UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY NEW JERSEY PROBATE LAW and PRACTICE With a complete set of F'orms under the recent Orphans' Court and Prerogative Court Rules By CHARLES F. KOCHER Author of Ne-Tv Jersey Orphans^ Court Practice, Netv Jersey Chancery Practic:.', etc. NEWARK, N. J. SONEY & SAGE 1916 T Copyright, 1916, by CHARLES F. KOCHER ■55^1 ^i 1 PREFACE The development of the law relating to practice before the Probate Courts of New Jersey, since the publication of the author's work on Orphans' Court Practice in 1901, seems to warrant the ptiblication of these volumes, which are in no sense a revision of the former book, but an entirely new work. The statutes and rules embodied herein have been carefully compared, as to punctuation and capitalization, with those pub- lished in the Compiled Statutes and Pamphlet Laws. This, while necessary from the standpoint of the practitioner, has resulted in a sad lack oi uniformity, as the draftsman of each act apparently employed a standard of his own. One of the points kept in mind in preparing this work was to group together under each subject all of the statutes and rules relating thereto. Inasmuch as many statutes and rales include several subjects, this has resulted in some repetition, but it is believed that the resulting convenience will more than compensate for the slight increase in the size of the volumes. The Author desires to express his indebtedness to Mr. Hans Trier, of the Essex Bar, for his very valuable assistance in reading and correcting the proofs. Chapter l\\ on the "Power of Probate Courts to Correct and Revoke their De- crees." and also the article "Claims for Trust Funds in Pos- session of Decedent," on page 571, are from his pen. ClIARLKS F. KOCILI'K. Ill CONTENTS PART I. Probate Courts of New Jer?ey. Chap. I The Prerogative Court 3 II. The Orphans' Court 32 III. The Surrogate's Court 55 IV. Power to Correct and Revoke Decrees 68 V. Appeals "4 PART II. Wills. Chap. VI. Xature and Essentials 97 VII. Testamentary Capacity 103 VIII. Execution of Wills J-5 IX. Appointment of Executors \A5 X. Fraud and Undue Influence UQ XL Republication of Wills 1 7-! XII. Revocation of Wills 1 77 " XIII. Probate of Wills i?8 XIV. Xuncupative Wills -.^7 •• XV. Lost Wills 243 PART III. Executors, Administrators and Trustees. Cliap. XVI. Administration 2J9 XVII. Trustees 293 XVIII. Bonds of Administrators, etc 306 XIX. Assets 337 " XX. Proceedings for Discovery 357 XXI. Inventories 3^0 " XXII. Allowance to Family of Decedent 366 XXIII. Custody and Management of Estate 370 XXIV. Co-Executors and Co-Administrators 412 XXV. Real Property and Interests Therein 424 " XXVI. Liability of Lands for Payment of Debts 457 " XXVII. Sale of Lands for Payment of Debts |70 " XXVIII. Disbursements 520 " XXIX. ■ Insolvent Estates 5^4 '• XXX. Removal of Executors, etc 600 " XXXI. Accounting 616 " XXX IT. Commissions 675 " XXXIII. Distribution 6q8 " XXXIV. Suits for Legacies, etc 7.^" V Contents. PART IV. Guardianship. Chap. XXXV. Guardianship of Infants 741 " XXXVI. Guardianship of Incompetents 773 PART V. Adoption. Chap. XXXVII. Adoption of Minors 797 PART VI. Chap. XXXyill. A Summary of Proceedings Before the Or- phans' Court and Surrogate 809 Rules of the Orphans' Court 885 Rules of the Prerogative Court 905 Mortality Tables 928 PART VII. Forms of Procedure 937 Table of Cases Cited ■ 1363 Table of Sections of Orphans' Court Act Cited 1385 Table of Statutes Cited 1389 Index of Forms 1399 General Index 1441 PART I. Probate Courts of Xew Jersey. New Jersey Probate Law and Practice- CHAPTER I. THE PREROGATIVE COURT AND THE POWER AND JURISDICTION OF THE ORDINARY. The Ordinary. The chancellor is the ordinary, or surrogate general, and judge of the prerogative court. ^ Power of Ordinary to Call Supreme Court Justice to His Assistance. It shall be lawful for the ordinary, in any case in which he may be interested, or may have been concerned for either party, or may have given an opinion as attorney, solicitor, or counsel for either party, or in any other case in which he may deem it expedient, to call to his assistance one or more of the justices of the supreme court, to sit and advise with him on the hear- ing or argument of such case, or of any motion touching the same, and by and with the advice of such justice or justices, to make and pronounce such order, sentence or decree, as shall be according to law and the rules and practice of the preroga- tive court.- Ordinary to Make Rules of Practice. It shall be the duty of the ordinary, from time to time, to make such rules and orders to regulate the pleadings and prac- tice in the prerogative court and in the orphans' court as may, in his judgment, render the practice and proceedings therein more simple, expeditious and efficient, and prevent unnecessary costs and delay, and for that purpose he shall have full power to change and regulate such pleadings and practice.^ ^Constitution of New Jersey, as Comp. Stat., p. 1723, sec. 80. amended, art. VI, sec. IV, par. 2. ^Orphans' Court Act, sec. 194, 2P. L. 1900, p. 347, sec. 2. 2 3 Comp. Stat., 3884. 4 Probate Law and Practice. Power of Ordinary to Compel Obedience to Decree. If any person shall neglect or refuse to obey any citation, or to perform any sentence or decree of the ordinary or judge of the prerogative court, it shall be lawful for such ordinary and such court to cause such person, or persons, by process di- rected to any sheriff of any county of this state, to be taken and imprisoned until he shall obey the said citation, or perform the said sentence, or decree ; and every sheriff is hereby directed to cause all such process, to him at any time directed, to be duly executed, and to confine the person against whom such process shall be issued, as in execution, until he shall be delivered by due course of law ; and if any sheriff' shall neglect his duty therein, he shall be answerable to the party aggrieved in such manner as he would be answerable upon process of the like nature issuing out of the supreme court.* Payment of Costs. The payment of costs when awarded by the prerogative court may be compelled in the same manner as the court of chancery is authorized to compel payment thereof.^ Evidential Value of Transcript of Records of Prerogative Court. The transcript of any will or testament registered or re- corded in the prerogative office, duly certified by the register of the said office to be a true transcript, shall be received in evi- dence in any court of this state, and shall be as good and ef- fectual in law as if the books in which the same are registered or recorded were then and there produced and proved.*' VICE ORDINARIES. Vice Chancellors Constituted Vice Ordinaries. Every vice chancellor shall be a vice ordinary during his term of office as vice chancellor. The ordinary may refer to any vice ordinary any cause, or other matter, which at any time may be pending in the prerogative court, to hear the same *P. L. 1900, p. 347, sec. 7. 2 ^P. L. 1900, p. 347, sec. 8. 2 Comp. Stat., p. 1723, sec. 82. Comp. Stat., p. 1723, sec. 83 ; see ^P. L. 1900, p. 347, sec. 6. 2 also Orphans' Court Act, sec. 20, Comp. Stat., p. 1723, sec. 81. 3 Comp. Stat. 3819. The Prerogative Court. 5 for the ordinary, and report thereon to him and advise what order, or decree, should be made therein ; and any matter, or cause in which the orchnary is interested may be so referred. The ordinary may also, by general rule, provide for the refer- ence of causes, matters and proceedings, pending, or future, to the vice ordinaries.' General Reference to Vice Ordinaries. Motions and applications in the prerogative court, includ- ing applications for the probate of wills and for the granting of administration or guardianship, may be made to the vice ordinaries; and the same are hereby referred to them to hear and advise orders thereon without special reference.** References of Causes on Final Hearing. The final hearing of causes in the prerogative court, includ- ing appeals from the Orphans' Court, may, at the discretion of the ordinary, be referred to the vice ordinaries upon motion and notice, the same as references to vice chancellors are made in chancery ; and when so referred, the proceedings be- fore the vice ordinaries shall, as nearly as may be, be the same as on references by the chancellor to vice chancellors.^ Taking of Evidence Before Vice Ordinary. When any cause or matter shall be so referred to such vice ordinary it shall be lawful for him to take and hear the evidence of witnesses in said cause, or matter, orally, in the same manner as evidence is taken and heard in the several courts of law in this state on trials before a jury; and if a report of the evidence so taken before him shall become neces- sary in the progress of said cause, for use on appeal from the order or decree of the ordinary, then the vice ordinary shall settle and sign such report.^*' Stenographer to Vice Ordinary. It shall be lawful for such vice ordinary to employ a compe- tent stenographic reporter, for the same purposes that vice chancellors are authorized by law to employ such reporters, and ^P. L. 1913, p. 81. '"P. L. 1900, p. 348, sec. 14 ^Prerogative Court Rule 56. 2 Comp. Stat., p. 1724, sec. 89. 'Prerogative Court Rule 57. 6 Probate Law and Practice. such stenographic reporter shall be compensated in the same manner and after the same rates that such stenographers are compensated for services rendered to vice chancellors/^ TERMS OF PREROGATIVE COURT. Stated Terms Abolished. The prerogative court shall hold no stated terms, and all causes and matters cognizable before the ordinary, or any of the vice ordinaries, may be brought on for hearing at such days and times and upon such notice, where notice is required, as the ordinary or vice ordinary may order and direct, subject to any rules of the prerogative court heretofore or hereafter to be made.^- OFFICERS OF COURT. Proctors. All solicitors of the court of chancery shall be proctors of the prerogative court. ^^ Register. The secretary of state shall be register of the prerogative court, and shall perform the duties required of him by law in that respect.^* Duty of Register. It shall be the duty of the register of the prerogative court to record all wills, proofs, probate letters testamentary issued thereon and inventories hereafter proven, and in cases pending in the prerogative court, or before the ordinary, and all accounts of executors, administrators, trustees, and guardians, letters of guardianship and letters of administration hereafter issued, granted or allowed by the ordinary, and all orders, decrees, and other papers of a similar nature required by law to be recorded in the surrogate's ofifices of the respective coun- ties ; and for all official sendees as register of the prerogative court he shall be entitled to charge and receive, for the use of lip. L. 1900, p. 349, sec. 15. 2 ^^Constitution of New Jersey, Comp. Stat, p. 1724, sec. 90. as amended, art. VI, sec. IV, par. 12P. L. 1914, p. 37. 4- ^^Prerogative Court Rule r. The Prerogative Court. 7 the state as provided by law. the same fees as are allowed by law to the surrogates of the several counties of this state for like services. ^^ Duty of Register to Attend Sitting of Court. The register of the prerogative court shall attend the sitting of the court at the stated terms, to register the decrees and proceedings of the court. ^® Commissions of Register on Deposits. The register of the prerogative court shall be entitled to charge and receive, for the use of the state, on all moneys and securities deposited with him under any law of this state or the rules of the prerogative court, the same commissions as are allowed by law to the clerk in chancery for commissions on deposits.^' PLEADINGS. Petitions to be Addressed to Ordinary. All petitions shall be addressed to the ordinary.^^ Character of Paper and Typewriting. Every petition and other pleading, and all orders and papers of every nature intended to be filed in any proceeding shall be printed, or fairly and legibly written by pen, or by typewriter with what is known as a "black record ribbon." and the paper upon which said pleadings or orders are printed or written shall weigh at least seven pounds to the ream of five hundred sheets.'^ JURISDICTION OF PREROGATIVE COURT. General Jurisdiction. In England the proof of wills and granting of administra- tion, and, in fact, almost all matters now within the jurisdic- tion of our probate courts, had been for centuries entrusted to 15?. L., 1900, p. 348, sec. 10. 2 i^P. L. 1900, p. 348. sec. 11. 2 Comp. Stat., p. 1723, sec. 79. Comp. Stat. p. 1724. sec. 86. i«P. L. 1900, p. 347, sec. 4. 2 '"Prerogative Court Rule 2. Comp. Stat., p. 1724. sec. 85. 1 "Prerogative Court Rule 3. 