is personal to the licensee and not such prop- erty as will pass to his administrator as assets of his estate; but if the grant of a license had increased the value of the fix- tures, good will and unexpired term of a lease, the executor is liable to be surcharged with the enhanced value which might have been obtained by a sale. Chattels real or personal, to which the executor or administrator becomes entitled after the death of the testator or intestate, by force of a condition, are assets, as well as such chattels which the decedent had mortgaged or pledged, and which the executor or administrator redeemed. In like manner, the money furnished by heirs in order to save the realty from being sold for debts is assets. § 297. Property in Foreign Jurisdiction. — The ancient doc- trine of the common law was, that "assets in any part of the world shall be said to be assets in every part of the world." ^ This doctrine, applied in its general scope, without reference to the authority or liability of particular administrators in differ- ent jurisdictions, is as valid now as it has been at any time, and is objectionable only as containing an unmeaning truism, re- solvable into the proposition that assets are assets. It is very clear that an administrator cannot be held accountable for property which it was not in his power to recover or obtain possession of; hence the doctrine that assets anywhere are assets everywhere is true only as applied to property which the administrator may lawfully collect or recover under the law of the forum granting the letters; for only such property is "assets" within the definition given in Touchstone. It is ac- cordingly held, that an executor appointed in one State cannot be held to account for assets received in another State. The liability of the executor or administrator in such case is in his individual capacity, not enforceable in the probate court, but in a court of law proceeding according to the ordinary forms, or in a court of chancery. The situs of a debt as conferring jurisdiction has been dis- cussed ante, § 187. § 298. Property lost through Administrator's Negligence as Assets. — The term assets is applicable not only to property 1 Touchstone, 496. 254 THE LAW OF DECEDENTS' ESTATES. [§299 actually taken into possession by the executor or administrator, but to all which he might have possessed himself of by the ex- ercise of reasonable diligence. Hence he is chargeable with personal property belonging to the estate of his testator or intestate, and lost through his negligence, although it never came to his hands. It has been held that he is not liable for the loss of assets, even if he had them in possession, unless he has been guilty of such gross neglect as will amount to mala fides; but the prevalent rule as to the liability of executors and administrators requires of them that degree of care and skill which prudent men exercise in the direction and management of their own affairs. § 299. Debts of Executors or Administrators as Assets. — In the absence of statutory provisions to the contrary, the nomination by a testator of his debtor as executor operates the extinguish- ment of the debt, because an executor cannot maintain an action against himself; and the personal action once suspended by the voluntary act of the creditor, it is forever gone and dis- charged, except against the creditors of the testator. But in equits^ the debt is presumed to have been paid by the executor, and constitutes assets for the payment of the testator's debts and legacies, because in equity that which the law requires to be done must be presumed against the obligor to have been done. The appointment of a debtor as administrator of his creditor's estate has a similar effect for the same reasons; but since the appointment of the administrator is not the voluntary act of the intestate, the debt is not extinguished, but the action there- for only suspended by such appointment; hence the adminis- trator de bonis non of the intestate has an action against the representative of a deceased administrator debtor. In America the equitable rule above mentioned is generally the rule at law also, and, in the absence of statutory regulation of the subject, the debts of executors and administrators are 'prima facie assets in their hands, to be accounted for like any ordinary assets. ]\Iost of the States have regulated this question by statute, declaring that the appointment of a debtor as exec- utor or administrator shall not operate to extinguish the debt. The debt of the executor or administrator is in these States to be accounted for as other debts or assets. But in some of the §§ 300, 301] WIL\T CONSTITUTES ASSETS. 255 States the statute makes the executor or administrator hable for the amount of his debt as for so much cash in hand. It is clear that in these States a solvent administrator's note in favor of the estate is cash assets and the sureties on his bond are liable; but in some of the States it is held that the administrator and his sureties are equally liable, whether or not the adminis- trator was solvent during any period of the administration, by operation of the legal fiction, that where the right to demand and the liability to pay co-exist in the same person, the law presumes instantaneous payment, and extinguishes the debt. But not all States favor the proposition that the statutory conversion of the administrator's debt is equivalent to its col- lection in cash. It is accordingly held in a number of States that the executor or administrator may defend against his official liability by showing that at the time of the grant of letters he was, and until the time of the final settlement he remained, insolvent.^ § 300. Property in Auter Droit not Assets. — As w^e have seen {ante, § 29-1), money or property which was held by one in trust for another, is not assets in the hands of the personal represent- ative of the deceased trustee against the beneficiary of the trust. § 301. Legal and Equitable Assets. — In England, and in some of the American States, a distinction is recognized between assets which may be reached at law, or legal assets, and such as can be administered only in equity, or equitable assets. Legal assets must be administered by the executor or administrator in due course of administration, having regard to the rules of priority among creditors recognized at law, which will be con- sidered more fully hereafter; but equitable assets, although debts are to be paid out of them before legacies, are to be distributed among creditors pari passu, without regard to priority of one debt over another. In most of the American States, the whole matter of assets is regulated by statute, and the distinction between legal and equitable assets is of little or no practical importance, not only 1 With reference to the attitude toward the questions discussed in this section, the States are listed and the authorities quoted in Woerner on Administration, § 311. 256 THE LAW OF DECEDENTS' ESTATES. [§ 302 because in many instances the necessary equity powers to deal with this subject are vested in the probate courts, but chiefly because the statutes themselves determine the powers, duties and liabilities of executors and administrators, and the manner of subjecting the property of decedents to the payment of their debts. § 302. Personal and Real Assets. — Assets are also distin- guished, at common law, as personal and real, the latter being liable, in the hands of the heirs, for debts of the ancestor on bonds, covenants, and other specialties when the decedent bound himself and his heirs. The liability of real estate was extended by statute to all debts, whether on simple contracts or on specialty, and heirs and devisees made liable to the same suits in equity for simple contract debts of their ancestor or testator as they had at common law been liable to for debts by specialty. But in the American States the subjection of real estate of deceased persons to the payment of their debts is so fully covered by statutory law that it becomes necessary to devote a separate chapter to the consideration of the general principles and of the mode of proceeding common to them. It may be stated here, however, that the general rule in America is to hold the real estate of deceased testators and intestates liable for the payment of all their debts, without regard to quality or degree, and mostly their legacies, in all cases where the personalty is insufficient for such purpose; and this without recourse to equity, by summary proceedings in the probate courts. §§ 303, 304] OF THE INVENTORY AND APPRAISAL. 257 CHAPTER XXXIII. OF THE INVENTORY AND APPRAISAL. § 303. Office and Necessity of the Inventory. — One of the most important duties incumbent upon executors and adminis- trators, involving equally their own. protection and that of the estates committed to their care, is the making of an accurate inventory of all the property, both real and personal, including chattels in possession and choses in action, as well as contingent or prospective interests. Inventories are required from execu- tors and administrators by statute in every State in the Union, and the making of " a true and perfect inventory of all the goods, chattels, credits, and estate that have or shall come to his hands, possession, or knowledge," is usually one of the condi- tions of the bond given by them; so that the mere omission to make and return the inventory is a breach of the bond, and renders the executor or administrator liable, but does not render void proceedings had under such administration. A fortiori, the wilful omission to include in the inventory any property kno^vm to the administrator to belong to the estate of his mtestate is a breach of his official bond. A provision in a will that no inventory of the estate shall be filed is against public policy and void. The presumption arising against an executor or administrator by reason of his failiu-e to return an inventory, although not sufficient of itself to charge him with the payment of debts or legacies, is yet a strong circumstance in support of the charge of improper conduct, and the omission of assets therefrom is a fraud, or its equivalent, unless it arose out of an honest mistake of fact or misconception of the law. § 304. Within what Time the Inventory must be filed. — The time for the return of the inventory into court is fixed in the different States at different periods. In the American States no inventory can be required until an executor or administrator 258 THE LAW OF DECEDENTS' ESTATES. [§305 has been appointed by the court having jurisdiction, or until the executor has taken upon himself the administration; but a commission is, in most States, required to be appointed by the judge or court of probate, consisting of two, three, or sometimes five discreet and disinterested persons, whose duty it is to value, or appraise, the effects inventoried by the executor or admin- istrator, or conjointly with him to make out the inventory. They are known, generally, as appraisers, and in all cases act under oath. If the executor or administrator neglect to file the inventory, provision is made for the citation and attachment of the de- linquent by the spontaneous action of the court, without motion or petition by creditors or distributees; and if he disobey the citation, he may be coerced by fine or imprisonment for con- tempt of court, or be removed from office for neglect of duty. But creditors and distributees of a decedent have also the right to require the executor or administrator to file an inventor}', and an application for an order of the probate court for that purpose will not be refused, if made ^^'ithin a reasonable time. In most States, it is required that, if, after returning the in- ventory, other goods or property of any kind come to the hands or knowledge of the administrator, an additional inventory shall be exliibited, including the newly discovered assets. § 305. What Property must be inventoried. — The inventory must include all personal property of the decedent, of whatever kind or nature, which is or may become assets. To this extent the statutes of all the States are alike. But with respect to the property appropriated by the law for the immediate support of the widow and minor children, in which neither the creditors nor other legatees or heirs can have any interest, there is some diversity in the legislation. In many, if not most, of the States, provision is made excluding such property from the general inventory; in several of them, the executor or administrator, or the commissioners appointed to appraise the property, are required to make a separate inventory and appraisal of the prop- erty allowed or set out to the mdow or family; but in others no provision is made on this subject. In these States it seems that, in the absence of a statutor}^ provision to the contrary, it is the administrator's duty to inventory and cause to be appraised § 305] OF THE INVENTORY AND APPRAISAL. 259 the widow's absolute property, together with the property generally; and having charged himself with the amount thereof, he will be entitled to take credit for whatever amount he turns over or pays to the widow, either upon order of the court, or in compliance with the statutory allowance. Real estate constitutes assets to pay debts, and when neces- sary for that purpose it goes to the personal representative and must obviously be inventoried. But since it cannot always be known at the time of making the inventory whether the personal property is or is not sufficient to pay the debts, or whether re- course must be had to the real estate for that purpose, it is pro- vided by statute in England, and most of the American States, that all real estate belonging to the decedent shall be included in the original inventory, or, if discovered subsequently, in an additional inventory. Specific personal property in the hands of a testator or intestate at the time of his death, belonging to others, which he holds in trust or otherwise, and which can be clearly traced and distinguished from his own, is not assets, but is to be held by the executor or administrator as the de- ceased himself held it; and it is not, of course, to be inventoried. In almost every State the statute enumerates the different kinds of personal property which is required to be inventoried, such as "goods, chattels, money, books, papers, and evidences of debt," etc. This includes debts due by the executor or ad- ministrator, because in America the appointment of an executor or administrator who happens to be a debtor to the testator or intestate does not cancel the debt. He is to inventory all the personal property of which he has any knowledge; hence it has been held that assets belonging to a deceased resident, situated in another State, must be included; but this can apply to such assets only as are not in the rightful possession of an adminis- trator in such other State, or that may come within the juris- diction of the State granting the letters. In those of the States in which the executor or administrator is authorized to impeach the conveyance of his intestate or testator on the ground of fraud against creditors, he must also inventory all property so fraudulently conveyed. Property in the possession of other parties, if it belong to the decedent's estate, must also be in- ventoried. And it is proper, and the duty of the administrator, 260 THE LAY,' or DECEDENTS' ESTATES. [§ 30G to inventory all property found among the effects of the de- ceased, if he does not know them to belong to another. The executor or administrator can be required to inventory only the property which belonged to the decedent at the time of his death, in his own right, or to which the personal represent- ative is entitled in his official capacity, as distinguished from the heir, legatee, widow, or donee mortis causa of the testator or intestate. The court has no power, therefore, to compel the administrator to inventory property not clearly belonging to the estate. On the other hand, the court should not reject an inventory exliibited because it contains property the title to which is in dispute; because, as appears in a former chapter, the probate court has no power to try the title to property be- tween the personal representative and strangers. A third person claiming property by title paramount is not prejudiced by the fact that such property is inventoried as assets of the estate. If no property come to the knowledge of the administrator he cannot, of course, make an inventory; but he should never- theless file an affidavit showing that no assets came to his hands, for the information of the court and parties in interest. § 308. Details of the Inventory. — The inventory should not only be full and complete, so as to include every item of prop- erty belonging to the estate, but it should set out each item separately, with the amounts indicating the value or appraise- ment in detail. As a question of policy, it is evident that the additional labor and expense involved in minutely itemizing each article, account, note, bond, etc., rather than grouping or aggregating them and stating the value or amount in the sum is insignificant when compared with the importance of the safe- guard thus obtained for the interest of the estate, and the pro- tection thereby afforded to the executor or administrator who is disposed to act with diligence and in good faith. But this is not only a question of policy addressing itself to the judgment of parties managing estates; it is a legal obligation. The statute in nearly every State requires not only " a full, true, and perfect inventory," etc., but also directs that each article of property shall be separately appraised and its value noted. It is the duty of the court to which an inventory is returned to reject it if §§ 307, 30S] OF THE INVENTORY AND APPRAISAL. 261 not made In compliance with law, and require a new one which shall be in due form. § 307. Indication of the Value of Assets. — The utility and value of the inventory depend in a great measure upon the reli- ance that may safely be placed on the value of the property therein listed. Provision is therefore made in many of the Statutes, that either the executor or administrator making the inventory, or the commissioners appointed to make the ap- praisal, shall state as fully' and accurately as may be possible to them whether the debts inventoried are sperate, doubtful, or desperate, or what, in the opinion of the executor or admin- istrator, may be collected of the securities and debts. Debts inventoried without comment, or showing that they are desper- ate or doubtful, must be accounted for, unless the executor or administrator show that set-offs existed, or that the debtors were insolvent; and the presumption of solvency of the debtor is stronger where the administrator himself is the debtor. Debts inventoried as desperate the administrator will not be charged with, and the sale of notes and accounts inventoried as valueless and of bad debts is proper, and the administrator is chargeable only with the proceeds of such sale. Debts of non-resident in- solvent debtors may, it has been held, be omitted from the inventory entirely. The appraisers must also estimate the value of chattels in possession belonging to estates, noting each article exhibited to them, and affixing the price which, in their opinion, it is worth. It has already been mentioned that the statutes require great minuteness and particularity in the appraisement, — a provision which appraisers should never lose sight of. § 308. Appraisement of the Goods. — The importance and re- sponsibility of the office of appraisers or commissioners to value the property belonging to the estates of deceased persons are not always sufficiently appreciated. Although not technically, in most cases, conclusive either for or against the executor or administrator, the inventory and appraisement are in every instance prima facie evidence, and therefore decisive always when not obviously erroneous, or when clear and convincing evidence is not attainable to rebut their prima facie validity. And they are of necessity conclusive when other parties have been governed by, or act upon the faith of, such appraisement. 2G2 THE LAW OF DECEDENTS' ESTATES. [§ 308 Nor are their duties free from difficulty: the statute requires the property to be appraised "at its true vahie," and leaves the appraisers to their own resources to find what "true value" is. For purposes of appraisement the value of property is what it will bring. Appraisers are therefore not concerned about the cost of the property submitted to them for valuation, nor its intrinsic value, but only in the amount of dollars and cents which it can be exchanged for. With regard to the fur- ther question as to what method of exchange is to be contem- plated by them for the purpose of valuation, it must be remem- bered that executors and administrators are not required to be merchants or salesmen, and that the law requires the sale of property of deceased persons, generally, to be at public outcry to the highest bidder. The price which, in their opinion, prop- erty will bring at such a sale, should then, it would seem, be their valuation or appraisal. 309] DUTIES OF EXECUTORS AND ADMINISTRATORS. 263 CHAPTER XXXIV. DUTIES OF EXECUTORS AND ADMINISTRATORS IN TAKING CHARGE OF THE ESTATE. § 309. Duty of Administrators to take Estate into Possession. — It is the duty of executors and administrators to collect and take into possession all the goods and chattels that belonged to or were in the possession of the late testator or intestate at the time of his death, so far as they have knowledge thereof, and which they may recover by the exercise of reasonable diligence and prudence. For any wilful or negligent omission to do so, or to protect and preserve the same until they are delivered to those to whom they belong by the terms of the will or Statute of Distribution, they make themselves liable on their bond. It is for the administrator to determine what property belongs to the estate in his charge; and to bring the necessary suit at law or in equity to recover the same, without waiting for an order from the probate court to that effect. The duty of taking possession of trust funds which remain in the hands of a decedent at the time of his death, and settling his accounts in relation to the trust, devolves primarily upon his executor or administrator; the latter is not bound to proceed in the execution of the trust, but must preserve the fund for those entitled. But the trust fund, not having been the prop- erty of the deceased, passes into the custody of the representa- tive, who is a kind of bailee for the true owner. Their authority is co-extensive with that of the law of the State or country granting their letters; hence their duty is to take into possession all the goods, rights, chattels, and credits of the late decedent found within this jurisdiction. And it has been held that, where a testator left property within another jurisdiction, it is the duty of the executor to take probate of the will there, or such other steps as may be necessary to enable him to collect such property. But this doctrine is greatly at 264 THE LAW OF DECEDENTS' ESTATES. [§ 310 variance with the views entertained in other States, in some of which courts go to the length of holding that an adminis- trator cannot be made liable for property of the intestate actually received in another jurisdiction; and the case of Schultz V. Puher,^ holding the administrator liable for not col- lecting assets in a foreign State, was decided by a court nearly evenly divided, some of the Senators expressing themselves very earnestly against the prevailing opinion. Where foreign executors and administrators are permitted to maintain actions without new probate or appointment in the State rei sitce, in consequence of which the Statute of Limitation is held to run from the date of the foreign probate or appointment, it would seem necessary, to avoid the loss to the estate of assets so situ- ated, that the executor or administrator should collect the same. The appointment of a domestic administrator in such State will clearly defeat the right of any foreign executor or adminis- trator to recover the assets; and it is self-evident that, in those States in which the authority of foreign executors and admin- istrators is not recognized, the Statute of Limitations cannot be held to run before the appointment of a domestic adminis- trator; the chief reason for holding administrators liable to collect such property does not, therefore, exist. § 310. Right of Administrator paramount to Heir or Legatee. — The executor or administrator stands as the representative of those to whom the personal property of the deceased de- volves, whether creditors, legatees, or distributees; and his action in respect thereof, in the absence of fraud or collusion, is conclusive upon them. And, since the executor or adminis- trator is entitled to the possession of all the personal property and chattels of the decedent, neither heirs nor legatees can pre- vent him from taldng and collecting the same, and subjecting to sale a sufficient amount thereof to pay the debts and legacies, unless they should furnish him with money to do so. As a rule, only the executor or administrator can maintain actions in behalf of the estate, or make distribution. If the administrator refuses or neglects to bring the action, the remedy of the in- jured parties is on the administrator's bond. So, although in most States the real estate descends at once 1 11 Wendell 361. See Woemer on Administration, § 321. §§311,312] DUTIES OF EXECUTORS AND ADMINISTRATORS. 265 to the heirs or devisees free from the control of the personal representative, so that, as we have already seen, actions con- cerning the same must be maintained by or brought against the real, and not the personal representative, yet the right of the administrator to subject the real estate to sale for the pay- ment of debts is paramount to the claims of the heir or devisee, or of his vendee or assignee. § 311. Their Duty to prosecute and defend Actions pending by or against the Estate. — It is their duty to prosecute and defend all actions commenced by and against the testator or intestate which survive to or against the personal representative. There may also be judgment after the death of a party if verdict has been rendered before in actions which do not survive. Thus, as a matter of practice at common law, as well as under statutes in the several States, judgment will be entered on the verdict, on motion, as of a preceding day, or term of the court, whenever an action, continued or postponed for the purpose of obtaining a disposition which may relieve a dissatisfied party from a verdict, would otherwise fail by the death of a party to it. With the exception just stated, the action abated at common law when the testator or intestate died before final judgment; but by statute in England, the American States, and the Fed- eral Courts, the action may be continued in the name of the personal representative by his voluntary appearance, or the service upon him by the other party of a scire facias, or notice. It has also been held, generally, by what seems to be the pre- ponderance of authority, that in courts of plenary jurisdiction a judgment rendered for or against a party after his death, if the action is regularly begun in his lifetime, is erroneous, but not for that reason void, while a judgment in a suit begun and prosecuted for or against a dead man is clearly void. In America, an executor or administrator may generally obtain the same remedy upon a judgment in favor of the tes- tator or intestate during his lifetime as the deceased could have done. It is the duty of an administrator de bonis non to assume the defence of an action against his predecessor on a contract of the deceased, and to prosecute suits commenced by his predecessor. § 312. Actions to recover or defend the Estate. — Executors 266 THE LAW OF DECEDENTS' ESTATES. [§313 and administrators are bound to prosecute all actions that may become necessary to recover debts owing to the estate, or prop- erty of any kind, and to protect the interest of the estate when- ever the same is jeoparded. To this end they must act not only with honest intent and perfect integrity, but also with promptness and diligence, and reasonable prudence and fore- sight. They are required to investigate the circumstances at- tending the affairs of the estate, lest by indifference and indo- lence its debtors escape or become insolvent, and the estate suffer. If they are remiss in their duty in this respect, they become liable personally, and on their bond, for whatever loss may ensue. But they are not bound to attempt the collection of bad or doubtful debts, or to prosecute claims of a doubtful character, at least not unless the parties demanding such prosecution will indemnify the estate or the executor or administrator against the costs. Nor are they liable for a mistake of the law, whereby proceedings in collecting a debt are delayed until the debtor becomes insolvent, if they act in good faith and upon advice of eminent counsel; nor for failing to bring suit for property until the Statute of Limitation has barred recovery, in a case where both the law and the facts are doubtful, if they act in good faith and without fraud, wilful default, or gross negligence. So a due regard to the ultimate security of the debt may require hun to indulge the debtor. And although they make themselves liable by indulging a debtor, yet the legatees, upon whose ad- \dce and request the indulgence is granted, will not be heard to complain. Nor are they obliged to maintain an unjust claim in favor of the estate, or to prevent a suit from being fairly tried by insisting on technical advantages; nor to defend against a just claim. It is held, with some dissent, that the personal representative may bind the estate by consenting to a judg- ment, if there is no substantial ground for defence. § 313. Summaxy Proceedings to recover Assets. — In addition to the ordinary remedies at law and in equity by means of which executors and administrators may recover the property of an estate, a summary proceeding in the probate court is provided by statute in many States, enabling them, or heirs, legatees, or other parties interested in the estate, to make dis- §313] DUTIES OF EXECUTORS AND ADMINISTRATORS. 267 covery, and in some States to compel the production and delivery of property suspected to be concealed or embezzled, in a more speedy and less expensive mode than by the ordinary remedies of bill of discovery, detinue, trover, replevin, or other action at law. In a great number of States power is given to probate courts to cite parties suspected of having concealed, embezzled, or converted any goods, chattels, or money, or having in their pos- session or knowledge any evidences of debt or right of the de- ceased, and compel such persons to answer under oath. The proceeding in such case is held to be plenary, the object being to perpetuate the evidence against the party charged, to be used upon any action to be brought thereon, and the testimony must be reduced to writing. In many of these States, a like proceeding is authorized against persons to whom the executor or administrator intrusted property of the estate, and who wrong- fully withhold them. The appearance of such parties, and their answers to the interrogatories propounded to them, may be enforced by attachment and imprisonment. Under this class of statutes all that is attained is a discovery, furnishing a basis for proceeding in another tribunal. But in other States the party found guilty of concealing or embezzling any property belonging to an estate may, under the statute, be compelled by the probate court to produce the same, and de- liver it to the party entitled. In Missouri it has been finally held that the purpose of the statute was to expedite the ad- ministration by providing a new arid speedy remed}^ for collect- ing assets, including the right to try disputed claims of title to property.^ There is thus in Missouri a regular trial in probate court, with a jury, and with witnesses on both sides. And in that State this proceeding is held applicable against executors and administrators, at the instance of parties interested in the estate, and, on conviction, the court will compel such officials to properly inventory the effects or money in their possession. WTiere the proceeding under the statute is more than a bill of discovery and culminates in a judgment, the decision is final, so that the discharge of the defendant upon such a pro- ceeding, when not appealed from, constitutes a bar to a recov- 1 Clinton v. Clinton, 223 Mo. 371, 388. 268 THE LAW OF DECEDENTS' ESTATES. [§ 313 ery in another action between the parties in respect to the same property. This summary remedy, whether as discovery or as a proceed- ing for recovery of property generally, is not applicable unless the identical property belonging to the estate, and being iden- tified, is still in the possession or mider the control of the re- spondent. If the affidavit alleging concealment or embezzle- ment do not affirmatively show that the party making it has an interest in the estate, it is defective, and gives the court no jurisdiction of the person complained of. In most States the interrogatories to the party accused and his answers thereto are required to be in wTiting. The constitutionality of these statutes authorizing summary proceedings has been assailed on several grounds. It may be urged that they are penal; that by providing unprisonment as a means for enforcing collection, they conflict wdth constitutional pro\'isions against imprisonment for debt; that they compel the accused in a criminal case to testify against himself; and that they are in conflict with constitutional provisions against un- reasonable seizure and search. An additional question arises when the right to trial by jury is not preserved. In general, these statutes have been held remedial, not penal. While some provisions have been set aside as unconstitutional, it is believed there is no ruling preventing the substantial enforcement of the system anjn;\'here by proper legislation. Further discussion is outside the range of this treatise.^ 1 Fuller information as to these summarj- proceedings can be found in Woerner on Administration, § 325. § 314] DUTIES OF EXECUTORS AND ADMINISTRATORS. 209 PART II. OF THE MANAGEMENT OF THE ESTATE. CHAPTER XXXV. OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS WITH RESPECT TO PERSONAL PROPERTY. § 314. Compounding with Debtors. — At common law com- promising a debt due an estate between the debtor and the per- sonal representative of the deceased is binding on the estate. But if the personal representatives released a debt due the testator, or cancelled or delivered to the obligor a bond, or re- leased a cause of action founded on a tort accruing to the testa- tor or executor, or in any manner forgave or indulged any part of the testator's or intestate's demand, or the demand of the executor or administrator, they were chargeable prima facie in settlement of the estate as against all parties interested therein with the whole of such debt or demand with interest. But even at common law personal representatives are responsible only to the extent to which their acts injured the estate, and so might excuse themselves from liability by affirmatively showing that such compromises were actually for the benefit of the estate. But now, in England and most of the States of this country, provision is made by statute authorizing the executor or ad- ministrator to compromise with debtors under sanction of the probate court. Such order, obtained in good faith, protects the personal representative, though subsequent events make the settlement thereunder unfortunate for the estate. If the per- sonal representative acts without authority of the court, or if the court is not vested with the power to grant such authority, he does so at his peril, and assumes the burden of proving, not only that he acted in good faith and with ordinary prudence, 270 THE LAW OF DECEDENTS' ESTATES. [§§315,316 but that the estate has in no wise been prejudiced thereby. In Kansas, Indiana, and some other States these statutes, authorizing compromises under order of court, are held to change the common law, so that a settlement by the personal representative without order of court is not binding on the estate. In the exercise of its discretion in passing upon a petition or motion for leave to compromise, the probate court will be gov- erned by considerations for the interest of the estate exclusively. Neither the executor nor the court can modify a contract or existing obligation; and the court will never interfere, except where the debtor is insolvent, or some doubt exists as to the validity of the claim, or there Is reason to apprehend that pay- ment cannot be coerced. Even an order of court properly obtained does not protect the representative, if the necessity of such compromise was occasioned by his own negligence in failing to enforce a good claim before it became doubtful. "\Miere money is gained or saved by executors or administrators in compromises, it enures to the benefit of the estate, and not to themselves. § 315. Arbitration. — It seems never to have been doubted that executors and administrators have full authority at com- mon law to submit any matter in dispute, relating to the estate of a deceased person in their hands, to arbitration, and thereby bind themselves to the extent of assets. But while the award is undoubtedly binding upon the parties, as well as upon those having any interest in the estate, it affords no protection to the executor or administrator, although acting in perfect good faith, against liability as for demstavit. For if a less sum should be awarded than he would be entitled to recover at law, he may be held to account for the deficiency to the heirs or other persons interested in the effects of the testator or intestate. There is, therefore, no inducement for an executor or administrator to submit a controversy concerning a demand, either in favor of or against the estate, to arbitration; he should, in self-defence, settle all such controversies in a court of justice, unless the award, under provision of a statute, receives the force of a judgment, as it does in some States. § 316. Protest and Notice respecting Negotiable Paper. — In § 316] DUTIES OF EXECUTORS AND ADMINISTRATORS. 271 general the executor or administrator of a deceased party to negotiable paper stands in the shoes of the deceased for purposes of fixing the rights and liabilities of the other parties. Thus if the holder of a bill or note die, his executor or admin- istrator mus^ make demand and give notice of dishonor, in order to bind indorsers. But if, at the time of maturity, no representa,tive of the estate has yet been appointed, the indorsers will not be discharged from liability if demand is made of the maker within a reasonable time after the representative's qualification, and notice of dishonor is seasonably given to them thereafter. So while the soundness of the rule requiring presentment for acceptance to the administrator of a deceased drawee of a bill of exchange has been doubted by high authority, it is held that in order to charge an indorser on a promissory note, de- mand must be made of the representative of the deceased maker, if he can by reasonable diligence be found, and no exception to the rule is made where the indorser is appointed administrator of the maker's estate. So, on the other hand, the personal representative of a de- ceased indorser, sought to be held liable by the holder of negotia- ble paper, is the only proper party to be served with notice of dishonor or protest, if by reasonable diligence the fact of the indorser's death and the appointment of such representative can be ascertained; and this though the maker becomes the deceased indorser's representative. Service of notice on one of several executors of a deceased indorser is sufficient to bind the estate. Upon the death of one partner the notice should be served upon the survivor. Where the holder, without being chargeable with negligence, does not know of the indorser's death or who his representative is, notice directed in the deceased's name is sufficient; and like- wise if no administrator has as yet been appointed upon whom notice can be served, a notice is good when addressed to the deceased indorser, or to his " legal representatives," at the late residence. And under such circumstances a notice served on one whom the will names as executor is good, although it may be that he will never qualify as such, but not after he has refused to accept the executorship and a special administrator been 272 THE LAW OF DECEDENTS' ESTATES. [§317 appointed; nor is this principle applicable to a notice served on one who is not at the time, but later becomes, the adminis- trator, as he stands in a different position from an executor in this respect, § 317. Duties in Relation to the Contracts and Trade of the De- ceased. — Executors and administrators are bound, to the ex- tent of the assets coming to their hands, by the contracts of their testators or intestates, including not only debts, but also col- lateral acts, whether named in the contract or not, or whether it be a simple or record contract; and they must answer in damages for a breach, whether incurred before or after the de- cedent's death. Thus, if one agrees to build a house before a given time, and dies before that time, his executors are bound to perform the contract; and the completion by an adminis- trator of a decedent's contract to build a house attaches to his work all the liabilities of the original contract, so that a sub- contractor is entitled to his lien for materials furnished the intestate. As between the personal representative and the ultimate beneficiary of the estate, the former may, as a general rule, exercise his discretion whether to perform or rescind any con- tract of the deceased imposing an obligation or duty upon him, in the best interest of the estate, subject, in general, to the ap- proval of the court. If a contract has been performed in part, and is then rescinded, after the contractor's death, by his ex- ecutor, the other party may recover for the work already done, if he consent to the abrogation; but if he insist on completing the contract, the estate is bound for the whole. It may be proper to remark, in this connection, that where an adminis- trator has his election either to ratify or disavow the act of his intestate, he cannot, after ratifying, disavow it; as where money was procured from the intestate by fraud, or by reason of his insanity, the administrator may disavow or ratify the act; but if he ratify the payment of the money he cannot afterward pur- sue a remedy inconsistent with such ratification. So the ad- ministrator's election to ratify the contract of an insane intes- tate validates the same for all purposes and binds the heirs. Outstanding contracts for the improvement of the real estate by the erection of tenements, only partially fulfilled, are a § 317] DUTIES OF EXECUTORS AND ADMINISTRATORS. 273 charge on the personal estate; although the contractor has a lien on the land also, his remedy against the administrator is not thereby impaired. If the executor or administrator decide to enforce or carry out the contract, he is liable at common law for the net losses that may accrue to the estate in consequence thereof, while any profits arising become assets of the estate. In equity, however, and under the statutes of most American States, the adminis- trator acting in good faith will be protected in the execution of a contract the breach of which would result in damages, although the estate is insolvent, and the loss in carrying out the contract be greater than the damages for the breach would have been. Contracts of a personal nature, depending upon the personal skill or taste of the obligee, such, for instance, as the obligation of an author to prepare a book for publication, of a master to instruct an apprentice, a contract to marry, or any obligation to be performed by the contracting party in person, are not binding upon the executor or administrator. - The obligation of the personal representative to execute con- tracts of the deceased extends, as is evident from the statement of the proposition, to such only as were legally binding upon the deceased. He cannot by any act of his own bind the estate by a new debt or obhgation; hence any contract which he may enter into with reference to the estate, though clearly in- tended and expressed to bind it, binds himself individually only, as between him and the other contracting party, with the right, on his part, to resort to the estate to reimburse himself for any outlays necessary to the administration of the assets. It follows from this principle, that it is not within the ordinary scope of the authority of an executor or administrator to carry on the trade or business of the deceased; and that one who un- dertakes to do so with the assets of the estate necessarily as- sumes the risk of making good all losses that may occur to the estate, while the profits, if any, become assets. The executor or administrator is therefore chargeable with the assets coming into his hands, including all profits or returns from the trade or business which he carries on therewith, and is not allowed credit for his losses, even if he acted in perfect good faith. 274 THE LAW OF DECEDENTS' ESTATES. [§ 318 Protected from loss and from liability at all times, the estate is interested in the business only to the extent of the profits. And so, where an executor or administrator with the will an- nexed, continues the business of the testator in good faith, in compliance with a direction to that effect in the will, all losses by bad debts, costs of personal property, purchased to replace similar articles worn out or consumed in conducting the business, expenses for repairs, etc., on the real estate used, are properly chargeable against the estate. The executor carrying on the business under the will is personally liable to the persons with whom he deals as such, but an equitable right arises to the trade creditors to resort to the estate if their remedy against the ex- ecutor is inadequate. Where the executor or administrator carries on the business of the deceased in good faith, at the re- quest of the heirs, distributees, or legatees, they will not be heard to object to credits in his account for losses incurred in conse- quence thereof; but the onus lies upon the accountant in such case to show such consent upon a full understanding of all the circumstances. Upon executors and administrators devolves also the author- ity and duty to vote the stock held by their testators or intes- tates. It matters not, in this respect, whether such stock was held in their o\\ti right or in trust, nor whether transfer thereof had been made on the company's books. Since the right to vote follows and cannot be separated from ownership, it also follows that where stock is held by several executors, who differ as to how it should be voted, it cannot be voted at all. § 318. Preserving the Property. — Executors and administra- tors are responsible for the preservation of the personal property while it is in their custody. Hence it becomes necessary, in many cases, in order to avoid material loss and injury to the estate, to employ additional labor to take care of horses or other stock requiring attention, to tend and gather crops, to protect property in danger of being lost, and to complete work in an unfinished state, or contracts binding upon the personal rep- resentatives. It is always adv-isable to obtain the order of the probate court in such cases; but if such labor is required when court is not in session, it is their duty to employ the necessary assistance at once; and all reasonable expenses so accruing con- § 319] DUTIES OF EXECUTORS AXD .AJ)MINISTRATORS. 275 stitiite a proper charge against the estate, and will be allowed as credits in the administrator's account or settlement. Admin- istrators should not contribute voluntarily to make up losses of incorporated companies in which the estate owns stocks, if they are of little or no value; but if they are valuable, they should pay assessments to which they are liable, and which consti- tute a lien on the shares held by them, in order to prevent their forfeiture. An executor or administrator has an msurable in- terest in the property of the estate, and is entitled to allow- ance for the premiums necessary to effect a safe insurance thereof. The interest of the estate may demand that the executor or administrator redeem property of the estate which may be mortgaged or pledged, and in such case, if it is his duty to do so, he will be allowed all proper disbursements for that purpose ; but obviously he cannot be held accountable for not redeeming property when the estate has no funds available for such pm- pose. Nor is he liable for not redeeming, if in the estate's interest he honestly and prudently exercises his best judgment in declining to do so. § 319. Taxes on Personalty. — The duty of the personal rep- resentative in connection with taxation of realty is discussed in a later section. Taxes on the personalty assessed prior to the decedent's death usually constitute a liability of the estate which the rep- resentative should discharge out of the personal assets, even though the amount was not definitely ascertained at the time of the death of the testator or intestate. Claims for such taxes due from and not paid by decedent before his death may be established in the probate court, and by statutory provision in nearly all the States constitute a preferred class of claims. Since the title to the personalty and right of possession vests in the personal representative, taxes legally accruing thereon after the decedent's death and before distribution is made, are assessed to, and should be paid by, the executor or admin- istrator wdthout presentation or allowance by the probate court; and when paid, he will be entitled to credit therefor in his account as for expenses of administration. For purposes of taxa- tion and payment of taxes, the title and possession of the exec- 276 THE L.VW OF DECEDENTS' ESTATES. [§ 319 iitor or administrator relates back to the time of tlie decedent's death, and that of the administrator de bonis non to that of his predecessor, so far as affecting mipaid taxes. The HabiHty of the representative for faihire to pay such taxes is in some States made personal, but in others his liability is official, and lie cannot be held liable after the estate has been distributed and he dis- charged. After distribution the assessment should, of course, be to the new owner, but not before. \Mien the personalty of the deceased lies in several States it is conceded that the rule that personalty follows the domicile of the deceased does not apply for purposes of taxation. Goods and chattels of the deceased found in the ancillary administra- tion are there taxable, and as to such property it is believed there is no actual conflict, as the State of the domicile of the deceased does not attempt to draw such property under its taxation laws. But where the personalty is intangible, for instance a debt owing the deceased by one domiciled in the ancillary jurisdiction, or shares of stock in a corporation existing under its laws, there is often a sharp clash between the domicil- iary and ancillary jurisdiction. Each claims that the situs of such chose in action is with it: thus double taxation may, and often has, resulted. Says Holmes, J., in Blackstone v. Miller: ^ " No doubt this power on the part of two States to tax on dif- ferent and more or less inconsistent principles leads to some hardship. It may be regretted, also, that one and the same State should be seen taxing on the one hand according to the fact of power, and on the other, and at the same time, accord- ing to the fiction that in succession after death mobilia sequuntur personam and domicile governs the whole. But these incon- sistencies infringe no rule of constitutional law." The conflict is limited to the domicile of debtor and creditor. The mere physical presence in a sovereignty of the evidence of a chose in action belonging to a deceased will not uphold its taxation there. Thus the notes made in Ohio and there payable belonging to the estate of one who died domiciled in New York could not be taxed in Indiana, merely because they were in the hands of an agent of the deceased domiciled there.^ 1 Blackstone v. MUler, 188 U. S. 189. « Buck V. Beach, 206 U. S. 392. §320] DUTIES OF EXECUTORS AXD ADMINISTRATORS. 277 Within the sovereignty the place (county) of assessment may be involved in doubt. The authorities are somewhat divided on the proposition whether the personal property of the dece- dent should be taxed at the place of the domicile of the decedent, as is held in some States, or, as seems to be the more general rule, in the county where the executor or adminis- trator resides. § 320. The Succession Tax. — Of growing importance in re- cent years is the subject of succession or inlieritance taxes, which many or most of the States have provided for by statute. On several occasions similar laws have been enacted by Con- gress, but later repealed. The constitutionality of these laws, both under congressional and State enactments, has been chal- lenged in many cases and in several instances the respective acts were held void on various grounds. But the current of authorities has \'indicated this species of taxation beyond serious question of its validity when the acts imposing it are diawn without violating technical constitutional requirements. The inheritance tax is not upon the property or estate of the deceased, but upon the right of the beneficiary to take by suc- cession.^ The property upon which the State tax may be made payable includes all such real and personal estate, situate in the State where the administration is had, as passes from the deceased testator or intestate to the beneficiaries, whether under a will or the Statute of Descents and Distributions. The tax may be imposed, whether the beneficiary resides in the State or in a foreign jurisdiction; or even against non-residents alone. The personal property of a deceased resident is subject to ap- praisement for taxation though it be situated in a foreign jm-is- diction, if it is not needed to satisfy local indebtedness there; but real estate, not being draTvn to the domicile of the owner for taxation, or any other purpose, the imposition of a tax upon it in another State transcends legislative power and cannot be enforced. The personal property of non-residents is subject to the tax, notwithstanding the maxim that personal property follows the owner's domicile (which, it has been said, does not apply to 1 Plumber v. Coler, 178 U. S. 115. 278 THE LAW OF DECEDENTS' ESTATES. [§ 320 questions of revenue); but only if the property is regarded as having a situs in the taxing State apart from its owner.^ Property, though exempt by the general law from taxation, such as government bonds or similar securities, life insurance, orphan asylums, and other charitable institutions, are never- theless liable to the inheritance tax, unless exempted by the statute imposing the tax. Neither the United States, as a body corporate and politic, nor a municipality or corporation, is exempt from the succession tax. By the terms of most of the statutes on this subject, the duty to pay the legacy or inheritance tax is imposed upon ex- ecutors and administrators, except the tax on real estate in States in which no title or right of possession to the real estate passes to them. In such States they have no right or duty in respect of the real estate, and have not the right to pay the tax thereon out of the personalty. It is the duty of the execu- tor or administrator to deduct the amoimt of the tax out of any legacy or distributive share before he pays out the same; and if the legacy or property be not money, it is his duty to collect the same from the person entitled to the legacy or prop- erty, before he delivers it. But he can deduct or collect only from the property in his hands: he can maintain no action against the legatee for the recovery of the tax on personal property. While the legacy or succession tax subjects the property to a lien, it does not create a personal liability on the part of the legatee; and the person having the property in charge is liable only as pointed out by statute; if demand is provided for, there is no liability until there is neglect or re- fusal to pay "after demand." The tax on property other than money is determined by the appraisement of its value. Appraisers appointed under the statute imposing the inheritance tax are required to appraise, not the estate of the decedent, but the estate inherited or created by will, subject to the tax. Property should be assessed at its fair market value, — its cash value, which terms, with reference to the appraisement for taxation, are held to mean the same thing. Debts of the de- ceased must be deducted; the tax is assessable only on the clear 1 Bristol V. Washington Co., 177 U. S. 133. § 321] DUTIES OF EXECUTORS AXD ADMINISTRATORS. 279 value, which means the surphis after paying debts and legal charges against the estate. When an estate for hfe or years is created, its value is ascertainable at once, and may be com- puted, if a life estate, by the life or mortality tables in use by the court. As to future estates, where the tax is payable when the legatee or distributee becomes " beneficially entitled in pos- session on expectancy," as it is under the statutes of most States, these words are construed to mean, when the bene- ficiary is entitled to the possession thereof. In the language of Judge Finch, "the State will get its tax when the legatees get their property'." ^ So under the last Federal inheritance tax it was held that even a vested remainder was not taxable till the expiration of the prior estate when the beneficiary en- tered into enjo^Tuent of the property ,2 and the same interpre- tation has generally been given to the statutes of the States. Notice must be given of the appointment of appraisers, so that the parties interested may be represented in the proceeding. Gifts causa mortis are subject to the inheritance tax, but not gifts inter vivos. The homestead for the sur\'iving family of the deceased and the statutory allowance for the maintenance of the -vs^dow and family are held not to pass to the beneficiaries by inheritance or devise, but directly by force of the law, and hence have been excluded from the operation of inheritance and succession taxes. § 321. Transfer of Personalty by Personal Representative at Common Law. — Since the legal title to all personal property vests in the executor or administrator (which title he however holds as quasi trustee for parties interested in the estate), as a matter of common laAv, apart from statutes, a sale or conveyance by the personal representative passes a good title to the personal property of the deceased. The rule covers a negotiable paper as well as goods and chattels. So the assignment of a mortgage by the administrator to a third person, and by the latter as part of the transaction back to the administrator, is good as between the parties and is attackable by the next of kin simply on the ground that a 1 Matter of Hoffman, 143 N. Y. 327. 2 Vanderbilt v. Eidman, 196 U. S. 480. 280 THE LAW OF DECEDENTS' ESTATES. [§§ 322, 323 trustee's purchase of trust property can be avoided at the will of the beneficiary. If the personal representative misapplies the assets received under a sale, he commits a devastavit, and parties interested in the estate must look to him and the sureties on his official bond for indemnity. The transferee takes a good title. But since the personal representative is only a trustee, so far as the present inquiry is concerned, the purchaser can be held liable on behalf of beneficiaries of the estate whenever the per- sonal representative abuses liis trust as in similar cases under the law of trusteeship. If a purchaser has notice of a dishonest purpose on the part of the administrator to misapply the funds or property of the estate, the vendee is hable to make restitu- tion to the persons entitled to the estate. Nor can the admin- istrator make a valid sale or pledge of the assets as security for or in payment of his o^^^l debts. § 322. Restraint on Power of Sale by Statute. — But this common-law doctrine is inapplicable in many of the American States by reason of the provisions in the statutes of most of them, according to which neither executors nor administrators are permitted to sell property, unless directed in the will, with- out an order of court; in some of them, the statute itself de- clares all sales made without such order to be void. And it has been held in a few of the States, that the power of the pro- bate court to order the sale of personal property of decedents' estates, being derived solely from the statute, is specific and lunited, and that therefore an order of sale based upon a peti- tion which does not allege or show the existence of a legal cause for the sale is a nullity, as the court has no jm-isdiction to make such order. In several States the statutes declaring that the executor or administrator must procure an order of court to sell personalty are construed to affect only visible, tangible personalty, and that the executor's or administrator's rights concerning the alienation of choses in action are still as at common law.^ § 323. Sale of Perishable Property. — The personal property of an estate which is of a perishable nature, liable to loss, waste, or depreciation, should be sold as soon after taking charge of 1 For details, see Woemer on Administration, § 331. § 324] DUTIES OF EXECUTORS AND ADMINISTRATORS. 2S1 the same as reasonable diligence and compliance with the stat- utory requirements will render feasible. The statutes of all the States, with the exception of only one or two, enjoin the early sale of perishable property as a duty upon executors and admin- istrators; in some of them the directions are very elaborate and minute, in all of them sufficiently full to enable executors and administrators to proceed without incurring any risk or lia- bility on the score of ignorance of the law. In general, an order of the probate court for the sale is requisite, based upon a motion or petition of the executor; but such petition is not re- quired to set forth the jurisdictional facts in acciu-ate or tech- nical language. If the administrator neglect to obtain such order in due time, he will be personally liable for any expenses growing out of the delay, as well as for the loss of the property or its depreciation in value. If the administrator acts in good faith for the best interest, in his opinion, of the estate, without violating the direct provision of the statute or order of the court having jurisdiction, and permits property to remain unsold which is not likely to depreciate in value, he will not be held responsible for an unforeseen loss arising. § 324. Method and Notice of Sale. — After mention of the special case of perishable property, it is to be noted that the statutes usually contain full provisions for the sale of all. per- sonalty. These sales in the American States are generally re- quired to be public, to the highest bidder, unless for good cause shown, the court authorize a private sale. In some States private sales are, or at least were, interdicted entirely. In most States, however, an order to sell at private sale may be obtained from the probate court upon application and proof that the interest of the estate would thereby be enhanced or protected. The statutes require full notice to be given of all public sales, generally prescribing the time and manner thereof, the mini- mum of time varying between ten days and four weeks, and the mode being publication in some newspaper, or posting the notice in a number of public places, or both; and in several States both the time and manner of the notice are to be deter- mined by the order of the court.^ 1 The rule in different States is laid down in Woeraer on Administration, §332. 282 THE LAW OF DECEDENTS' ESTATES. [§325 § 325. Terms and Method of Payment. — The terms of sale, when not fixed by statute, are generally left to the discretion of the administrator, or made part of the order directing the sale. In most cases the statute fixes a maximum beyond which credit is not allowed to be given, generally twelve months. An ad- ministrator has no right to alter the terms of an order of sale; but if he does, the irregularity is cured if the court approve the sale, upon a report reciting the terms upon which the sale was had. Security for the purchase-money must be taken by the ex- ecutor or administrator in making sales on credit. If the ad- ministrator neglect to take such security as the statute requires or the order of court prescribes, he becomes liable to the estate on his bond for the amount of such purchase-money, whether he recovers from the purchaser or not. And so if he neglect to make demand of, or bring action against, the sureties. But the omission to take security does not vitiate the sale. If the security taken was good, and in accordance with the statute or order of the court at the time it was taken, a subsequent fail- ure or insolvency of the sureties will not render the adminis- trator liable, but the loss will fall on the estate. The price for which property of an estate is sold is not due to the administrator in his individual capacity, but to the estate. The object of the sale is to convert the property of the estate into cash for the purposes of administration, and when so con- verted it constitutes assets of the estate in place of the property sold. Hence a creditor of the estate cannot deduct from the price of the property sold to him by the administrator the amount of his demand against the estate, unless his claim has been adjudicated, and the amount to which he is entitled from the estate ascertained, in which case the smaller sum may be deducted from the larger. When an administrator has sold on credit, he may nevertheless receive payment at once, since to convert into cash is the paramount object of the sale. If he takes a note payable to himself, he is liable for the amount thereof to the estate, as for devastavit, but the contract is valid between the parties, and the maker cannot set off against it a claim purchased by him against the estate. And if the ad- ministrator, without sanction of the court, receive, in satis- §§ 326-32S] DUTIES OF EXECUTORS AND ADMINISTRATORS. 2S3 faction of a debt due the estate, an assignment of a claim against a third person, he becomes Hable for the debt personally. § 328. Purchase of Personalty by the Exacutor or Administrator himself. — It is an ancient and very familiar doctrine, that the sale by an executor or administrator of property of the estate to himself, either directly or indirectly, whether at private sale or public auction, no matter how honest, open, and fair, may be avoided at the option of the beneficial owner, or cestui que trust. This doctrine applies not only to personal property of the estate, but applies equally to real estate whenever it becomes necessary to sell the latter in course of the administration. In order to avoid repetition the subject of the purchase by the representative at his own sale is deferred to a later section.^ § 327. Record and Report of the Sale. — It is, in most States, made the duty of executors and administrators to employ a sworn clerk to keep an account of sales, with a list of the arti- cles sold, their price, and the names of the purchasers, which they must report to and file in the court of probate within a given time. In some States they are also required to employ an auctioneer to cry the articles. It is, in general, a wise pre- caution to report all private as well as public sales to the court, whether made under the order of the court, or by vu'tue of statutory provision, or by direction of the will, or in pursuance of the common-law right to do so, and whether such report is required to be made by statute or not. The report is valuable as informing the court and parties in interest of the progress of the administration; the approval of the transaction by the court may sometimes afford a protection to the administrator, and in any event affords e\adence which may be decisive in an action, and often prevent litigation altogether. The report should be confined to the matter of sale alone; for if it em- body other matters its approval may mislead as to its effect upon them, the judgment being final with regard to the sale only. § 328. Duties in Respect to the Investment and Custody of Funds. — The probate court has no power to deprive an admin- istrator of the custody of the assets by an order directing him 1 See post, § 487. 284 THE LAW OF DECEDENTS' ESTATES. [§ 328 where and how he shall keep them. But executors and admin- istrators should preserve the property of the estates intrusted to them separate and apart from their own, to give it an ear- mark, so that it may always be known and readily traced. The violation of this duty is a breach of trust, which often entails pernicious consequences upon the executor or administrator, although acting in perfect good faith. If he deposit the money in bank, together with money of his own, so that he may draw against the common fund in his own name, or in any manner mingle it with his own, this amounts to a conversion of the estate's money to his own use; the loss of the fund under such circumstances by failure of the bank or otherwise must be borne by him, even if he had no other funds in such bank, and in- formed the officers at the time that the funds were held in trust, and although deposited with the intention to keep it there to repay the amount of trust funds used by him. Nor should the executor or administrator employ the assets of the estate in his own business, or in speculations on liis o\vn account. This would constitute a clear breach of trust, and is in some States made felony by statute. For property tortiously converted, he is liable at its highest value. An executor or administrator, like a guardian or other trustee, is not allowed to reap any gain, profit, or advantage from the use of the trust fund. Funds in the hands of executors or administrators, which are not immediately or within a short period applicable to the payment of debts or expenses of administration, should be in- vested so as to produce interest for the estate. Provisions re- quiring such investment are found in the statutes of many States; and even in the absence thereof it is the duty of execu- tors and administrators, as of all trustees having funds in custody which are not payable to the beneficiaries until after the expiration of a considerable time, to make them productive by investment on safe security. Where the statute directs the method of investment, it is obvious that a compliance with its pro\dsions will protect the executor or administrator against any liability, although the fund may be lost. On the other hand, if the statute is not complied with, the executor or administrator is liable to the estate for any loss, no matter how honestly he may have intended, or how vigilant his conduct may have been. § 32S] DUTIES OF EXECUTORS AND .^MIXISTRATORS. 285 The statutes are, in some instances, highly penal, and are rigidly enforced. In the absence of statutory provision touching the method of investment, executors and administrators are bound to em- ploy, in the investment of the funds of the estate, such prudence and diligence as in general prudent men of discretion and intel- ligence employ in their own affairs. He must act strictly within the line of his duty, whether indicated by the statute, or by the instruction of the court, if there be any such given by a court having jurisdiction, or by the provisions of a will; for any loss arising out of any deviation therefrom, although in perfect good faith and with the best intention, he is liable. If he omits to observe the direction of the will touching the investment of the money, he will be liable for such interest as the investment directed in the will would have produced. It has been held that, where the will directs a legacy to be put at interest, the purchase by the executor of bank stock is not in compliance therewith. But acting in good faith within the requirements of the law, executors and administrators mil be treated by the courts v/ ith liberality and tenderness; they will not be held responsible for losses in the absence of wilful misconduct or fraud, especially when acting under advice of counsel. The executor or admin- istrator will not, in such case, be held responsible for losses oc- casioned by mere error of judgment. And where he has acted with what men of sense and experience would deem reasonable discretion in their own affairs, his acts or omissions in good faith will not render him liable for losses arising in consequence, especially during a period of doubts and difficulties. He is not to be held liable as an insurer of the estate. Executors and administrators are liable for all losses arising to the estate out of their acts in bad faith or negligence. It is negligence to loan money of the estate without taking security, although done in perfectly good faith, and though lent to a bor- rower who was amply solvent at the time of the loan ; so where the security taken Is insufficient. Personal security is held in- sufficient; and even in lending money on mortgage of real estate, a degree of care is necessary, which, if omitted, will render the executor liable personally. He is bound to use ordinary care to ascertain that the title of the mortgage is valid, and that the 286 THE LAW OF DECEDENTS' ESTATES. [§ 32S property at the time of the loan is such as will be an adequate security for the repayment of the loan and interest when it shall be called in. The criterion of value in such case is the estimate of men of ordinary prudence, who would deem it safe to make a loan of like amount of their own money on the same property; and the only safe practical rule lias been held to be not to lend more than from one-half to two-thirds of the value of the mort- gaged property, estimated at what it would bring at a forced sale. Nor should a loan on real estate be made on other than a first deed of trust or first mortgage. It has also been held neg- ligence to invest funds in municipal bonds, or bank stocks, or stocks of private corporations, at least if made without an order of court. Government bonds and real estate securities are held to be the only safe investments recognized by courts. Where investments made by a testator or intestate come into the hands of the executor or administrator, he is required, in determining whether to sell such stock, to act in good faith, and exercise a sound discretion. Although by the light of sub- sequent events the course determined on may appear unwise, he cannot be held liable for any losses or depreciation of the stock, unless it be found that he acted carelessly or in bad faith. If the testator has given no directions in the will, the ordinary rules of prudence and diligence apply, and the fact that he has invested his property in particular stocks, shares of corporations, mortgages, or other securities, will go far to justify his executor in continuing them. The general drift of authority and considerations relating to the safety of trust funds seem to indicate that an executor or testamentary trustee should not invest the funds in his custody in mortgages upon real estate situate outside of the State, ex- cept in rare and exceptional cases, under unusual and peculiar circumstances. Mortgages taken upon lands of the estate sold, although situate in another State, are among the exceptions. It has already been mentioned, that where an executor or administrator deposits money in bank in his own name, he thereby makes himself responsible for all losses by the failure of the bank. Money may sometimes be lawfully loaned to a devisee on the security of his interest in the estate. 329] THE MANAGEMENT OF THE REAL PROPERTY. 287 CHAPTER XXXVI. OF THE MANAGEMENT OF THE REAL PROPERTY. § 329. Probate Control over Realty at Common Law and under Statutes. — At common law the real estate of a de- ceased person goes directly to the heir or devisee without passing through the custody of the executor or administrator. But it must also be remembered that a testator's will can give title to trustees, and even give powers to executors and administra- tors without title. Such authority of the personal representative under the will over the realty is recognized at common law. Before touching the questions arising out of the exercise of tes- tamentary power over realty, and indeed as preliminary to the discussion of these matters, the statutory rules giving the per- sonal representative authority over realty independent of any powers in the will must be considered. The common-law rule that the personal representative has no concern with the realty of the deceased has been changed by statute in every State in the Union. Realty is everywhere subject to the payment of debts of the deceased under juris- diction of the probate courts. But in determining the powers of the personal representative over realty, it must be remem- bered that the common-law rule has not been wholly abolished: the varying statutory provisions must be read in the light of that rule. The statutory provisions looking toward control of the realty in administration vary greatly as between the States, but may be grouped in three classes, based on the basic idea of the re- spective legislation. I. A few States approximate, without fully effectuating, the idea that there should be no distinction between realty and personalty: that the personal representative takes charge of the realty, as he does at common law of the personalty. 238 THE LAW OF DECEDENTS' ESTATES. [§ 330 II. Another group of States, more numerous, gives no direct right or title to the personal representative, but does give him a power under certain contingencies (generally in interest of the creditors of the deceased) to take the property, and ulti- mately sell it, if necessary. In these States the personal rep- resentative gets his power from the statute: he does not need an order of probate court to enable him to act. III. In most States, however, the personal representative can only act on an order of the probate court, obtained as pro- vided for in the statutes. It is not claimed that every State falls absolutely into one of these three classes. There is much patchwork in the legisla- tion. The classification, however, seems not only sound, but practically adequate. § 330. I. The Common Law almost wholly abrogated. — In this first class of States the right to the possession of the real estate until the administration is closed, or rather until distri- bution made, is solely with the representative, whether the estate be solvent or not, and he may without joining the heirs or devisees bring ejectment and unlawful detainer against third persons, or even against the heirs or devisees. Nor can the latter (unless the statute provide otherwise, as it does in most of them) maintain an action to quiet title or in ejectment against third parties before distribution and during the administration, though there be a vacancy in the office of executor or admin- istrator, and in foreclosing a mortgage against an administrator the heirs of the deceased mortgagor need not be made parties, while, on the other hand, the administrator is an indispensable part}'. In these States the representative is in privity w^th and represents the owner of the realty; hence judgment in ejectment for or against him has been held an estoppel for or against the heir or devisee; and so in other suits affecting the title to the realty the heir is concluded by the judgment against the administrator. For the same reason where the executor or administrator neglects to bring an action until it is barred by the Statute of Limitations, the devisee or heir is also barred, 1 The list of States belonging to the three classes above naentioned, numerous authorities, and further detail, appear in Woemer on Admin- istration, §§ 337 and 338. § 331] THE MANAGEMENT OF THE REAL PROPERTY. 289 even though he was a minor and under disability when the cause of action accrued to the representative; the remedy in such case is against the representative on his bond. But even in these States the heirs and devisees have an in- terest in the realty such as they would not have in personalty, as illustrated by the holdings that they can sell the realty sub- ject to debts of the deceased, and can maintain ejectment where there has been no administration. § 331. II. States giving Statutory Powers to the Personal Rep- resentative. — In these States the title not only vests in the heir or devisee, but the statutes are construed as giving him the right to assert it with all its common-law rights and incidents until the personal representative effectually exerts the power reposed in him by statute. Hence, until the executor or ad- ministrator assert his possessory right, the heirs or devisees may sue for rent, or in ejectment, or maintain action for injuries to the realty after the decedent's death, and, conversely, the executor or administrator cannot do so. The personal repre- sentative does not represent the heir, and during such time limitation runs against the heir in favor of third parties in possession. But when he has properly asserted his right to the possession, he may maintain possessory actions in his own name, even against the heirs or devisees, or recover the rents, income, or profits, or for any injury to the land or anything severed from it, or for injuries committed before he took pos- session and after decedent's death, or maintain an action to enjoin third persons from committing waste. The power of the personal representative in respect of the real estate in these States is, however, a mere statutory power, given only for the benefit of creditors, and properly to be ex- ercised only when the exigencies of the estate require; hence it is said that, where there are no debts or legacies to be paid, or where it appears that the personalty is sufficient for that purpose, there is no valid reason why the executor or administrator should have the possession of the real estate, and where in such case the property has passed into the pos- session of the devisees, he has no longer any right thereto. The right to the possession ceases when the estate is settled; hence a lease for a longer period than that during which the 290 THE LAW OF DECEDENTS' ESTATES. [§§ 332, 333 administration continues is voidable at the election of the heirs. § 332. III. Power over Realty through Probate Court. — In all States which have not adopted the principles set forth in the two preceding sections the executor or administrator is not entitled nor bound to take charge of, nor in any wise to inter- fere with or protect, the real estate of his testator or intestate, until he is ordered to do so by the probate court, for the pur- pose of selling or leasing it to enable him to pay debts or legacies. If the personal property is insufficient for such purpose, the real estate becomes assets, by force of statutes in all the States, in the hands of the personal representative. Hence his interest in the real estate before the contingency has arisen which makes it assets in his hands is that of a naked power to sell upon the happening of the contingency; the title and its defence, the rents and profits, the possession and all the rights and duties following from o^^^le^ship, belong to the heirs and devisees until they are divested by decree or order of the probate court. It follows, that in the absence of an order of the probate com-t to take charge of the real estate, neither an executor nor an administrator can be called to accomit by creditors for the value, rents, or profits of real estate, unless power be given in the will to sell, lease, or otherwise take charge of it. The exercise of this probate authority over realty is reserved for future discussion. § 333. Power over Real Estate conferred by Will. — It has al- ready been shown, that a testator may confer upon his executor or executors the control over his real estate to the same extent to which the law invests them with power over the personalty, either by vesting in them the title by devise, or a naked power to do what he directs for the purpose of carrying out his will. Apart from statutes, powers over realty, whether given to executors or to others, are strictly construed in England and a few American States. Thus the common-law rule does not permit the exercise of a naked power by one of several to whom it is granted: they must all join in the act. Hence if one of several donees of a power die before executing it, or refuse to act, the power must fail. By statute, and under decisions, however, the rule of strict construction as to powers has every- § 333] THE MANAGEMENT OF THE REAL PROPERTY. 