8 Probate Law and Practice. the ecclesiastical courts. This jurisdiction had its origin in very early times. It arose out of the church's care for the soul of the decedent, and the desire to secure to the church the prop- erty that he had left in its care for the good of his soul. To die intestate was to die unconfessed, and intestacy was rare. As early as the eighth century, the "last words" of a dying man were attested by the priest, and we read that the clergy were advised to take with them one or two witnesses, so that the avarice of the kinsfolk might not contradict what is said when one priest alone is present. In the time of Cnut the Dane, one who died without "last words" was regarded as a sinner to be excused only because of negligence or sudden death ; and in Alfred's day, men disposed of folk lands as well as goods in post obit gifts in writing, with a prayer that the King or the Bishop would allow the gift to stand. After the conquest there was no sudden change, and it was in the twelfth and thirteenth centuries that the changes took place which established the definite law which gave jurisdiction to the church over wills of personal property, and left the lands under the control of the king's courts. The king's courts con- demned the post obit gifts of land, and the development of the law of primogeniture gave the land to a single heir, who had nothing to do with the chattels. The church asserted the right to protect and execute the will of the dead man, and the execu- tor of it gradually became the personal representative, who took the chattels, but had nothing to do with the freehold lands. As time went on the dread of intestacy increased, and the church asserted the right and duty of administering the goods of the dead man for the repose of his soul. By the time of Henry II., it was settled that the church courts might take care of wills, provided there were no testamentary gifts of lands ; and it is doubtful whether any such procedure as we call pro- bate was known in England before the time when the jurisdic- tion over testaments had been conceded to the church. By the end of the thirteenth century, it was settled law that the executors must prove the will before the Bishop's court, and take an oath duly to administer the estate. By statute 31 of Edward III., the ordinary was directed to depute the next and most lawful friends of a dead person to administer his The Prerogative Court. 9 goods. They were required to collect debts due to him and administer them for the good of his soul, and were required to answer in the King's courts, and made accountable to the ordinary, in the same manner as executors.-"^ Blackstone states that the purpose of this statute was to enable the next of kin to realize the assets and pay the debts, rather than to prevent the ordinary from taking the estate without paying the debts.-' The jurisdiction thus acquired by the ordinary in the pre- rogative court extended to the probate of wills of personal property, the appointment of administrators and the account- ability of executors and administrators." The jurisdiction of the ecclesiastical courts over the probate of wills aflfected only the disposition of personal property. Wills relating to land were allowed to be proved in order to qualify the executors and enable them to sue for debts, but the probate had no effect upon the title to land, and even after land was by statute made freely devisable, the question of the validity as well as the construction of the will remained with the courts of common law ; and so it is that in New Jersey the probate of a will is conclusive with respect to personal property only, and the title to the land devised may be tried in an action of ejectment.^^ When England separated from the See of Rome, this juris- diction was by the statute of 23 Henry VIII. declared to be in the Bishop of the Diocese who, when acting in his capacity of ex-officio ecclesiastical judge, was called the ordinary ; and in cases of goods within two Dioceses in the Archbishop. When acting in this capacity, the court presided over by the Arch- bishop was called the prerogative court.^* By the grant of Charles II. of March 12, 1664, the soil com- prised within the province of New Jersey was granted to James, Duke of York, afterwards James II., together with the rights of sovereignty. James, by a grant made June 24th, in the same year, granted the territory to Berkeley and Carteret, 202 Pollock & Maitland, 317, et. ^swilkinson v. Trustees, 38 N. seq. J- Eq., SH- 212 Blackstone Com., 294-296. -*2 Pollock & Maitland, 340, ct. 222 Pollock & Maitland, 317, seq. et. seq. lo Probate Law axd Practice. together with the same rights of sovereignty he had acquired by his grant. Under this grant, Berkeley and Carteret became Lords Proprietors of the province of New Jersey ; and a gov- ernment consisting of a governor, a council and a general assembly was established in the province, in all respects under the control of the Proprietors, Carteret being the first gov- ernor. The province having been conquered by the Dutch, and restored to the English Crown by the treaty of peace, Charles, by letters patent dated June 29, 1674, renewed his grant to James; and James, by his grant of the twenty-ninth of July, 1674, renewed his grant to Berkeley and Carteret, the provincial government being continued as above mentioned, Carteret's commission as governor being renewed. Other per- sons, namely, William Penn, Gawn Lawry and Nicholas Lucas, having acquired an interest in the grant by a quintipartite deed made July ist, 1676, partition was made of the province into two parts, to be called respectively, "East Jersey" and "West Jersey," Carteret retaining East Jersey and Penn and his asso- ciates West Jersey. After this, each division had its own Council of Proprietors and House of Assembly, the functions of which were wholly distinct. The courts in East Jersey, as established by the assembly, were county courts, justice's courts and courts of common right; the latter being the supreme court, having jurisdiction of all matters, causes and cases — capital, criminal, in equity and at common law. The government by the Board of Proprietors being unsatis- factory throughout the province, the power of the Crown to transfer to individuals the sovereignty in its colonies was denied in the mother country, and the title of the Proprietors to the soil was disputed by the settlers. In May, 1701, the inhabitants of West Jersey petitioned the King to be taken under the immediate government of the Crown. In July of the same year, the inhabitants of East Jersey presented a similar petition. These petitions were referred to the Lords of Trade, who recommended that a trial should be had upon a feigned issue, whereby the claim of the Proprietors to the right of gov- ernment might be determined. Discouraged in their efforts to establish a government in the province, and desiring to save so much of the grant as vested in them the title to the soil, the The Prerogativk Colrt. ii Proprietors, by an instrument of surrender of April 15. 1702. surrendered and yielded up to the Crown all their powers, authorities and privileges concerning the government of the two provinces, or either of them, or of the inhabitants thereof, reserving to themselves the title to the soil. This surrender was accepted by the Crown. The result was the consolidation of the two divisions of East and West Jersey into and under one government, with one gov- ernor, one council and one general assembly for the enactment of laws.-^ The tirst governor appointed after the surrender was Lord Cornbury ; and by the commission and explanatory instructions given him, the whole ecclesiastical jurisdiction over New Jersey was reserved to the Bishop of London, excepting ''the collating of benefices, granting of licenses for marriages and probate of walls," jurisdiction over which matters was granted to Lord Cornbury, and without variation to his several successors.-*^ Thus it was that jurisdiction over matters relating to the administration of the estates of decedents was committed to the royal governor, who, having been invested with all of the juris- diction exercised over these matters by the Bishop of London in his capacity as ordinary, naturally assumed the appellation of ordinary of the province. The governor, however, had not only the authority of an English ordinary, but of the Arch- bishop of the province as well ; he had no superior but the Queen in Council. His court was called the prerogative court, the appellation applied, as we have seen, to the Archbishop's court ; nor had he any subordinates ; his jurisdiction over these subjects was sole and exclusive. Article X, section i, of the Constitution of 1776, provided that "the several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction, as if this constitution had not been adopted," and it is settled that, in addition to the jurisdiction conferred upon the prerogative court by statute, that court has inherently all the jurisdiction of the ecclesiastical courts of England at the time of the adoption of the constitution of 1776.'-^ 2''Roesel v. State, 62 N. J. L., -'In re Hodnett. 65 N. J- I"-<1-. 216. 329. In re Conrsen's Will, 4 N. J. ^''Leaniing & Spicer, 639. Eq., 408. 12 Probate Law and Practice. Statutory Jurisdiction. The statute provides that the authority of the ordinary shall extend only to the granting of probate of wills, letters of administration, letters of guardianship, and to the hearing and finally determining of all disputes that may arise thereon.^* In addition to this jurisdiction, the prerogative court has special statutory jurisdiction over several matters which will be later considered. PROBATE OF WILL AND GRANT OF ADMINISTRATION BY ORDINARY. Jurisdiction. The original jurisdiction of the ordinary in all matters of probate and administration is concurrent with that of the sur- rogate ; and where a surrogate has obtained cognizance of a case, the ordinary cannot interfere during the pendency of that case before the surrogate. ^° But where a caveat against the probate of a will had been filed with the surrogate, and thereafter application for probate of the will in question was made, and before the issue of citations the application for pro- bate was withdrawn by a writing delivered to the surrogate, it was held that the withdrawal was a sufficient discontinuance of the proceeding, and that the ordinary would assume juris- diction upon a subsequent application to him for probate of the same paper.^^ The power of the prerogative court to admit a will to probate rests exclusively on the fact that decedent was domiciled in this state at the time of his death ; otherwise probate must be denied. The ordinary has no jurisdiction to admit to probate the will of a non-resident of New Jersey.^^ -sp. L. 1900, p. 346, sec. I. 2 from whose decree the statutory Comp. Stat., p. 1722, sec. 76. period of review has expired. In 3oin re Coursen's Will, 4 N. J. re Whitehead's Estate, 94 Atl. Eq., 408. The Ordinary has no Rep., 796. jurisdiction to entertain proof of a ^ipjsher's Case, 49 N. J. Eq., will in solemn form as a means of 517. setting aside a decree of probate ^-In re Geiser's Will, 82 N. J. of a surrogate who has acted Eq., 311. Chadwick's Case, 80 within his original jurisdiction and N. J. Eq., 47i- The Prerogative Court. 13 The original jurisdiction of the ordinary over the probate of wills of residents of this state and the granting of administra- tion is general and full, and not limited and special.^^ So the prerogative court has jurisdiction to grant letters of limited administration to a mortgagee on the estate of a subsequent deceased mortgagee of the same premises, who was a non- resident, no administration having been taken out in this state upon his estate, in a case where such mortgagee is unwilling to assume general administration upon such estate.^'' Proof Required that No Caveat Has Been Filed or Dispute Has Arisen. Probate of any will shall not be granted by this court, nor shall letters of administration be granted by it in any case, until proof be made to its satisfaction that no caveat against proving such will has been filed and that no dispute has arisen as to the right of administration, in the office of the surrogate of the county where the testator or intestate resided at the time of his death, or that notice has been given to all persons concerned of the application to this court for the probate of said will or for letters of administration.^^ PROCEEDINGS ON PROBATE. An executor who propounds a will for probate before the ordinary may adopt one of two alternatives, viz:(i) To sub- mit the will upon mere proof that no caveat has been filed in the county in which the testator had residence at the time of his death, or (2) to give notice to all persons concerned of the application for probate. If he adopts the former alternative, and satisfies the ordinary that no caveat has been filed, he may then propound the will and obtain his probate, without having given any notice ; if, however, a caveat has been filed, the ordi- nary will not allow probate, except upon notice. The alterna- tive provision is, however, so general as to indicate plainly that it was intended to permit the executor to proceed upon such •■'•■'In re Coursen's Will. 4 N. J. See also P. L. 1900. p. 343- 2 Eq.. 408. - Comp. Stat., p. 1722. sec. 77 and s^Lothrop's Case. 33 N. J. Eq., Orphans' Court Act. sec. 15. 2 246. Comp. Stat. 3817. ^•'■Prerogative Court Rule lo. 14 Probate Law and Practice. notice, whether a caveat has been filed or not. Upon this con- struction of the act, it follows that any person noticed to attend the probate must be admitted to cross-examine the testamen- tary witnesses and to produce evidence on the matter of the will, and a contest against the will may be maintained by him. It also follows that any person who has been noticed to attend and has refrained from attending, or who has attended and made no contest, would be thereafter estopped by the order admitting the will to probate from further contest, at least on matters then apparent or discoverable. If any party con- cerned and noticed to attend be an infant, there can be no doubt that the incidental powers of the ordinary would extend to the appointment of a guardian ad litem by whom the infant might appear, pursuant to the practice of courts having equitable or ecclesiastical jurisdiction.