291 where been modified, and an interpretation adopted which makes the effectuation of the purpose of the donor of the power the leading consideration. Where such power over land is created by a will, the question will arise whether the power is personal in the donee named, or whether it attaches to the office of executor. If the power is annexed to the office, it follows it, so that whoever administers the estate is also bound to execute such power, whether it be the executor or executors nominated in the will, or any smaller number of them, or an administrator with the will annexed. If the power is in the individual, not the official, it does not follow the office. If the testator has not clearly indicated the person charged with the execution of the power, and the question arises whether the person administering is authorized to execute the same, it will be generally sufficient to ascertain whether the proceeds of a sale, or other fruit of the exercise of the power, are distrib- utable by the executor or administrator : in such case the power is in him by implication, and will go to any personal representa- tive upon whom the administration may devolve. But where the power is not clearly vested in the person administering, and the purpose of the power is to accomplish something be- yond the scope of the powers or functions of executors or administrators under the law, it cannot be exercised by the executor or administrator. The augmentation of the powers of probate courts in this country, enabling them, for the purpose of pajdng the debts and legacies of deceased persons and regulating the devolution of their property, to deal with the real assets of estates as readily as with the personalt}^ has tended greatly to lessen the diffi- culty of distinguishing between powers constituting a personal trust and those annexed to the office of executor or adminis- trator, and the differences in the adjudications seem to affect only details. As a general rule, whenever it becomes neces- sary to convert the real estate of a decedent into money, in order to raise funds for the payment of debts or legacies, it becomes the duty of the personal representative to act in this respect: under power in the will, if such be given; or under order of the probate court, if not, or if the power granted be 292 THE LAW OF DECEDENTS' ESTATES. [§ 334 inadequate, or if the executor or administrator neglect to act under it. The rule, that the power to sell land does not exist in the executor unless he is directed to do so by the will, either ex-pressly or by implication, is fully recognized; but it is not controverted in any of the States, that if the executor is directed l)y the will or bound by the law to see the application of the proceeds of the sale, — or if the proceeds, in the disposition of them, are mixed up and blended with the personalty, which it is the duty of the executor to dispose of and pay over, — the power of sale is conferred on him by implication, because with- out the exercise of such power he could not execute the will. Thus, where the object of the power is to mix together realty and personalty in a common fund, out of which the various pm'poses of the wdll are to be satisfied, including that of the payment of debts, the power is annexed to the office of execu- tors, and will survive to any of a greater number named as donees of the power and executors; and the power will be extinguished with the cessation of the office. Where the will imposes upon executors the duty of selling real estate, without discretion, the power follows the office; otherwise the will must fail, if the executors, or any of them, should die or refuse to act. In such case, the direction to sell works a constructive conversion as pointed out in § 336. § 334. Power given in a Will not following the Office of the Executor. — The statement of the rule commented on in the preceding section involves, as a correlative thereto, that where the power of the executor to sell is not coupled with an interest, and the direction to sell is not peremptory, but referred to the discretion of such executor, the power is a personal one, and does not follow the office. It is also to be observed that the conveyance of a power to the executor of the will does not necessarily annex such power to the office; it may be that the word "executor" is descriptio persons, simply employed to designate the donee of such power in trust, instead of repeating his name; and if such appear to be the testator's intention, — where, for' instance, the power given is founded in the personal confidence of the testator in the person whom he nominates as executor and trustee, — the administrator with the will annexed will not succeed to the §§ 335, 336] THE MANAGEMENT OF THE REAL PROPERTY. 293 same. Hence, one named as executor and trustee may qualify as executor and refuse the trust, or accept the trust and renounce as executor; but where the trust is annexed to the office of executor, the executor, if he quahfies as such, thereby accepts the trust. If the same person be both trustee and executor, the probate court has control over him in his executorial ca- pacity, but has no jurisdiction to execute the trust, which must be done in chancery. § 335. Statutes regulating the Power over Real Estate conferred by Will. — Under the construction put in England on the Stat- ute 21 Hen. VHI. ch. 4, where part of the executors who have the power refuse the office and the residue accept, the bargains and sales of those acting are good in law as if joined in by all the appointees of the power. The American statutes mostly extend the power to the survivor or sur\ivors of several execu- tors who have qualified, of whom one or more may die, resign, or be removed ; as well as to one or more who may qualify of a larger number to whom the power is given, of whom one or more may refuse to act; and to the administrator with the will annexed. A discussion of the variations in the States goes beyond the scope of this treatise.^ § 336. Constructive or Equitable Conversion. — It seems most convenient to notice in this connection the doctrine wliich im- presses upon real estate, directed by a testator to be sold for the purpose of distributing the proceeds to the persons designated by him, the character of personal property, and upon personal property directed to be converted into real, the character of real property. The rule invoked by this doctrine is, that in equity property wdll be treated as being already what the tes- tator intended it to become. If the conversion is complete, out and out, or absolute and for all purposes, it operates immediately upon the death of the testator, and therefore determines the devolution of the property to the heir, devisee, or executor, — not according to the character in which the testator has left it, but according to that into which he has directed it to be converted; and the rights and liabilities of those interested in it attach from the moment of the testator's death, as if it were ^ For a more extended discussion see Woemer on Administration, § 341. 294 THE LAW OF DECEDEXTS' ESTATES. [§336 then converted, no matter when the actual conversion takes place. Where for instance an executor is du*ected to sell land and divide the proceeds among aliens, who are capable of taking personalty, but not of taking realty, these aliens take their share in the proceeds of the sales, the land being treated as personalty at the testator's death.^ But since, as in other cases of testamentary disposition, the testator's intention must govern, if it can be ascertained from his language, the rule is equally applicable whether there be an express direction to convert, or whether a conversion is necessarily imphed. There must, however, be no doubt of the testator's intention to convert; and this intention, whether ex- pressed or implied, must be unconditional. A conditional con- version is not within the scope of the rule, because in such case there is no constructive conversion. Thus, if the testator vest power in another to convert or not, in his discretion, or directs the conversion upon the happening of a contingency, or at the election of a person or persons named, it is clear that the ques- tion of conversion must depend on the exercise of the discre- tion, or the happening of the contingency, and cannot be as- cribed solely to the testator's will. In such cases the property devolves in the shape in which the testator left it, and the con- version takes effect upon the happening of the contingency. It should be remembered, however, that, where there is an imperative direction to convert, the discretion given as to the time of sale, or the mode and manner, does not work an ex- ception to the rule; but if the conversion is postponed to a future time certain, before the arrival of which the property is, ac- cording to the testator's direction, to be enjoyed by persons other than the ultimate beneficiaries, there is of course no con- version until the expiration of such time. It results from these principles, that if the testator intended the conversion for certain purposes only, the conversion is limited to these purposes, and the property not needed for their accomplishment remains unchanged and unaffected by the rule of conversion. So, if the purpose of the testator fails, or cannot be accomplished, there is no conversion, because " there is an end of the disposition when there is an end of the purpose » Greenwood v. Greenwood, 178 111. 387. § 337] THE JVLiNAGEMENT OF THE REAL PROPERTY. 295 for which it was made," unless the testator intended to stamp the character of personalty upon realty, or vice versa, not only for the purposes of the will but for all purposes, out and out. Where a conversion is directed, but the proceeds go to the same persons, in the same proportions who would take if there were no conversion, they may elect in which character they will take. In such case they take by their own act, as upon a pur- chase, and not under the will. But all the beneficiaries must acquiesce; a part of them cannot elect. In case the beneficiary be an infant, a court of equity may elect for him, if it be to his interest, but his guardian or trustee cannot. It may be proper to mention, also, that real estate, although it be constructively converted into personalty, is nevertheless subject to the rules of law governing real estate generally, in- asmuch as it is taxable, and controllable as such, and can only be conveyed as such. § 337. Duties and Liabilities arising to Executors and Adminis- trators in Respect of Real Estate. — If the real estate of a de- cedent, in the absence of a contrary testamentary disposition, and when not needed for the payment of debts, passes directly to the heirs or devisees, it is as much beyond the authority and duty of the personal representatives as if it had not been the property of the testator or intestate. Wliere the executor is given by the will a naked power of sale, the heir or devisee is entitled to the rents and profits until the sale. And actions concerning the realty should be brought by and against him and not the personal representative. The duties and rights of executors and administrators in respect of real estate lawfully in their charge — whether by force of testamentary direction, or order of the probate court when necessary to pay debts, or coming to them in the course of administration like personal property constituting assets — are the same as if it were personal property under their charge. They are entitled, on the one hand, to credit for all expenses reasonably incurred in its protection and preservation, and liable, on the other, for all losses arising out of negligence in regard thereto. Thus, it is the administrator's duty to restrain even an heir from trespassing upon real estate mortgaged to the intestate, upon which the administrator has obtained judgment 296 THE LAW OF DECEDENTS' ESTATES. [§ 338 of foreclosure; to bring an action against a disseisor to recover possession thereof; and to recover damages for trespass upon lands of which he has taken possession as administrator. It Is hardly necessary to mention, that executors vested with power to sell real estate are, in the same manner, authorized to do all that Is necessary' in the way of insurance, superintendence, repairs, and paying taxes for the preservation of the estate. § 338. Power to Mortgage the Real Estate. — It may be stated, as a general proposition, that neither executors, unless specially thereto authorized by will, nor administrators have the power to bind the estate of the deceased by borrowing money. Courts of equity have authorized the mortgage of real estate to raise money for the pajTuent of debts of a deceased person; but it seems that, where the jurisdiction over estates of deceased persons is confided to probate courts, the power of courts of equity is thereby excluded. In some States the statute author- izes the sale or mortgage of real estate for the payment of debts of deceased persons; but without statutory provision to that effect courts of probate have no power to order or authorize an executor or administrator to mortgage the real estate; hence a mortgage authorized by a court not havdng jurisdiction, or in a proceeding in which the requirements of the statute have not been observed, is void, and cannot bind the interests of the heirs, unless they are precluded from objecting by the doctrine of estoppel. The power to sell real estate given in a will does not neces- sarily Include the power to mortgage it. Such a power must be exercised to the extent and in the manner specified; it must accomplish the purpose had in view by the testator. Hence the direction to sell out and out, or for a purpose or with an object beyond the raising of a particular charge, does not au- thorize a mortgage, because the testator's Intention, the object to be accomplished by the power conferred, is the conversion of the property. And it Is held that a trust with a power to sell imports, prima facie, a power to sell "out and out," and will not authorize a mortgage, unless there is something in the will to show that a mortgage was within the intention of the testa- tor. If, however, the conversion be subservient to some other purpose or object, for instance, the raising of money for a spe- § 33S] THE MANAGEMENT OF THE REAL PROPERTY. 297 cific purpose by the sale of real estate, the power to sell is held to include the power to mortgage, if the intention of the testator is thereby fully accomplished. It is said, in such case, that the power to sell includes the power to mortgage, because a mort- gage is but a conditional sale. 29S TUE L.\w OF decedents' estates. [§ 339, 340 PART III OF THE PRIVITY AMONG EXECUTORS OR ADMINISTRATORS OF THE SAME ESTATE. CHAPTER XXXVII. UNITY OF ESTATE AMONG EXECUTORS AND ADMINISTRATORS OF THE SAME DECEDENT. § 339. Power of Co-executors to bind Each Other by Acts of Administration. — The title of co-executors and co-administra- tors to the assets of the estate is joint, not joint and several. If one or more of the number die, resign, or be removed, the estate passes to and vests in those surviving or remaining. From this joint title it results that suits at la^x for the estate, including recovery of choses in action which belonged to the deceased, can only be brought by all the executors or administrators. A suit by less than all would be open to a plea in abatement. On the other hand, apart from suing, all have equal authority, and any one or more can dispose of assets ; and such acts are binding upon all the others, though they were not concerned therein. Thus sales of chattels, assignment of notes, compounding of debts, and submission of matters to arbitration are binding, though done by less than all the executors or administrators, to the same extent as if done by all. As the payment of a debt by one of several executors or ad- ministrators is necessarily a discharge to all, so the payment of a legacy by one releases all the others from liability therefor, even if payment was by a note, and the maker became insolvent without discharging it. So the delivery of property to the leg- atee by one precludes the other executor from further authority over such property. § 340. The Liability of one Co-executor or Co-administrator for the Acts of Another. — Since each of several executors or ad- §341] UNITY OF ESTATE AilONG EXECUTORS. 299 ministrators has full power to reduce to possession all assets and collect all debts due to the estate, and is responsible for all assets he receives, payment to him will discharge the debtor. But payment of money or delivery of assets by one co-executor or co-administrator to another does not discharge him. Hav- ing received the assets in his official capacity, he can discharge himself only by a due administration thereof in accordance with the provisions of the will or the requirements of the law. Co-executors and co-administrators are not liable to one an- other; but each is liable to the beneficiaries of the estate, whether creditors, next of kin, or legatees, to the full extent of the assets received. Ordinarily, one joint executor or administrator is not liable for the assets which come into the hands of another, nor for the laches, waste, devastavit, or mismanagement of a co-executor or co-administrator; unless he consent to or join in any act result- ing in a loss to the estate, in which case, though the loss be the direct consequence of the default, carelessness, or mismanage- ment of the other, they will all be equally hable. So if he care- lessly permit the co-executor to mismanage or waste the estate, he becomes liable. What constitutes such negligence as to make one liable for the devastavit or mismanagement of the estate by his co-executor or co-administrator, must always largely de- pend upon the circumstances of each case. § 341. Remedies in Protection of Co-administrators against Liability for One Another's Acts. — It follows from the unity of the estate of several executors and administrators, which is such that in relation thereto they are all considered as one person in law, — first, that each has power to take possession of the assets, which neither of the others can hinder, and that, having taken possession, neither of the others can take them from him; and, secondly, that they can neither contract with one another, nor bring an action at law against one or more of their number, because a man cannot be both plaintiff and defendant in the same cause, and in bringing an action all must join as plaintiffs. Now, it would be clearly irrational and unjust to hold any person responsible for the acts of others which he can neither control nor prevent, and equally unwise and unjust to dispense with any of the elements of protection to the estates 300 THE LAW OF DECEDENTS' ESTATES. [§§ 342, 343 of deceased persons wliich the vigilance, prudence, and good faith of all or any one of the joint executors and administrators afford; hence it is the duty of all and each of them to interpose when any jeopardy to the interests of the estate by the negli- gence or bad faith of a co-executor or co-administrator comes to their notice. This they may do by invoking the aid of a court of equity, which, upon i)roof of mismanagement or jeop- ardy of the estate by any one or more of the executors or administrators, will restrain him from further meddling with the estate, and compel him to restore the funds in his hands, unless a complete remedy is given by statute in the probate court. Power is now given to probate courts in most States, either to remove or demand bond and security from executors and administrators whenever it be necessary for the safety of the estate; where such is the case, courts of equity will not interfere betw^een co-executors, unless it be absolutely necessary for the purposes of justice; but if there be no adequate power in the probate court, equity will grant relief. § 342. Executor's Executor representing the Executor's Testator. — At common law the executor of an executor, how far soever in degree remote, " stands as to the points both of being, having, and doing, in the same state and plight as the first and immedi- ate executor." ^ Hence the executor of the executor takes the uncompleted administration of the original testator's estate by operation of law. The common-law^ rule in this particular is abolished by stat- ute in nearly all the States.^ In this country, therefore, the general statutory rule is that upon the death of an executor, as well as for the vacation of his office for any other reason before the estate is fully administered, an administrator de bonis non cum testamcnto annexo must be appointed, upon whom devolve all the, powers of the deceased executor. § 343. Succession in the administration at Common Law. — The administrator de bonis non administratis (of goods which have not been administered) succeeds to the legal ov/nership of all personalty of the deceased which has not been administered 1 Wiliiams Ex. [959]. 2 For particulars, see Woerner on Administration, § 350. § 343] UNITY OF ESTATE AMONG EXECUTORS. 301 by prior personal representatives. As to the property of the deceased which remains in specie, unchanged by the prior per- sonal representative, the administrator de bonis non everywhere takes title as the representative of the deceased, not as succeed- ing the prior executor or administrator. As to such assets his position is the same as if he had taken them in original admin- istration. Such assets were never administered. But at com- mon law " all the property which has been mixed with that of a prior executor or administrator, or which has been converted to his individual use, or into another form, in short all property of the deceased which does not remain in specie, is administered and not unadministered property. The former executor (or his estate if he be dead) is liable to creditors, legatees, and cred- itors only, for his conversion or waste of the assets of the estate, and they can maintain suit against him (or his estate) therefor. The prior personal representative is not accountable to an ad- ministrator de bonis non for such maladministration or for any- thing except the goods and personal property of the deceased in his hands in specie." ^ In equity, however, a distinction is drawn between legal and valid acts of administration, and such as are invalid, or fraudu- lent, as being for the individual benefit of the administrator, in violation of the policy of the law. In such case a court of equity will annul the acts complained of, and subject the property to the control of the administrator de bonis non, or even entertain a bill for an accounting. During one period of English history, administrators as well as executors became the owners of the residuum of estates in their charge; it was very important, then, to cut off the pos- sibility that such residuum should go to a subsequent admin- istrator, by converting the estate, so that, on the death or removal of the executor or administrator, there would be no residuum for the administrator de bonis non. Under this con- dition of things, conversion, whether rightful or \\Tongfiil, constituted administration, in the sense of changing the execu- "tor's or administrator's title, because that which he first held in aider droit by the conversion was made his in proprio jure; he took the same title as any purchaser from the executor or 1 Michigan Trust Co. v. Ferry, 175 Fed. (C. C. A.) 667. 302 THE LAW OF DECEDENTS* ESTATES. [§344 administrator would obtain at a sale of the effects, so that neither a creditor, heir, or legatee, nor an administrator de bonis 72011, could further follow it. Thus it became the rule at common law, that for a \\Tongful conversion, whereby cred- itors, legatees, or distributees of the deceased were prejudiced in their rights, they have an action against the \M'ong-doer for damages, for which he and his sureties, and in some instances his personal representatives, are liable. § 344. Administration de bonis non under American Statutes. — The historical justification of this rule, however valid in England, does not exist in America, except as an element of the common law; hence, many of the States have discarded the rule itself; in some instances by judicial authority, but most gener- allj' by statutory enactments. Administration is, in the States not adhering to the artiJBcial common-law rule, understood to consist in the legal proceedings necessary to satisfy the claims of creditors, next of kin, legatees, or whatever other parties ma}' have any claim to the property of a deceased person; until all such claims are satisfied, — whether of creditors or heirs, the ^^-idow or minor children of the deceased, — administration is not completed. Executors and administrators arc the func- tionaries appointed by the law to accomplish this purpose, and are invested with the legal o"\\Tiership of the decedent's prop- erty until it is accomplished. Stripped of extraneous elements and considerations, this is the office of administration, and the scope of power of executors and administrators is commensur- ate therewith. On this view the administrator de bonis non is trustee for the beneficiaries of the estate. The beneficiaries have no direct cause of action against the former personal rep- resentative, or his representative, but look solely to the admin- istrator de bonis non, and his bond. The administrator de bonis non is solely charged vnXh. calling the former executor or administrator to account, including recovery for any devastavit by the predecessor. These principles, in derogation of common law, appear in the statutes of most States. In some they are recognized to the full extent. But in most States it will be found that the theory does not apply in every particular. Especially is there difference in determining in whom is the right to call the prior personal rep- § 345] UNITY OF ESTATE AMONG EXECUTORS. 303 resentative to account for a devastavit. For details a fuller treatise must be consulted.^ § 345. Privity between Successive Administrators. — The ques- tion of privity between an administrator de bo}iis non and his predecessor, that is to say, the extent to which the one is bound by the antecedent acts of the other, must be determined by the scope and effect of these acts upon the course of the administra- tion. It is well settled, both at common law and in all the States, that acts binding upon the original administrator as acts of ad- ministration, by which the right of a debtor, creditor, legatee, or distributee against or in favor of the estate of the deceased is affected, are equally binding upon all successors. To this extent, the privity between them is complete, because what an administrator does lawfully within the sphere of his powers is in law the same as if his testator or intestate had done it, and not to be questioned by any one representing him. This privity does not arise out of any relation between tliem to each other, but is the result of the relation of each of them to the testator or intestate, which, to the extent to which property left by him may come into their hands respectively, is the same in both. In those States which have augmented the powers of admin- istrators de bonis non, the estate comes into their hands affected, nevertheless, by all the rightful acts of the predecessors, in- cluding matters of evidence affecting parties in interest. Thus, the presentation to the executor of a claim against the estate is good against the administrator de bonis non, and need not be presented anew; and the subsequent resignation of the execu- tor does not impair the value of his written acknowledgment of such presentation. The proposition stated involves, as a correlative thereto, that the successor is not bound by any illegal act of an executor or administrator; the authority of the administrator de bonis non being derived, not from his predecessor, but from the deceased testator or intestate, there is no such privity as will estop the successor from assailing the unlawful acts of his predecessor. There is some difference in the decisions as to the rights of administrators de bonis non touching the contracts made by * Sec Wocmer on Administration, § 352. 301 THE LAW OF DECEDENTS' ESTATES. [§ 345 their predecessors. It appears, from what has already been said in tliis respect, that, where the common-law rule is observed, tlie proceeds of a sale belong to the administrator in his own right, and on his death devolve to his personal representatives. It is obvious that in such case the administrator dc bonis noii cannot sue for the price of the goods so sold; nor for a promissory note made to tlie predecessor. Nor can execution issue against an administrator de bonis iion, altliough he have sufficient assets, upon a judgment against his predecessor, for judgment against the administrator in chief gives no cause of action against the administrator de bonis non; nor can a judgment in favor of an administrator be revived against his successor. The rigor of this rule at law induced coiu-ts of chancery to adopt a different course, allowing the administrator de bonis non to revive suits instituted by the executor, and statutes, both in England and some of the American States, giving administrators de bonis non authority to continue suits brought by or against former administrators, and to maintain scire facias, writs of error, etc., on judgments by or against them, in so far as they affected the estate under administration; and to this extent establishing privity between successive administrators. The preceding paragraph, it should be noted, deals with the common-law view of the title of the administrator dc bonis non. Under the American statutory view, set forth in the preceding section, the administrator de bonis non would generally succeed to the rights and duties of his predecessor. ■ The relation between special administrators, such as those 'pendente lite, or durante minore cetate, with the administrators in chief are governed by the principles above laid down as to administrators de bonis non and their predecessors. These special administrators are in privity with the executor or ad- ministrator in chief, to the extent of binding the estate, and hence their successors, by their lawful acts of administration. § 346] PAYMENT OF DEBTS. 305 TITLE FIVE. OF THE PAYMENT OF DEBTS BY EXECUTORS AND ADMINISTRATORS. § 346. Origin of the Common-law System of Paying Debts of Deceased Persons. — The principal function of executors and ad- ministrators is to pay the debts and discharge the Uabihties of their testators or intestates. To accompHsh this purpose the title to all the personal property of the decedent is vested in them in all cases; as well as, under English and American statutes, a power, contingent upon the insufficiency of the per- sonal property, over the real estate. A just regard for the rights of creditors produced, in England, the statutes which deprived the ecclesiastical courts of their former substantially unlimited control over the goods and effects of persons dying intestate within their jurisdiction. The com- mon-law courts, and, to a still greater extent, the courts of chan- cery, then undertook to accomplish justice between creditors on the one hand, determining their relative priorities, and be- tween creditors and the widow and next of kin on the other, as- suming a superintending control over executors and adminis- trators at law and in equity, and lea\ing the ecclesiastical courts with power to do little more than grant probate of wills and appoint administrators. Owing to the heterogeneous elements entering into its inception and development, the system of administration at common law, as affected by English statutes, and particularly its provisions for the pajTnent of debts out of decedents' estates, became highly intricate, costly, and fraught with hazard to even the most prudent and well-meaning execu- tor or administrator. In America this complicated machinery has, in most States, been supplanted by a simple, efficient, and inexpensive system under their statutes, easily understood, in its principal features, by persons of ordinary intelligence, safe and speedy in its operation, accomplishing its purpose at a minimum of cost and litigation. 506 THE LAV,' OF DECEDENTS' ESTATES. [§ 347 PART I. OF THE PRIORITY OF DEMANDS AGAINST THE ESTATES OF DECEASED PERSONS. § 347. Distinction between the Debts of the Decedent and Lia- bilities contracted by the Personal Representative. — Before en- tering upon the consideration of the duties and powers of executors and administrators in respect of the debts of the de- ceased, it must be observed that the expenses of administra- tion, including the cost of the probate of the last will, if any, and of the funeral of the deceased, necessarily take precedence of the debts incurred by the deceased. When the services rendered are of value to the estate and the executor is insolvent, an action will lie in equity to enforce payment for such services out of the assets of the estate. This is an application of the doctrine that equity can recognize services in saving a trust fund as the basis for a lien on the fund. But it is a well-recognized principle, that for liabilities con- tracted by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors. Disbursements, reasonable in amount and for ser- vices necessary in the proper discharge of the duties imposed upon them, will constitute a charge in favor of executors and administrators against the estate, although their allowance should leave no surplus to pay creditors of the deceased; but in the absence of statutory authority the probate court, as already stated, has no jurisdiction to adjudicate between the personal representative and the creditor. While it is true that in the absence of statutes no action lies against the estate for services rendered at the request of the executor or administrator, a number of States show a growing tendency to find something in their respective statutes warrant- ing the allowance of such claims for services rendered the per- sonal representative for the benefit of the estate du-ectly against the estate.^ 1 U. S. Fidelity & G. Co. v. People, 44 Colo. 557, is an illustration. For details of holding in various States, see Woerner on Administration, §356. 348] LIABILITIES ARISING AFTER DEATH. 307 CHAPTER XXXVIII. OF THE PAYMENT OF LIABILITIES ARISING AFTER THE DEATH OF THE DECEDENT. § 348. Funeral Expenses Allowable as Incidental to the Admin- istration. — In America, funeral expenses are sometimes classed with debts of the deceased; and while they invariably take the jBrst rank as debts, yet when so considered and treated, they are necessarily postponed to expenses of administration. But the cost of burial is also often viewed as an expense of the administration. It is the duty of the executor or adminis- trator to bury the deceased in a manner suitable to the estate he leaves behind him; there is no distinction in this respect between an executor and an administrator; and if this duty, in the absence or neglect of the executor, is performed by another, — not officiously, but under the necessity of the case, — the law implies a promise to reimburse him for the reasonable ex- penses incurred and paid. But this presumption does not extend to gratuitous services rendered for a deceased friend or relative, such as searching for the remains of a missing person, requesting the clergjTnan to perform the burial services, writing and send- ing to the newspapers advertisements for the funeral, depositing the corpse in one's house, and permitting the mourners to as- semble there, etc. In this view, the propriety of distinguishing between funeral expenses as an incident of the administration, for which the executor or administrator who paid them is to be reimbursed in preference to any creditor of the deceased, and such expenses as constituting a demand against the estate, provable against the executor or administrator, becomes apparent. If the latter' neither ordered the funeral, nor made himself personally re- sponsible to the undertaker, it would be unjust to hold him liable de bonis propriis for expenses incurred or laid out by others. In such case, if all the assets of a decedent are ex- hausted in the pa^inent of other expenses of administration, 308 THE LAW OF DECEDENTS' ESTATES. [§§ 349, 350 the plea of plene administravit, or want of assets, must evidently be admissible in favor of the executor or administrator. As debts, however, they are in all the States preferred to all other debts of the deceased. It is clear that, if the executor volun- tarily pay them, he must be allowed credit for the disburse- ment as an expense incident to the administration, because the funeral is a work of necessity, as well as of charity and piety. § 349. Amount allowed for Funeral Expenses. — The funeral expenses are to be restricted to the amount necessary to bury the deceased in the style usually adopted for persons of the like rank and condition in society. If the estate is solvent, in which event the expense rests ordinarily on the distributees or residu- ary legatees, more liberal allowances are passed than in cases of insolvency. But even in cases of insolvency, the strict rules laid down for the protection of creditors in former times have given way to the feeling that reasonable expenses according to the decedent's condition in life should be allowed. The whole matter of the amount of the allowance is one of judicial discretion, hardly permitting of logical analysis, and best studied by illustrative cases.^ § 350. What Items are allowed as Funeral Expenses. — \Vliat kind of items shall be allowed as constituting part of the funeral is a question obviously largely influenced by considerations gov- erning the amount to be allowed. A plain tombstone might properly be allowed an insolvent (though there are holdings to the contrary), while a costly monument, even in the case of a solvent estate, would be in doubt unless all the family approved. Even where the estate is solvent, mourning apparel for the fam- ily has been disallowed. Expenses for funeral festivals are not allowed in case of insolvent estates. The expense of communi- cating intelligence of the death of the deceased to his family, and where the decedent dies away from home, the expenses of transportation of the body to his home should be allowed, to w^hich may be added the cost of a person to accompany the body for the purpose of superintending such transportation.^ * For illustrations as to insolvent estates, see Woemer on Adminis- tration, § 360; as to solvent estates, § 359. 2 Many illustrative rulings are collated in Woemer on Administration, § 358. §§ 351, 352] LIABILITIES ARISING AFTER DEATH. 309 The estate is not liable for the funeral expenses of the widow of the deceased ; and since the husband is primarily liable for the burial of his deceased wife, it would seem that at common law her estate cannot be held liable therefor.^ § 351. Expenses of Last Illness when preferred to Debts. — Expenses of the last illness cannot be classed with those for the funeral, because they necessarily accrue before the death, and . therefore constitute a debt of the deceased; while the funeral, taking place after, cannot constitute a debt of the deceased, but only of the executor or administrator. It follows that in the account of the executor or administrator he can be allowed credit for expenses of last illness only as for a debt paid, of whatever class the statute assigns to it. In a few States, how- ever, physician's bills and other expenses of the last illness are classed by statute with funeral ex-penses, and so take precedence of whatever is strictly a debt of the estate.^ § 352. Expenses Necessary in the Administration of the Estate. — It has already been stated, that for the expenses attending the accomplishment of the piu-pose of administration growing out of the contract or obligation entered into by the personal representative he is to be reimbursed out of the estate, and that his claim to reimbursement must be superior to the rights of the beneficiaries. The expenses under this category include those paid for. probate of the will (as elsewhere discussed), as well in the probate court as on appeal, or other proceeding in a contest, if carried on in good faith; and the executor nominated in such will is entitled to a settlement of his account, and re- imbursement for his expenses in preserving the estate and for the funeral, although the will be finally pronounced invalid; and, generally, all expenses necessary in the protection and pres- ervation of the estate, which have been held to include the costs of establishing a claim against the estate. But the general rule seems rather to be that costs incurred by the administrator in defence of claims against the estate, or in prosecuting claims in favor of it, pertain to the administration, and are to be al- lowed in full; but costs incurred by claimants in establishing * But there are holdings to the contrary, mainly resting on statute. See Woemer, § 3.58,* p. 762. 2 See Woemer on Administration, § 361. 310 THE L^W OF DECEDENTS' ESTATES. [§ 353 their claims stand on the same footing with the claims them- selves. § 353. Provisional Alimony for the Surviving Family. — The provisions, money, and other personal property set apart under the statutes of the several States for the support of the widow and dependent children during the period intervening before they come into possession of dower or distributive share are also paramount to the claims of creditors of the decedent. The liability of the administrator, in this respect, is purely statutory, as this species of protection to the surviving family is unknown to the common law, as we have in an earlier chapter seen. The distinction between the provisional alimony allowed to \\'idow and surviving family, and the distributive share of the widow and children, must not be lost sight of; because the ad- ministrator cannot be allowed credit in his account as against creditors of the estate, for the disbursements on account of boarding, clothing, or schooling the minor heirs, nor for medical services rendered the family after the death of the deceased, nor for necessaries furnished to the widow. §§354,355] PRIORITY OF DEBTS CREATED BY DECEDENT. 311 CHAPTER XXXIX. OF THE PRIORITY OF DEBTS CREATED BY THE DECEDENT. § 354. Priority of Debts at Common Law. — At the common law the real estate of a deceased person does not constitute assets in the hands of an executor or administrator for the pajinent of debts unless charged thereon by vnll; from which it follows that a testator may charge his lands with such debts and m such order as he may prefer. But as to the personal assets the executor or administrator is bomid, at his peril, to observe the order of priority in the payment of the debts of his testator or intestate; for if he pay those of a lower rank first, ha\ing notice of the existence of debts of a higher degree, he must, on a de- ficiency of assets, answer to those of tlie higher degree out of his own estate. The order in which debts are payable out of a decedent's estate is, at common law, as follows: ^rs^, debts due the crowai by record of specialty; second, certain debts peculiar to the English laws and customs, such as debts to the post-office for letters, money due the parish from deceased overseers of the poor, funds in the hands of officers of friendly societies, regi- mental debts, etc.; third, judgments of coiuts of record (except those of foreign countries), and decrees in equity rendered agamst the deceased in his \Uetime; fourth, recognizances before courts of record or magistrates, and securities by statute, such ^s the statute merchant, statute staple, and the like; fifth, debts by special contract under seal, and rent; sixth, simple contract debts, those due the crown taking precedence of those due any subject, and damages for injuries to real or personal property of another. § 355. Expenses of Funeral and Last Illness as Debts. — The order of priority established in the several States differs more or less from that existing at common law, and of cour-^e among the States themselves. In all of them, however, funeral ex- 312 THE LAW OF DECEDENTS' ESTATES. [§§ 356, 357 penses (if not treated as incident to the administration, and therefore exchiding all debts) constitute a preferred class of debts, ranking first in all States, except North Carolina and Rhode Island. So expenses of last illness, when treated as debt and not placed with funeral expenses, generally take rank before all other debts.^ § 356. Debts to the Government of the United States. — Of the debts created by the decedent in his lifetime, those which are due to the government of the United States are payable before all others. The preference in favor of the United States exists under law of Congress, wliich overrides the State statutes in the few cases in which they contain inconsistent pro\'isions.^ The act of Congress places all debts due the general govern- ment before all other debts whatever, going further than the English rule, wliich gives judgments of record priority over sim- ple contract debts due the crown, and formerly gave specialty debts due others a similar preference. This priority, however, does not operate as a lien upon the property of the debtor, nor in derogation of a lien existing before his death, nor of the widow's allowance under the State law, and necessarily depends upon notice being given to the executor or administrator, either by action against him or otherwise, in default of which pa^Tuent to other creditors cannot make him liable as for devastavit. And the priority extends only to the net proceeds of the prop- erty of the deceased after payment of the necessary expenses of administration, including taxes and funeral charges, but not expenses of last illness. § 357. Debts to the State and State Corporations. — In most States, taxes, rates, and other dues to the State rank before debts due the citizens. A noteworthy exception to the general rule in this respect is made by Pennsylvania, whose statute directs debts due the Commonwealth to be paid last. It is generally held that a claim for taxes is such a one as should be paid by the personal representative even without ^ For exceptions and statutory modifications in the various States, see Woemer on Administration, § 365. 2 U. S. V. Fisher, 2 Cr. 358, 385. §§ 358, 359] PRIORITY OF DEBTS CREATED BY DECEDENT. 313 presentation to him or allowance by the court, but that it may also be proved up as a claim against the estate in the probate court like other demands. § 358. Debts owing in a Fiduciary Capacity. — When property or funds held by the deceased in a trust capacity can be iden- tified, they can be followed in equity even after the trustee's death. They are not assets.^ Wlien the property or fund cannot be specifically traced and segregated from the decedent's own money or property, it constitutes a debt corresponding to the second grade of debts in England.2 But in this country it seems that, without statu- tory provisions on the subject, no preference can be given to debts of this class over other claims. A few States, however, give such claims priority by statute over judgments and simple contract debts.^ § 359. Judgments against the Decedent in his Lifetime. — Judgments in many States constitute liens on the property of the defendant. In several States judgments are ranked with mortgages, recognizances, and other liens existing against the decedent's property at the time of his death. Under such statutes, the priority accorded them is but the recognition of theu- quality as liens upon the property descending. Hence the priority extends only to the property to which the judgments attach as such lien; and they are payable according to seniority, until such property is exhausted. Unless preferred by the stat- ute as debts of higher dignity, they rank with ordinary debts for such amounts as remain unsatisfied after exhausting the property over which the lien extends. Discarding any question as to lien, under the English law debts of record come next after debts by particular statutes, given as the second class in § 354, ante. In a number of States judgments are by statute placed by themselves in a preferred class. At common law, and in those of the States in which judg- ments are assigned to a preferred class by virtue of their dignity as debts, they are payable out of the general assets, without regard to their seniority, whether of operative force or dormant, » Ante, § 294. 2 Ante, § 354. 8 See Woerner on Administration, § 368. 314 THE LAW OF DECEDENTS' ESTATES. [§§ 360, 361 ratably, if there are not sufficient assets to pay all of them in full. The reason of the priority accorded to them is to be found in their superior dignity as debts of record, fixed and unques- tionable, over mere choses in action. Whether judgments technically not of record (e. g., judgments of Justices of the Peace) are included in this priority is a matter of construc- tion of tlie local statute. They are not included at common law. As at common law, so in the several American States, the preference, where it is given, extends only to domestic judg- ments; those of sister States or foreign countries are placed in the same class with simple contract debts. And so, by the words of the statute, the preference is given only to judgments rend- ered in the lifetime of the debtor, and extends in no case to a judgment rendered against the administrator. The common-law rule required executors and administrators to take notice, at their peril, of all judgments of record against the decedent remaining unsatisfied at the time of his death, and the personal representative was liable on these judgments without presentation on constructive knowledge, even without actual knowledge of their existence. The hardship of this rule has led to enactments in various States limiting this liability to judgments of record, evidenced in some official listing pro- wled by statute, which makes it practicable to ascertain all such judgments. But in the States generally, as will appear more fully here- after, the judgment creditor must give the same formal notice of his demand as any other creditor. In such States the per- sonal representative is not liable unless such notice is given.^ § 360. Debts by Specialty. — The preference existing at com- mon law in favor of debts by specialty, as bonds, covenants, and other instruments under seal, over simple contract debts, has now been abolished, it is believed, in all the States but Georgia. § 361. Rent. — Debts for rent, which at common law take rank with specialties as preferred debts, are accorded priority with varying rank among debts in a few of the American * The various groups of States alluded to are given in Woemer on Administration, § 369. §§ 362, 363] PRIORITY OF DEBTS CREATED BY DECEDENT. 315 States.^ But in the other States no preference is given, it is believed, to debts for rent over other debts. It is obvious, however, that rents due or accruing upon leases held by the testator or intestate, and extending to a period not determined at the time of his death, may stand upon a different ground from other debts if the leases are beneficial to the lessees. Although the lessors may not have it in their power to enforce the payment of the rent covenanted for in prefer- ence to other claims against the estate, yet they may forfeit the lease for its nonpayment; and to avoid such forfeiture, if the estate would suffer loss thereby, it may become the duty of the executor or administrator to pay the rent in preference to other claims. So, also, while a proceeding to recover rent by distress proceedings cannot be commenced against an administrator, the landlord may have a lien upon the crops grown, which gives him a preference over unsecured claims. § 362. Wages. — Wages due to servants constitute a preferred class of debts in several States, not exceeding, generally, one year in time, and confined to domestic servants and laborers on a farm. In some States the class entitled to this preference is much enlarged. In Kansas for instance it is not confined to house servants, but extends to all wage earners, including a clerk in the store of the deceased. The varying details depend on local statutes, since no such right exists at common law, and are beyond the scope of this book.^ § 363. Simple Contract Debts. — After the preferred debts have been discharged, all liabilities of the deceased, of any kind or nature, not included in one of the preferred classes, are en- titled to be paid pro rata, except that in some of the States a further classification is introduced, giving claims presented to the administrator within a given period of the administra- tion preference over those presented at a later period. The claims presented within the earlier period must be paid in full, before anything is paid on claims subsequently presented. The subject is discussed hereafter.^ ^ For details, see Woemer on Administration, § 372. * See Woerner on Administration, § 373. ' See next section and also post, § 520. 316 THE LAW OF DECEDENTS' ESTATES. [§ 364 PART II. OF THE COMMON-LAW SYSTEM OP PAYING DEBTS OF DECEASED PERSONS. § 364. Payment of Debts according to their Priority. — We have already seen, that executors and administrators are bound, in the payment of the debts of their testators and intestates, to observe the order of priority estabhshed by law. It is easily understood, that unless this requirement is strictly adhered to, and executors and administrators held to personal liability on their bonds for its violation, the rights of creditors would be imperilled and the policy of the law subverted. It may not be out of place to remark, that the violation of this rule of law is rarely attributable to bad faith, or a conscious disposition to unduly favor one creditor to the prejudice of another; it arises sometimes out of sheer ignorance of the law, and at other times in consequence of thoughtlessness and lack of caution and foresight. It happens but too often that the assets of an estate fall far short of the expectations of heirs and personal representatives, even after the inventory and ap- praisement have been filed; and more often still, that the lia- bilities turn out to be much greater than they supposed. Many estates prove insolvent, which are at first looked upon as ample to pay all debts and leave handsome portions to the heirs; yet executors and administrators often close their eyes to the possible, in many cases imminent, consequences of paying debts indiscriminately. Widows, in particular, zealous to vindicate the good name of departed husbands, eagerly pay all debts as fast as presented, and as long as they have anything to pay with, frequently involving loss to other bona fide creditors, themselves, or their bondsmen. Simple obedience to the law is suflBcient to avoid such danger. §§ 365, 366] THE PAYilENT OF DEBTS AT C0:MM0N LAW. 317 CHAPTER XL. OF THE PAYMENT OF DEBTS AT COMMON LAW. § 365. Common-law Preference among Creditors of Equal De- gree. — As among creditors of equal degree the executor or ad- ministrator is entitled, at common law, to pay whom he will first; but if one of several creditors of equal degree sue the ex- ecutor or administrator and obtain judgment, he must be sat- isfied before the others who have not obtained judgment; and after notice to the executor of an action commenced against him, he is restrained from making a voluntary pajTiient to any other creditor of equal degree. Still, the executor may give preference, even after action commenced by one, to another creditor of equal degree by confessing judgment, although such creditor has not taken out process. So, after action commenced by one, another creditor of equal degree may gain preference by greater vigilance in obtaining, in an action subsequently commenced by him, a prior plea confessing assets to a certain amount. If a creditor file a bill in equity in his ovm. behalf only, and proves his debt and obtains a decree, he must be first satisfied, as if he had obtained a judgment at law; and although the decree cannot be pleaded at law, yet the executor will be protected in paying it, and proceedings against him at law stayed by injunction. If a creditor bring a suit in equity, not for himself alone, but for himself and all other creditors, a decree for an account and distribution will be considered in the nature of a judgment for all the creditors; and although the legal priority of creditors will not be affected thereby, the power of preference no longer exists, because no payment to any credi- tor, made after notice of the decree, will be allowed. § 366. Right of Retainer at Common Law. — Under the doc- trine of retainer, as known to the common law, executors and administrators retain out of the assets of the estate payment of the debts due themselves from the intestate in preference to 318 THE LAW OF DECEDENTS' ESTATES. [§ 367 the other creditors of equal degree. Retainer is the legitimate result of the doctrine of priority to the creditor who first brings action, together with the right of preference in the adminis- trator, before action brought. An action by an administrator, in his capacity as creditor of the intestate, against himself, in his capacity as representative of the deceased, would be absurd; the right to prefer, then, necessarily takes the shape of retainer, otherwise he would lose the amount of his own debt, if other creditors brought suit and the estate turned out insolvent. The personal representative can in no case retain against a debt of a superior degree. The privilege of retainer extends to specific personal prop- erty due or belonging to the executor or administrator, as well as to the assets, to extinguish a debt due him. The right of retainer exists not only in favor of executors and general administrators, but also for temporary or limited ad- ministrators. There can be no retainer by the executor or administrator for damages unliquidated or arbitrary in their nature, such as for a tort. The doctrine of retainer is outlined here as an important ele- ment in the common-law system of administration. Under the American system, however, the doctrine is almost, but not wholly, obliterated, as will appear in the later discussion of the claims of executors and administrators.^ § 367. Consequence of paying Legatee before Notice of Debt. — The common-law principle subjecting all personal property in the hands of the executor or administrator to liability for the payment of debts of the deceased gave rise to very grave com- plications, and until the matter was remedied in equity, and subsequently by statutory provisions, produced great hardship to executors and administrators, whenever the question of paying legacies, or delivering the residue, arose in cases where the testator or intestate had entered into covenant, or bond with condition, or the like, upon which liability might or might not arise. It was held, as early as the reign of Queen Elizabeth, that the payment of a legacy was compellable, notwithstanding a bond which had not been forfeited; but, on the other hand. Lord Hardwicke held that payment of a legacy, after notice of 1 See post, § 384. § 3GS] THE PA"i-:*IEXT OF DEBTS AT CO:\niON LAW. 319 the specialty, but before breach, was not a good payment. So, even where the administrator had no notice of the existence of the bond, he was allowed for payments to simple contract creditors, but not to legatees. The hardship of this rule of law, holding executors and administrators liable upon remote con- tingencies, gave rise to the rule in equity, that they could not be compelled to part with the assets, either to legatees or dis- tributees, without sufficient indemnity, or impounding a suffi- cient part of the residuary estate for that purpose. It was also intimated, that where an executor passes his accounts in the court of chancery, he is discharged from further liability, and the creditor is left to his remedy against the legatees; and that, to encourage this practice, no costs in such case will be visited upon them. The former English system, as above set forth, is necessarily discussed as preliminary to dealing with the existing American system, which is the subject of succeeding chapters. It will there appear in what way and how far the defects of the old English system have been met. § 368. Defences against Actions for Debts of the Deceased. — Whatever causes of action survive the death of the debtor, can be brought, as far as common law is concerned, against the personal representative. Each creditor can institute an inde- pendent action. Since an adjudication in any one case on a de- fence, such for instance as the existence of debts of a higher class, is of no force when offered to a suit by another creditor, the pos- sibility, not to say probability, of illogical and unjust results is obvious. The American system, to be examined hereafter, does away with most of these difficulties. But, as has been repeatedly said before, the common law is rarely whollj^ erad- icated; and so it becomes necessary to give a sketch of pro- ceedings at common law upon suits by creditors. In defence of an action against him, the executor or admin- istrator may, in addition to pleading any matter which the de- ceased might have pleaded, deny the representative character in which he is sued, or, admitting it, he may plead that he has no assets, or not assets sufficient to satisfy the plaintiff's de- mand; or he may plead a retainer of his own debt of equal or superior degree; or debts of superior degree to third persons. It is his duty so to plead as to protect all creditors of whose 320 THE L-^-W OF DECEDENTS' ESTATES. [§ 368 claims he has notice in their rights, according to the dignity of their debts as estabhshed by law, and if he fails to do so he becomes personally liable. If the administrator has no assets to satisfy the debt upon which the action is brought against him, he must plead x>lene administravit, or ylene administramt prceter, etc.; for a judgment against him, whether by default or on demurrer, or on verdict upon any plea except plene administravit, or admitting assets to such a sum and rien ultra, is conclusive upon him that he has assets to satisfy such judgment. If he pleads either a gen- eral or special plene administravit, he will be held liable only to the amount of assets proved to be in his hands. But if an executor confesses judgment against himself, upon a miscal- culation of the amount of the assets, which afterwards appear insufficient to satisfy it, he will not be relieved in equity; nor will equity aid him if he could, by reasonable diligence, have ascertained the condition of the estate. If, in an action against an executor or administrator, which can be supported against him only in that character, he pleads any plea which admits that he has acted as such (except a release to himself), the judgment against him must be that the plaintiff recover the debt and costs, to be levied out of the assets of the testator, if the defendant have so much; but if not, then the costs out of the defendant's own goods. But if the defend- ant pleads ne ungues executor or administrator, or a release to himself, and it is found against him, the judgment is that the plaintiff recover both debt and costs; in the first place, de bonis testatoris (or intestatis), si, etc.; and next, si non, etc., de bonis propriis. If the defendant pleads plene administramt, and is not proved to have assets in his hands, the plaintiff may confess the plea and have judgment immediately of assets quando acciderint, or, as it is sometimes called, judgment of assets infuturo, which may be either an interlocutory or a final judgment; if inter- locutory, there must be writ of inquiry, or other proceeding to complete it. But if the plaintiff take issue on the general or special plea of plene administravit, and it be proved against him, he cannot have judgment of assets quando. By taking judgment of assets quando, the plaintiff admits that the defendant has § 369] TUE PAr^IEXT OF DEBTS AT COMMON LAW. 321 fully administered to that time; and since the judgment is to recover of the goods of the testator which shall thereafter come to the hands of the executor, proof of the executor's receiving assets is always, at the trial in debt or scire facias, confined to a period subsequent to the judgment, or, more accurately, per- haps, to a period subsequent to the issue of the writ. § 369. Effect of Admissions and Promises by Executors or Ad- ministrators. — Admissions or promises made by executors or administrators may be offered either to bind the estate, or to bind the personal representative himself in his individual capacity. ^Vhen offered to bind the estate, they can only have that effect when made by the personal representative in his official capacity in the performance of a duty to which the admission or promise is pertinent, so as to constitute part of the res gestos. Under the common-law system of pajdng debts, which we are now considering, the personal representative deals with each creditor of the deceased directly, and promises so made by him may well be considered as made in the line of his duty and therefore binding on the estate. Thus it is held that the promise by an executor to pay what without such promise is an equi- table obligation converts it into a legal obligation, enforceable at law; and that the admission of a former administrator of payments made to him are properly admissible. It must be noted, however, that under the prevailing Amer- ican system of paying debts of the deceased, to be discussed in subsequent chapters, the personal representative does not usu- ally allow claims, which are established in judicial proceedings, and pays them only under order of probate court. Under such a S3'stem it would not seem in the line of the duty of the personal representative to make admissions (at least extra- judicially) as to the debts of the deceased, and their admission in evidence is doubted or negatived. "This," says Buck, J., alluding to the statutory jurisdiction of probate courts in the matter of allowing claims, " has changed the rule under the old probate system, where the whole matter of allowing and paying claims against an estate rested with the personal representative, and where, if he did not pay, the remedy of the creditor was to sue him, and where, after he be- 322 THE LAW OF DECEDENTS' ESTATES. [§ 370 came clothed with the trust, and made admissions in the ex- ecution thereof, they were admissible against the estate." ^ But such an admission or promise may be used as the basis of a proceeding, not against the estate, but against the personal representative individually. Widow and child, administering the estate, are apt to make promises to creditors. Clearly a promise to pay out of the assets, or an acknowledgment of the justice of the claim does not create a personal liability. The liability of an executor or administrator arising out of his own promise to pay the debt of the decedent may, if supported by a sufficient consideration, or if otherwise valid, be enforced against him personally. The surrender of a note made by the intestate, forbearance for a certain or reasonable time to the prejudice of the creditor, the possession of assets, and, a fortiori, any services rendered for or goods furnished to the executor at his request, have been held sufficient to support the promise, and make him liable personally. But if made when there are no assets, no other consideration moving to the personal representative, it is void like any other nudum pactum. Even when resting on valid consideration, the promise, if verbal, cannot generally be enforced, since it is an agreement which must be in ^^Titing under the Statute of Frauds. It must not be understood, however, that the personal lia- bility of the executor or administrator in any such case oper- ates of itself as a discharge or exoneration of the estate from such debt. As bet«^een the administrator and the estate, the debt is still owing; and if the latter properly pay it, he may re- cover the amount paid from the estate. § 370. Enforcing Judgments de bonis testatoris at Common Law. — Judgment against an executor or administrator may be enforced in two ways: first, hy fieri facias, or scire fieri in- quiry; next, by an action of debt suggesting devastavit. If the sheriff returns not only nulla bona, but also devastavit, to a fieri facias de bonis testatoris, the plaintiff may sue out execu- tion by capias ad satisfaciendum, or fieri facias de bonis propriis. If he return nulla bona generally, the ancient course was to issue a special WTit to the sheriff, to inquire by a jury whether de- fendant had wasted the goods of deceased, and, if devastavit » Johnson v. Hoff, 63 Minn. 296, 300. § 371] THE PAYMENT OF DEBTS AT COMMON LAW. 323 were found, a scire facias issued to show cause why the plaintiff should not have execution de bonis propriisj later, however, the inquiry and scire facias were made out in one writ, called a scire fieri inquiry. Upon a judgment quando acciderint the plaintiff cannot have execution until some assets come into the hands of the defend- ant, when he may bring an action of debt. § 371. Liability of Executors and Administrators in Equity. — Prior to the introduction in England of our American system, the usual course for avoidance of the intricacies of the common-law system indicated in the preceding sections was for one or more creditors to file a bill for himself or themselves and all other creditors who should come in under the decree for an account of the assets and a settlement of the estate; or, if assets are admitted, and the debt admitted or proved, to make an im- mediate decree for payment. Upon admission of assets, the court will immediately order the executor or administrator to pay so much as he admits having in his hands into court. The general rule is, that an admission of assets by an executor or administrator can never be retracted in a court of equity, unless a case of mistake be most clearly established; and if the allegation in the creditors' bill to this effect be sustained, the plaintiff will be entitled to a decree for pajinent at once.^ 1 For much fuller discussion of the old system, see Woemer on Ad- ministration, Chapter XL. )24 THE L-V^Y OF DECEDENTS' ESTATES. [§ 372 PART III. OF THE SYSTEM OF PAYING DEBTS OF DECEASED PERSONS UNDER AMERICAN STATUTES. § 372. Contrast between Common Law and American System. — It appears from the foregoing brief sketch of the common law appHcable to the payment of debts of deceased persons, that executors and administrators are thereby burdened with a grave responsibiUty, calHng for close watchfulness and the exercise of enlightened judgment upon nice and often doubtful points arising upon demands or suits by creditors. A mistake as to the proper plea to be made, or the line of defence to be adopted, or whether defence ought to be made at all, may be fraught with mischievous results not only in the shape of costs and counsel fees, but entailing personal liability, even, though there be no assets, or assets not sufficient to meet the judgment rendered. It has also been remarked, that the highly artificial and per- plexing system of the common law has been supplanted in most States by statutory regulations, promoting by their simplicity and directness the safe, speedy, and inexpensive settlement of estates, particularly in the matter of pa^-ing debts. The power conferred upon probate courts, in most States, to apportion among creditors the assets of the estate, after a sufficient period has elapsed to enable them to establish their claims, and barring them from further proceeding against the executor or administrator subsequently thereto, simply and efficiently se- cures creditors, heirs and distributees, and executors and ad- ministrators in their rights, doing away with the abstruse theory of pleading, and enabling the several issues that may arise in respect of the liability of the deceased, as well as of that of the personal representative, to be tried separately. Persons of ordinary intelligence and business capacity will generally find but little difficulty in complying with the duties imposed § 373] PAYING DEBTS OF DECEASED PERSONS. 325 by law upon executors and administrators; and if confronted with questions which they are not able readily to decide, touch- ing the rights of creditors, or the course of their ow^l duty, they should avail themselves of professional advice, at once to pro- ject themselves and their bondsmen, and to secure the rights of creditors and distributees according to law. § 373. Notice to Creditors of the Grant of Letters. — As the first step toward the satisfaction of the claims against the estate of a deceased person, the statute requires, in nearly, if not quite, all of the States, the publication of notice of the grant of letters testamentary to the executor, or of administration to the ad- ministrator. The period within which the publication must be commenced ranges from ten days to four months. The purpose of this notice is to enable creditors to present their demands to the administrator or court, as the case may be. The contents of this notice, and the method and proof of its publication are governed by the statutes, which must be examined in each State.^ The omission to publish the notice to creditors is attended by serious consequences. In most of the States, though the general Statute of Limitations is not affected, the special bar by limitation in favor of executors and administrators cannot be pleaded by them, when they have failed to publish this notice. * See Woerner on Administration, § 385. 326 THE UiW OF DECEDENTS' ESTATES. [§§ 374, 375 CHAPTER XLI. OF THE EXHIBITION OF CLAMS TO, AND THEIR ALLOW.^NCE BY, THE EXECUTOR OR ADMINISTRATOR. § 374. Creditors required to exhibit Claims. — If tlie executor's or administrator's notice has been duly published, creditors are required to exhibit their claims against the estate to the executor or administrator within the time specified in the notice, or fixed by law, before they can proceed by action. One of the purposes of this requirement is to enable the administrator to adjust the claim without the expense of compulsory proceed- ing in court; hence, creditors bringing suit before exliibiting their claim to the administrator, or making demand for pay- ment, are liable for the cost of such proceeding. In some States, the plaintiff will be nonsuited, or his action dismissed, if no notice of the claim had been given to, or demand made of the administrator, but even in such States there are rulings vdiich hold that the statute does not apply to cases where the administrator cannot comply with the demand, but an order or judgment of the court is necessary; for it is obvious that in all such cases the exliibition would be but an idle ceremony. A demand for unliquidated damages would be an illustration. The respective statutes and rulings thereunder must be con- sulted on this point.^ § 376. What constitutes a Sufficient Exhibition. — A literal compliance with the terms of the statute is the only course to seciu-e absolute safety to the creditor, and to relieve the admin- istrator from the perplexing doubt, and even personal hazard, which may arise if the sufficiency of the exhibition is not clearly apparent. For however liberally disposed he may be to waive technical defences and to deal with creditors on the basis of substantial justice, he stands as the representative of all cred- itors as well as of heirs, legatees, and distributees, whose tech- nical rights he is not at liberty to disregard. ^ See Woemer on Administration, § 386. § 375] EXHIBITION OF CLAIMS TO THE EXECUTOR. 327 The utmost strictness is essential where the time of the ex- hibition of the creditor's claim affects its priority over others. It is obvious that the administrator can exercise no discretion in such case, and that the sufficiency of the exliibition can be tested by the statute alone, because whatever indulgence is extended to a creditor who has not strictly complied with the statutory requirements may — in insolvent estates must — result to the injury of others, who have conformed to the law. The rulings in the different States vary very much as to the strictness with which the statute on the subject is interpreted. In some States it is held that knowledge on the part of the ad- ministrator of the existence of the claim is sufficient to prevent the bar of the statute, and no written notice is necessary. The direct contrary is held in other States. The revival of an action, abated by the death of the defend- ant, against his executor or administrator, is equivalent to the exliibition of the demand as of the day when notice of the re- vival or summons is served upon him; it has been so held even without statutory provision to that effect. Institution of suit against an administrator for a debt incurred by the deceased, although plaintiff suffer a non-suit therein, has been held suffi- cient as an exliibition with a view to fix the class of the claim. In other States it is held that notice cannot be based on a voluntary non-suit. Indeed, the strict construction view has been pressed so far as to find no excuse for failm-e to give for- mal notice in the fact that the administrator was fully aware of the claim, and intentionally misled the creditor, ignorant of his duties, as to the legal requirement for its presentation.^ The subject of this notice by the creditor cannot be gener- alized. Each case must be examined under the authorities of the State in question.^ Where the same person administers on the estate of the debtor as well as of the creditor, it is not necessary that a claim be presented to the administrator in one capacity to himself in the other. The presentation to one of several executors or adminis- trators seems to be sufficient to satisfy the law requiring exhi- 1 Spaulding v. Suss, 4 Mo. App. 541. 2 For many statutory details, see Woemer on Administration, § 387. 328 THE LAW OF DECEDENTS' ESTATES. [§§370,377 bition or notice of the claim before suit can be brought thereon; but this exliibition must not be confounded with the summons or notice necessary to procure the allowance, or to commence an action on the claim, which will be considered later on, in con- nection with the subject of establishing claims against estates. § 376. Time for the Exhibition of Claims. — The time within which claims must be exhibited to the administrator begins to run from the date of publication of the notice to creditors, or from the date of the order requiring such publication, ex- cluding the day of the first publication or order, or from the last day of publication; but may be exliibited before, or without, such notice. Where the cause of action arises after the death of the debtor, the time is computed, generally, from its matur- ity. In some States a saving is also provided in favor of parties who could not be reached by the publication on account of ab- sence from the State. Provision is made, in some of the States, requiring the ad- ministrator to notify all persons holding claims against the decedent to file their claims at a given time with the administra- tor, or commissioners appointed for that purpose, or the probate court. In most of these States, the court may extend the time so limited, not exceeding, usually, eighteen months or two years. In a few of them, the time may, for good cause shown, be ex- tended beyond two years. The exliibition of claims, to bring them to the notice of ex- ecutors and administrators, is to be distinguished from that notice to them the ser\dce of which performs the office of a summons, making them defendants in a proceeding to establish the claim, requiring their attendance in court, or before some tribunal ha\'ing jurisdiction for that purpose. The nature of the notice required in the latter view will be discussed in treat- ing of the establishing of claims. § 377. Affidavit of Creditors Necessary. — In all but two or three of the States the claimant must aver, under oath, that the amount claimed against the estate is justly due, that no pay- ments have been made thereon, and that no set-offs exist against the same except as stated, before the claim can be allowed. If the claim is held by assignment after the death of the debtor, the affidavit must be made by both the assignor and § 378] EXHIBITIOX OF CLADIS TO THE EXECUTOR. 329 assignee. If required in a proceeding before a court, it need not be in wTiting, but may be made ore teniis, or by the claimant as a witness. An affidavit made during the lifetime of a decedent will not authorize the allowance of a claim, since it might have been true when made and not true at the death of the decedent.^ § 378. Allowance or Rejection of Claims by the Administrator. — In many of the States, the administrator, being satisfied of the justice of a claim by his owti knowledge, or by the affidavit of the claimant, or such evidence as he may deem sufficient, may allow the same without formal judgment or proceeding in court. In a number of States, the approval of the probate court is necessary, in addition to that of the administrator, before it is payable out of the estate; in most of them, however, there must be the judgment of some court of ordinary jiu-isdiction, or of the probate court, before payment of a claim can be compelled. The previous exhibition to the administrator is, as already shown, a prerequisite to such judgment. In those States where the administrator has power to allow the claim of his own motion, if he does not deem the claim a just one, or if some person having a legal right to do so objects to its allowance, or if, for any reason, he is unwilling to allow the claim, he should reject it, and remit the claimant to his action at law, or other proceeding allowed by statute, to estab- lish it, and the claimant must then bring his action upon the claim as it was when rejected by the administrator. If the administrator neither allow nor reject the claim exliib- ited to him, it is to be deemed rejected. The rejection by one of several administrators is sufficient to authorize a suit upon the claim. ^ For further details, see Woemer on Administration, § 390. THE LAW OF DECEDENTS' ESTATES. [§ 379 CHAPTER XLIL OF ESTABLISHING CL.UMS AGAINST THE ESTATES OF DECEASED PERSONS. § 379. When Claims may be established in Probate Court. — Having exliibited his claim to the executor or administrator, and failed to obtain satisfaction thereof, either because there is no authority under the statute for him to make the allowance, or because, where he has such authority, he is not satisfied of the justice of the claim, the creditor's next step is to establish it in some court of competent jurisdiction as a valid demand jigainst the estate. The procedure under American statutes differs in this respect from the common-law method of obtain- ing judgments or decrees against executors or administrators chiefly in the nature of the judgment rendered, which, if in favor of the claimant, is always against the personal represen- tSLtive in his representative character, simply fixing the amount of the demand without reference to the question of assets, and determining its class of priority; leaving the question of liabil- ity between the creditor and the administrator in his personal character to be determined by a later proceeding. "It is one thing to obtain an allowance and another thing to obtain a direction for the payment of the claim," pithily says Chief Justice Elliott, of the Supreme Coiu-t of Indiana.