^® The power of the ordinary to order the re-probate, upon notice, of a will probated before him without notice, or to order the re-probate, upon notice, of a will probated before the orphans' court or surrogate is considered elsewhere.^^ Application for Probate or Letters of Administration. The application for probate of a will, for letters of adminis- tration, letters of administration with the will annexed, for substitutionary administration, or for substitutionary adminis- tration with the will annexed, shall be in writing, verified by affidavit ; such application shall state the residence of the applicant, the names of the heirs and next of kin of the deceased, so far as the same are known, with their residences or post-office addresses, and the manner or degree in which they severally stand related to him or her ; and shall also state the ages of any of said heirs or next of kin who may be minors, which application shall be recorded by the register in a book to be kept for that purpose. ^^ Renunciation By or Notice To Next of Kin. Where application for administration, for administration with the will annexed, for sustitutionary administration, or for ^^In re Hodnett, 65 N. J. Eq., Common Form," p. 190, infra. 329-339. ^^Prerogative Court Rule 4. 3"See "Probate in Solemn and The Prerogative Court. 15 substitutionary administration with the will annexed is made by any person other than the next of kin or party first entitled, or by one of several equally entitled to letters of administra- tion, the person making such application shall produce to the court the renunciation and request of the persons so entitled that letters be issued according to the application, or proof that at least ten days' notice has been given to all of the next of kin or parties by law entitled to such administration who reside in this state, and that not less than ten nor more than sixty days' notice, as the court may by order direct, has been given to the said next of kin or parties by law entitled to such ad- ministration who shall reside without this state. Notice to non-residents of the State of New Jersey may be sent by mail, with the postage thereon prepaid, addressed to the last known residence of such next of kin or parties by law entitled to such administration; which application, and the renunciation and request, if any, shall be recorded in a book to be kept for that purpose.^^ Administration After Forty Days From Death. If the executor named in any last will shall not apply for probate of said will and for letters testamentary thereon for forty days from the death of his testator, or the next of kin of any person dying intestate shall not apply for administration for forty days from the death of the intestate, this court may grant letters testamentary, or letters of administration, as the case may be, to any fit person who will accept the same.*" Notice of Application. In all t:ases where application for letters testamentary or letters of administration is made under the provisions of rule six*^ the petitioner shall give at least ten days' notice to the executor, if any, and also to the heirs, widow, next of kin, or persons entitled to administration, who are residents of the State of New Jersey and not less than ten nor more than sixty days' notice, as the court may by order direct, to the executor, if any, and also the heirs, widow, next of kin, or persons entitled to administration, who shall reside without the State of New Jersey, or to those of them whose residences or ad- 39Prerogative Court Rule 5. '•'See this page, supra. ♦"Prerogative Court Rule 6. i6 Probatk Law and Practice. dresses he can ascertain, of his intention to make such appH- cation ; which notices may be sent by mail with the postage thereon prepaid. Proof of service of the aforesaid notices shall be filed with the register of this court.*- Affidavit of Value of Estate. Upon application to this court for letters of administration, administration with the will annexed, substitutionary adminis- tration, or substitutionary administration with the will annexed, the applicant shall file an affidavit of the value of the estate for administration of which the application is made.*^ Residents Preferred Over Non-Residents. Where upon an application for letters of administration, ad- ministration with the will annexed, substitutionary adminis- tration, or substitutionary administration with the will annexed, it shall appear that some of the next of kin, or persons entitled to administration, are residents of the State of New Jersey, and that others of said next of kin, or persons entitled to administration, reside without the State of New Jersey, this court, in granting letters of administration, shall give prefer- ence to the residents of the State of New Jersey.** Proceedings Where Will Is Discovered After Administra- tion Granted. Where administration of an estate has been granted by this court, and afterwards a will shall be produced to t4iis court, or where probate of a will shall have been granted in this court and afterwards a later will shall be produced, the register shall issue a citation to all persons interested, returnable to this court, to show cause why probate of such will should not be granted ; and upon admitting to probate such will, the court shall require the administrator, or prior executor, to make final settlement of his account, and shall make such order in relation to his commissions as shall be just and equitable. *° ^^Prerogative Court Rule 7. ^^Prerogative Court Rule 9. ^^Prerogative Court Rule 8. ■'^Prerogative Court Rule 11. The Prerogative Court. 17 SUBSTITUTIONARY ADMINISTRATION. Substitutionary Administration After Forty Days From Death of Executor or Administrator. In all cases where any will has been admitted to probate by this court, or letters of administration, administration with the will annexed, substitutionary administration or substitutionary administration with the will annexed, has been granted by it, and the executor, or administrator, shall die before fully administering the estate of his testator, or intestate, and the next of kin, residuary legatee, or persons by law entitled shall not apply for substitutionary administration with the will annexed, or for substitutionary administration, as the case may require, for forty days after the death of such executor, this court may grant letters of substitutionary administration with the will annexed, or letters of substitutionary administration, as the case may require, to any fit person who will accept the same.*^ Notice of Application. In all cases where application for letters of substitutionary administration is made under the provisions of rule twelve*^ the petitioner shall give at least ten days' notice to the heirs, widow, next of kin, residuary legatees, or persons by law enti- tled to substitutionary administration with the will annexed, or to substitutionary administration, as the case may be, who are residents of the State of New Jersey, and not less than ten, nor more than sixty, days' notice, as the ordinary may by order direct, to the heirs, widow, next of kin, residuary legatees, or persons by law entitled to such substitutionary administration with the will annexed, or to substitutionary administration, as the case may be, who shall reside without the State of New Jersey, or to those of them whose residences or addresses he can ascertain, of his intention to make such application, which notices may be sent by mail, with the postage thereon prepaid. Proof of service of the aforesaid notices shall be filed with the Register of the Court.*** ♦"Prerogative Court Rule 12. ■•^Prerogative Court Rule 13. *~ See this page, supra. 3 l8 Probate Law and Practice. LETTERS TESTAMENTARY AND LETTERS OF ADMINIS- TRATION. Form of Letters of Substitutionary Administration. To All to Whom These Presents shall come. Greeting: Whereas, A. B., late of the County of M., in the State of New Jersey, departed this life intestate, of whose goods, chat- tels and credits administration was duly committed to C. D. : and the said C. D., after taking upon himself the burden of said administration, departed this life (or was removed), (or discharged) from the said office by , (as the case may be). Therefore I, E. R. W., Ordinary, or Surrogate-General and Judge of the Prerogative Court of the State of New Jersey, do in the place and stead of the said C. D., hereby substitute and appoint E. F., administrator of all and singular the goods, chattels and credits of said intestate who is duly authorized as such substituted administrator to administer the same agreeably to law.*^ Form of Letters of Substitutionary Administration With the Will Annexed. To All to Whom These Presents Shall Come, Greeting : Whereas, A B, late of the county of M, in the State of New Jersey, died, having made and executed a last will and testa- ment, which has been duly proved according to law before the Ordinary of the State of New Jersey, and, whereas, the said testator appointed C. D. executor thereof, who, after taking upon himself the burden of administration, departed this life, (or was removed) (or discharged) from his said office by , (as the case may be). Therefore, I, E. R. W., Ordinary, or Surrogate-General and Judge of the Prerogative Court of the State of New Jersey, do, in the place and stead of the said C. D., hereby substitute and appoint E. F., administrator of all and singular the goods, chattels and credits of the said testator, who is duly authorized as such substituted administrator to administer the same agree- ably to said will.^° ^^Prerogative Court Rule 14. ^oprerogative Court Rule 15. The Prerogative Court. 19 Form o£ Letters to be Changed to Accord to Facts. If the appointment is in substitution of an administrator with the will annexed who has died, been removed, or dis- charged, the form is to be changed to accord with the fact.^^ Register to Sign Letters. Letters testamentary and letters of administration shall be signed by the register of the prerogative court. '^^ SUBSEQUENT PROCEEDINGS AFTER PROBATE OF WILL OR GRANT OF LETTERS BY ORDINARY. Subsequent Proceedings to be Before Surrogate. When any will shall be admitted to probate, or letters of administration or of guardianship shall be granted by the ordinary, all subsequent proceedings relating to the adminis- tration and settlement of the estate of such testator, intestate or minor, shall be had before the Surrogate and Orphans' Court of the county in which by law such probate might have been granted, or letters issued ; provided, nevertheless, that the inventory of any administrator pendente lite appointed by the prerogative court shall be exhibited to the register, and his account settled before the ordinary in that court.^^ Proceedings Where Will Proved, or Letters Granted, By Ordinary. Where any will shall hereafter be admitted to probate, or letters of administration or of guardianship shall hereafter be granted, by the ordinary, the executor, administrator, or guard- ian shall file in the office of the surrogate of the county in which the testator or intestate resided at the time of his death, or in which the ward may reside, a transcript of such will, the proofs thereof, the order for probate and the letters testamen- tary, a transcript of such letters of administration, or guardian- ship, duly certified by the register under the seal of the prerog- ative court, which transcript shall be recorded in such surro- ■1 Prerogative Court Rule 16. ssQrphans' Court Act, sec. 6. 3 ^^Prerogative Court Rule i?- Comp. Stat., 3815. 20 Probate Law and Practice. gate's office, for which the surrogate shall be entitled to receive the same fees now allowed by law for recording wills and the proofs thereof.^* Transcript of Record of Prerogative Court May Be Recorded in Surrogate's Office, Any person interested may cause a transcript of any will, proofs, order for probate, letters testamentary, letters of administration, letters of guardianship, certified by the register under the seal of the prerogative court to be recorded in the office of the surrogate before whom such probate might law- fully have been made or by whom such letters might have been granted ; transcripts from such record, when duly certified by the surrogate, shall be received in evidence in any of the courts of this state, and shall have the same force and effect as if cer- tified by the register of the prerogative court. ^^ GUARDIANSHIP. Application for Letters of Guardianship. Application for letters of guardianship shall be in writing, verified by affidavit ; such application shall state the age and residence of the minor, the names and residences of his nearest of kin, the names and residences of all persons standing in loco parentis to such minor, if any, and the names and residences of the persons with whom he resides, and shall have annexed thereto an affidavit of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him. In the case of applications by orphans over the age of fourteen years, the foregoing affidavit shall be made by some person having personal knowledge of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him.^''^ Notice of Application for Guardianship. Where application for letters of guardianship of an orphan under fourteen, or guardianship upon the estate of a minor 540rphans' Court Act, sec. 4. 3 Comp. Stat., 3815- Comp. Stat.. 3815. seprerogative Court Rule 18. s^Orphans' Court Act, sec. 5. 