^ The procedure in America is still further simplified by vesting the probate coiu-ts ^^•ith power to hear and determine all claims against the estates of deceased persons in a summary manner, without the formality of technical pleading, yet seciu-ing to litigants the full benefit of trial before courts of higher dignity by providing for appeals to courts of plenary jurisdiction and a trial there de novo. By these means the common-law right of preferring one cred- itor of the same class over another; the right of retainer for the administrator's o^m debt; the artificial system of pleading the existence of a debt of superior dignity in bar of an inferior 1 Fickle V. Snepp, 97 Ind. 289, 293. § 3S0] CLAIMS AGAINST ESTATES OF DECEASED PERSONS. 331 one, or i^lene administravit, or rieji ultra in case of insufficiency of assets; the marshalling of assets or secmities by courts of equity; the technical distinction between pleas admitting or denying assets, between judgments de bonis propriis and de bonis intestatis or testatoris, and judgments quando acciderint, as well as the complicated formalities of enforcing judgments against executors and administrators, are swept away. The rights of creditors are thus secured; and executors and admin- istrators relieved of all responsibility except faithfully to present any defence which thej^ may be aware of, on the trial. In most States probate courts have power to try creditors' claims, but not in all.^ § 380. What Actions and Defences are Triable in Probate Courts. — It appears from the discussion of the method of procedure in probate courts, that while they possess no original chancery powers, yet wdthin the scope of the jurisdiction conferred upon them their powers are not confined to either legal or equitable rules, but are to be measured by the statutory grant alone. It may be observed here, that the spirit of the administration law is foreign to the remedy by attachment against an executor or administi-ator for the debt of a deceased person; it is accord- ingly held that attachment will not lie against the assets of an estate for the decedent's debt; nor a summary proceeding to recover rent by distress, nor the summary proceeding by exe- cution to enforce the personal liability of a stockholder in an insolvent corporation. But the power to try claims against the estates of deceased persons includes all actions upon which a money judgment can be rendered, whether growing out of contract or tort, whether legal or equitable in their nature. Thus any action for a wTong to the property rights or interests of another, a false return by the sheriff, conversion of a slave, or of a trust fund, or for the breach of a bond with collateral conditions, is triable against the estate of a deceased person in the probate court. A court of equity will not, therefore, assume jurisdiction of a claim against an estate until it has been shown that the probate court cannot afford the requisite relief. Since, as Ave have seen, judgments of probate courts are not ^ For lists of such States, see Woemer on Administration, § 391. 332 THE LAW OF DECEDENTS' ESTATES. [§§ 3S1, 3S2 collaterally assailable, the allowance of a claim by that court is conclusive and entitles to the same effect as the judgment of any other court. § 381. Claiins against Estates of Deceased Married Women. — The competency of probate courts to enforce liabilities against the estates of deceased married women follows, without special statutory authorization to that end, in all States in which the acts of a feme covert, with reference to her equitable property, are held to bind her personally. Viewed as a personal obligation of the deceased for which her general estate is liable, whether enforceable in legal or equi- table form of action, it is a proper subject for allowance in pro- bate courts. Such is believed to be the law in most of the States. But apart from statutes, a married woman can make no contract at common law. The person who has a claun against a married woman under what would have been a contract if made with one sui juris, has liis only remedy m ec{uity, so far as the married v>'oman has separate estate, in enforcmg a charge, in the nature of a lien, against such separate estate. Where the statute has not modified tliis law, upon her death, the ques- tion arises whether her equitable estate can be made liable to creditors without the intervention of equity. On principle, there seems to be no difficulty in subjecting such property to the control of the probate coiu't; the reason requiring the interposi- tion of equity courts during the existence of the covertm'e is no longer operative, since the probate court proceeds according to equity as well as law. But the authorities diverge; it is held in some States that the jurisdiction of probate courts is peculiarly adapted to deal with just such cases, while in others their organization is held inadequate to reach them. § 382. Claims not matured. — In accordance with the pol- icy of speedy settlements of the estates of deceased persons, aimed at in most of the statutory provisions of the American States, most of them require debts payable, according to the contract entered into by the deceased, at a future time, to be presented to the administrator and adjusted before their ma- tm-ity. To be proved and allowed as subsisting claims, they must constitute absolute debts running to certain matmity, such as promissory notes, and the like. § 3S3] CLAHIS AGAINST ESTATES OF DECEASED PERSONS. 333 The terms upon which judgment is rendered on such claims are, usually, that they be allowed for their value at the time of rendering judgment, Or upon rebating interest from the date of the judgment to the date of maturity; or the parties may agree either to rebate such interest or let the judgment take effect upon the maturity of the debt; or, if the rebate be not accepted, the court may take bond from the heirs to pay the debt v»^hen due.^ § 383. Contingent Claims. — Claims not absolute or certain, but depending upon some event after the debtor's death, which may or may not happen, are not enforceable against executors or administrators after they have fully administered, without notice that such claim has become absolute. Such claims may generally be enforced against distributees and legatees to the extent of the property received by them from the estate, either in equity or at law, and the subject will be treated elsewhere.^ But if such claims become absolute, by the happening of the event upon which they depend, before the executor or adminis- trator has fully administered, they may be presented for allow- ance, and enforced like other debts of the decedent. The law in most States is, that the Statute of Non-claim, or Special Limitation, begins to run from the happening of the event which fixes the decedent's liability; if the debt is not established against the estate within such time, it will be forever barred. In a number of States the statute authorizes or requires the presentation of contingent claims before they have become ab- solute, to the administrator, and the court may, if sufficient cause appear, direct the retention of a sufficient sura in the hands of the administrator to pay such claim, either in full, if the assets are sufficient, or according to its pro rata share, with the proviso in some of them that the contingency shall happen in a reasonable time. Provision is also made, in some States, enabling the distributees to expedite the settlement of an estate by giving bond for the pa^Tnent of an inchoate or contingent debt, thus relie\dng the administrator from further responsi- bility on account thereof; and in others, contingent claims ac- cruing after the time fixed for the presentation of debts against 1 For illustrations as to this section, see Woemer on Administration, §393. « See post, §§ 578-581. 334 THE LAW OF DECEDENTS' ESTATES. [§§384,385 the estate may be satisfied out of assets subsequently received by the administrator; which, however, imposes no obHgation upon him to p^o^•ide for tlieir paivment if not exliibited to him before completing the administration." § 384. Claims of Executors and Administrators. — The com- mon-lavr rule allowing executors and administrators to retain for their own debts in preference to other creditors of equal de- gree, is repudiated, it is beheved, in all the States. In some it is modified only to the extent of requiring them to retain an amount proportioned to what other creditors in the same class may receive. In others they cannot retain ^^^thout making proof of the validity of their demand before the court, while in still others, if they wish to enforce a claim against the estate in their charge, it must be exhibited to a co-executor or co-ad- ministrator, and if there be none, to the coiu-t having jm-isdic- tion, with the affida\'it required of other creditors, in which latter case it becomes the duty of the judge to appoint some discreet person to act as administrator ad litem of the estate and manage the defence.^ § 385. Claims of Relatives. — Ordinarily acceptance of services or goods raises a presumption of a promise to pay by the re- cipient which is technically essential to recovery. But when claims are made against the estate of deceased persons by their children, parents, brothers, sisters, or other relatives or mem- bers of the family, it is, to say the least, possible that the ser- vice was rendered or the property given gratuitously. Indeed some cases hold that when such relation is shown there is a presumption to that effect. At all events the claim cannot rest upon the implied promise without some evidence on which to base it. The true rule seems to be, and it is so held in most of the States in which this question has been decided, that there may be a recovery upon an implied contract, if the evidence shows the services to have been rendered, or the goods, board- ing, etc., to have been furnished upon the mutual understanding by the parties that compensation should be made by the party receiving the services, boarding, etc. Wliile the mere expecta- tion of compensation on the part of one rendering services, in > See Woemer on Administration, § 394. ' See Woemer on Administration, § 395. § 3S6] CLAIMS AGAINST ESTATES OF DECEASED PERSONS. 335 the absence of a corresponding intention to make the compensa- tion expected on the part of the recipient of them, either ex- pressed or inferable from his statements or conduct, does not constitute a contract, and cannot be enforced, yet there may be a contract without a direct promise to pay. It is sufficient to bind the party receiving the services, if he induces them by any statement or conduct reasonably indicating such intention. But the evidence in all such cases should be clear, distinct, and positive. Statutes providing that in an action brought on a note or other instrument in writing, its execution and signature are to be deemed admitted unless denied under oath, have no ap- plication where the party alleged to have signed the instrument has since died; proof of its genuineness must be made. So also where the signature is by mark. § 386. Notice to the Administrator of Claims to be established. — The distinction must be kept in sight between the exliibition of claims to the executor or admmistrator, and the notice to him of the creditor's intention to establish them as valid de- mands in the shape of a judgment or allov/ance by the court or other tribunal having power to that effect. The former, as already pointed out, performs the office of bringing the existence of the claim to the notice of the personal representative, so that he may have an opportunity^ of satisfjying himself of its validit}'. and acting accordingly, or in some States, of fixing the class of the claim in so far as this may depend upon the time of presen- tation; while the latter is equivalent to the service of process upon a defendant, so as to subject the executor or administra- tor to the jurisdiction of the court or other tribunal, and give validity to the judgment or allowance that may follow. With- out such notice a judgment or allowance against the estate is therefore void. The original presentation to the administrator, without the notice that application would be made in court for its allowance, is not sufficient. A claim represented by a judg- ment obtained against the debtor during his lifetime consti- tutes no exception; the same notice must be given as required for other claims. Appearance by the administrator, although he has not been served with notice, is construed as a waiver, and confers jurisdiction on the court. 33G THE LAW OF DECEDENTS' ESTATES. [§ 387 The notice need not be couched in artificial or technical terms; but will be sufficient if it convey to the administrator the information that the claimant demands allowance for the cause-of action, which he must set forth with sufficient certainty; and if on a running account, he must attach a detailed copy of the account. § 387. Set-ofEs in Probate Courts. — Tlie affidavit required of creditors before their claims can be entertained in the probate coiu't compels them to disclose the existence of any set-off or coiuiter-claim, and the amount for which they can obtiiin al- lowance is limited to the difference between the amount claimed and any simi in which they may be indebted to the estate. Hence the judgment can be for the difference only, if there had been mutual dealings between the creditor and the decedent; and this whether the estate is solvent or insolvent, whether the debts are payable simultaneously, or the one in yrasenti and the other in futuro, or whether there be other claims superior in dignity thereby affected or not; even if the debt to the estate would not have been the proper subject of set-off during the lifetime of the parties. Administrators, therefore, should, although not bound by law to do so in all the States, exliibit or plead in set-off any debt or liability of the claimant to the de- ceased against a claim presented for allowance against the estate. Contingent liabilities cannot, of course, be allowed in set-off. But the defendant in a suit by an administrator upon an in- debtedness accrued after the grant of letters cannot be allowed to set off a claim which he may have against the deceased ; be- cause to do so would give him an undue advantage over other creditors, if the estate should prove insolvent. The administrator may, however, permit the pro rata divi- dend coming to a creditor to be set off against the amount due from him for property of the estate sold by the administrator; and, a fortiori, the debtor, in an action by the administrator for a debt due his intestate, may file in set-off a demand for money paid by him to defray the funeral expenses of the deceased. The same reason which makes the debt of the deceased an im- proper set-off to the demands of the administrator, growing out of transactions subsequent to the grant of letters, also holds good against a set-off based upon a cause of action against the § 3SS] CLAIMS AGAINST ESTATES OF DECEASED PERSONS. 337 decedent acquired after his death. While it is clear that an administrator cannot, to the detriment of creditors or heirs, discharge a debt due the estate by a cancellation of his individual liability to the debtor, yet it may be allowable as an equitable set-off where only the rights of the administrator will be affected, and justice be done between the parties. Whether a claim barred by the Statute of Non-claim can be set off to an action by the administrator for a debt due the deceased, is affirmed in some, denied in other States.^ § 388. Claimants as Witnesses. — The common-law disability of parties to testify in their own behalf ha\'ing been removed by legislation in England and America, it became necessary to except from the operation of the enabling statutes all cases in which one of the parties had died, become insane, or was for any reason legally disabled from testifying. The object of these exceptions is, in the language of Judge Sherwood, "to guard against false testimony by the survivor; and in order to do this [the statute] establishes a rule of mutuahty by which, when the lips of one contracting party are closed by death, the lips of the other are closed by the law." ^ All questions arising in connection with the competency of a party to testify should, therefore, be solved in full recognition of the purpose of the enabling statute on the one hand, which is to increase the sources of light by which to discover the truth of the respective allega- tions, — not to diminish them by disabling any one from testi- fying who was competent before, — and of the object of the exception on the other, which is to avoid the injustice that might follow the admission of testimony in his own behalf of one whose adversary in the proceeding can neither contradict, correct, nor explain it if false or erroneous, nor himself testify to countervailing facts. While the spirit of the rule is as stated above, it must be re- membered that in each case there is a statute to construe, and that these statutes vary not only in phraseology, but in positive provisions.' * See Woemer on Administration, § 398. 2 Williams v. Edwards, 94 Mo. 447, 452. ' For fuller discussion of the subject-matter of this section, see Woemer on Administration, § 398. 338 THE LAW OF DECEDENTS' ESTATES. [§§ 389,390 CHAPTER XLIII. OF THE TDIE WITHIN WHICH CL.\DIS MUST BE ESTABLISHED. § 389. Time of establishing Claims with Reference to their Re- jection by the Administrator. — In \'arious States statutory pro- visions are made as to the time when actions for estabUshing creditors' claims must be brought with reference to the time of their exhibition to the personal representative. In a number of States the action must be brought within a certain time after exhibition, fixed by the respective statutes, var^-ing from sixty days to nine months. In another set of States, on the other hand, actions are not authorized until after the expiration of a certain period, deemed necessary to give executors and admin- istrators sufficient time to satisfy themselves of the justice of the claim, and of the solvency or insolvency of the estate, so as to enable them to avoid unnecessary litigation and expense. In many States there is no statutory provision on this subject, and the Statute of Non-claim, to be next discussed, need alone be consulted.^ § 390. Special Limitation of Time to establish Claims against Estates. — In furtherance of the policy, emphasized in the American States, of securing the earliest possible settlement of the estates of deceased persons compatible with the just rights of creditors, in addition to the preference given to diligent cred- itors in some of the States, special laws of limitation are enacted in most of them applicable to demands against the estates of deceased persons, known generally as statutes of non-claim, or of short or special limitation. These limitations exist independ- ent of and collateral to the general law of limitation affecting alike the right of action against living persons and the represent- atives of those deceased. According to these statutes, all claims against deceased persons must not only be exhibited to their executors or administrators, but also enforced against 1 See Woemer, § 399. § 391] TIME WHICH CLAIMS MUST BE ESTABLISHED. 339 them, by institution of legal proceedings, or reduced to judg- ments or allowances against the estate within a certain period, varying in duration from four months to several years, in de- fault of which they are forever barred. In some of the States discretion is vested in the probate court to extend the time within which claims may be proved beyond the period limited by the statute. It is as much the duty of executors and administrators to insist on this defence as any other; hence it is held that they incur a personal liability to any one who may be injuriously affected thereby, if they fail to plead or invoke this special bar whenever it is applicable; the administrator cannot waive the statute. The failure of the administrator to publish the notice to creditors of his appointment, as required by statute, is gen- erally fatal to the interposition of this plea. The Statute of Non-claim, or Special Limitation, is not to be construed together with, or as attached to, the general Statute of Limitations, but independently. Hence generally, either of the statutes, if it has run its course, although the other has not, may be relied on as a bar. But it is otherwise in some States, where it is enacted by statute or held, that if the general Statute of Limitations has not run its course at the time of the debtor's death, the creditor may bring his action at any time within a certain period from the grant of letters, or after the debtor's death, or (as in Arkansas) at any time within the period cov- ered by the Statute of Non-claim, although the general statute may meanwhile have completed its course.^ § 391. Application of the General Statute of Limitations to Ex- ecutors and Administrators. — The rule requiring executors and administrators to invoke the bar of the Statute of Non-claim whenever it is applicable, is not so imperative in respect of the general Statute of Limitations, of which Lord Hardwicke said that no executor was compellable, either at law or in equity, to take advantage against a demand otherwise well founded.^ This remark is relied on in several American States as a correct statement of the law, and the principle is generally recognized in the absence of statutory regulation of the subject. But in a 1 See Woemer on Administration, § 400. 2 Norton v. Frecker, 1 Atk. 524, 526. 340 THE LAW OF DECEDENTS' ESTATES. [§392 number of States, generally by statutory provision, the executor or administrator is bound to set up the bar of limitation, and where the personal assets in the administrator's hands are in- sufficient to pay the debts, so that it becomes necessary to resort to the real estate for this purpose, he is not allowed, in some States, to waive the bar of the general statute, or the heirs entitled to the real estate may plead it if he does not. A distinc- tion is also made, in some States, whether the general statute has run its course before the appointment of the administrator, in which case he is not allowed credit in his account for the pay- ment of debts so barred, or whether it has only begun to run during the lifetime, and extends, before completing its course, to a period beyond the debtor's death. And as a general prin- ciple, it has been held in some States (though denied in others ^) that during the interval between the debtor's death and the appointment of an administrator to his estate the general stat- ute ought not to run; and so the time before the expiration of which, in some of the States, the bringing of an action against an executor or administrator is inliibited, ought to be added to the time prescribed by the general Statute of Limitation. § 392. Application of the Statute of Non-claim. — The Statute of Non-claim, or of limitation specially to estates of deceased persons, is in most States applied more rigorously than the gen- eral Statute of Limitation; the administrator cannot waive it, and it has been held that the temporary absence of the executor from the State does not interrupt its course. And so where an administrator dies, the time intervening before the appoint- ment of his successor has been held not to interrupt the Statute of Non-claim, because it lies within the power of the creditor to cause the appointment of an administrator de bonis non, or even to serve as such himself. We have seen that in those States where suit is inhibited against the estate for a certain period after the grant of letters, such time is added to the period of general limitation, but this principle should not be applied to extend the time given by the special or non-claim statute. * On the ground that the creditor may compel administration at any time. Baker v. Brown, 18 111. 91. §392] TDIE WHICH CL.\IMS MUST BE ESTABLISHED. 341 WTiatever the effect of promises or admissions made by the personal representative to the creditor may be with regard to the running of the general Statute of Limitations/ they will not be permitted to avail the creditor against the special limitation, or Non-claim Statute (except of course by way of allowance of the claim in States where the personal representa- tive has such power). It is held in some States that the fraud of the administrator in inducing a creditor not to probate his claim until it is barred by the Statute of Non-claim will not exempt such creditor from its operation. The statute runs alike against all persons, under or over age, or whether insane, non-resident, or under other disability of whatever kind, unless it contain some saving clause, as it does with respect to non-residents in several States. In most of the States the saving clause extends to infants, persons of un- sound mind, persons imprisoned, married women, persons in the military or naval service, and the representatives of a cred- itor dying after rejection of his claim, all of whom are allowed a certain period after the removal of their disability, or an in- crease of the time allowed by the statute to establish their claims. But in the absence of a saving clause in favor of the representative of a deceased creditor, there can be no allowance of a claim not presented by him before the expiration of the time limited. It is also to be remembered that the equity jurisdiction of federal courts is independent of that conferred by the States on their o\^ti courts and can be affected only by the legislation of Congress,^ so that, in a proper case, claims may be enforced there which would be barred in the State courts. As between a cestui que trust and his trustee the Statute of Limitation does not usually apply; and where a trustee dies, the trust fund, if traceable in specie, constitutes no part of his estate, and is recoverable from the administrator by the suc- cessor in the trust, or person entitled to the fund, v/ithout any of the formalities prescribed for the establishment of a claim against the deceased; but when such trust fund is confused with the trustee's own property, so that its identity is lost, the 1 See ante, § 369. 2 See ante, § 154. 342 THE LAW OF DECEDENTS' ESTATES. [§ 393 cestui que trust, or new trustee, as the case may be, stands in the position of a general creditor, to whom the Statute of Non- claim applies with equal rigor as against other creditors.^ § 393. Effect of proving Claims after the Primary Period fixed therefor by Statute. — The chief end of the various statutes enumerated in the preceding section — being the speedy settle- ment of estates in the simplest manner — is perhaps most effec- tually accomplished by the division of the administration into two or more periods, determining the priority of demands of creditors. This is reached in the States of Arkansas, Iowa, Kansas, INIissouri, and Texas by assigning to the claims proved in the later periods an inferior class. In other States the same result is secured by fixing a certain time when the administrator is authorized to pay the debts which have been proved, or of which he has received legal notice, such paj-ments constituting a defence against the claims of creditors appearing subsequently. In yet other States creditors may prove their demands after the expiration of the period of the Statute of Non-claim, but can have satisfaction only out of such assets as were not inven- toried, or known to the administrator before, but were first discovered after such time. It is obviously necessary that a time be fixed for the payment of debts by executors and administrators. When that time has arri^'ed, the court must by its order determine what creditors, and how much to each one, the administrator is to pay. A compliance by the administrator with such order must be a protection to him against creditors presenting claims subse- quently, no matter for what reason they had not appeared before. Hence the operation of the saving clauses incorporated in the Statutes of Limitations and of Non-claim, and the post- ponement of the Statute of Non-claim in cases of contingent debts are confined to property or assets not liable to creditors whose rights have become fixed by compliance with the legal requirements determining the class and the fund out of which they are to be satisfied. If such claims be proved subsequent to a distribution to heirs or legatees, they may constitute a demand enforceable against them to the extent of the assets 1 For authorities as to the statements of this section, see Woemer on Administration, § 402. § 393] TME WHICH CLAIMS MUST BE ESTABLISHED. 343 received by them; but if they had an opportunity to prove their claims against the executor or administrator, and neglected to do so, the bar is complete, and protects heirs and legatees as well as executors and administrators.^ 1 See on this post, §§ 578-581. 344 THE LAW OF DECEDENTS' ESTATES. [§§ 394, 395 CHAPTER XLIV. OF CLAIMS AGAINST ESTATES SPECIALLY ADMINISTERED AS INSOLVENT. § 394. Special Administration for Insolvency in Some States. — In most States no distinction is made between solvent and in- solvent estates; both are administered in probate court under the same law. But in fourteen States of this country the statute pro\'ides a distinct way for administering insolvent estates, apart from the general law applicable to solvent estates. This system is analogous to the insolvency and assignment law pro- vided for living debtors. It would seem that the modern probate system with its classi- fication of debts, its provisions for their allowance within a certain time and for the payment pro rata of all of the same class, is fully equipped to meet the case of insolvency of the deceased, and renders special legislation on that head superflu- ous. But, on the other hand, it is true that the common-law system would be inadequate for the case of insolvency of the intestate, and that in several States where the modern system is now in force these special insolvency laws were adopted long since, when there was good reason for their enactment, and have kept their place to these days. § 395. How Estates are declared Insolvent. — The declaration of insolvency in these States is made by the court having jurisdiction of the estate, upon suggestion, application, or re- port of the administrator, or by creditors. The estate, as to the method of its settlement, must thereafter be treated as an insolvent estate, even though it may eventually be found in fact to be abundantly solvent, unless provision to the contrary be found in the statute. The declaration of insolvency should be made as soon as it appears that the assets of the estate are insufficient to pay its debts, which the administrator is, as a general rule, bound to know as soon as the time for presenting § 396] CLAIMS AGAINST ESTATES SPECIALLY ADMINISTERED. 345 claims has expired; but if he has paid claims in full before the expiration of such time, he is not thereby precluded from ob- taining a declaration of insolvency. If he neglect to represent the estate insolvent, knowing it to be so if the claim presented to him be allowed, because he relied upon his defence against the validity of the claim, the judgment on such claim will make him liable for the full amount, without regard to the assets in his hands. § 396. Special Administration of Insolvent Estates. — In a few States insolvent estates are settled in chancery; but upon the declaration of insolvency, the statute requires, in most of the States distinguishing solvent from insolvent estates, the ap- pointment of commissioners, whose office it is to receive and adjudicate upon all the claims against the insolvent estate. Commissioners appointed to pass on demands against the es- tates of deceased persons, although they do not constitute a "court" in the constitutional sense, act judicially, and their finding, if not appealed from or rejected by the probate court, is binding upon all parties concerned. Their allowance of a claim has, in such case, the force and effect of a judgment, so that the administrator is bound to pay the amount found by them to be due, although the claim be fraudulent and fictitious. Pro^^sion is generally made for an appeal from the decision of the Commissioners, and for a trial de novo. The commis- sioners are to report their doings to the probate com-t, which may hear exceptions to the report, made either by the admin- istrator or by the creditors, and approve or reject the same. It is the approval by the court which gives the decision of the com- missioners its quality as a judgment, but it has been decided in several States that the probate court has no power to pass upon the validity of claims in insolvent estates, and that in passing upon the report of the commissioners its discretion extends no further than to determine whether the report presented is the judgment of the commissioners; there may therefore be an appeal from the approval or rejection of the entire report, as well as from the decision of the commissioners on any particular claim, which causes of appeal must not be confounded with each other, as they present different issues for trial in the ap- pellate court. 346 THE LAW OF DECEDENTS' ESTATES. [§ 397 The jurisdiction of commissioners of insolvent estates in passing upon the claims presented against them is very much like that of probate courts in passing upon claims generally, and they are governed by the same rules of evidence. § 397. Time within which Claims must be presented against Insolvent Estates. — In most of the States providing for special administration of insolvent estates, the time limited for the presentation of claims to the administrator, court, or commis- sioners of insolvent estates is shorter than the limitation for proving claims against solvent estates. Saving clauses are found in some of the States in favor of persons under disability; and in most of them the court may, for good reason shown, extend the time for a period, the maximum of which is also fixed by statute.^ 1 The subject of this chapter will be found treated in detail in Woemer on Administration, §§ 404-407. §§ 39S, 399] OF CLADIS SECURED BY COLLATERAL. 317 CHAPTER XLV. OF CLADIS SECURED BY COLLATERAL. § 398. Rights of Creditors holding Collateral Security to Assets of Insolvent Estates. — There are two views as to the amount which a creditor who has collateral or security of any kind for his claims can prove up against an insolvent estate. Under the equity rule the practice is to allow the creditor to prove his whole debt, without regard to any collateral security he may hold. If the dividend so reduces the debt that the col- lateral seciu-ity will more than pay it, the personal representa- tive is bound to redeem for the benefit of the general creditors." ^ The effect of this rule gives to the creditor the advantage of a dividend on the full amount of his claim, in addition to the value of any collateral security he may hold, and throws the burden of redeeming the same upon the executor or administrator in case both of these funds exceed the amount of the debt. It has been followed in America in a number of States. Under what is lalo^^^l as the Bankruptcy Rule the creditor is allowed to prove against the general assets only for the dif- ference between the amount of the debt and the value of the security he holds. This view seems to be gaining ground in the United States, as being consonant with principles of justice, and putting the specialty creditors and the general creditors on an equal footing. The subject is regulated by statute in a number of States.^ It is held that a bona fide lien, though not recorded, has priority over the claims of general creditors to the specific property covered by it.^ § 399. Actions to foreclose Collateral Securities. — Actions to foreclose mortgages, or to enforce other collateral securities or 1 1 Story's Eq., § 564 b. 2 See Woemer on Administration, § 408. « Dulaney v. Willis, 95 Va. 606. 348 THE L.\.W OF DECEDENTS' ESTATES. [§ 399 liens, are distinct from the allowance of the debts so secured; and since, generally, probate courts have no jurisdiction of such actions, the limitations and conditions imposed on the parties enforcing the payment of simple debts against executors or administrators are not applicable. The lien may generally be enforced without any action look- ing to allowance of the claim against the general assets. Though the Statute of Non-claim has barred the allowance of the claim against the estate, the lien may be enforced, if not itself barred by the general statute.^ On the other hand, probating the claim does not affect the holder's right to foreclosure. For the same reason, the right to foreclose gives the holder no remedy against the general assets of the estate, and does not give such a claim a preference thereto, and his claim in this respect for any de- ficiency is barred like any other claim, unless he presents the same in proper time. It is also to be observed that in most States proceedings to enforce liens or foreclose on collateral securities are suspended by statute for a certain period after the debtor's death, generally six, nine, or twelve months; to an action for the foreclosiu-e before the expiration of such time, a demurrer is proper and should be sustained. ^1 Cowan V. Mueller, 176 Mo. 192. § 400] THE PAYMENT OF DEBTS WHEN ESTABLISHED. 349 CHAPTER XLVa. OF THE PAYMENT OF DEBTS WHEN ESTABLISHED. § 400. Nature and Effect of the Allowance or Judgment estab- lishing Claims. — It should result from the foregomg discussion of the subject under consideration, that all of the provisions requiring notice to be given to creditors — the exhibition of claims to the executor or administrator, allowance or rejection of the claims either by the personal representative or tribmial provided for that purpose, and the judgments rendered thereon either by probate courts or com-ts of plenary jurisdiction — accomplish the one purpose of determining authoritatively the liability of the deceased debtor to his creditors. The satis- faction to which the creditors are entitled out of the estate in the hands of the executor or administrator is not thereby ad- judicated, but is determined by a subsequent proceeding, usu- ally taking the form of an order or decree to pay debts. This featm-e constitutes the crowning advantage of the American system of adniinistration over that of the common law, operat- ing so as to simplify greatly the duties of executors and admin- istrators in the matter of paying debts and marshalling the assets for that purpose, and reducing the hazard inseparable from the common-law procedure in a corresponding degree. The determination of the liability of the deceased debtor to his creditor, even where it takes the shape of an allowance or judgment by a court, is not generally enforceable by execution against the decedent's estate or the personal representative, but must be certified to or filed in the probate court for classi- fication, resembling, in this respect, the judgment de bonis intestatis, or de bonis testatoris, at common law, but in no manner involving any question of assets, which is determinable in the probate court by an independent proceeding. Jurisdiction to order the payment of chims established, after ascertaining the amount of assets in the hands of the administrator, and mar- 350 THE LAW OF DECEDENTS' ESTATES. [§ 401 shalling them according to the dignity of the debts estabhshed, is vested in the probate courts in ahnost all States. In some States the statutes provide that execution may issue on judgments recovered, notwithstanding the debtor's death; but the construction given them by the courts tends to limit the effect to be given these statutes, as being opposed to the spirit of the administration law. V\liere the judgment rendered in the lifetime of the deceased constituted a lien on specific property (as it does with reference to realty under the Statutes of many States) such lien can be enforced, in some States, without resort to probate court, as in the case of liens generally, heretofore mentioned. § 401. The Order or Decree to pay Debts. — When the time for proving or exhibiting debts has expired, or when, in those States in which classification is determined by the time of pres- entation, the time for proving the preferred class has expired, it is the duty of the executor or administrator to lay before the court a complete statement of the condition of the estate, show- ing what assets are in his hands, and what funds inmaediately available for the payment of debts; also the amount of debts proved against the estate, or admitted; what claims, if any, have been presented and not allowed, or which may be in suit and remain undetermined; and all other matters necessary to enable the court to ascertain the solvency or insolvency of the estate, and determine the amount of the dividend if insolvent. The court will thereupon decree the pajonent of the debts which have been proved, in the order of the classes to which they were assigned, each class to be paid in full before the next inferior class receives anything; and when the assets are suffi- cient to pay a part, but not the whole, of the debts of any one class, the creditors of that class will be payable pro rata. The order or decree of payment so made corresponds, in some measure, to the judgment de bonis propriis at common law; because, having ascertained the amount of assets in the admin- istrator's hands available for the payment of debts, and also the amount to which each creditor is entitled, the court, by its order or decree, renders judgment against the administrator, making him liable personally to the creditor for the specified amount, which is enforceable by execution against him, and § 402] THE PAYMENT OF DEBTS WHEN ESTABLISHED. 