3 The Prerogative Court. 21 whose father is living, is made by any person other than the next of kin, or party first entitled, or by one of several equally entitled to receive letters of guardianship, the person making such application shall produce to this court the renunciation and request of such persons so entitled, and of the person or persons standing in loco parentis to said minor, if any, and also of the persons with whom said minor resides, that letters be issued according to the application, or proof that at least ten days' notice has been given to all of the next of kin or parties by law entitled to such guardianship, and to all persons standing in loco parentis, to said minor, if any, and also to the persons with whom said minor resides, who reside in this state ; or that not less than ten, nor more than sixty days' notice, as this court may by order direct, has been given to the said next of kin or parties by law entitled to such guardianship, and to any person standing in loco parentis to said minor, and to the persons with whom the said minor may reside, who shall reside without this state. Notice to non-residents of the State of New Jersey may be sent by mail with the postage thereon prepaid, addressed to the last known residence of such next of kin, persons standing in loco parentis, persons with whom said minor may reside or parties by law entitled to such guardianship. The application and the renunciation and request, if any, shall be recorded by the register in a book to be kept for that purpose.^^ Appointment of Guardian for Infant Over 14 for Whom a Guardian Has Been Appointed While Under 14. In case any orphan, for whom, while under the age of four- teen years, a guardian has been appointed by this court, desires, upon arriving at the age of fourteen years, to choose another guardian, application may be made to this court, which appli- cation shall be signed by the minor in the presence of the ordi- nary, a vice ordinary, or a special master in chancery of New Jersey, and shall be in conformity with the requirements of Rule eighteen. The same notice of such application shall be given to the existing guardian, and also to the next of kin, persons standing in loco parentis and persons with whom such minor may '^Prerogative Court Rule 19. 22 Probate Law and Practice. reside, as is prescribed in Rule nineteen'^^ ; upon such applica- tion, the court shall inquire into the circumstances of the case, and shall take such action in respect to the appointment of a guardian, or guardians, for such minor as shall seem to be for his best interest and advantage/'^ Proof Required That No Dispute As To Guardianship Has Arisen. Letters of guardianship shall not be granted by this court until proof be made to its satisfaction that no dispute has arisen with respect to the right of guardianship in the office of the surrogate of the county where the minor resides, or that such notice of the application to this court for such letters of guard- ianship has been given to all persons concerned as is prescribed in Rule nineteen.**'^ Register to Sign Letters. Letters of guardianship shall be signed by the register of the prerogative court. "^^ INQUIRY FOR ABSENT NEXT OF KIN. Nature of Inquiry for Absent Next of Kin. Wherever it shall appear by any petition for letters of administration, or guardianship, that the residence or post- office address of any next of kin or other persons entitled to notice of such application shall not be known, the applicant, or his proctor, shall make diligent and careful inquiry therefor. Such inquiry shall be made of the nearest relatives of the dece- dent, or minor, if known ; or if not known, such inquiry shall be made of any person known to be connected with the said decedent or minor by marriage, or in business, or of any per- son who the applicant, or his proctor, making the inquiry, has reason to believe possesses knowledge of the residence or post- office address of such absent next of kin or person entitled tO' notice of such application ; such inquiries may be made in per- son, or by letter, and shall state that application has been made for letters of administration upon the estate of such decedent ■"'^Page 21. supra. Court Rule 21. •""'^Prerogative Court Rule 20. "' Prerogative Court Rule 22. ''"See p. 21. supra. Prerogative The Prerogative Court. 23 (naming him), or for letters of guardianship for such minor (naming him), and that the next of kin, or person entitled to notice, whose residence is sought to be obtained, is interested in such application, and that the object of the inquiry is to give him notice of such application, that he may appear and protect his interests, and, in the case of any application for guardian- ship, the interests of said minor. When such inquiry is made by letter, a proper postage stamp for the return of an answer shall be enclosed. Proof of such inquiry shall be made by the affidavit of the applicant, or his proctor, that such inquiry has been made in good faith and without success.^- SETTLEMENT OF ACCOUNTS. Vouchers to be Lodged With Register. Executors, administrators, guardians and trustees who have noticed their accounts for settlement in this court shall lodge with the register the vouchers and receipts for payments and disbursements claimed therein at least twenty days previous to the day on which said account is noticed for settlement, which said vouchers shall be open to the inspection of all interested persons. The register shall not report any account to this court for allowance and settlement unless the said vouchers and receipts have been lodged with him in compliance with this rule.*'^ Notice of Settlement of Accounts to be Mailed. In addition to the posting and publication of notices of settle- ment of the accounts of executors, administrators, guardians and trustees prescribed by law, one month's notice of the settlement of all accounts of executors, administrators, guard- ians and trustees, together with a statement as to whether counsel fees and commissions will be applied for by said ac- countant on the allowance of said account by the court, shall be given by said accountant to all persons interested therein, which notice may be sent by mail with the postage thereon prepaid. In case any person interested in ttie settlement of •^Prerog^ative Court Rule 23. '^Prerogative Court Rule 24. 24 Probate Law and Practice. such account be a minor, such notice shall be mailed to the guardian of such minor if any, if there be no guardian then to the parent or other person standing in loco parentis to said minor. Proof of such mailing shall be filed in the office of the Register of the Prerogative Court before the day on which the said account is noticed for settlement."^* Petition To Be Annexed To Accounts. All accounts of executors, administrators, guardians or trus- tees, shall have annexed thereto a petition, which shall be addressed to the Ordinary, and which shall contain the names and addresses of all persons interested in said accounting, and shall specify which if any of such persons in interest are mi- nors. In case any of such persons in interest be minors the said petition shall give the names and addresses of the guardians of such minors if any, or if there be no guardian then the names and addresses of the parents or other persons standing in loco parentis to such minors, said petition shall also contain a summary of the account, and, in the case of a first account- ing, shall recite the amount of the inventory, the amount shown by the account to have been collected in addition thereto, the amount of expenditures and the balance in the hands of the accountant. In the case of a second or other accounting, said petition shall recite the balance remaining in the hands of accountant as shown in his last previous account, the amount received during the period covered by the account, the amount of disbursements shown by the account, and the balance in the hands of accountant. Such petition annexed to trustees' accounts shall also state the receipts and disburse- ments on account of corpus and income separately. The peti- tion and account shall be verified by the oath of the accountant, and shall pray for the allowance of said account, and also for the allowance of commissions and counsel fees, if accountant intends to apply therefor.®^ Exceptions to be in Writing and Specific. When exceptions are made to the account of an executor, administrator, gifkrdian, or trustee, such exceptions shall be in ^♦Prerogative Court Rule 25. ^^Prerogative Court Rule 26. The Prerogativk Court. 25 writing: and where the objections are to disbursements, they shall state specifically the item, or items, and particulars objected to. and the reasons therefor.*'*' Statement of Assets to be Annexed to Account. In the settlement of the accounts of executors, administra- tors, guardians, or trustees, the accountant shall annex to the account a full statement, or list, of the securities, investments and assets of which the balance of the estate in his hands con- sists, and a statement of all changes made in the securities since the filing of the inventory or since the last settlement.*'^ Notice of Re-Settlement of Accounts. In proceedings for the re-settlement of the account of an executor, administrator, guardian or trustee, at least five days' notice of the intended application shall be given to the executor, administrator, guardian or trustee.**^ COMMISSIONS. Application for Commissions Where Estate is Large. Application for commissions, in all cases where the sums which shall come into the hands of executors, administrators or trustees, shall exceed fifty thousand dollars, or where, in the case of guardians, such sums shall exceed twenty thousand dollars, shall be accompanied by an affidavit stating fully the pains, trouble and risk of such applicant in settling such estate.**^ Notice of Adjustment of Commissions. Upon the adjustment of commissions between executors, administrators, guardians or trustees, this court shall not determine the matter upon the application of some or one of them without proof that not less than five days' notice of such application has been given to the other or others.^" '^Prerogative Court Rule 2"]. "^Prerogative Court Rule 30. "^Prerogative Court Rule 28. '^'^Prerogative Court Rule 31. "^Prerogative Court Rule 29. 26 Probate Law and Practice. INVESTMENT OF MONEYS. Executors, Etc., To Report Failure To Invest. Executors, administrators, guardians or trustees, required to retain money in their hands shall put it out at interest, or apply to this court for an order so to do ; and in case they shall not be able to find proper investment therefor, they shall report the fact to the court within sixty days after they shall have received it, or after they shall be required to retain it or to invest it; and in case of their neglect so to do, they shall be accountable for interest thereon.'^ DISTRIBUTION. Proof of Next of Kin on Distribution. The ordinary, before decreeing the distribution of the estate of any person dying intestate, shall require proof in writing, under oath, of the names of the wife and children, if any, or other next of kin of the intestate, and how and in what degree such other next of kin are related ; which proof may be made by affidavit of the administrator, or of any one having knowl- edge of the family and next of kin of the deceased, unless the court shall require further or other, proof.'" Distribution in Case of a Will. All applications by executors, substitutionary administrators with the will annexed, or administrators with the will annexed, for a decree of distribution, shall be by verified petition addressed to the ordinary, which petition shall recite the grant of letters to petitioner, the names and addresses of all persons interested, the allowance of petitioner's account by this court and the balance in petitioner's hands for distribution, and shall pray for any order of distribution in accordance with the terms of the will, a copy whereof shall be annexed to the said peti- tion.''^ ■ Notice of Application. Five days' notice of any application for distribution, under the provisions of Rule thirty-four'* shall be given by such ^^Prerogative Court Rule 32. "Prerogative Court Rule 34. T2Prerogative Court Rule 33. '^See this page, supra. The Prerogative Court. ^/ •executor, substituted administrator with the will annexed, or administrator with the will annexed, to all persons interested therein, who are residents of the State of New Jersey, and not less than five, nor more than sixty, days' notice, as the court may by order direct, to all persons interested therein who reside without the State of New Jersey, which last mentioned notice may be sent by mail with the postage thereon prepaid."'^ DISCHARGE OF EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES. Notice of Application. An executor or administrator seeking to be discharged from the further duties of his office shall give to all the parties inter- ested in the estate of which he is executor or administrator, or to such of them as the court shall direct, at least thirty days' notice, in writing, of his intended application to the court for such discharge, unless the court, for good cause appearing, shall otherwise order ; and where any of the said parties shall reside outside of this state, such notice may be given by mail- ing the same to their post-office addresses. Guardians seeking to be discharged from their trust shall give like notice in like manner to their wards, to the nearest of kin of their wards, to any persons standing in loco parentis to their wards and to the persons with whom their wards may reside, or such of them as the court shall direct; and trus- tees seeking to be discharged from their trust shall give like notice in like manner to their cestui que trust or cestuis que trustent. If a cestui que trust be a minor, or non compos men- tis, notice shall be given to his, or her, guardian, if any, and, if none, to the nearest of kin, to any persons standing in loco parentis to such minor or lunatic and to the persons with whom such minor or lunatic resides, or to such of them as the court shall direct.^" SALE OF INCHOATE RIGHT OF DOWER OF PERSON UNDER DISABILITY. Jurisdiction of Court. Whenever it shall appear to the satisfaction of the ordinary of the prerogative court that any person entitled to an inchoate "Prerogative Court Rule ^S■ ■'"Prerogative Court Rule 36. 28 Probate Law and Practice. right of dower in any lands, tenements or hereditaments is incapacitated, by mental infirmity or disease, from executing a valid conveyance, or release, of the same, and that the inter- ests of both such persons and the owner of such lands, tene- ments and hereditaments will be promoted by a conveyance or mortgage of the same, it shall be lawful for the ordinary of the prerogative court to direct such conveyance or release, to be made by any master of the court of chancery, whose deed, or release executed jn behalf of such person shall convey, release and bar all the dower, or right, or estate in dower, to which such person may have, or would at any time succeed or become entitled to in such lands, tenements and heredita- ments.^^ Practice on Application for Sale of Inchoate Right of Dower. Upon a petition filed for a conveyance, or mortgage, as aforesaid, the ordinary of the prerogative court may, in a sum- mary manner, proceed to inquire into the merits of the applica- tion by reference to a master or otherwise, and in case a con- veyance or mortgage is allowed and ordered by him, shall require a bond to be given by the owner of such lands, tene- ments and hereditaments to the ordinary of the prerogative court or to the guardian of such person in such penalty and with such surety as he may direct, to secure to the guardian of such person so entitled to such inchoate right of dower, the enjoyment during her life after such dower has become fixed and assigned, a fund equal to one-third of the value of such lands, tenements and hereditaments ; or in lieu of said bond, if the petition so request, the ordinary of the prerogative court shall cause an appraisement of said land and premises to be made, and a gross sum paid or secured to the guardian of such incompetent in consideration of the release and relinquishment of her inchoate right of dower in the said lands, tenements and hereditaments ; and the prerogative court shall have full power over such admeasurement and make all orders and decrees rel- ative to the same as may be necessary to give complete relief to the parties, their heirs, devisees and assigns.''^ T^P. L. 1912, p. 537, sec. I. ^^^P. L. 1912, p. 537, sec. 2, The Prerogative Court. 29 Division of Real Estate. The prerogative court has jurisdiction to make division of real estate, under certain circumstances.^® NOTICES. Five Day's Service of Rules, Notices, Etc. There shall be at least five days' service of all notices and rules to show cause and process, except where otherwise pro- vided.^'' Notices of Motions. Notices of motions shall designate the place of hearing either as "the chancery chambers at " (naming a place other than Trenton), or the "State House at Trenton," accord- ing to where the motions shall be intended to be made, and they shall also state that the motion will be made before "the ordinary," unless the case shall theretofore have been specially referred to a vice ordinary, in which case the notice shall state that the motion will be made before the vice ordinary to whom such reference shall have been made.^^ AFFIDAVITS AND DEPOSITIONS. Before Whom Affidavits and Depositions May Be Taken. The register of this court, the surrogate of each county and the masters of the court of chancery shall have full power and authority to take affidavits and depositions to be used in this court ; and every affidavit and deposition which shall be made or taken, before the register, or before the surrogate of any county in this state or a master of the court of chancery, shall and is hereby declared to be as good and effectual, to all intents and purposes, as if the same were made or taken, before the ordinary himself.^^ '"See 3 Comp. Stat., 3901, sec. ^o Prerogative Court Rule 37. 9. See also Prerogative Court «i Prerogative Court Rule 38. Rules 47 to 51. ^-Prerogative Court Rule 52. 30 Probate Law and Practice. Proctors or Counsel Not to Take Affidavits. No proctor, or counsellor shall take any affidavit for use in any proceeding in this court in which proceeding he, or any firm of which he is a member, appears as proctor or counsel of record.^^ APPOINTMENT OF GUARDIANS AD LITEM. Practice on Application on Behalf of Infant. Whenever it shall be necessary, in any cause or proceeding, in this court, that a guardian ad litem for any infant or in- competent party thereto should be appointed, a petition may be presented, by the infant if above the age of fourteen years, or, if under that age, by his guardian appointed by the surrogate or orphans' court, his father, or some other friend, in his behalf, praying such appointment. In the case of an incompetent party the petition shall be by his guardian appointed by the Orphans' Court or some next friend in his behalf. Annexed to the petition shall be an agreement, by the person petitioned for as guardian, to accept the appointment, and also an affi- davit that the petition and agreement were duly signed by the persons purporting to sign them, and verifying the age of the infant.^* Where No Application Is Made on Behalf of Infant. If no application shall be made by or on behalf of the infant or incompetent party within five days after the service upon him of the citation, or other authoritative command of the court to appear, etc., this court may, on application on behalf of the party instituting or prosecuting the proceedings, by its order, assign a guardian ad litem for said infant or incompetent party ; but ten days' notice of such application must be given to the infant, if of the age of fourteen years and resident within this state, or, if under that age, or not a resident in this state, to his guardian appointed by the surrogate or orphans' court, if any there be, and, if no such guardian, to the father of such infant, or, if no father, then to the mother, or, if no mother, to the person standing in loco parentis to the infant; pro- ssprerogative Court Rule 53. 8*Prerogative Court Rule 54. The Prerogative Court. 31 vided such guardian, father or mother, etc., be resident in this state, which notice may be served at the time of service of the process of citation or at any time thereafter. If such guardian, father or mother, etc., be not resident in this state, such notice shall be given as the court may by order direct. In the case of an incompetent person, ten days' notice of such application shall be served upon him and also upon his guard- ian appointed by the Orphans' Court, if any there be, and if no such guardian, then upon such persons as the court may by order direct.®^ APPEALS. Appeal From Prerogative Court. All persons aggrieved by any order or decree of the prerog- ative court, may appeal from the same, or any part thereof, to the court of errors and appeals in the last resort in all causes, which appeal shall be taken within the same time and prose- cuted in the same manner in all respects as now provided by law for appeals from the court of chancery.**^ ^^Prerogative Court Rule 55. subject will be found fully con- s*^P. L. 1900, p. 347, sec. 9. 2 sidered elsewhere. See "Appeals," Comp. Stat., p. 1724, sec. 84. This p. 74, infra. CHAPTER II. THE ORPHANS' COURT, ITS CONSTITUTION AND JURISDICTION. Historical. The first mention of an Orphans' Court in this State is the act of the i6th of December, 1784.^ The name and idea of the Orphans' Court were borrowed, not from the English Ecclesi- astical Courts, but from a court called the Court of Orphans, for a long time established in London and some of the other large cities in England, and which, as its name imports, had jurisdiction over the estates and persons of orphans only. So far as regarded decedents' estates, generally, the act gave the Orphans' Court the same jurisdiction as the Prerogative Court, borrowing from the English Ecclesiastical Courts, had over executors and administrators ; and so far as orphans were con- cerned, it gave the Orphans' Court the same jurisdiction the Ordinary had, and which, so far as the Orphans' Court was concerned, was borrowed from the Court of Orphans of the City of London.^" The jurisdiction thus conferred has been greatly extended by subsequent legislation. Judges Comprising Court. The statute provides that there shall be in each county in this state a court of record, to be called the orphans' court, which court shall be composed of the justice of the supreme court, authorized to hold the circuit court in the county, and the judge of the court of common pleas in the county, or either one of them.- When Judge From Other County May Preside. The judge of the court of common pleas in and for any county may, at the request of the judge of said court in and for iPat. Laws, 135. -Orphans' Court Act, sec. i. 3 laGraham v. Houghtalin, 30 N. Comp. Stat., 3813. J. L., 552-561. The Orphans' Court. 33 any other county, preside during the absence or sickness or other inabiUty of the judge making such request, or to assist such judge in disposing of the accumulated business of said court, in the courts or in any of them for which the judge making such request was specially appointed. When such judge shall be so requested to sit for the purpose of assisting the judge making such request in disposing of the accumulated business of said courts, both of said judges may sit separately, at one and the same time, for the purposes of trying issues in said courts and of hearing and determining such other matters as said court of common pleas, or any judge thereof, may be empowered by law to hear, try and determine.*' Request. How Made. The request mentioned in the preceding section shall be in writing; and the judge to whom such request shall have been made, before presiding in the courts of any county other than that for which he was specially appointed, shall file such re- quest in the office of the clerk of the county in which he shall have been so requested to preside. When such judge shall be so requested to sit for the purpose of assisting the judge making such request in disposing of the accumulated business of said courts, the judge so requested shall while so sitting, in addition to his regular salary, be en- titled to the sum of twenty dollars per day, which shall be paid by the county in which he shall be so requested to sit, upon the certificate of the judge making such request.^ Validity of Acts of Substitute Judge. When the judge of the court of common pleas in and for any county shall so preside in any other county, all proceed- ings and acts had and done before him, and in the courts in which he shall so preside, shall be of the same validity, force and effect as though the judge who made such request were himself present and presiding.^ 3 P. L. 1907, p. n. 2 Comp. Stat., 1726. sec. 98. Stat., 1726, sec. 97. ■"•P. L. 1900, p. m, sec. 9, *P. L. 1907, p. 78. 4 2 Comp. Comp. Stat., 1727, sec. 99. 34 Probate Law and Practice. Absence, Sickness, etc. ; Who May Hold Court. In case of the absence, sickness or other disabiHty of the judge of the court of common pleas in and for any county, the chief justice, or any associate justice of the supreme court, if he shall be unable to perform the duties himself, which he is hereby authorized to do, may designate and request the judge of the court of common pleas of any other county to perform the duties of such office, and the judge so designated shall have all the powers and perform all the duties of the judge in whose place he shall be designated and requested to preside, upon filing such designation and request in the office of the clerk of the county in which he shall have been so requested to preside ; and in case of a vacancy in the office of judge of the court of common pleas in and for any county, the judge of the court of common pleas of any other county may be in like manner designated and requested to perform the duties of such office during the continuation of such vacancy or for any less time, and upon filing such designation and request as aforesaid the judge so designated shall have the same powers and perform the same duties, for the time being, as a regu- larly appointed judge of said court. ^^ Additional Judges in Certain Counties. In any county now or hereafter having by any state or federal census, four hundred thousand or more inhabitants, the governor is authorized whenever in his judgment the public interest shall so require, to appoint by and with the advice and consent of the senate, an additional judge of the court of common pleas, who shall serve for the same term and receive the same salary as is now provided by law for the judge of said court in the county in and for which he is so appointed.