351 by suit on the bond of his sureties, and subjecting him thereafter, in most States, to garnishment by a creditor of the creditor whom he is ordered to pay. § 402. Enforcement of the Order or Decree to pay Debts. — It follows from the nature of the order, as already pointed out, that the decree to pay debts, involving a judicial determination of the question of liability of the estate to the creditor, and of the further question that the executor or administrator is in possession of assets to discharge the same, must be enforceable against the executor or administrator, either by execution against him, or by action against him and the sureties on his bond. Cumulative summary remedies are given the creditor by the Statutes of some States, such as a proceeding by scire facias in the probate court against the sureties on the bond after a return of nulla bona against the personal representative, in addition to the ordinary suit on the bond in another court. In a pro- ceeding on the administrator's bond, the order or decree of the court is usually binding upon the sureties, who are not permitted to make any defence against the same which the administrator might have made; but this is held otherwise in some of the States. 403] OF LEGACIES AND DEVISES. 353 TITLE SIX. OF LEGACIES AND DEVISES. § 403. Distinction between Devises and I^egacies. — Next after the payment of debts, the most important function of executors and administrators cum testamento annexo, consists in giving effect to the disposition made by testators concerning their p^ope^t3^ These dispositions are, in technical language, known as devises, and the persons in whose favor they are made as devisees, if the subject of the gifts is real estate; while the gift of personal property by will is called a legacy or bequest, and the donee thereof is known as a legatee, or legatary. But in construing wills an incorrect use of these terms ^dll be disre- garded to meet the testator's intention. 354 THE LAW OF DECEDENTS* ESTATES. [§ 404 PART I. OF ASCERTAINING THE MEANING OF WILLS. CHAPTER XLVI. OF THE GENERAL RULES APPLIED IN EXPOUNDING WILLS. § 404. Ascertaining the Testator's Intention. — A last will or testament is the expression, in such form as may be prescribed by law, of the testator's intention, in respect of his property, to be carried into effect after his death. Hence to ascertain this intention is the first duty of executors and courts whose office it is to carry the will into effect. If its provisions are clearly apparent, no recourse to technical rules is necessary, nor, in- deed, permissible, to establish its contents. The testator's in- tention must be gathered from the language employed in the instrument, and from that alone. An eminent authority'' on testamentary law declares that "the question in expounding a will is not what the testator meant, but what is the meaning of his words." ^ It is therefore a cardinal principle in expounding wills, that the intention of the testator must be found in his expressed words. The grammatical and ordinary popular sense of the words should be adhered to, unless it would lead to some absurdity-, or repugnance, or inconsistency \\ith the rest of the instrument. If, in so considering the language of the testator, an intelligible intention may be elicited therefrom, neither tech- nical informality, nor grammatical or orthographical errors, nor confusion in the arrangement of words arising from unskil- fulness, can be permitted to defeat it. Of course, the words which the testator employed should be taken in the sense in which he understood them; hence, although technical words * Williams Executors [1078]. § 405] RULES APPLIED IN EXPOUNDING WILLS. 355 are not necessary to give effect to a testamentary disposition, and will, if used, be controlled by the plain intent of the tes- tator, yet his words and phrases are to be taken, prima facie, in their technical sense, and receive that construction which a long series of decisions has attached to them, unless it is clear that they were used in a different sense. The ambiguity of human speech, however, is such as to make it necessary, in many cases, to resort to rules of interpretation, or of construction, to discover the meaning of written instru- ments; and in no class of instruments does this necessity occur so often as in that of wills, the language of which has been ex- empted from all technical restraint. The adoption of rules by which particular words and expres- sions, standing unexplained, have obtained a definite meaning, and the maturity which the sj'stem of construction has attained, has led to the satisfactory result of considerable certainty in the expounding of wills. § 405. Rule requiring the Several Parts of a Will to be construed together. — It is highly important to bear in mind that the entire will must be construed together, its several parts with reference to each other, so as to form, if possible, one consistent whole, giving effect to every part of the instrument, including the cod- icil or codicils, if there be any. But as between two absolutely conflicting provisions the latter prevails. This rule, however, is only invoked as a last resort where it is impossible to make apparently conflicting provisions consistent under any other rule of construction. This may be illustrated by the case of the devise of the same land in different clauses of the will to different persons in fee. Some coiu-ts find here a case of irreconcilable repugnancy, and, under the second rule above stated, give the land to the devisee in the later clause; other decisions, making the whole will ef- fective under the rule first stated, give the land to the devisees in both clauses as tenants in common.^ Where the will admits of two constructions, that is to be preferred which will render it valid; and if the whole will cannot be carried into effect, it is not to be rejected for that reason, but it is to work as far as it can. * Day V. Wallace, 144 111. 256, citing authorities pro and con. 356 THE LAW OF DECEDENTS' ESTATES. [§§ 406, 407 So the apparent injustice, or the inconvenience or absurdity of a devise, if unambiguous, affords no ground for varying the construction; nor the fact that the testator did not foresee the consequences of his disposition ; nor can an express, positive devise be controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will, or by irrelevant or inaccurate recitals; yet recourse may be had to such references, reasons, etc., to assist in construction in case of ambiguity or doubt. The holdings are not wholly in accord as to whether revoked or void clauses can be examined with the view of discovering the testator's intention. § 406. General Intent controlling the Particular Intent. — It is a familiar and very important rule, also, that the general in- tention is to control the particular intention, if there be an ir- reconcilable inconsistency between them. Whero, for instance, the will directs a purpose to be accomplished, and also points out the means by which the result is to be reached, which means turn out to be inadequate to accomplish the end, so that the provisions cannot both be carried into effect, it is evident that the directions pointing out the means must be sacrificed to the accomplishment of the end, if the end can be accomplished by other means; for otherwise the testator's intention is entirely defeated. Thus, where rents and profits of real estate are de\ased for the support of some person, and prove insufficient for such support, the devise of the rents and profits will be construed as a direction to sell or mortgage the real estate, in order to obtain the end intended by the testator.^ And courts will in some cases enlarge, in others cut down the estate, in order to carry out the leading and prominent objects of the testator, as indicated by a view of the entire will and all its various provisions. § 407. Construction of Terms repeated in the Will. — The gen- eral rule requiring the same words occurring in different parts of an instrument to be taken everywhere in the same sense, unless clearly contrary to the testator's intention, docs not ap- ply when the same words refer to different subject-matters. Thus, if a word having a technical meaning in the law is accom- 1 Haydel v. Hurck, 72 Mo. 253. §§408,409] RULES APPLIED IN EXPOUNDING WILLS. 357 panied in one clause by context showing that the testator meant it to be understood in a different sense, while in another clause it is used in reference to a different subject wdthout explanatory context, it is to receive in the latter clause its technical meaning. So the same word may, even if used but once, be differently construed in reference to different subjects of gift; where, for instance, real and personal estate are given to one, and if he should die leaving no issue of his body, then to another, the words "leaving no issue," when construed as to the personal estate, mean leaving no issue at the time of his death, but as to the freehold they mean at least under the old rule an indefi- nite failure of issue. The correlative rule that when a testator uses in one place words different from or additional to those used in another, a different or additional meaning must be sought, is of slight practical value, though logically sound enough. A testator is prone to vary phrases without intending to vary meaning. His intent must be sought in the whole instrument. § 408. Rule allowing Words and Limitations to be transposed, supplied, or rejected. — If it is impossible to give a rational con- struction to the words of a will as they stand, words and limi- tations may be transposed, supplied, rejected, or changed. So with regard to punctuation. It is evident, however, that resort to this rule can only be had in very clear cases, in which the context leaves no room for reasonable doubt as to the tes- tator's intention. If this cannot be ascertained from the will itself, the bequest or devise must fail, for any alteration of the testator's language would but substitute for his will one made by the expounder. There are cases in which there has been direct substitution of one word for another.^ § 409. Precatory Words. — The testator may devise or bequeath his property with trusts as to the whole or any part of what is thus disposed of. When the testamentary disposition of the title is accompanied by expressions requesting or desiring the legatee or devisee to do certain things wdth the property thus received, for the benefit of others, the question constantly arises whether, on the one hand, a trust has been imposed on 1 Baird v. Boucher, 60 Miss. 326; State t-. Joyce, 48 Ind. 310. And frequently the word "and" is substituted for "or." 358 THE LAW OF DECEDENTS' ESTATES. [§ 410 the property which the law will enforce, or whether, on the other hand, the gift is absolute in law, leaving the request or desire as a mere moral obligation with which courts have nothing to do. " The point really to be decided in all these cases is whether, looking at the whole context of the will, the testator has meant to impose an obligation on his legatee to carry his express wishes into effect, or whether, having expressed his wishes, he has meant to leave it to the legatee to act on them or not, at his discretion." ^ English Equity (following Roman law) was inclined to adopt rules of interpretation on the subject, according to which words in a will expressive of desire, recommendation, and confidence are of technical significance, importing a trust. But this ancient learning, with its intricate technical distinc- tions, is largely inapplicable to modern conditions and is there- fore modified in the law of to-day. It is now only a matter of intention. In the words of Justice Matthews of the United States Supreme Court: "If it appear to be the intention of the parties, from the whole instrument creating it [the trust] , that the property conveyed is to be held or dealt with for the benefit of another, a court of equity will affix to it the character of a trust, and impose corresponding duties upon the party receiving the title, if it be capable of lawful enforcement. No general rule can be stated that will carry with it the whole beneficial interest, and when it will be construed to create a trust, but the intention is to be gathered in each case from the general purpose and scope of the instrument." ^ § 410. Estates by Implication. — Courts uphold bequests and devises by implication whenever the intention of the testator is free from doubt though no direct gift be made in the will. If there be an erroneous recital that there is a gift contained in the will, the recital may operate as being in itself a gift by impli- cation of that very property; but when the erroneous recital refers to an estate created by another instrument, that recital cannot operate to create an estate by implication.^ A common * Per Vice-Chancellor Cranworth in Williams v. Williams, 1 Sim. (N. S.) 358, 367. 2 Colton V. Colton, 127 U. S. 300, 310. 3 Hunt V. Evans, 134 111. 496, 502. § 411] RULES APPLIED IN EXPOUNDING WILLS. 359 illustration is a devise to the testator's heir after the death of A, no other disposition being made of the property. The testator has expressly excluded the heir during A's life, and thus shown that the property is not to go as intestate during A's life. The only possible conclusion is that the testator intended A to have the property during his life, though it is not so said in express terms. In applying the foregoing rule, the limiting principle of law must not be forgotten, that no words in a will ought to be so construed as to defeat the title of the heirs at law, if they can have any other significance. If, therefore, referring to the last illustration above, the land is devised after A's death to B, a stranger, and not the testator's heir, the heir has not been necessarily excluded, as in the first case given. The testator is considered intestate as to that land during A's life. A takes nothing; and the heir, as heir, has an estate pur autre vie while A lives. § 411. From what Period the Will speaks in Respect of the Law governing it. — The will, being ambulatory during the life- time of the testator, cannot take effect before his death. It is therefore said to speak from the testator's death. From this it would seem to follow that its provisions must be construed with reference to the law in force at the time of the death of the tes- tator; and such is now almost universally recognized to be the rule. The objection that no statute can or ought to have retro- spective effect is clearly inapplicable to the construction of a will drawn and executed before the enactment of a statute bear- ing upon its provisions, but taking effect by the death of the testator after it is in force. The will disposes of the personalty of the testator at the time of his death, but under a technical rule of the common law no real estate could pass by a mil of which the testator was not the owner at the time of its execution. This rule has been severely criticised, as calculated to mislead and defeat the in- tention of testators, and is now abolished by statute in England, as well as in most, if not all of the States of the Union, provid- ing, substantially, that wills shall be construed, in respect of both real and personal estate, as if executed immediately be- fore the testator's death, or directing real estate acquired by 360 THE LAW OF DECEDENTS' ESTATES. [§ 412 the testator after the date of the will to pass thereby, if such appear to have been intended.^ § 412. From what Period the Will speaks in Respect of the Tes- tator's Intention. — It is plain enough that, when a testator speaks of a condition of things as actually existing, he refers to the period of ^\Titmg, or executing, the will. Hence, the word "now," or any expression pointing to present time, must be understood as referring to the date of the wdll. A gift for life to A, and after his death to his widow, was held to apply to the wife of A livmg at the date of the will, and not to any wife who might survive him.^ A gift to "my wife" will, where such appears to be the testator's intention, refer to the woman whom he had long lived with and held out to be his wife, instead of his lawful wife whom he long ago deserted in a foreign country.^ And a gift to the testator's child named, if li\'ing at the date of the will, would not, if such child should die, go to another child subsequently born to him, of the same name.^ The above illustrations sufficiently indicate the circumstances under wliich the language of a testator must be understood as referring to the condition of things existing at the time of WTiting the will. That a testator can at this day dispose by will of real property acquired after making it, is shown in the preceding section. This still leaves the question for construction whether in a given case he has actually done so. Unless its language by fair construction indicates otherwise, the testamentary disposition carries all the property owTied by the testator at the time of death. Of course, the end aimed at in expounding a Mill in which questions as to after-acquired property arise, is the same as in expounding any other will, — to ascertain the intention of the testator; hence, words which are universal in their scope, such as ".my whole estate," etc., will carry after-acquired property without particular mention of the period of the testator's death; but where the language is not so comprehensive, other 1 These statutes, with pecuUarities in a few States, are discussed in Woemer on Administration, § 419. 2 Anschuetz v. Miller, 81 Pa. St. 212, 215. 3 Pastine v. Bonini, 166 Mass. So. J Foster v. Cook, 3 Bro. C. C. 346. § 413] RULES APPLIED IN EXPOL^T)ING WILLS. 361 words in the will are necessary to indicate such intention, or the after-acquired property will go as if the testator had died intestate. And although the words considered by themselves be comprehensive enough to carry any estate owned by the testator at the time of his death, yet a contrary intention may be inferred from the context, and will be enforced. § 413. Extrinsic Evidence in Aid of Construction. — Extrinsic evidence will sometimes be received to aid in the interpretation of a will. Courts are obliged to give effect to every intention which the will, properly expounded, expresses; it follows that evidence which in its nature and effect is simply explanatory of what the testator has written may be admitted, while none ■is ad- missible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written. " That the court may put itself in the place of the testator by looking into the state of his property and the circumstances by which he was surrounded when he made his will, is not only true as a general proposition, but without such information it must often happen that the will could not be sensibly construed." ^ If the language of the vriW, construed in the strict and primary sense of the words, not shown by the context to have been used in any different sense, is void of meaning or insensible with reference to extrinsic circumstances, courts will admit exti-insic e\'idence to see whether the words be applicable to such cir- cumstances in any popular or secondary sense of which they may be capable. Thus it may be shown that a person or cor- poration was known to the testator by a name different from his or its ordinary or corporate name, in order to show identity with one named in the will; or that a legatee was misnamed by the testator. But extrinsic evidence is not admissible to supply a clause or word omitted by the testator, or by the scrivener, nor to show that an erroneous word was wTitten in the will by mistake not apparent on its face; nor to control the meaning of language neither ambiguous nor inconsistent with extrane- ous facts; nor to vary the terms of a will which can be carried into effect as they stand. It is generally said that the introduction of parol testimony is 1 Wilkins v. Allen, 18 How. (U. S.) 385, 393. 3G2 THE LAW OF DECEDEXTS' ESTATES. [§ 413 excluded in the case of a patent ambiguity. A patent ambiguity is one appearing on the face of the will. A bequest in numerals may leave it doubtful whether five dollars or five hundred dol- lars are given. A latent ambiguity is one which appears only by extrinsic facts. A bequest to "my nephew John," when it appears outside the will that the testator had two nephews of that name raises a latent ambiguity. This rule against receiv- ing evidence in case of patent ambiguities, it has been said, " is very generally stated too broadly, — frequently for the reason that, with reference to the case before the court, the rule, however broadly stated, is correct in its application. But it is not true that an ambiguity appearing on the face of the paper, if that alone be looked to, cannot be explained by parol." ^ There is a rule against introducing the testator's declarations, to be discussed later in this section, which includes cases of patent ambiguity, and is indeed chiefly directed against them. It is also clear that no patent ambiguity wall justify evidence tending to give the will a meaning which the document will not bear on its face. It is believed that all well-considered decisions relied on to sustain the rule that parol evidence is not received to explain a patent ambiguity fall within one or the other of the classes just mentioned. Where there is misdescription of person or property in a will, the maxim falsa demonstratio non nocet permits the rejection of part of the description, provided what remains is sufficient. Here ambiguities may arise. A devise of "lot 1" of a certain block, followed by a description by metes- and bounds which covers lot 2, presents such a case. All authorities agree in re- ceiving oral e\-idence (except declaration) of the testators to show which property was intended. After rejecting the erroneous part, a sufficient description must remain in the will. The exception to the rule stated at the beginning of this section is, that declarations of the testator will not be received to ascertain the meaning of the will. Such evidence of declara- tions of the deceased, coming after his death, is apt to be vague, biased, if not worse, and not readily capable of contradiction. Its introduction would tend to unsettle the construction of wills. 1 Schlottman v. Hoflfmann, 73 Miss. 188, 202. § 414] RULES APPLIED IN EXPOUNDING WILLS. 3G3 But to this exception there is in turn an exception. When the will contains a latent ambiguity, as in the case of the bequest to " my nephew John," when there are two nephews of the name, declarations of the testator are received to settle the ambiguity. But in case of patent ambiguitj^ the testator's declarations are not received. The admissibility of a testator's declarations on the inter- pretation of the will must be distinguished from their admissi- bility when the issue concerns the validity of the will when fraud, undue influence, or the like are charged in a proceed- ing for probating the will. That subject is ti-eated ante, § 207. § 414. Testamentary Donees as Classes. — In this section and the following one the interpretations which courts have fixed on certain terms of frequent use in A\dlls are given. Such settled constructions aid much in making the interpretation of wills certain. But it must be remembered that in all cases save the few where the construction given is a rule of law and not of interpretation (as for instance the common-law holding as to the rule in Shelley's case), these constructions are merely in aid of the all-important object of arri\'ing at the testator's expressed intention. The rulings apply, therefore, to the terms standing by themselves, and may easily be set aside by the context. A legacy given to a class immediately vests absolutely in the persons composing that class at the death of the testator, unless the testator intended to refer to a class as existing at the date of the wdll. Hence, as a general rule, a gift to " children " as a class, immediately, intends those, and those only, who answer this description at the death of the testator, including children en ventre sa mere; but if from the language of the will it clearly appear that the testator intended those only who answered this description at the date of the will, then the gift must be con- fined to them. So a gift to a class which is postponed to the expiration of an intervening period after the testator's death must be shared by all who constitute the class at the expiration of the intervening estate, including children born after the tes- tator's death ; the heirs of such as may have died after the vest- ing of the gift are entitled to take in their place. Children 304 THE LAW OF DECEDENTS' ESTATES. [§ 415 born after the period fixed for the distribution have no claim, although the gift be to children "born or to be born." The word "children" properly includes only the immediate descendants of the person named, and does not therefore usu- ally apply to grandchildren or issue generally. But if the word "children" can have no operation, or where it is clear that the testator uses the words "children" and "issue" indiscrim- inately, and that he means issue when he says children, it will be construed according to his intention, as meaning or including grandchildren. When it was shown that the testator who willed property to "children," had none, but only grandchildren, the property was given the latter.-^ It may be mentioned here, that, according to the doctrine usually called "the rule in Wild's Case," ^ on a devise to a man and his children, if he have none at the time of the devise, the word "children" must be taken as a word of limitation, so that he takes an estate tail; but if he has children living at the time of the devise, "children" must be taken as a word of purchase and they take jointly with him. The rule, which has been fol- lowed as the law of England ever since, can, from the nature of its feudal origin, apply only to real estate; in respect of personal property, an absolute interest will pass where an estate in tail would be created in real property. The word "children" used in a will does not include illegiti- mate children or step-children, unless such appears to be the testator's intention. " Grandchildren " lyrima facie excludes remoter degrees, and also grandchildren by marriage, i. e., the grandchildren of the testator's spouse. "Nephews" and "nieces" are construed on the same basis, as also "cousins," etc. § 415. Classes designated by Technical Terms. — By the doc- trine embodied in what is known as the rule in Shelley's Case, when a freehold is given to one, and by the same instrument a limitation, either expressly or impliedly, to his heirs, or the heirs of his body, the estate vests wholly in the first taker, — if limited to the heirs of his body, a fee tail; if to his heirs, a fee simple. 1 In the will of Scholl, 100 Wis. 650. 2 Wild's Case, Co., pt. 6 * 17. § 415] RULES APPLIED IN EXPOUNDING WILLS. 385 The rule has been abolished in almost all the States of this country, and in most of them it is supplanted by the statutory provision, that a devise, and in some of them also a bequest, of property to any person for life, and after his death to his heirs, heirs of his body, or the like, shall vest an estate for life in the former, with remainder in fee simple to the latter. This rule at common law has nothing to do with the testator's intention. " It is a rule of property and overrides the intention. In fact, wherever applicable, it may be said that it disregards the intention altogether."^ In this country, however, it is now, when applied at all, generally regarded as a rule of con- struction, not a rule of law, and will therefore always give way to the clearly ascertained intention of the testator, although such is not universally the case; in a few of the States it is held to be a rule of law. It is also to be remembered, that, as to personal property bequeathed, it vests absolutely in the first taker, and consequently goes to his executor or administrator, whether he has issue or not, by words which would create an estate tail in real property. Thus, a legacy to A and his heirs, or to A and the heirs of his body, or a legacy in any equivalent expression, is an abso- lute legacy to A, and this although the gift be through an inter- vening trustee; unless it be clear from the context that the tes- tator used these words with the intention of conferring a gift upon the "heirs," etc., treating them, for instance, as synony- mous with children, in which case they take as purchasers. ^Yhe^e the M'ords "heirs," "legal heirs," etc., are used in a will, not to denote substitution or succession, but as designating legatees, they will be construed in their primary legal sense, un- less it appear from the context that the testator used them in a different sense. Hence, gifts to heirs, whether of the testator or of others, when unexplained and uncontrolled by the con- text, are gifts to the persons appointed by law to succeed to the property of a deceased person in case of intestacy. The word "issue" — popularly expressing progeny, children, offspring — is equivalent in its technical significance to " de- scendants," comprehending every degree, unless restrained by the context. 1 Travers v. Wallace, 93 Md. 512. 3C6 THE LAW OF DECEDENTS' ESTATES. [§ 415 When there is a devise to several persons belonging to differ- ent classes, of different degrees of relationship to testator, and the will leaves in doubt the testator's intention, distribution will be made per stirpes; but where there is but one class, the division should be made x>^r capita. The term "descendants" comprises every individual pro- ceeding from the stock or family referred to, and does not, without very clear indications of the testator's intent by the context, include collateral heirs, or heirs generally, or next of kin, but only the issue of the body of the person named. A devise or legacy to descendants, not otherwise qualified, is distributable between them per capita; but the ascertained in- tention of the testator will govern in tliis respect also. A gift to "relations," without a particular specification, is necessarily construed as a gift to those who would take the estate in case of intestacy, because in its widest sense it would include every degree of consanguinity, and thus render the gift void for uncertainty. "Nearest relations" will exclude nephews and nieces when there are surviving brothers and sis- ters, and applies properly only to those who are of kin by blood; hence, relations by marriage are not included in a bequest to "relations" generally. But a gift to be divided between tes- tator's relations and those of his wife goes one-half to the rela- tives of each. A devise or bequest to "next of kin" goes to the nearest blood relations in equal degree of the person mentioned, without reference to the Statute of Distribution. Hence, nephews and nieces take under such a gift, to the exclusion of the representa- tives of deceased nephews and nieces, and a surviving brother in exclusion of the children of a deceased brother or sister. \Vhere, however, the testator gives to his next of kin in classes, and leaves the proportions doubtful, the several classes will take according to the Statute of Distribution. Without refer- ence to anytliing in the context, the word "family" will be usually held to comprise the same persons as next of kin or re- lations in respect of personalty, and heirs in respect of realty. It may or may not refer to the husband or wife, as found to be the testator's intention. The term "legal representatives," or "personal representa- § 415] RULES APPLIED IN EXPOUNDING WILLS. 3C7 tives," applies strictly to executors and administrators; but as it is improbable that gifts to them should be intended for their own benefit, these words have sometimes been construed as meaning the next of kin, — a kind of "representative" in the sense of the Statute of Distribution; particularly when it is evident that substitution was contemplated. But if there is nothing in the context of the will to show that the words " legal representatives" are to have any other than their ordinary meaning, they are to be understood as meaning executors and administrators. So a gift to one as "executor" is presumed to be given to him in his character as executor, and hence fails if he do not become such; his qualification as executor is construed as a condition precedent, implied if not expressed, unless a different intention may be inferred from the nature of the legacy or other circumstances arising in the will. 3G8 1"HE LAW OF DECEDENTS' ESTATES. [§ 416 CHAPTER XLVII. TESTAMENTARY DISPOSITIONS CONTROLLED BY PUBLIC POLICY. § 416. Gifts for Immoral or Superstitious Purposes. — It is obvious that, if the language of a will, read wdth the view of ascertaining the testator's intention, is ambiguous or unintelli- gible, and neither the ordinary rules of construction nor extrinsic evidence where such is applicable are sufficient to enable the expounder to deduce a rational meaning therefrom, the will is to that extent simply void; for if the testator cannot be under- stood, it is the same as if he had not spoken. The same result necessarily follows where the testator undertakes to do what the law prohibits: a de\ise or legacy in contravention of law is void. Hence, a gift in furtherance of any illegal purpose is void. In England statutes were passed under Henry VHI and Edward VI which declared gifts for superstitious purposes void. These originally included pm-poses not consonant with the doctrines of the Established Church. Masses for souls of the dead fell under the ban of the statutes. In the United StTiients might be attended with serious loss. If under such circumstances the administrator will borrow or advance the money necessary to relieve the estate, both justice and policy require that he should have credit for customary interest thereon. §§ 524, 525] COilPENSATION OF EXECUTORS. 461 CHAPTER LVII. COMPENSATION OF EXECUTORS AND ADMINISTRATORS. § 524. Commissions allowed by Statute and in the Absence of Statutes. — At common law, executors and administrators are entitled to no compensation for their personal trouble and loss of time in the discharge of their duties, either at law or in equity. But now almost every State makes statutory provision for the compensation of executors and administrators. Like other expenses of administration, compensation to the executor or administrator is payable before debts, legacies, or distributive shares; and it has been held that the policy of the law and the interest of estates demand this compensation to be exempt from attachment by their creditors; and the same ground forbids the assignability of his commissions before they are ascertained and hquidated in the manner authorized by law. In most States the statutes provide fixed rules, making the determination of the compensation a matter of mathematical calculation.^ In those few of the American States in whose statutes no pro\'ision for the compensation of executors and administrators is found, the com-ts usually allow, as a matter of justice and policy, such compensation as may be considered reasonable, varying in amount according to the time, trouble, and responsibility involved, as well as the magnitude of the estate administered, — usually five per cent on personal and two and a half on real estate. § 525. Compensation in Cases of Maladministration. — It is held in numerous cases that compensation must be refused if the administrator has been guilty of wilful default or gross negli- gence in the management of the estate, whereby the same has suffered loss. This principle is adhered to in some of the States ^ An abstract of the various statutes can be found in Woemer on Ad- ministration, § 524. 462 THE LAW OF decedents' ESTATES. [§ 52C in which the compensation is fixed by statute, denying any dis- cretion in the matter to the courts on the ground that the stat- ute gives compensation for faithful administration only. The questions arising from maladministration are apt to be accompanied by insolvency of the administrator, and the prac- tical issue is often as to the extent of the liability of the sureties on the administrator's bond. The loss resulting from the ad- ministrator's dereliction the sureties must make good in toto. Should the sureties be penalized in a further sum through re- fusing them allowance for commissions for services properly rendered? It would seem fair that to the extent to which the estate has been properly administered, and on the amount which either he or his sureties pay to make up for the losses by devastavit or maladministration, the administrator should be allowed such commissions as the statute provides. § 528. Upon what Property Commissions are Allowable. — The statutes usually measure the compensation of the personal rep- resentative by a percentage on the property administered. Manifestly this excludes property belonging to strangers, though it was inventoried, and the property allowed the family abso- lutely, whenever it goes to the family directly without inter- vention of the personal representative. A safe and convenient rule in this respect, so far as it goes, is that commissions are allowable to the administrator on such property, and such property only, as constitutes assets in his hands; i. e., such property as passes from the deceased to cred- itors, heirs, devisees, distributees, or legatees through his cus- tody. The rule excludes commissions on advancements, all uncollectible debts, and property lost or perished. It is held in one or two States, however, that commissions are not allowable on property delivered in kind to the distrib- utee, nor on a specific legacy turned over to the legatee, nor on a debt due to the testator and specifically bequeathed to the executrix. The general rule, however, is otherwise. " On general principles," says Woodbury, J., in West v. Smith,^ "it would seem just and proper for all such courts to make some compen- sation to executors for such services as paying over legacies, no less than for paying debts. In the case of specific legacies the » 8 How. (U. S.) 402, 411. §§ 527, 528] COMPENSATION OF EXECUTORS. 463 trouble and risk are as great, if not greater, than in money legacies, and it would be difficult to find elementary principles to justify commissions in one case, and withliold them in the other." § 527. Compensation for Extra Services. — The statutes of a number of States allow extra compensation to executors and administrators for the rendition of services to the estate outside of the scope of their ordinary duties. Unless such extra com- pensation is within the language or spirit of the statute, it can- not be allowed, because at common law then- personal ser\'ices are wholly gratuitous. Keeping accounts or collecting rents, for instance, are matters for which the personal representative may ordinarily employ help, for which he claims credit in his settlements; but if he does such work himself, he cannot, in the absence of such statutes, claim extra compensation. The usual services for which extra compensation is claimed are those rendered as attorney at law, as manager of some special business (e. g., a plantation), or as expert accountant. But extra compensation is exceptional, and rests on statute. § 528. Compensation of Joint Executors or Administrators. — It is obvious that, if an estate is administered on by more than one person, all the persons so administering will, Jointly, be entitled to no greater compensation than one administering alone would be entitled to. In some of the States there is no power in probate courts to apportion the commissions among several executors or administrators according to the amount or value of their respective services; but in other States, where one has performed more than his share of the work, the court may allow him a proportionate share of the commissions. Where the probate court has no jurisdiction to divide commissions, it has been held that equity might decree the division.^ Agreements amounting to a trading in the appointment of an administrator, or for the transfer of the right to adminis- tration for a consideration are considered as trafficking for office, and are void as being against public policy. But an agreement between executors or administrators as to their respective shares of the commission does not fall under the inliibition, ' See Woemer on Administration, § 530. 434 THE L-^W OF decedents' ESTATES. [§§ 529, 530 and, indeed, there are cases holding that an administrator, appointed wdth the consent of others equally entitled to ad- minister, is bound by his agreement or promise not to charge commission.