^^ Judges May Sit Together or Separately; Powers, Juris- diction, Etc. ; Presiding Judge. Whenever there shall be two judges of the court of common pleas in any county, said judges sitting together, or either of them sitting alone, or each of them sitting separately at the same time shall constitute and may hold the court of common pleas, sap. L. 1900, p. 334. 2 Comp. ''bP. L. 1908, p. 33. 2 Comp. Stat., p. 1727, sec. 100. Stat., p. 1730, sec. 109. The Orphans' Court. 35 the orphans' court, the court of quarter sessions, the court of special sessions and the court for the trial of juvenile offenders ; and said judges when sitting together, or either of them when sitting alone, or each of them when sitting separately at the same time shall have and possess the same powers, authority and jurisdiction as is now vested in the existing judge of said courts; each of said judges shall have the same power to hold the court of oyer and terminer and circuit court as is now conferred by statute on the existing judge of the court of common pleas ; whenever the said judges shall sit together, the senior judge in service shall be the president judge of said court; and any power or authority now conferred by statute on the judge of the court of common pleas in any proceeding or matter, may be exercised by either of said judges. ^*^ Laws Applicable. AH existing statutes relating to the court of common pleas, the orphans' court, court of quarter sessions and court for the trial of juvenile offenders shall apply to each of said courts when so held at the same time by said judges sitting separately, and the duties of the clerk, the sheriff, constables and other ofificers shall be the same in each of said courts so held at the same time as now provided by law in the existing courts, when held by the existing judge of the court of common pleas. ^'^ Provision for Signing Judgments in Case of Death or Expi- ration of Term of Judge. If the judge of any court of common pleas, by whom any judgment or order has been or shall be rendered, made or pro- nounced, or by whom any matter or cause has been or shall be heard and determined, or before whom any proceeding or pro- ceedings have been or shall be taken and determined, has died or shall die, or has gone out of office or shall go out of office, and some other person has been or shall be appointed judge, before the judgment or order therein has been or shall have been signed, it shall be the duty of his successor in office, or the Sep. L. 1908, p. 33. 2 Comp. -""'P. L. 1908, p. 34. 2 Comp. Stat., p. 1730, sec. no. Stat., p. 1730, sec. iii. 36 Probate Law and Practice. judge for the time being, to sign such judgment or order, and all judgments and orders so signed shall be as good and effect- ual in law, to all intents and purposes, as if the same had been duly signed by the Judge of the said court, when such judg- ment or order was rendered, made or pronounced.*^ Where Judge May Practice. The judges of the court of common pleas may practice as attorneys or counsellors at law in any of the courts of this state, except in the courts of common pleas, or any courts of inferior jurisdiction thereto of the county in and for which they are judges; proznded, liozvcver, that no judge of the court of common pleas in and for any county shall personally appear as such attorney or counsellor at law in the trial of any cause before a jury in any of the courts of the county in and for which he is such judge.' Officers of Court. The surrogate of the county is clerk of the orphans' court; * and the statute provides that neither the surrogate of any county, nor any person employed by him in connection with the duties of his office shall be allowed to act as an attorney, proc- tor or counsel in the orphans' court of that county, or to sit as a judge of that court.^ Masters in Chancery as Officers of Court. The masters and examiners of the court of chancery shall be ex-officio masters and examiners of the orphans' court of this state.^° Reference of Exceptions to Account. The statute provides that the orphans' court shall have power to refer exceptions to accounts to the surrogate, auditors or a master in chancery to examine and re-state the account, after hearing parties and witnesses and make report to the court for ^See P. L. 1900, p. 334, sec. 11. 2 '^Orphans' Court Act, sec. 8. 3 Comp. Stat., 1727, sec. loi. Comp. Stat., p. 3815. sec. 8. ^2 Comp. Stat., 1730, sec. 108. ^''Orphans' Court Act, sec. 9, as ^Orphans' Court Act. sec 7. 3 amended by P. L. 1907. p. 293. 3 Comp. Stat., p. 3815, sec. 7. Comp. Stat., 3815. The Orphans' Court. 37 confirmation and allowance and the surrogate, auditors or mas- ter to whom an account is referred as aforesaid, at the instance of any party interested in the same, or by their own proper authority, may examine any executor, administrator, guardian or trustee, exhibiting such account, on oath or affirmation, touching the truth and fairness of the same or any part or item thereof.'^ Reference to Advisory Master. The orphans' court may refer to any master in chancery, who shall be an attorney-at-law of at least five years' standing, any cause or other matter which may at any time be pending in such court, to hear the same for the orphans' court and report thereon to it, and advise what order or decree, should be made therein. ^- Taking Testimony Before Advisory Master; Stenographer. When any cause or matter shall be so referred to a master, it shall be lawful for him to take and hear the evidence of any or all witnesses in said cause or matter, orally in the same manner as the evidence is now taken and heard in courts of law in this state on trials before a jury. And it shall be lawful for such master, when any cause or matter is so referred to him, to employ a competent stenographic reporter to take down the evidence of such witnesses as may be examined before him for the use of the court and parties in such cause or matter.'^ Appointment and Compensation of Advisory Masters and Stenographers. The orphans' court may, by rule of court, fix and determine to what masters the references provided for by this act shall be made, and such masters may be removed and changed at the pleasure of the court. The orphans' court shall fix the com- pensation to be paid to such masters and stenographers for their services, which said compensation shall be paid by the county collector on the certificate of the said orphans' court.'* "Orphans' Court Act, sec. 126. '■"'P. L. 1907. P- 293. 3 Comp. 3 Comp. Stat., 3857. vStat., 3816, sec. 9b. '2P. L. 1907, p. 293. 3 Comp. '^P. L. 1907. P- 293. 3 Comp. Stat., 3815, sec. 9a. Stat., 3816, sec. 9c. 38 Probate Law and Practice. Terms of Court. The statute provides that the orphans' court shall hold annually in each county three stated terms, at the times and places prescribed by law for holding the circuit court in such county, and also such special terms as the court may from time to time appoint, or as may be convened pursuant to. law ; all special terms, except where otherwise specially authorized by law, shall be appointed by the court at a regular term, and shall be held at the place in the county where the court holds its regular terms. ^^ Business Continued in Case Term Not Held. If it shall happen that an orphans' court shall not be held at the regular term of said court, by reason of non-attendance of a judge, the business and proceedings pending in said court and process returnable thereto shall be continued from time to time until a regular court shall be held.^'' Time for Holding Term. The statute provides that the supreme court may, from time to time, fix and change the times for holding the stated terms of the supreme court, the several circuit courts, courts of oyer and terminer, courts of common pleas, courts of quarter ses- sions and orphans' court ; promdcd, at least three such terms of each court shall be held annually.^' Change of Time. No change in the time for holding said courts shall become operative until the order therefor shall have been entered upon the minutes of the supreme court, and publicly announced in the court whose terms are to be changed, at a regular term, prior to the change going into effect.^^ When Court is Open. The orphans' court is open at all times, except on Sundays, for the issuing of citations and the return of process.^^ i^Orphans' Court Act, sec. 10. 3 Comp. Stat., 1711, sec. 21. Comp. Stat.. 3816. i^P. L. 1900, p. 349, sec. 3- 2 i«Orphans' Court Act, sec. 12. 3 Comp. Stat., 171 1, sec. 22. Comp. Stat., 3816. i^Orphans' Court Act, sec. 11. 3 i^P. L. 1900. p. 349, sec. 2. 2 Comp. Stat., 3816. The Orphans' Court. 39 Adjournments. It shall be lawful for the orphans' court in any county to adjourn over from any day in term to any subsequent day in the same term, whenever the convenience of the public and of the said court shall require such adjournment ; and in case of such adjournment all suits, process, orders, rules, recognizances and other proceedings pending in such court, shall be continued to the time to which such adjournment shall be made, without prejudice to any of the parties therein, and may then be pro- ceeded in according to law, in the same manner as if said court had been adjourned from day to day.-° PROCESS. Issue and Service of Process. Process for the appearance of any person before the orphans' court or to compel any executor, administrator, guardian or trustee to perform any duty required by this act, may be by citation issued by the surrogate under the seal of his office, which, unless otherwise specially provided, shall be served ten days before the day whereon it shall be returnable, in the same manner as writs of summons are required to be served by the act entitled,"An act to regulate the practice of courts of law."-* When Rule To Show Cause May Be Used Instead of Citation. In any proceedings against executors, administrators, guard- ians or trustees, by virtue of this act, after grant of letters testamentary, of administration or guardianship, the court may proceed by a rule to show cause, a copy of which shall be served upon the person or persons therein named, in such man- ner as the court may direct ; and upon such service, duly veri- fied by affidavit, the court may proceed therein the same as if such person or persons had been summoned by citation. -'- 2"P. L. 1901, p. 243, section i. 3 Comp. Stat., 3878. 3 Comp. Stat., 3879, sec. 179a. 220rphans' Court Act, sec. 170. 21 Orphans' Court Act, sec. 174. 3 Comp. Stat., 3879. 40 Probatk Law and Practice. Service of Rule to Show Cause and Notices. There shall be at least five days' service of all notices and rules to show cause and process, except where otherwise pro- vided or where the court otherwise directs.-" Process May Be Issued Into Any County: Service. Citations issued out of the orphans' court and process of attachment to compel obedience to any citation or the perform- ance of any order or decree of the court may be issued into any county of this state, and shall be served by the sheriff, or other proper officer of such county ; and the said sheriff or other officer is hereby authorized and empowered to serve and execute such citations or process ; and the court may enforce obedience to all such citations and process in the same manner as if the same had been served within the county where such citation or process is issued.-* By Whom Process Served. The sheriff and constables of the county shall be officers of the orphans' court of such county, and shall serve all process and orders of the court directed to them or any of them, to be served within such county.-' Service of Process in Foreign State. When any person against whom any citation or other process for appearance in any suit, matter or proceeding in the pre- rogative court or any of the orphans' courts of this state shall issue, resides out of the state, service thereof may be made by any person whom the ordinary or surrogate, under his hand, shall appoint, either personally or by leaving a copy of the same at his usual place of abode, with some person of the age of fourteen years or upwards, thirty days before the return of such citation, or process ; and the person serving such citation shall make and file an affidavit setting forth the time, place and 230rphans' Court Rule 39- ^oQrphans' Court Act, sec. 175. 240rphans' Court Act, sec. 176. 3 Comp. Stat. 3878. 3 Comp. Stat., 3878. The Orphans' Court. 41 manner of such service, whereupon the same shall have the force and eft'ect of a service by the proper officer within this state. -^ Service of Non-Resident by Publication. When it shall appear to the satisfaction of the prerogative court or any orphans' court that the person against whom a citation or other process has been issued resides out of this state, or cannot be found therein to be served therewith, the said court may by order direct such absent defendant to appear in such suit, matter or proceeding at a certain time not less than thirty days from the date of said order, or that such pro- ceeding will be had against the said absent defendant as if he had appeared in said suit or proceeding; and notice of such order shall be served and published in the same manner as like notices are required to be served and published in proceedings against absent defendants in the court of chancery ; and if such absent defendant shall not appear and cause his appearance to be entered in said court at or before the time mentioned in such order, he shall be proceeded against in the same manner as if he had appeared, and the determination of any of said courts, upon proofs that such person against whom process shall be issued resides out of the state, or cannot be found therein, or that he has been served with a copy of such process, or that the notice of the order to appear has been served or published as required by law, shall be sufficient evidence, and, in collateral proceedings conclusive evidence, of the fact so determined.-' JURISDICTION OF ORPHANS' COURT, General Jurisdiction. The statute provides that the orphans' court shall have full power and authority to hear and determine all controversies respecting the existence of wills, the fairness of inventories, the right of administration and guardianship, and the allowance of the accounts of executors, administrators, guardians or trus- tees, as hereinafter directed, and also all other matters and things hereinafter submitted to their determination ; and may 2«0rphans' Court Act, sec. I77- -^Orphans' Court Act, sec. 178. 3 Comp. Stat., 3879. 3 Comp. Stat., 3879. 42 Probate Law and Practice. issue process to compel all executors, adroinistrators, guardians and trustees under wills to account for the estates in their hands and to cause to come before them all persons as wit- nesses to give evidence in any cause before the said court; and all causes in said court may be heard in a summary way and determined by the court.-* The statute creating the orphans' court is remedial in its nature and should be liberally construed.-'' A Court of General Jurisdiction. The orphans' court is a court of general jurisdiction over the subjects committed to its cognizance. ^° The principal distinc- tion between courts of superior and general jurisdiction and those of limited and special jurisdiction is, that the former need not set forth in their records the facts upon which their right o adjudicate depends, but such facts will be presumed and no evidence can be received to contradict them."^ The orphans' court is not a tribunal of limited, or special, jurisdiction in the sense that its proceedings must set forth everything necessary to give it jurisdiction, or be presumptively void as coram non judice.^- On the contrary, it is a court of general jurisdiction, in the sense that its judgments are entitled to a presumption of regularity ; facts necessary to sustain jurisdiction will be pre- sumed, and no evidence admitted to contradict them in any col- lateral proceeding.^^ -■^Orphans' Court Act, sec. 2. 3 stitution, 46 N. J. L., 211-229. Comp. Stat., 3813. Crawford v. Lees, 93 Atl. Rep., 23In re Cassidy, 80 N. J. Eq., 201. 163. Wood V. Tallman, i N. J. 32ciark v. Costello, 59 N. J. L.. L., 153-155- Pyatt V. Pyatt, 46 N. 234. J. Eq., 285-288. sspiume v. Howard Savings In- 3°0bert V. Hammel, 18 N. J. L., stitution, 46 N. J. L., 211. In re J2,- Hess V. Cole, 23 N. J. L., 116. Coursen's Will, 4 N. J. Eq., 408. Plume V. Howard Savings Institu- Hess v. Cole, 23 N. J. L., 116. tion, 46 N. J. L., 211-229. Clark Obert v. Hammel, 18 N. J. L., 7i. V. Costello, 59 N. J. L., 234. Pj'- Boulton v. Scott, 3 N. J. Eq., 231. att V. Pyatt, 46 N. J. Eq., 285-288. Young's Case, 67 N. J. Eq., 553- Straub's Case, 49 N. J. Eq., 264- 559. Vincent v. Vincent, 70 N. J. 265. Affirmed 50 N. J. Eq., 795. Eq.. 272. Clark v. Costello, 59 N. Inhabitants of Hohokus Township J. L., 234. Podesta v. Binns, 69 V. Erie R. R., 65 N. J. L., 353. N. J. Eq., 387. Crawford v. Lees, ^^Plume V. Howard Savings In- 93 Atl. Rep., 201. The Orphans' Court. 43 The orphans' court having been created by statute witli powers in derogation of the constitutional courts, it must be restrained in the exercise of those powers by the words of the statute.^* It must therefore acquire its jurisdiction in the manner prescribed by the statute giving jurisdiction^^-'' and if it transcends its jurisdiction, its acts will pass for nothing/'*' The orphans' court, being a superior court of general juris- diction, has the same authority over its decrees by inquiring into the authority of its attorneys to appear, as may be exer- cised by any court of general jurisdiction.^" Nature of Jurisdiction. The orphans' court is not a court of common law, but a court partaking of the powers of a chancery, or prerogative jurisdic- tion^*^ ; but the design was not to confer upon the orphans' court all the powers which the Court of Chancery has over cases of administration, guardianship and trust."''* Thus the orphans' court cannot exercise chancery powers, such as com- pelling a trustee to re-convey property turned over to him by his predecessor in the trust"; and so the court has no jurisdic- tion to enforce the lien of an heir against land which has been purchased by an administrator with the funds of the estate.*' So the orphans' court has no original jurisdiction to determine, upon an application for letters of administration, whether a wife's release of her interest in her husband's estate has been obtained by fraud ; this issue, if at all, is only incidentally cog- nizable, and its decision thereon is therefore not res judicata.*'- '^Ludlow V. Ludlow. 4 N. J. L., Eq.. 272. See also "Power to Cor- 189-190. Potter V. Berry, 56 N. rect and Revoke Decrees," p. 68. J. L., 454-455. Affirmed 57 N. infra. J. L., 201. In re Fritz's Estate, 91 -''Wood v. Tallman. i N. J. L.. Atk Rep., 1017. 153-155- Pyatt v. Pyatt, 46 N. J. ^■'Bray v. Neill, 21 N. J. Eq., Eq., 285-288. In re Cassidy, 80 43. Lawson v. Acton, 57 N. J. N. J. Eq., 163. Eq., 107. 39Hunt v. Mayberry, 29 N. J. L., 3«In re Alexander. 79 N. J; Eq., 403-406. 226. Russell's Case, 64 N. J. Eq.. ^oghgrman v. Lanier, 39 N. J. 313-318. Murray v. Lynch, 64 N. Eq., 249. J. Eq., 290-300. Myer's Case, 69 '•'Culver v. Pierson. 15 Atl. Rep.. N. J, Eq., 793-795. but see "Inci- 269. dental Jurisdiction," p. 46, infra. ^^Mullaney v. MuUaney, 65 N. J. s^Vincent v. Vincent, 70 N. J. Eq., 384- 44 Probate Law and Practice. The orphans' court has no jurisdiction to establish or enforce trusts. That jurisdiction resides solely in the Court of Chan- cery.*^ So where a petition was presented to the orphans' court by one who claimed that he had deposited a sum of money with a person, since deceased, to secure him against liability upon a bond given by him at petitioner's request to a creditor of petitioner as collateral to obligations given to such creditor by petitioner, reciting that the obligations had been paid and that petitioner was in possession of the bond of deceased and was ready to surrender it to the administrator of deceased appointed by the surrogate of the county, and pray- ing for a decree ordering the administrator to pay to petitioner $2,000, and interest thereon, it was held that, assuming the truth of the statements in the petition and that the transaction between the petitioner and the deceased had created a trust, the orphans' court had no jurisdiction to establish the trust and decree its performance by the administrator." The orphans' court has no jurisdiction to determine whether a trustee is properly performing the trust, or to direct a trustee how to perform the same.*'^ So where, by the will of a testa- tor, his residuary estate was bequeathed and devised to a trus- tee in trust, among other things, to pay the net income to his daughter for life, and in case the net income should prove insuf- ficient for her necessary support and maintenance, authority was given the trustee to pay her out of principal such weekly or monthly allowance as might be required for said support and maintenance, upon application to the orphans' court for an order requiring the trustee to pay the petitioner, out of the principal of the trust fund, such weekly or monthly allowance as the proof should show to be required for her support and maintenance in accordance with the provisions of said will, it was held that the court had no jurisdiction to make such an order.*^ *3Appeal of O'Callaghan, 64 N. "O'Callaghan's Case, 64 N. J. J. Eq., 287. Lippincott's Case, 68 Eq., 287. See also Ferdon's Case. N. J. Eq., 578, but quere as to 69 N. J. Eq., 762. whether such jurisdiction has been *^Lippincott's Case, 68 N. J. Eq.. conferred by P. L. 1909, p. 284, 578. 3 Comp. Stat., 3866, sec. 139a. ^''Lippincott's Case, 68 N. J. Eq., 578. The Orphans' Court. 45 Over Probate of Wills. The orphans' court has no original jurisdiction over the pro- bate of wills. It obtains its jurisdiction, in such cases, only through the surrogate. Such jurisdiction springs from an issue suggested in a proceeding which originates before the surrogate. The statute does not contemplate that application for probate shall in any case be made to the orphans' court. That court, so far as matters of probate are concerned, is merely the trial tribunal of issues suggested before the surro- gate.*" Over Grant of Letters of Administration. The orphans' court has no original jurisdiction to grant let- ters of administration, except upon a dispute arising concern- ing the right of administration, which deprives the surrogate of his jurisdiction and confers it upon the orphans' court.** Where, however, a disputed will which names no executor is admitted to probate by the orphans' court, that court, as an incident to its jurisdiction to admit the will to probate, has jurisdiction to appoint an administrator with the will annexed.*'' The statute confers upon the orphans' court the power to appoint a successor to an administrator removed or discharged by it."'" Over Grant of Letters of Guardianship. The statute confers upon the orphans" court original juris- diction over the grant of letters of guardianship.''^ To Review Decrees of Surrogate. As has been seen, the orphans' court has general jurisdiction over all of the subjects prescribed by the statutes of which it is the creature ;'- but control of decrees of the surrogate is not ^"Murray v. Lynch, 64 N. J. Eq., p. 46, infra. 290-295. Affirmed 65 N. J. Eq., ■'"'•'Orphans' Court Act, sec. 151. 399. Straub's Case, 49 N. J. Eq., p. 611, infra. 264. "''Orphans' Court Act, sec. 36, ^^Russell's Case, 64 N. J. Eq., p. 741, infra. .31.3-315- •'"'-See "A Court of General Jur- ^■'In re Queen, 82 N. J. Eq., 583 isdiction," p. 42. supra, and see "Incidental Jurisdiction,"' 46 Probate Law and Practice. one of those subjects, except it be accomplished through review upon appeal. The orphans' court and the surrogate's court are independent judicial tribunals, and the orphans' court has no jurisdiction to review the decree of the surrogate, except by appeal.^^ It follows that when the time within which appeal may be taken has elapsed, the judgment of the surrogate is a finality, until it be disturbed by a direct attack upon it, which should originate before the surrogate. Any other construction would render that provision of the statute which limits the time within which an appeal must be taken meaningless; for if at any time application might be made to the orphans' court to set aside the surrogate's decree, there would be no use for an appeal, as such an application would effectuate all of the pur- poses of an appeal.^* Incidental Jurisdiction. The orphans' court may, in the exercise of its jurisdiction, determine any question incidentally and necessarily involved, though the determination of that question, if directly presented, would not be within its jurisdiction ; but the binding effect of its conclusion upon the question will not extend beyond the end for which the conclusion is necessarily reached^^ ; so where the orphans' court, after admitting a will to probate, ordered that assets of the estate in the possession of persons in New York, who were before the court, one as proponent of another will of the testator and one as witness thereto, be handed over by them to the administrator with the will annexed, it was held that the court had jurisdiction to make the order, as it had jurisdiction of the subject matter and of the parties; that, gen- erally speaking, the order was a direction to pay and deliver over property of the estate to the person entitled by law to the custody of it, and directed the parties to do nothing which it was not their plain duty to do without such order ; and that they were therefore not in any way prejudiced or aggrieved by it.'" s^In re Queen. 82 N. J. Eq., Affirmed 65 N. J. Eq., 399. 583, and cases cited at p. 585. ^^Dunham v. Marsh, 52 N. J. 5*In re Evans, 29 N. J. Eq., 571. Eq., 256. Affirmed ib. 831. In re Straub's Case, 49 N. J. Eq.. 264. Alexander, 79 N. J. Eq., 226. Affirmed 50 N. J. Eq., 795. Mur- ^^Dietz's Case, 41 N. J. Eq., 284. ray v. Lynch, 64 N. J. Eq., 290. Affirmed 42 N. J. Eq., 689. The Orphans' Court. 47 TESTIMONY, HOW TAKEN. Evidence May Be Taken in Writing: Adjournment of Hearing. Upon all causes heard before the orphans' court, the evi- dence and proceedings, upon the application of either party, shall be reduced to writing by the clerk of the court ; and the court, upon just cause, may put off the hearing of the cause to another time, upon the application of either party"" and an appeal lies from a decree of the orphans' court, where the court refused to admit competent evidence.