^ § 529. Compensation to Successive Administrators. — Wliere one of several executors or administrators dies pending admin- istration, the commissions earned up to the period of such death must be divided on the principles laid down in the foregoing section. The survivors would get the commissions subsequently accruing. The question arising in this case as to what portions of the commissions are attributed to the period prior to such death is the same which is presented in the case of administra- tion de bonis non. Where there is administration de bonis non, only one commis- sion should come out of the estate. In some States probate courts have power to apportion the compensation fixed by law for the whole, according to sound judgment; the second admin- istrator being entitled to commissions for the whole adminis- tration, less what the first administrator is entitled to. ^Miere this power does not exist, injustice is often done the first ad- ministrator's estate, since commissions are frequently, if not usually, only earned when property is fully administered, which implies its proper final disbursement. This difficulty is greatly reduced in those States in which part of the commissions are allowed for taking the estate into possession, and part for disbursing the same. A convenient measure is thus afforded for the apportionment of compensation among several successive administrators, which cannot work great injustice. § 530. Bequest to Executor as bearing on his Right to Commis- sion. — A bequest to an executor, unless there is language in the will indicating that it was intended for specific compensa- tion for the services, does not deprive him of the right to charge commissions. But when it appears that the legacy was given in lieu of com^missions, or where it imposes on the executor the condition that he shall not have commissions, the current of authority is that the executor or court cannot defeat the pro- visions of the will. No case for election is presented. But in a 1 Bate V. Bate, 11 Bush 639. §§ 531, 532] COMPENSATION OF EXECUTORS. 465 number of States the executor is required by statute to re- nounce any provision made in the will to compensate him for his services, or forfeit his right to compensation under the statute. § 531. Commissions where the same Person is Executor and Trustee. — Where by the terms of a will the functions of an ex- ecutor and of a testamentary trustee coexist in the same person, it is sometimes difficult to determine whether such person is entitled to compensation for administering property in both capacities, or whether, as it is usually expressed, he is entitled to double commissions. On principle, it seems that where the same person is called on to perform two distinct acts, for each of which the law awards compensation, he should receive such compensation for both, that is, double commissions, because the compensation is not awarded as a bounty or gratuity, but as the equivalent for services rendered, and it is therefore indif- ferent whether they were performed by the same or by different persons. This principle is generally recognized, even where double commissions are denied. But the functions of an ex- ecutor and of a trustee may be so interwoven and blended that they are inseparable, and when so, as must be the case whenever the trust is annexed to the office of executor, the act must be deemed to be that of the executor alone, and double commissions are not allowable. The intention of the testator must be de- cisive, in many cases, of the question whether an executor and trustee is entitled to double commissions. § 532. Credit for Commissions in the Administration Account. — Experience demonstrates that the safest and most convenient course, both for the accountant and the beneficiaries of the es- tate, is to take credit on each settlement or accounting, whether partial or final, for commissions on so much of the whole estate as has been administered, whether disbursed for expenses of administration, in the payment of debts, or in distribution or payment of legacies, and on which commissions are allowable by law. On the final settlement of the account, commissions should be allowed on the whole of the balance in the administra- tor's hands subject to be disposed of by the order of the court, and deducted from such balance. This system is inexact in allowing commissions on commissions in the final settlement. 466 THE LAW OF DECEDENTS' ESTATES. j^§ 532 If, for instance, the commission is five per cent and the final fund one thousand dollars, this system allows the administrator $50, whereas he should only receive five one hundred and fifths of $1000, or $47.62. In practice, however, the exact calculation is very rarely made. §§ 533, 534] METHOD IX ADJUDICATIXG THE ACCOUNT. 467 CHAPTER LVIII. OF THE METHOD AND PROCEDURE IN ADJUDICATING THE ACCOUNT. § 533. Devastavit. — At common law, devastavit, or devastave- runt, is the name of a writ given to any person who has been injured in his rights in consequence of the misapphcation or waste of the assets or property of an estate by one or more ex- ecutors or administrators, whereby he or they have made them- selves liable to answer for the damages out of their own estate. This machinery for making the administrator personally liable is long obsolete; but the term has been retained, and is used in America as a convenient designation for such acts of the executor or administrator as render him liable to the estate out of his own means, and has no other significance; and where such liability is found according to the principles of law applic- able, the effect of the common-law remedy of devastavit is ac- complished by the falsification or surcharge of his account. § 534. Accounting by Co-executors or Co-administrators. — The principles governing the accounting by several joint executors or administrators are inferable from what has been stated in connection with the subject of their respective rights and liabil- ities. As a general rule, where they keep separate accounts, each charging himself with so much of the estate only as comes into his own hands, neither is chargeable with the assets in the hands of the other; and in such case their separate accounts cannot be combined in making the order of distribution. So either of them may discharge himself by showing proper ad- ministration of all that came into his own hands; but on a joint accounting they are jointly liable for all assets received by any of them. So two executors who have given a joint bond with sureties are jointly liable to creditors and distributees for the defalcation of either, before the sureties; but in equity the ex- ecutor actually receiving the assets is primarily liable, if his co-executor had no means of knowing him to be insolvent, and did not join in the misapplication. 468 THE L.\W OF decedents' ESTATES. [§§ 535, 536 § 535. Accounting by Successive Administrators. — Under the common law view any change in an asset by the administrator constituted technical administration. The administrator de bonis non could require of his predecessor or his personal rep- resentative only the property technically not administered, and was responsible only for such to parties interested in the estate. For property which was no longer in specie, that is, for such as had been technically administered, creditors and other parties in interest had to look to the prior administrator or his estate. Under the American system, there is no complete administration on any one asset until it has been disbursed for proper purposes. The administrator de bonis non must settle with the prior ad- ministrator, or his personal representative, for all the original estate which has not been paid out in course of administration, including all that has changed form, e. g., notes collected. The administrator de bonis non acts as trustee for all parties who are beneficiaries of the estate, and they look primarily to him, and not to the former administrator or his personal representative. The American system is the law in most States, and the tend- ency everywhere is toward it. Some States, however, still retain the old system; and others are in a somewhat confusing transition. The nature of the settlement between the adminis- trator de bonis non and the prior administration depends on the view of what constitutes administration in the respective States. It is the province of the personal representative of a deceased guardian, administrator, or trustee to adjust the accounts of his decedent with the estate for which he acted. The probate court has authority to compel such settlements. The settlement between an administrator de bonis non and a former administrator, although final as to the parties thereto, being conclusive upon heirs and others interested in the estate, and including waste committed by the former administrator, is not such final settlement of the estate as requires the notice to be given to all persons in interest previous to the winding up of an estate ; such persons are represented by the administrator de bonis non, and to him alone all assets after the displacement of an executor or administrator are due and payable. § 536. Accounting for Assets received in Foreign Jurisdiction. — The liability of a foreign executor or administrator to account §§ 537, 538] METHOD IN ADJUDICATING THE ACCOUNT. 469 generally, and of a domestic administrator to account for assets received in a foreign country or sister State, appears more fully from the chapter treating of principal and ancillary adminis- tration. It is stated, as a general proposition, that a foreign executor or administrator cannot be compelled to account, unless he has brought assets into the domestic jurisdiction; nor then, necessarily, as one answerable to the local probate court, or in his representative character, but rather as trustee in chancery, on general maxims. Even then the executor is accountable, as trustee, only " for the breach of some express or constructive trust under the will, or as a trustee ex maleficio" ^ As a rule the representative is not chargeable for assets in a foreign jurisdiction not received by him. § 537. Compelling Final Settlement. — Final settlements can not be compelled before the administrator has had time or op- portunity to collect all the assets, and to ascertain and discharge all its liabilities. But if the failure to convert assets into cash is chargeable to the fault of the administrator, so that he can be held chargeable with their value, final settlement can be ordered. So, too, when all parties interested agree to a division of the assets in specie. As a general rule, final settlement may be enforced in the probate court at any time after the expiration of the period allowed creditors to prove their claims against the estate, or at a time specifically pointed out by statute, if no special cir- cumstances intervene rendering final settlement impracticable at such time. If parties interested fail to apply for final settle- ment for a long time, it is sometimes held that their application may be refused on the ground of their laches, in justice to the administrator. § 538. Falsifications and Surcharges on Final Settlement. — It is the duty of the court on final settlement to correct any errors, whether appearing in that report, in the prior annual settle- ments, or in any other manner; and this although there be no contest. Any mistake should be corrected upon which a con- clusive judgment has not been rendered. The accountant cannot, of course, be compelled to conform I Lewis V. Parrish, 115 Fed. (C. C. A.) 285, 287. 470 THE LAW OF DECEDFNTS' ESTATES. [§§ 539, 540 his views to those of the court; but the court itself will restate the account, and render judgment thereon. In the final set- tlement credit may be given for future expenses necessarily incurred by the administrator in complying with the order of the court on final settlement. § 539. Verification and Evidence. — The statutes of most States require the account to be verified by the affidavit of the executor or administrator, which may be taken before any officer competent to administer oaths. For all items of credit claimed, there should be proper vouchers; but strict proof will not be required where, from the nature of the transaction, vouchers cannot be produced, or after a great lapse of time. The onus probandi rests upon the executor or administrator to establish the validity of any item of credit in the account which is challenged, and for want of sufficient prima facie proof such credit will be rejected. Receipts given by parties still living at the time of the trial are not, in strictness, legal evidence of pajmient; but they are received as prima facie proof, unless the other side show a rea- sonable ground for their impeachment. The administrator in such inquiry is not competent to testify for himself at common law; but under the law of most States, removing the disqualification of interest, he can do so. § 540. Judgment on the Adjudication of the Account. — Any person having an interest in the result of the accounting may appear when the account is before the court for adjudication, and object to any of the items for which credit has been taken or is claimed, and insist on charges against the accountant which have been omitted. The rights of a person claiming property by a title paramount to that of the deceased, or the rights of a creditor of a legatee lie outside of the settlement. They are not parties in interest, and have no right to appear. The proper method of objecting to the account is to state the exceptions in writing, pointing out each item objected to and stating the ground of the objection, and to file such statement so as to give sufficient notice to the other side to enable them to prepare their defence if they have any. But such excep- tions need not necessarily be in writing where the issue is § 540] METHOD IN ADJUDICATING THE ACCOUNT. 471 tendered otherwise, as by hearing on the appearance of the parties. The exceptors are not concluded from taking futher exceptions to errors in the account which become apparent subsequent to the fihng of the original objections, and which they had no means of knowing at the time; but in such case there must be sufHcient time given to the adverse part to be heard in defence, and to procure witnesses to establish the same. 472 THE LAW OF DECEDENTS' ESTATES. [§§ 541-543 CHAPTER LIX. OF APPEALS FROM COURTS OF PROBATE. § 541. Right of Appeal given by Statutes. — The right of ap- peal rests solely upon statutory provisions, and unless these provisions are complied with, the right cannot be made avail- able; and there can be no appeal from any order, judgment or decree, unless the right to such appeal be given by statute. § 542. Who may appeal. — Where the right to appeal exists, it may be exercised by any person, whether a party to the record or not, who is aggrieved by the judgment or decree pronounced by the probate court. No person has the right to appeal unless he is interested in the estate as creditor, legatee, heir at law, or in some pecuniary manner. § 643. From what Decisions of Probate Courts Appeals are Allow- able. — It is obvious that there can be no appeal from any ac- tion of a lower court which would not, but for the appeal, con- stitute a binding, conclusive, and final determination by order, decree, or judgment, of the rights of the parties affected thereby. WTiether such order, decree, or judgment constitutes a final judgment, in this sense, is not always clear at first blush. It is deducible from the decisions on this subject, as a general principle, applicable to most cases in the absence of statutory provisions directing otherwise, that any order, judgment, or decree of the probate court capable of being enforced, or taking effect without further order, may be appealed from; and that no action of the probate court can be appealed from which requires a subsequent order or judgment to give it effect. In each State the answer to the question whether an appeal lies from a probate decision involves the special statutes bearing on the matter in hand. The rulings rest on local statutes, and are not inconsistent with the general principles stated. The explanation of such cases, however, is beyond the scope of this treatise.-^ ^ For numerous illustrations, see Woemer on Administration, § 545. §§ 544, 545] OF APPEALS FROM COURTS OF PROBATE. 473 § 544. How Appeal is taken. — It has already been stated, that the right of appeal is dependent upon compliance with all the requirements of the statute from which it originates. The time within which appeal must be taken is fixed by the statute. If the statute contain no saving clause, the right to appeal after the period allowed by the statute is barred, even to married women and infants. The party appealing is always required to give bond, except in cases where the executor or administrator appeals in the in- terest of the estate and has given security on his administration bond. An executor is entitled to an appeal without surety' where the judgment or decree is to affect only the assets, but where he is in a situation in which a personal judgment or decree can be rendered against him which may make him liable out of his own funds, he is no more entitled to appeal without surety than any other person. All parties having an interest in the estate are parties to the appeal, and where the statute requires notice of the appeal to be given to the adverse party, it must be given to all who have any interest in the controversy; notice to the probate court is insufficient, although no one had attended at the trial in that court. The appeal, for the want of statutory notice, will in some States be dismissed, in others continued for the purpose of giving notice. While any one item in an account is a separate claim, demand- ing a separate judgment from which appeal may be taken, yet a party is entitled to but one appeal from the same decree, al- though the decree makes disposition of various claims, and it is improper to allow a separate appeal for each claim. § 645. Powers of the Probate Court after Appeal. —Upon com- pliance with the statutory requirements on the part of the ap- pellant, and the grant of appeal by the probate court, the matter appealed from is removed from such court, and it has no power, pending that appeal, to take further steps in regard thereto. But the judgment of the appellate court is limited to the par- ticular matter appealed from, the appeal in no wise affecting the jurisdiction of the probate court over all matters not in- volved in the appeal. The effect on an appeal is, generally, to vacate the judgment or decree of the probate court, which is thenceforth of no force or effect. 474 THE LAW OF decedents' ESTATES.' [§§546, 547 The statutes of most States point out in what cases and under what circumstances an appeal from the order, judgment, or decree of the probate court shall operate as a supersedeas. It is generally enacted that an appeal properly perfected shall work a supersedeas if bond be given.^ § 546. Nature of the Trial in the Appellate Court. — Probate powers are vested, in some of the States, in courts of ordinary jurisdiction for the trial of all cases at law and in equity. From such courts probate decisions go up to the court of last resort upon the record for re\iew of errors. But in most States these matters are originally tried by tri- bunals specially created as courts of probate. On appeal from decisions of such courts in most states the case is triable de novo in some court intermediate between the probate court and court of last resort, before the latter can obtain jurisdiction. § 547. Nature of the Trial de Novo. — On appeal to a court not of last resort, the appellate court proceeds as if it had original jurisdiction of the matter brought before it by appeal, which vacates and annuls, for the purposes of such trial, the judgment of the court below. The appeal brings up the entire decree appealed from; new grounds may be taken in the appellate court, and new evidence introduced. But it is a settled rule that the issue tried in the appellate court must be the same, and no other, than that which was tried in the court below, and that the appellate court will grant such relief, and such only, as the court below should have given; it acquires no jurisdiction of a subject-matter by the appeal of which the court appealed from had none; but in matters of practice follows its OAvn rules. * For statutory details, see Woemer on Administration, § 548. 548] OF THE CLOSE OF THE ADMINISTRATION. 475 TITLE NINE. OF THE CLOSE OF THE ADMINISTRATION. PART I. OF DISTRIBUTION TO LEGATEES AND NEXT OF KIN. § 548. Duty of Probate Courts to order Distribution. — The succeeding chapters consider the procedure by which the rights of the distributees of the estate are ascertained and announced, and the methods for their enforcement against executors and administrators. In England it is still practically necessary to resort to courts of equity for the purpose, but in this country it is in most States the duty of probate courts, when it appears that all debts, leg- acies, and expenses of administration have been paid, to order the distribution of the residue, and to compel payment of the distributive shares to those who may be entitled thereto. Before considering the details of the proceedings before the court, it seems desirable to discuss the subject of advance- ments, because these constitute an element of distribution themselves, and must necessarily be taken into account in ascertaining the rights of the respective distributees. 476 THE LAW OF DECEDENTS' ESTATES. [§§ 549, 550 CHAPTER LX. OF ADVANCEMENTS. § 549. Definition of Advancements. — Advancements are de- scribed as gifts by a parent, in yroBsenti, of a portion or all of the share of his child in his estate which would fall to it under the Statute of Distribution or Descent; or, as a giving by anticipa- tion, during the intestate's lifetime, of the whole or part of what the child would be entitled to on the donor's death. When the doctrine is applied in making distribution, the same is added to the estate, and the whole divided among the children, the advancement being retained by him to whom it was given. For instance, the deceased left $20,000 and four children; he had advanced $4000 to his son A. Each child save A gets S6000 from the estate. A gets $2000 from the estate and retains the advancement. The gift, in order to constitute an advancement, must be irrevocable, divesting entirely all of the ancestor's interest, and forming no part of the property to be administered; hence, the donee can in no case be compelled to refund what he has re- ceived. But unless he consent to bring it into hotchpot, and take his share upon an equal division of the estate, including what is left for distribution as well as all that has been advanced during the intestate's lifetime, he will not be entitled to par- ticipate in the distribution. To bring into hotchpot does not mean that the party advanced shall return the property re- ceived in specie or in kind, or even that he shall relinquish his interest therein ; but only that its value shall be reckoned against him in the distribution. And since the party advanced has his election whether to keep what he has and relinquish his claim to further distribution, or to come into hotchpot, he may wait, before electing, until the value of the estate is determined. § 550. Distinction between Advancement and Ademption. — It is of practical service to keep clear the distinction between an §§ 551, 552] OF ADVANCEMENTS. 477 advancement and an ademption or satisfaction. Ademption occurs after the making of a will, and applies to the discharge, or destruction of the subject, of any legacy or devise in the tes- tator's lifetime, and is not limited to the gift by the parent to the descendant, as is the case in advancements. Furthermore, when the parent whose will makes the child a legatee or devisee, subsequently makes a gift to that child, it cannot be called an advancement, but is an ademption (or satisfaction), and is to be governed by the law on that subject. \Vlien the parent prior to making a will has made to a child a gift which would be viewed as an advancement, and subsequently leaves a legacy, without further explanation, to that child, it is evident that he has de- stroyed the character of that gift as an advancement. Of course the testator may in his will direct prior gifts to the child to be charged against him. In this narrow sense only can an advance- ment occur in connection with a will ; and even then the term, though freely employed, is technically inaccurate to describe the situation. The doctrine of advancements rests only on statute; the doctrine of ademption, however much modified by statutes, exists independent of them. § 551. Jurisdiction over Advancements of Realty and Personalty. — Since the probate court has generally no jurisdiction over realty, it has been ruled that, in making distribution of the personalty, that court must ignore advancements consisting of realty. But it has been held, on the other hand, that taking account of the value of realty in distributing personalty is not exercising jurisdiction over the realty', and thus advancements in realty have been taken into account in probate distribution.^ § 552. To whom the Doctrine of Advancements applies. — Whether any persons but children of the intestate are affected by the doctrine of advancements depends, of course, upon the various statutes. Gifts to grandchildren during the lifetime of their parents are not treated as advancements either to the grandchildren or to their parents, nor do they become so by the death of their parent before that of the grandparent. Whether gifts to parents dying before the intestate constitute advancements to be reckoned against the grandchildren of the intestate is also determined by statute in a number of States. ' Elliott's Estate, 98 Mo. 379, 384. 478 THE LAW OF DECEDENTS' ESTATES. [§§ 553, 554 A sound rule seems to be, that in all cases where grandchildren take per stirpes, or in right of their parents, they take subject to ad\'ancements to the parents; but not so when they take per capita, or in their own right.^ § 553. What constitutes an Advancement. — Wliether a gift or conveyance is to be regarded as an advancement or not, is of course determined by the intention of the donor at the time the gift is made. Presumptions of what the intestate's intention was are raised by the law, which, however, are rebuttable by competent evi- dence reasonably definite. As between a loan, a gift, and an advancement, the presumption is in favor of an advancement, because of its tendency to equalize. The presumption that a gift was intended as an advancement does not arise w^hen it is repelled by the nature of the gift, as in case of trifling presents, no account thereof being kept; or money expended in a child's education, whether general or professional, or merely for amuse- ment or pleasure. But where a father pays a child's debt without taking a note or security therefor, or advances him money for that purpose, or buys land in the name of, or makes a voluntary conveyance of land to the child, or where a marriage portion is given, or a sum or thing to be used for profit or setting up in business, it will be held, in the absence of contravening evidence, an advance- ment. Where a parent takes a note or other security for the repajTuent of the property given, with or without interest, it is prima facie a debt and not an advancement, although he declare that he will not collect the same. The statutes of many States expressly provide that maintenance, support, or money given without intending it as a settlement in life is not an advance- ment.^ A gift, although it must be made in the donor's lifetime, may take effect at the donor's death, and still constitute an advancement, as, for instance, the gift of a policy of insurance on the donor's life. § 554. Rights of Donees in Respect of Advancements. — The donor can so alter the character of a gift or conveyance as to * The statutory provisions in the various States as to the parties affected by the doctrine are collated in Woemer on Administration, § 559. * See Woemer on Administration, § 559. § 555] OF ADV.INCEMEXTS. 479 enlarge the rights and privileges of the recipient, but not so as to restrict them. Hence a father has the undoubted right to change a debt owing him into an advancement and an advance- ment into a gift; but not, without the donee's consent, an abso- lute gift into an advancement, nor, since it is irrevocable, the advancement into a debt. An heir may release his expectancy in his father's estate in consideration of a present grant, and such agreement will be enforced, so that he cannot bring what he has received into hotchpot and get more in the distribution.^ There are cases denying the validity of any assignment by an heir apparent of his expected inheritance to a third person on the ground that there is nothing in esse on which the conveyance can operate; ^ but the decided weight of authority in England and in this country upholds such an agreement in equit^'. It is, however, a transaction suggestive of imposition on an improvi- dent heir, and is suspiciously scrutinized by courts. § 555. Computation of the Value of Advancements. — When not otherwise directed by statute, the value of advancements is reckoned as of the time when made, unless a contrary intention appears from the terms of the conveyance. The value of a gift to take effect in the future is to be computed from the time when it is completed by enjoyment in the donee. Thus where the advancement consists of a life insurance policy taken out for the benefit of a son, he should be charged with the net proceeds paid to him on the policy after the father's death. Owing to the nature of advancements, which implies that the gift is an irrevocable one, and that therefore all loss or profit thereon accruing betw^een the time of the gift and the donor's death must belong to the donee, he is not accountable for in- terest on nor for the increase of the advancement, unless ex- pressly given on such terms; but this rule does not apply after the intestate's death. In a few States statutes provide other rules as to the value of advancements.^ ' Simon's Estate, 158 Mich. 256. 2 McCall V. Hampton, 98 Ky. 166. ' See Woemer on Administration, § 559. 480 THE LAW OF decedents' ESTATES. [§ 556 § 556. How the Existence of Advancements may be shown. — Unless inhibited by statute, the declarations of the grantor at the time of making, and the admissions of the donee at and after receiving the donation, are competent evidence to show whether an advancement was intended or not. It is held proper to prove all facts and circumstances tending to show the donor's intention, or from which it might be inferred ; such, for instance, as the amount and value of the property conveyed as compared to the whole estate, the number of children, and whether ad- vancements have been made to other children. Book entries made by the donor at the time stand as part of the transaction; but entries made by him subsequently, like other subsequent declarations of the donor, seem only admissible when against his interest. Such subsequent declarations of the donor have been rejected when offered to prove an advance- ment, and have been received to prove the gift absolute, the latter being against the donor's interest.^ 1 Gunn V. Thruston, 130 Mo. 339. § 557] OF DECREE OR ORDER OF DISTRIBUTION. 481 CHAPTER LXL OF THE DECREE OR ORDER OF DISTRIBUTION. § 557. Refunding Bonds. — In theory there should be no dis- tribution until it is absolutely certain that sufficient funds are set aside for all possible creditors. That certainty cannot exist until the time for proving claims has expired. On the other hand, the retention of funds on the mere possibility of further creditors seems onerous and inconvenient. The English Statute of Distributions and the statutes of most of the United States enable distribution to be made upon the execution by the distributees of refunding bonds, with sufficient sureties, conditioned to refund to the administrator so much of the assets received as may be necessary to pay debts and costs lawfully proved against the estate. The same principle is ap- plicable to the payment of legacies. In most States the language of the statute requires the bond only where distribution is desired before the time limited for the presentation of creditors' claims has expired, or before final settlement is made, while in a few States refunding bonds are seemingly required in every case of payment of a legacy. In cases where there is no statutory provision for a refund- ing bond, or where there is such provision and it is not observed, the weight of authority seems to be that the executor or admin- istrator cannot recover from the distributee or legatee a pay- ment voluntarily made, unless there was fraud, or mistake as to fact. When the law provides for a refunding bond, and the administrator fails to require it, the omission is held to bar the executor or administrator from his remedy for contribution or reimbursement, unless the deficiency arose from unexpected occurrences, or by debts and claims not known at the time; it has been held that a mistake as to the value of the assets is not a sufficient equity to make the legatee or distributee liable to refund. 482 THE LAW OF DECEDEXTS' ESTATES. [§§ 55S, 559 § 658. Parties to the Order of Distribution. Its Conclusiveness. — It is the duty of probate courts in most States to order the distribution of the residue found, on final accounting, to re- main in the hands of the executor or administrator, after pay- ment of all debts and expenses of administration, to those who may be entitled thereto, provided that all parties interested had notice of such final accounting. The principle, that every party entitled to distribution must necessarily be before the court when distribution is decreed in equity, or have the op- portunity to be present, is equally applicable in probate courts. Wlien the statutory provisions are complied with, the distribu- tion is said to partake of the nature of a proceeding in rem, and is conclusive upon all persons having any interest in the estate, whether appearing or not, and whether under disability or not, or whether then in being or not. The appointment of a guardian ad litem for an infant is neces- sary only when the statute requires it. But when a distributee dies before the order, his personal representative is a necessary party. Actual notice is not, generally, required to be given by the administrator of the presentation of the final account; it is sufiicient if notice be given in the mode pointed out by statute. ^^^lere action is taken by a legatee or distributee against the executor or administrator to compel distribution, not only the executor or administrator against whom the proceeding is di- rected, but all other parties who may be affected by the decree or judgment to be rendered should be parties, either as plain- tiffs or defendants. § 559. Nature and Scope of the Decree. — Since the order or decree of distribution is the judicial ascertainment of the right of the next of kin or legatees to their respective shares in the estate under administration and as such a conclusive judgment, it is obvious that it must set out the name of each person en- titled, and also the amount, sum, or specific thing due to each. "\Miere the estate consists of articles of different kinds and values, as of bonds, notes, stocks, or choses in action, of which some are good and others doubtful or desperate, so that a di- vision cannot be effected giving each distributee his equal por- tion of the whole estate, it is sometimes necessary to order § 560] OF DECREE OR ORDER OF DISTRIBUTION. 483 the assets to be sold, so that the proceeds of the sale may be distributed according to the rights of the parties entitled, unless the parties are willing and competent to agree upon a division. If the order of distribution is made upon the final settlement of the administration, and no unsettled claims against the estate or contingent liability of any kind exist, the order should extend to and finally dispose of all the assets found to be in the hands of the executor or administrator; it should not be made con- tingent upon the establishment at some future time of certain conditions which are guarded against by certain provisos in the decree. The executor must retain a sufficiency of the estate to pay a legacy which is not payable until the legatee's majority, or to yield a sufficient annuity until the annuitant's death; but the surplus income of the property so retained above the amount of the annuity may be distributed. To authorize a decree of distribution there must be proof satisfying the court that the parties applying therefor are re- lated to the intestate in the degree of consanguinity entitling them to distribution. This involves that proof must be made, not only that they are next of kin under the statute, but also that there are no other next of kin in the same degree; otherwise it will be impossible to determine the amount to which each may be entitled. It has been held that where the right to administer is con- tested on the application for letters, the sole issue being the degree of relationship of the parties to the decedent, the deter- mination of the court as to pedigree in such contest is conclu- sive upon the parties in the subequent distribution of the estate; but such decree does not affect parties not cited who did not appear on the application for letters. § 560. Rights of Assignees of Distributees. — It has been mentioned, in discussing the subject of jurisdiction, that pro- bate courts have not the power to adjudicate upon the validity of an assignment by a legatee or distributee of his interest in the estate, unless such power is expressly conferred by statute. But where such power is vested in these coiui;s, their judgments are conclusive upon all parties thereto; hence, an order to pay a legacy to an assignee concludes the rights of an attaching creditor against the assignor. But whether the matter arise 484 THE L\W OF decedents' ESTATES. [§§561, 562 in probate court (if the statute gives it jurisdiction), or in other tribunals, as will be the case in most States, since the assignee can have no greater right in a legacy or distributive share than the assignor possessed, it is ob\'ious that any right of set-off wliich existed against the assignor is good against the assignee. § 561. Set-off to Legacies and Distributive Shares. — The in- debtedness of a legatee or distributee constitutes assets of the estate, which it is the executor's or administrator's dut>' to col- lect for the benefit of creditors, legatees, and distributees. Hence such indebtedness may be deducted from any legacy or distributive share of the dpbtor. The right to deduct exists whether the legatee or distributee was indebted to the deceased before his death, or contracted a liability' to the estate thereafter. But a debt due the adminis- trator personally cannot be set off. It is held that a son is not entitled to recover his distributive share of his father's estate, where the father was surety for him in an amount greater than the value of said share, although the executor did not pay the surety debt until after the action brought by the son. But whether the administrator has a superior right to demand payment of a debt due to the intestate from the insolvent heir out of the lands such heir inherits, as against the grantee or creditor of such heir, has been variously decided. The question turns largely on the extent to which realty comes into the settle- ment under the statutory systems of the various States, and cannot be further followed within the limits of this treatise. The Statute of Limitations does not operate the extinguish- ment of a debt, but bars the remedy only; hence such debts may be deducted from, or set off against, legacies or distributive shares, notwithstanding the efflux of the statutory period of limitation. But this doctrine, well established in English courts of chancery and generally in this country, is repudiated in several States.^ § 562. Distribution of Personalty by Law of Domicile. — The law of the domicile governs the distribution of personalty, whether testate or intestate. But as this principle can be en- forced by comity only, it must yield to the established policy of the state of the fonma, so that, when the law of the domicile is 1 See the subject discussed in Woemer, § 564. §§ 563-566] OF DECREE OR ORDER OF DISTRIBUTION. 485 repugnant to such policy, it will not be recognized in the dis- tribution of the ancillary estate.^ § 563. The Widow's Rights not affected by Remarriage or Prior Gift. — The right of the widow to a share in her deceased hus- band's estate is not affected by her subsequent marriage before she actually receives such share; and, on the other hand, her share is determined by the amount of property in the husband's possession at the time of his death, so as to exclude her from any interest in advancements to his children made during his Hfetime, and to relieve her from accountability for property received by her from her husband before his death. § 564. The Share of a Deceased Distributee goes to his Per- sonal Representative. — It follows from the doctrine of the vesting of the distributee's interest at the time of the intestate's death, that if a person entitled to distribution die before dis- tribution is made, or his legacy paid to him, his share will go to his legal representative, and not to those who, by reason of his death, have become the next of kin of the intestate. § 565. Rights of Posthumous and Pretermitted Children. — Posthumous children, as stated in an earlier chapter, take equally with those born during the ancestor's lifetime and sur- viving him. Pretermitted children, by virtue of the statutes of most States, succeed to the same interest in the father's estate as if he had died intestate. But since the will is not re- voked or annulled by the omission to pro\dde for the testator's children, but remains in force in every respect save as affected by the rights of these, provision is generally made charging each devisee and legatee with a proportional contribution to make up the necessary portions. As the rights of the pretermitted child stand as if the ancestor had died intestate, they can be enforced for their proper portions against all persons claiming through or under devisees or legatees, even though such persons had no notice of the claim of such child; as, for instance, against the purchasers of land sold under a power in the will for the benefit of beneficiaries. § 566. Distribution without Administration. — The doctrine of the common law whereby personal property devolves to the executor or administrator, and not to the distributee or legatee, 1 See Woemer, § 565; Despard v. Churchill, 53 N. Y. 192. 486 THE hAW OF DECEDEXTS' ESTATES. [§§ 567, 568 involves the principle, that no one can obtain a legal title to the property of a deceased person except through an executor or administrator, and the consequent necessity' of administration of estates has heretofore been considered. It may be well to repeat, however, an exception to this rule, viz., when the dis- tributees, being sui juris, by agreement divide the estate among themselves without administration, it is good as between them- selves; but of course of no force as against any one else. The parties to the agreement are bound by estoppel.^ If such dis- tribution is made without satisfying a debt due by the deceased, the creditor may of course compel administration, or, if that is impracticable for any reason, he may sue for the debt as well as foreclose any lien he may have, making the heirs defendants, without hJmself administering. § 567. Partial and Premature Distribution. — When not en- dangering the rights of creditors or of the administrator the court may order a partial distribution of the estate, on the ap- plication of a legatee or distributee, before final settlement, usually on giving a refunding bond if the time to prove debts has not expired, and on notice to all parties interested. Where administration of the estate is had, the administrator will be protected in paying over to a legatee or distributee his share of the estate, if all the debts allowed against the estate have been paid, and the time has expired within which claims may be presented for allowance, except upon special application to the probate court, although there has been no order of dis- tribution or final settlement. The executor may retain out of each legacy which he is ordered to pay the sums already paid to each legatee respectively. The right of the administrator or executor to recover from a distributee or legatee an unauthor- ized over-pajTuent is discussed ante, § 557. § 568. Partition of Real Estate in Courts of Probate. — Since the probate court possesses only statutory powers and such as are necessarily incidental thereto, and since the real estate of the deceased in almost all States goes primarily to the heirs or dexasees, subject to jurisdiction of probate court only for special purposes {e. g., the payment of debts), partition of the realty * Waterhouse v. Churchill, 30 Colo. 415. See as to the necessity of administration and the exceptions, ante, §§ 184-185. § 568] OF DECREE OR ORDER OF DISTRIBUTION. 4S7 of the deceased is not within the jurisdiction of the probate court without express statutory authority. In a large number of States the probate court has by statute jurisdiction of parti- tion of realty^ between heirs and devisees. Where such power is given " the connection between the administration, settlement, distribution, and partition of an estate is such, that the power to make partition may be justly regarded as ancillary to the power to distribute such estate, and, therefore, not alien to the probate system as it has long existed and now exists in manv States." 1 The jurisdiction of the probate court, where it is given at all, is limited to the interest in the realty derived from the deceased; and even within these limits "that court has no jurisdiction of the question of the title of the land, but only of the mode of partition, assuming that the title existed in the intestate or testator. The partition, so far as the court have jurisdiction, is conclusive; that is, to the matter of division among the heirs or devisees, of whatever estate exists, which they have a right to have thus divided." "But beyond that the decree has no effect. . . . The question of estate and title is assumed, and the proceeding is for the purpose of dividing whatever estate or title exists. If none finally exists, the proceeding goes for nothing. ... If the assumed title fail, the effect of the decree fails also." ^ But within the scope of the power conferred upon the court the partition is conclusive; the decree is as conclusive upon the parties to the proceeding in respect of the matter of division among the heirs as the judgment or decree of any other court. Contingent remaindermen or persons to take under an execu- tory devise, who may come into being at a future time, are bound by the judgment in partition, on the theory of being vir- tually represented by the parties to the action, in whom the present estate is vested. As a general rule the holder of a life interest in an undivided part of the estate can enforce partition, but not the owner of a life interest in the whole tract. The holder of the estate by the courtesy generally cannot ask for partition. WTiere the land is incapable of division in kind without detri- 1 Robinson v. Fair, 128 U. S. 53, 84. 2 Grice v. Randall, 23 Vt. 329, 342. 488 THE LAW OF DECEDENTS' ESTATES. [§ 569 ment to owners, a sale of the whole, and division of the proceeds is usually authorized. So too the statutes in many States rec- ognize the doctrine of owelty, whereunder the person to whom the more valuable tract is assigned stands bound, with a lien on the propertv', to the person taking the less valuable tract for an equalizing amount. But in probate court partitions there must always be statutory authority for such action. It is held in States where probate courts have not jurisdiction in partition, and the proceedings are brought in courts of gen- eral jurisdiction, that while partitions ought not to be ordered until it be ascertained that the personalty is sufficient to pay the debts, yet the action may be begun before that time; it is^ only necessary that the entering of the order or decree be postponed until it is determined whether any and, if so, what part of the land be required for the payment of the debt. Advancements to the heirs are to be charged against them in partition proceedings as part of their respective shares; and if they have not been adjudicated by the probate court having jurisdiction of the estate, the court before which partition is pending may, before decreeing partition, require the parties to account for their advancements; and a purchaser from an heir stands in the same relation to the estate as the heir, and he may show advancements to the other heirs. § 569. Enforcing the Order to pay Legacies and Distributive Shares. — WTien the executor has assented to a legacy an action at law lies against him. Courts of equity will decree distribution when the probate court is without power to grant adequate re- lief, and will even do so, in some States (as we have seen in discussing the question of the necessity of administration, ante, § 185), without previous administration, when it appears that there are no creditors. The executor is a trustee for the legatee, subject to the pajinent of debts. Where debts do not exist, equity in these States assumes jurisdiction to enforce the lega- tee's right. An administrator cannot at common law plead the Statute of Limitations in bar of a suit against him by the next of kin for their distributive shares. But this rule is changed in many States; and where that is the case, courts of equity will follow §§ 570, 571] OF DECREE OR ORDER OF DISTRIBUTION. 489 the rule at law, and hold the remedy barred in analogy with the Statute of Limitations. § 570. Enforcement of Distribution under American Statutes. — The principles laid down in the foregoing sections are applicable to the older system of administration; but are greatly changed by the statutes, existing in the States, constituting what has repeatedly been called the American system. Under such stat- utes, the question of the executor's or administrator's liability is mostly determined by the probate court, whose order of dis- tribution or payment of legacies now takes the place of the executor's assent, and of the corresponding investiture of title in the distributee, and changes the character of the liability of executors and administrators from an official to a personal one, and the beneficial or inchoate title of the legatee or distributee becomes legal or absolute, enabling him to recover, by suit against debtors of the deceased in his own name, upon any cause of action assigned or distributed to him. Hence in these States it is generally held that the trust relation of the executor or administrator ceases, and the Statute of Limitations for the recovery of a legacy or distributive share begins to run from the time of final settlement or order to pay legatees and distrib- utees; and that thereafter the representative is subject to gar- nishment by a creditor of the legatee or distributee. Additional remedies of various kinds are provided by the statutes of several States. In a number of States it is provided that, after order of distribution and demand made upon the executor or administrator and failure to pay over, execution shall issue out of the probate court against the delinquent. A most summary remedy is given to legatees and distributees in California, Colorado, and Illinois, where the refusal to pay a legacy or distributive share after the order of the probate court to do so is treated as contempt of court, and may be punished by imprisomnent of the delinquent executor or ad- ministrator until he comply with such order, and it has been so held in New York.^ § 571. Disposition of Unclaimed Legacies and Distributive Shares. — Legacies and distributive shares due to persons who, ^ For further details as to statutory remedies, see Wocrner on Admin- istration, § 569. 490 THE LAW OF DECEDENTS' ESTATES. [§ 571 for any reason, do not call for them, are, under statutory pro- visions of several of the States, to be invested or paid into the State treasury until called for. In some States the administrator invests the sums for a time, ultimately also paying into the public treasury. The money so paid into the State treasury may be withdrawn by the legatee on proper proof, but without interest, and on payment of all costs.^ When no claim is ultimately made, the doctrine of escheat applies, discussed ante, §§ 124-131. * For the statutory law, see Woemer on Administration, § 569. §§ 572, 573] STATUS OF EXECUTORS AFTER SETTLEMENT. 491 PART II. OF THE ESTATE AFTER OFFICIAL ADMINISTRATION. CHAPTER LXII. OF THE STATUS OF EXECUTORS AND ADMINISTRATORS AFTER FINAL SETTLEMENT. § 672. Res Judicata as a Defence after Final Settlement. — In England a court of equity might decree accounting notwith- standing a previous accounting and distribution in the spiritual court, and so a new accounting became necessary whenever the executor was obliged to plead plene administravit in a suit at law. But in the United States the tribunals intrusted with jurisdiction over the estates of deceased persons are clothed with the powers and dignity of courts, whose judgments and decrees are as binding and conclusive as those of other courts. Hence the plea of res judicata affords a complete defence to executors and administrators against the demands growing out of any matter of administration, in so far as the probate court has lawfully adjudicated thereon. And it is equally obvious that that which has not been tried cannot have been adjudicated; the final settlement of an ex- ecutor or administrator can therefore be conclusive or binding upon nothing which was not either directly before the court, or necessarily involved in that which was before the court and ad- judicated. That which is not within the scope of the issues presented cannot be concluded by the judgment. § 573. Duration of the Office at Con:inion Law. — At common law the office of executor or administrator does not terminate during his lifetime, unless he be removed by a court of com- petent jurisdiction. Without statutory authorization to that effect, probate courts have no power to accept the resignation of an executor or administrator, and a discharge or removal 492 THE LAW OF DECEDENTS' ESTATES. [§§ 574, 575 for any cause or in any manner except as pointed out by statute is simply void. It also follows that, unless discharged in accord- ance with some statutory provision, neither the authority nor the liability of executors or administrators is at all affected by the settlement of a final administration account, except as it may protect them under the doctrine of res judicata. If, therefore, property of the deceased is discovered after the final settlement, the existence of which was then unknown and could not for that reason be administered, the administrator and his sureties will be liable therefor, and subject to the same proceedings against them as in respect of the property coming originally to the hands of the administrator. So their functions in other respects remain unextinguished after final settlement, and an order of discharge made by the probate court can be regarded as a discharge only so far as the particular matters appearing upon the face of the account are concerned. § 574. The American Theory of the Duration of the Office. — Courts, in view of the great desirability of relieving these officers from further harassment, their sureties from the anxiety attend- ing continuous liability, and distributees and legatees, heirs, and de\4sees from the uncertainty of their tenure of the property descended to them, have gone to the extent of declaring the executor or administrator functiis officio by virtue of his final settlement, or of an order of discharge by the probate court, in the absence of a statute authorizing such order. However con- sistent such ruling may be with the spirit of our system of ad- ministration, it is not quite clear that either a final settlement without a discharge by the court, or an order of discharge not authorized by statute, can relieve an executor or administrator of the duty imposed upon him by law of collecting assets dis- covered after final settlement, and administering them by pay- ment to creditors, legatees, or distributees; or protect him against liability for assets concealed by him and not accounted for in his inventory or settlement. § 575. Statutory Provisions for the Discharge of Executors and Administrators. — Statutes provide for the removal and resig- nation of executors and administrators, as discussed ante, § 258. In such cases an administrator de bonis nan continues the administration. § 575] STATUS OF EXECUTORS AFTER SETTLEMENT. 493 But when a final settlement is made the executor or adminis- trator is not necessarily discharged. He is responsible for assets subsequently discovered. As the final settlement did not in- volve such items, neither the plea of plene administravit nor that of res judicata can afford protection as to such items against creditors or distributees. To put an end to this indefinite pos- sibility of liability on the part of the administrator or executor (and also of the sureties) it is enacted in a number of States^ that proof of full administration with satisfactory vouchers showing pajTiient and delivery to those entitled of all the property of the estate, and performance of all acts lawfully required of him, entitles the executor or administrator to a full discharge from all liabilities thereafter. In some of the States proof must be made, in addition to proof of the facts above mentioned, of notice given of the intended application for discharge. It is held under these statutes, that the dismission by judgment of the court of ordinary is a complete bar, both at law and in equity, unless impeached for fraud, the legislature announcing that the discharge is a release. Under such statutes discharging an administrator, an administrator de bonis non must be ap- pointed, if assets of the estate are subsequently discovered. In a number of other States there are statutes defining the extent of the protection which the judgment on the final set- tlement affords the executor or administrator; but they are to be distinguished from the statutes first mentioned in that they do not result in the discharge of the personal representative. They do not make him functus officio. 1 See Woemer on Administration, § 573. 494 THE LAW OF DECEDENTS' ESTATES. [§§ 576-579 CHAPTER LXIII. OF THE LIABILITY OF THE ESTATE AFTER FINAL SETTLEMENT. § 576. Liability of Legatees and Distributees after Settlement to Creditors of Deceased at Common Law. — Since all personal property descends, not to the next of kin, distributee, or legatee, but to the executor or administrator, the creditor is confined to his remedy against the latter; from which it follows that, without some statutory provision in the State under whose laws the property descends, neither legatees nor distributees can be made liable for the debts of the testator or intestate. § 577. Liability of Heir and Devisee at Common Law. — At common law the heir was liable for the debts by specialty of his ancestor; he was bound to satisfy them to the extent of the value of the land descended to him. But if he had aliened the land before action or proceeding against him for the ancestor's debt, the creditor had no remedy. The heir was not liable for other debts. Devisees are not liable at the common law for either specialty or simple debts. But of course the heir and devisee take realty subject to charges thereon, e. g., mortgages. § 578. Liability of Beneficiaries of Estate under Statutes. — The law of all States subjecting realty to debts in the course of administration, heretofore discussed, has substantially changed the position of heir and devisee with reference to rights of cred- itors of the ancestor or testator. In addition, the law ever^-where provides a remedy for such creditors of the deceased as had no standing during the admin- istration, against heirs, devisees, distributees and legatees. The statutory changes were brought about in England too late to be part of our American common law, and so do not affect our statutes. § 579. What Creditors can claim after Final Settlement. — If the creditor could have presented his claim in the course of §§ 580, 581] LIABILITY OF ESTATE AFTER SETTLEJVIENT. 495 administration of the estate, he cannot avail himself of these statutes. Only holders of claims which are not barred by the statute of Non-claim {e. g., contingent claims where the cause of action accrued too late for presentation within the time fixed by the Statute of Non-claim, in the administration) can be enforced after final settlement against beneficiaries of the estate. As long as any other remedy is open, these statutes cannot be invoked. § 580. Extent of Liability of the Beneficiary of Deceased. — The recipient of property of a deceased person by descent or dis- tribution, or gift from the testator, is self-evidently never liable for more than he has received, unless he has unlawfully inter- meddled, so as to make himself liable as executor de son tort. Interest is not charged on that value. No improvements put on the land by the heir or devisee will enter into the valuation, nor is he liable for rents and profits; but he cannot, on his side, claim credit for repairs. § 581. The Creditor's Form of Remedy against Beneficiaries of Estate. — It is mostly provided by statute, that where the heir or devisee has aliened his share of the property descended or de- vised, he becomes personally liable to the ancestor's creditor to the amount of its value. In some States the creditor's action is held to authorize a personal judgment against the heir or devisee only, so that an order to sell the specific land descended is erroneous; but in others, the judgment is directed to be sat- isfied out of the lands descended, if they have not been aliened. A purchaser from an heir or devisee, after the expiration of the time during which the real estate may be subjected to the pai^ment of the debts of the decedent in the probate court, and before suit brought by a creditor against the heir, obtains a title which is superior to the right of the creditor; but the devisee himself, by accepting the devise, makes himself personally liable to the creditor to the extent of the value of the land devised. The general remedy of a creditor, whose right of action ac- crued after the time in which claims may be presented against the estate while under administration, is by bill in equity^ against the recipients of property from a solvent estate, for contribution to the extent of the estate received by them; but whether a creditor must proceed against all jointly, or may hold each sep- 496 THE LAW OF DECEDENTS' ESTATES. [§ 581 arately for his proportion of the debt, or hold any one or more of them liable for the whole of the debt, not exceeding the amount received by each, so as to compel those from whom he recovers to seek contribution from the other heirs or distributees, is held differently in different States.-' * See on these and similar points Woemer on Administration, § 579. INDEX. INDEX. IReferences are to Sectional ABANDONMENT, as affecting homestead, 102. as affecting provisional alimony, 90. ABATEMENT OF ACTIONS. See Revival of Actions; Survival op Actions. ABATEMENT OF LEGACIES. See Satisfaction of Legacies. ABSENTEES, administration on estates of, 192. ACCOUNTING, between surviving partner and representative of deceased, 119. between administrator d. b. n. and predecessor, 173, 343, 344. in ecclesiastical courts, and in equity, 498. modern periodical accounting, 499. passing on account by court, 500. jurisdiction of probate courts over, 501. See Annual Settlements Final Settlements. what the account must show, 507. inventory as foundation of account, 508. what interest chargeable, 509. debts of executor and administrator to be charged, 510. when rent and proceeds of realty chargeable, 511. See Expenses of Administration, allowance for widov/ and children 518. payments on debts as credits, 520. payment in anything but cash, 521. credit for difference between actual value and inventory, 522. interest on advances as credit, 523. See Compensation of Executor and Administrator. by co-executors and by co-administrators, 534. for unfinished administration, 535. for assets received in foreign jurisdiction, 536. ACCRETIONS, as assets, 296. ACTIONS, by and against surviving partners, 113. for injuries resulting in death, 188. See Survival of Actions. 500 INDEX. [References are to Sections] ACTIONS — Continued. duty of personal representative to prosecute and defend, 311. See Revfv'al of Actions. See Claims against Estates op Deceased Persons. ACCUMULATION OF INCOME. See Income. ADEMPTION, distinguished from satisfaction of legacies, 443. legacy presumed in satisfaction of debt, 444. by gift to child, 445. admissibility of parol evidence on question, 446. statutory provisions affecting, 447. distinguished from advancement, 550. ADJOURNMENT OF SALE OF REALTY, when permitted, 478. ADMINISTRATION, reasons for its necessity, 184. circumstances under which it is dispensed with, 185. on estates of living persons, 191. on estates of absentees, 192. on estates of non-residents, 187, 229. validity of without bond, 236. what constitutes at common law, 343, 535. under modern statutes, 344. distribution by consent without administration, 566. ADMINISTRATION BOND, origin of law requiring, 232. not required of executors at common law, 233. when court can order executor to give bond, 234, 235. validity of administration without bond, 236. when additional bond can be ordered, 237. ex mero motu or at instance of interested parties, 239. judgment against administrator, as evidence against the sureties, 238. the na ure of liability on the second bond, 239. the nature of liability of sureties, 238. formal requisites, 242. amount of penalty, 243. joint and separate, 244. approval and custody, 245. liability on order to pay debts, 402. ADMINISTRATOR, for matters common to Executors and Administrators, see that title. distinguished from executor, 167. when title vests, 168. relates back to death of intestate for certain purposes, 169. for special administrators, see their respective titles. his acts before grant of letters, 179. principles governing appointment, 218. the husband's right to appointment, 218, 219. the widow's right to appointment, 220. the right of next of kin, 221. INDEX. 501 [References are to Sections] ADMINISTRATOR — Continued. the right of creditors, 222. the right of the pubHc administrator, 223. disqualifications, excluding from appointment, 224. the court's discretion in appointing, 225. renunciation of right to administer, 226. result of renunciation, 227. appointment of administrator with limited powers, 231. ADMINISTRATOR AD LITEM, 176. ADMINISTRATOR DE BONIS NON, what the office is, 173. who entitled to appointment, 230. of what he takes charge at common law, 343. of what under modern statutes, 344. how far bound by acts of predecessor, 343. successive administrators have but one compensation, 529. accounting with predecessor, 535. ADMINISTRATOR PENDENTE LITE, 175. ADMINISTRATOR WITH THE WILL ANNEXED, what the office is, 172, 228. who entitled to such letters, 228. ADMISSIONS, See Declarations. by beneficiaries in will contests, 208. by personal representative as binding estate, 369. by personal representative do not stop statute of non-claim, 392. by personal representative as against statute of limitations, 392. ADOPTED CHILDREN, inheritance by, from, and through, 73. ADVANCEMENTS, the term defined, 549. distinguished from ademption, 550. jurisdiction of probate court when advancement is realty, 551. to what distributees the doctrine applies, 552. to deceased person, when charged against his child as distributee, 552. what constitutes advancement, 553. donee's rights in respect to, 554. computation of value, 555. • evidence to show advancements, 556. charged in partition of realty, 568. ADVERTISEMENT. See Notice. AFFIDAVIT. See Oath. ALIENS, power to take personalty and realty of intestate or by will, and to will the same, 12. ALLOWANCE OF CLAIM BY PERSONAL REPRESENTATIVE, final, in some states, 378. ALLOW^ANCE OF CLAIMS IN PROBATE COLTIT. See Claims ag.mnst Estates of Deceased Persons. 502 IXDEX. [References are to Sections] ALLOWANCE TO WIDOW AND CHILDREN. See Provisional Alimony. ALTERATIONS, in wills, 47. AMBIGUITY, latent and patent, evidence to explain, 413. ANCESTRAL ESTATES, their devolution, 76. ANCILLARY ADMINISTRATION, discussed, Chapter XVII. See Domiciliary and Ancillary Jurisdiction. ANIMALS, as assets, 267. as pertaining to realty, 267. ANNUAL SETTLEMENTS, only prima facie valid, not res adjudicata, 502. ANNUITIES, when they go to personal representative, 287. resort to general estate when fund fails, 454. interest on, 459. ANTE NUPTIAL SETTLEMENTS. See Marriage Settlements. APPEALS FROM PROBATE COURTS, subject discussed. Chapter LIX. right given only by statute, 541. who may appeal, 542. from what decisions, 543. within what time, 544. the appeal bond, 544. the notice of appeal, 544. power of probate court after appeal, 545. procedure on appeal, 546. trial de novo, 547. APPRAISEMENT, of goods and chattels inventoried, 308. prior to sale of realty, 477. APPRENTICES, how contract affected by death, 288. ARBITRATION, power of personal representative to submit to, 315. ASSENT, of executor to legacies, 450. suit against executor thereon, 569. ASSETS, heirlooms not personalty, 260. joint property, 262. chattels real, 264. mortgages, 266. I INDEX. 503 [References are to Sections] ASSETS — Continued. vendor's lien, 266. animals, 267. vegetables, 268. emblements, 269. fixtures, 270-272. See Survival of Actions. patents, copyrights and trade marks, 289. rents, 290. assets defined, 294. distinguished from property held in auter droit, 294. benefits allowed after death, 295. insurance as assets, 295. realty bought by personal representative for estate, 295. accretions, rents, interest, 296. property in foreign jurisdiction, 297. debts of executor or administrator, 299. property held in auter droit not asset, 300. legal and equitable, 301, 482. personal and real, 302. ATTACHMENT, will not lie for decedent's debt, 380. ATTESTING WITNESSES, method of signature, 36. their competency, 38. proof when they are not accessible, 201. when they repudiate attestation, 201. B. BASTARDS. See Illegitimate Children. BEQUESTS. See Legacies. BILLS AND NOTES. See Negotiable Paper. BONA NOTABILIA, 187. See Choses in Action; Judgments; Death as Foundation foe Cause of Action. BOND. See Administration Bond. of executors and administrators, 232-245. given in successive trust capacities, 241. of personal representative on sale of realty, 473. on appeal from probate court, 544. refunding bond to secure speedy distribution, 557. BUSINESS. See Trade. C. CANCELLATION OF WILL. See Revocation of Wili, CAUSA MORTIS. See Donationes Mortis Causa. 504 INDEX. [References are to Sections] CHARITABLE USES, what are, 422. 43 Elizabeth as part of present laws, 423. upheld where other trusts fail for indefiniteness, 424. continue indefinitely though vesting subject to rule as to perpetuities, 425. the doctrine of cy-pres, 426. masses for the dead, 427. CHATTELS REAL. See Leasehold Estates. CHILDREN. See Adopted Children; Infants; Illegitimate Chil- dren; Posthumous Children; Pretermitted Children. CHOSES IN ACTION, where bona notabilia for probate jurisdiction, 187. CLAIMS AGAINST ESTATES OF DECEASED PERSONS. See Priority of Debts. the common law system of payment, 346. debts of deceased distinguished from liabilities of administration, 347. See Funeral Expenses. expenses of last illness, 35L See Payment of Debts. exhibition of, see Exhibition of Claims against Estates. the jurisdiction of probate court to allow claims, 379. equitable defences in probate court, 380. attachment will not lie for decedent's debt, 380. claims against estates of married women, 381. not matured, see Claims not Matured. contingent, see Contingent Claims. claims of personal representative, 384. claims of relatives of deceased, 385. notice for allowance distinguished from exhibition, 386. when set-off can be claimed, 387. See Statute of Non-claim. See Mortgages and Collateral Securitt. CLAIMS NOT MATURED, what judgments rendered on, 382. CLASSES. See Testamentary Classes. CO-ADMINISTRATORS. See Co-executors. CODICILS, as repubUcation of will, 43, 55. CO-EXECUTORS, priority between when in difTerent states, 156. joint and several bonds, 244. voting stock of deceased, 317. all join in exercising power, 333. statutory changes, 335. joint; not joint and several, 339. all must be joined in suit, 339. liability of one for acts of another, 340. protection of one against acts of another, 341. INDEX. 505 [References are to Sections] CO-EXECUTORS — Continued. their compensation, 528. accounting by, 534. COLLATERAL INHERITANCE TAX, discussed, 320. COLLATERAL SECURITY. See Mortgages and Collateral Se- curity. COMMISSION. See Compensation op Executor and Administrator. COMMON FORM, probate of will in, 196, 198. COMPENSATION OF EXECUTOR AND ADMINISTRATOR, not at common law, but by statute, 524. has priority over debts owing by estate, 524. in case of maladministration, 525. on what commissions are allowed, 526. compensation for extra services, 527. of joint executors or administrators, 528. validity of agreement to divide commissions, 528. of successive administrators, 529. bequest to executor as affecting commission, 530. where same person is executor and trustee, 531. method of charging, 532. COMPOUNDING WITH DEBTORS, powers of personal representative, 314. CONDITIONS TO LEGACIES AND DEVISES, precedent and subsequent, 434. repugnant conditions, 435. restraint of alienation, 435. spendthrift trusts, 436. gift conditioned on religious qualifications, 437. for separation of married couple, 438. against disputing will, 439. in restraint of marriage, 440. CONFLICT OF LAWS, change in law as to testamentary formalities, 37. devolution of realty by law of state where land lies; of personalty by intestate's domicile, 78. what law governs provisional alimony, 95. what law governs homestead, 109. mode of administration, including priority in claims by law of forum, 163. distribution of personalty by law of domicile, 164. descent of realty by lex rei sitae, 165. what is realty determined by lex rei sitae, 165. See Situs of Property. extra-territorial enforcement of Lord Campbell Acts, 285. accountability for assets in foreign jurisdiction, 297, 309. in what sovereignty personalty is taxable, 319. in what county personalty is taxable, 319. distribution of personalty by law of domicil, 562. 506 INDEX. [References are to Sections] CONSTRUCTIVE CONVERSION, of realty into personalty and vice versa, 336. CONSTRUCTION OF WILLS, at common law only realty owned at date of will passes, 50. how far probate court has jurisdiction, 151. jurisdiction of equity to construe wills, 152. • subject discussed. Chapter XLVI. ascertaining testator's intention, 404. several parts construed together, 405. general intent controlling particular, 406. terms repeatedly used, 407. transposition of words and limitations, 408. precatory trusts, 409. life estates by implication, 410. speaks from testator's death, 411. construed as of date of execution, 412. extrinsic evidence, 413. condition against disputing, 439. classes, see Testamentary Classes. gifts to children, grandchildren, issue, how construed, 414. rule in Wild's case, 414. when descendants of donee take per capita, when per stirpes, 415. heirs, legal heirs, descendants, relatives, next of kin, construed, 415. cumulative repeated and substituted legacies, 442. gifts of rents and profits construed as devise of land, 492. CONTEST OF WILLS, in federal courts, 154. administration pendente lite, 175. various methods, 200. is in rem, 200. can attack only part of will, 200. who can institute control, 200. CONTINGENT CLAIMS, liabiHty for at common law, 367. how far regarded in probate court, 383. CONTINGENT LEGACIES AND DEVISES, distinguished from vested, 430. CONTRACTS OF DECEASED, with apprentices and servants, 288. duties of personal representative as to, 317. when terminated by death, 317. CONTRIBUTION, enforcible among beneficiaries under will, 497. COPYRIGHTS, go to personal representative, 289. CORPORATIONS, as executors, 216. as testamentary donees, 418. as donees in trust, 419. See Stock. INDEX. 507 [References are to Sections) CORPSE, right to control disposition, 261. COSTS, in litigation incident to administration, 515. COUNSEL FEES, reasonable, allowed administrator, 513. when counsel fees not allowed, 514. of executor in litigation to establish will, 516. COVENANTS OF TITLE, when action lies by or against personal representative, 282. in administrator's deed on sale of realty, 481. CREDITORS. See Claims against Estates of Deceased Persons. CY-PRES, applied to charities, 426. D. DEATH AS FOUNDATION FOR CAUSE OF ACTION, claims under Lord Campbell Acts as bona notdbilia, 188. the proof of, and presumptions as to, 190. for whose benefit, 284. extra-territorial enforcement, 285. DEBTS OF DECEASED. See Claims against Estates of Deceased Persons. DEBTS OF EXECUTOR OR ADMINISTRATOR TO DECEASED, liability to estate at law and in equity, 299, 510. charged in account, 510. DECLARATIONS, of testator as evidence of testamentary capacity, etc., 207. as evidence of contents of last will, etc., 207. on questions of ademption, 446. of donor on question of advancement, 556. DEED, by administrator on sale of realty, 481. DEMONSTRATIVE LEGACIES, what are, 441. when they abate, 449. DESCENT AND DISTRIBUTION, Chapter VIII. "descent" applies to realty; "distribution" to personalty, 66. distinction does not exist in America, 66. affinity and consanguinity, 67. the degrees of collateral relationship, 68. statutory modifications, 70. See Representation. the half blood, 71. posthumous children, 72, 565. adopted children, 7.3. illegitimate children, 74. aliens, 12. 508 INDEX. [References are to Sections] DESCENT AND DISTRIBUTION — Consumed, ancestral estates, 76. effect of killing of ancestor by heir, 77. distribution of personalty governed by law of domicil, 164. descent of realty governed by lex rei sitos, 165. DEVASTAVIT, meaning of the term, 533. DEVISES, for matters in common with legncies, see Legacies and Devises. distinguished from legacies, 403. of rents and profits as authorizing sale, 406. DISCHARGE OF EXECUTOR AND ADMINISTRATOR, none at common law, liability continuing, 573. resignation and removal, 258, 573. modern statutes directing the discharge, 574. the final settlement as full discharge, 575. DISTRIBUTION. See Descent and Distribution; Advancements. advance payments in distribution, 519. done under order of court, 548. refimding bond to secure speedy distribution, 557. order of distribution parties to, 558. parties to, 558. its conclusiveness, 559. nature and scope of, 559. payment to distributee's assignee, 560. set-off to legacies and distributee's shares, 561. distribution of personalty by law of domicil, 562. deceased distributee's share to his administrator, 564. posthumous and pretermitted children, 565. distribution without administration, 566. partial and premature distribution, 567. enforcement of order, 561, 570. unclaimed shares, disposition of, 571. DIVIDENDS. extraordinary between life tenant and remaindermen, 456. DOMICIL, what constitutes, 189. DOMICILIARY AND ANCILLARY JimiSDICTION, Chapter XVII. no administration has authority outside of appointing state, 155. administration in each state where property lies, 156. jurisdiction over property removed from one country to another, 157, 160. See Foreign Executor and Administrator. distribution under domiciliary law, 164. the ancillary court secures equality to its citizens, 164. DONATIONES MORTIS CAUSA, Chapter VII. definition of term, 56. apprehension of death, 57. what property can be given, 58. ETOEX. 509 [References are to Sections] DONATIONES MORTIS CAUSA — Continued. parting with control, 59. delivery to third person, 60. revocation by donor's, act, 61. by donor's recovery, or by donee's death, 62. validity against donor's creditors, 63. against donor's surviving family, 64. subject to succession tax, 320. DOWER, discussed. Chapter XI. as affecting homestead, 100. in personalty, 111. See Election. in partnership realty, 123. emblements on dower land, 269. sale of land for debts subject to dower, 484. E. ECCLESIASTICAL COURTS, their origin, 133, 134. their powers, 135. gradual limitation of their powers in England, 136. accounting in, 498. ELECTION, between homestead and dower, 100. between provisional alimony and marriage settlement, 86. between dower and devise, 112. between dower and widow's statutory share, 112. where will assures disposal of beneficiary's property, 461. EMBLEMENTS, to executor as against heir, 269. on dower land, 269. ENCUMBRANCES. See Mortgages and Collateral Sectjritt. EQUITABLE ASSETS, what are, 301, 482. EQUITABLE CONVERSION. See Constructive Conversion. ESCHEATS, Chapter XIII. its technical meaning, 125. now merely signifies that state is "ultimus heres," 126. necessity for inquest of office, 127. escheator, 128. escheated estates remain subject to trusts, 129. subsequent recovery by heir from state, 130. administration where there are no known heirs, 131. unclaimed legacies and distributive shares, 571. EVIDENCE. See Witnesses, Declarations, Admissions; Presump- tions. judgment against administrator as evidence against his sureties, 238. execution of writing by deceased need not be denied under oath, 385. 510 INDEX. [References are to Sections] EVIDENCE — Continued. extrinsic evidence in construing will, 413. in support of final settlement, 539. EXECUTOR, distinguished from administrator, 167. formatters common to Executors and Administrators, see that title when title vests, 168. executor's executor as successor to original executorship, 173, 342. his acts before grant of letters, 178. constructive appointment in will, 212. constructive powers in will, 333. testator's delegation of power to appoint, 212. qualifications as affected by residence, 213. qualifications as affected by infancy, 214. qualifications as affected by coverture, 215. qualifications as affected by mental or moral defects, 216. corporations as executors, 216. acceptance or refusal of office, 217. not required to give bond at common law, 233. when court can order him to give bond, 234. See Powers of Executors under Will. EXECUTORS AND ADMINISTRATORS, for matters peculiar to executors, see Executor. for matters peculiar to administrators, see Administrator. do not take realty at common law, 3. power over realty in modern law, 4, 5. surviving partners administering on partnership, Chapter XII. priority, see Priority among Executors and Administrators. their title is in auter droit, 170. validity of acts when the appointment void, and when voidable, 259. sue to set aside fraudulent conveyances of deceased, 286. what actions accrue in personal, and what in representative capacity, 293. their liability for property of third persons claimed as assets, 294. accountability for assets in foreign jurisdictions, 297. liability for estate property lost through negligence, 298. debts to deceased of personal representative, 299. duty to file inventory, 303. duty to take possession of property, 309. when property in foreign jurisdiction, 309. title paramount to that of beneficiaries of estates, 310. duty to prosecute and defend actions for and against deceased, 311. duty to bring suits in interest of estate, 312. power to compound with debtors, 314. power to submit to arbitration, 315. duties as to contracts of deceased, 317. carrying on business of deceased, 317. voting stock of deceased, 317. expenses of preservation of property, 318. See Expenses of Administration. See Sale of Personal Property. INDEX. 511 [References are to Sections] EXECUTORS AND ADMINISTRATORS — Co«