^* Before What Officers Testimony May Be Taken: Practice. All examinations to be taken and made use of at the hearing of any cause in the orphans' court of any county may be taken and reduced to writing before the surrogate of such county, or a master in chancery, which examinations shall be taken on ten days' notice of the time and place of taking the same, given by the party or his attorney to the opposite party or his attor- ney ; and either of the parties may, in person or by his attor- ney, be present and examine and cross-examine such witnesses, V and the examination so taken shall be of the like force and effect as if taken in the orphans' court, and shall be filed with th'i clerk of the said court and read in evidence upon the hear- ing of the cause, saving all just exceptions. "^^ Orphans' Court May Certify Questions of Fact to Circuit Court for Trial. The orphans' court may certify any question of fact into the circuit court of the same county for trial before a jury, and upon filing the certificate in the circuit court such proceedings shall be had thereupon as are provided for in the trial of ques- tions involved in the probate of wills before a jury.®" ^^Orphans' Court Act, sec. 180. 3 3 Comp. Stat., 3880. Comp. Stat., 3880. ""Orphans' Court Act, sec. 182. ^^Ex parte Coombs, 8 N. J. Eq., 3 Comp. Stat., 3880. For practice 78. Reeve v. Townsend, 8 N. J. on trial of questions involved in Eq., 81. the probate of wills before a jury, ^''Orphans' Court Act, sec. 181. see p. 226, infra. 48 Probate Law and Practice. ORDERS AND DECREES. Validity of Decree. It is a doctrine of universal acceptation that the judgment of a competent court, acting within its jurisdiction, is conclusive upon parties and privies as to all matters adjudged upon which the parties were of right entitled to be heard. This rule has been applied to decrees of the orphans' court in numerous cases. '^^ A decree of an orphans' court, though unlawful, on a matter over which it has obtained jurisdiction, must be consid- ered valid until it is reversed, and is not to be questioned in a collateral proceeding:"'- and where a decree of the orphans" court is challenged in a collateral proceeding, that court will be presumed to have had before it and to have passed upon all those matters the existence of which was necessary to author- ize the making of such order.*'^ This rule does not, however, apply to acts of the orphans' court relating to realty, e. g., the probate of a will devising lands, but only to acts affecting per- sonalty.®* If the orphans' court transcends its jurisdiction, its decree will be treated as void in a collateral proceeding.*''' •'iConover v. Conover, i N. J. Savings Inst., 46 N. J. L.. 211 Eq., 403. Boulton v. Scott, 3 N. Clark v. Costello, 59 N. J. L., 234 J. Eq., 231. Black v. Whitall, 9 N. Pittenger v. Pittenger, 3 N. J J. Eq., 572. Obert v. Hammel, Eq., 156. Zabriskie v. Wetmore 18 N. J. L., ^^. Van Kleek v. 26 N. J. Eq., 18. Straub's Case O'Hanlon, 21 N. J. L., 582. Za- 49. N. J. Eq., 264. Affirmed 50 briskie v. Wetmore, 26 N. J. Eq., N. J. Eq., 795- Inhabitants of 18. Search v. Search, 27 N. J. Hohokus Township v. Erie R. R Eq., 137. Plume v. Howard Sav- 65 N. J. L., 353 ; but see Lawson ings Inst.. 46 N. J. L., 211. Clark v. Acton. 57 N. J. Eq., in, at p V. Costello, 59 N. J. L., 234. Te- 113. han V. Maloy, 45 N. J. Eq.. 68. eaciark v. Costello, 59 N. J. L. Weyman v. Thompson, 50 N. J. 234. Crawford v. Lees, 93 Atl Eq., 8. Seymour v. Goodwin, 68 Rep., 201. N. J. Eq., 189. Woolsey v. Wool- G4Wiii^inson v. Trustees, 38 N sey, 72 N. J. Eq., 898. Shearman J. Eq., 5i4- V. Cameron, 78 N. J. Eq., 532- e^Qraham v. Houghtalin, 30 N 536. Crawford v. Lees. 93 Atl. J. L.. 552. Gray v. Fox, i N. J Rep., 201. Eq., 259-272. Partridge v. Part- «20bert V. Hammel, 18 N. J. L., ridge, 46 N. J. Eq., 434- Affirmed IZ. Van Kleek v. O'Hanlon, 21 47 N. J. Eq.. 601. N. J. L., 582. Plume V. Howard The Orphans' Court. 49 The decrees of the orphans' court, like the judgments of all other courts, may be set aside in equity for fraud in obtaining them. The court of chancery has, however, no jurisdiction to decree a will to be void on the ground of fraud ; fraudulent wills constitute the great exception to the jurisdiction of courts of equity over cases arising from fraud.®^ ENFORCEMENT OF ORDERS AND DECREES. By Attachment for Contempt. Every person duly cited or summoned to appear at any of the said orphans' courts, who shall make default, shall be liable to attachment for contempt, and the said courts are hereby authorized and empowered to compel obedience to their proc- ess, orders and sentences, by imprisonment of body or dis- tress and sale of lands and goods, as fully and amply as any other court of record in this state.®^ The orphans' court has no authority to attach for contempt an executor because he refuses to obey an order requiring him to turn over the assets of the estate in his hands to his co-exec- utor, if such order be made while he is still in office ; that power comes into existence only after the removal from office of such executor.''^ Discharge of Persons Imprisoned By Orphans' Court. When any person shall be imprisoned by virtue of any order, writ or process, made by or issued out of the orphans' court, the court making such order, or out of which such writ or proc- ess has issued, is hereby authorized to discharge the person so imprisoned at the discretion of said court, whenever in the judgment of said court the ends of justice require such dis- charge.**^ ""Knikel v. Spitz, 74 N. J. Eq., Kocber's Chancery Practice, p. 452. 581. esSmith v. Smith, 80 N. J. Eq., •-Orphans' Court Act, sec. 183. 478. 3 Comp. Stat.. 3880. For practice «-'Orphans' Court Act, sec. 186. on attachment for contempt, see 3 Comp. Stat., 3881. 50 Probate Law and Practice. What Decrees Must Be Recorded: Execution: When Decrees Bind Lands. All decrees or orders of the orphans' court whereby any fine is imposed or a sum of money is ordered to be paid by one party to another shall be recorded and shall be signed by a judge of the court, and the said decrees and orders shall have the same liens and priorities as judgments of the circuit court of the same county, and the like executions may issue thereon, or if need be the court may enforce performance of the same by writs of attachment, injunction and ne exeat, in the same manner as may be done by the court of chancery; provided, that no decree of the orphans' court of any county hereafter to be made shall become a lien upon or bind any lands, tene- ments, hereditaments or real estate, until some party interested in such decree shall have filed in the office of the clerk of the circuit court of the same county a statement or abstract of such decree containing the names of those against whom it is ren- dered, the time at which said decree was signed and the amount of the fine imposed, or sum of money therein ordered to be paid, which statement or abstract said clerk shall forthwith file in his office, and index and record the same in the books in which judgments recovered in said circuit court are recorded and indexed.''*' Execution Will Not Issue on Decree of Distribution. A decree of distribution is not a decree whereby money is ordered to be paid by one party to another, upon which, under the provisions of this section, an execution may issue. The decree for the payment of money intended by the foregoing section is one made in a proceeding in which there are parties seeking and resisting, or having the opportunity to resist, such decree. A decree of distribution is of a wholly different char- acter J^ When Execution Binds Lands. No execution hereafter issued out of the orphans' court shall bind lands unless the same shall, before it is delivered to the sheriff, be recorded in the book kept for recording executions issued out of the circuit court of the county." ■^oOrphans' Court Act, sec. 184. 9. 3 Comp. Stat., 3880. '^Orphans' Court Act, sec. 185. ■^iBayley v. Bayley, 71 N. J. Eq., 3 Comp. Stat., 3880. The Orphans' Court. 51 Order or Decree May Be Docketed in Supreme Court — Lien Upon Lands. All decrees or orders of the orphans' court heretofore or hereafter made, whereby any fine has been or may hereafter be imposed, or a sum of money has been or may hereafter be ordered paid by one party to another, shall have the same liens and priorities as judgments of the supreme court, and the same sliall become a lien upon and bind the lands, tenements, heredit- aments or real estate of the person against whom the same was or shall be made ; provided, that and whenever some party interested in such decree shall have filed in the ofiice of the clerk of the supreme court a statement or abstract of such decree, certified by the surrogate of the county wherein the same was made, containing the names of the parties thereto, designating particularly those against whom it is rendered, the time at which said decree was signed, the amount of the debt, damages, costs, fine imposed or other sum of money thereby directed to be paid, which statement or abstract the said clerk shall forthwith record in a proper book by him provided and in his office kept for that purpose, and which book shall be prop- erly indexed by said clerk, and be a public record and to which all persons desirous to examine the same shall have access. And the amount due on such decree at the time of such docket- ing shall be sworn to by affidavit annexed to such statement, or abstract, by the party causing the same to be filed as afore- said, or his or her attorney or proctor.'^ LIABILITY OF EXECUTOR, ETC., ON DOCKETED DECREE. When any person be personally and individually liable on any such decree made against them as executor, administrator, guardian or trustee, and docketed as aforesaid, no suit shall be necessary on the said decree or the bond, as against such per- son, but such decree, when docketed as aforesaid, shall, on order of the orphans' court, as hereinafter provided, bind the lands, tenements, hereditaments and real estate of such person as fully and in the same manner as though it were a judgment of the supreme court rendered against such person. ''* '•'P. L. 1907, p. 358. 3 Comp. '*P. L. 1907, p. 359- 3 Comp. Stat., 3881, sec. i86a. Stat., 3881, sec. 186b. 52 Probate Law and Practice. EXECUTION OUT OF SUPREME COURT ON ORDER OF ORPHANS' COURT. Execution shall issue out of the supreme court on any such decree docketed therein as aforesaid against any person as executor, administrator, guardian or trustee, or as an indi- vidual when personally liable thereon, on order of the orphans' court, in which said decree was made, which order shall specify how such execution shall issue and a certified copy of which order when made shall be filed with the clerk of the said supreme court ; provided, That no such order shall be made except upon petition to the orphan's court of the person apply- ing for the same and due notice given to the person to be affected thereby, or their attorney, or proctor."^ Satisfaction of Decree. Such decree may be satisfied in the same manner as now provided for the satisfaction of judgments at law in the supreme court, or by order of the said orphans' court duly made, and a certified copy of which order shall be filed with the clerk of the supreme court. ''^ Fees Allowable, The clerk of the supreme court shall be entitled to collect and tax the same fees and costs for the filing of such statement, or abstract, the filing of such orders and the issuing and return of such execution as are now provided by law for the docketing of decrees from the court of chancery and the filing of orders and issuing and return of execution in actions at law, which fees and costs shall become a part of the amount due in such decree." Remedy Against Principal or Surety Not Affected. Nothing herein contained shall be construed to affect any remedy against any principal or surety on any bond, or to make liable or release from liability any principal or surety on any bond heretofore or hereafter made or given. "^ ■sp. L. 1907, p. 359. 3 Comp. "'P. L. 1907, p. 360. 3 Comp. Stat., 3881, sec. i86c. Stat., p. 3881, sec. i86e. "''P. L. 1907. p. 359- 3 Comp. ^^P. L. 1907, p. 360. 3 Comp. Stat., 3881. sec. i86d. Stat., p. 3882, sec. i86f. The Orphans' Court. 53 AMENDMENTS. Power of the Orphans' Court. In order to prevent the faih:re of justice, by reason of mis- takes and objections of form, it shall be lawful for the orphans' court or the ordinary, at all times and in all cases, to amend all defects and errors in any proceeding, whether there is any- thing in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not, and all such amendments may be made with or without costs, and upon such terms as to the orphans' court or ordinary may seem fit ; and all such amendments as may be necessary for the purpose of determining in the existing suit or proceeding the real question in controversy between the parties, or the real question raised on the application to amend, shall be so made.'^ Amendments on Appeal. The ordinary and orphans' court may make such amend- ments in proceedings brought before them by appeal as the court below should have made.^° COSTS AND COUNSEL FEES. In General. Costs were not recoverable at common law. They are the creature of statute.*^ It follows, therefore, that the only right of the orphans' court to allow costs and counsel fees must flow" from some statute granting that power. The only statutory provisions conferring upon the orphans' court such power are sections 196*- and 197*^ of the Orphans' Court Act. Section 196 applies to all litigation, and the terms "costs and expenses" used in the section undoubtedly include counsel fees ; but that section provides that "the court shall judge and direct zvhicli party shall pay the costs and expenses of the litigation," which obviously does not apply to an application to pay the costs of an unsuccessful litigation from the estate. Section 197 of the Orphans' Court Act applies only to will contests. These principles were applied in the Essex County Orphans' '"■'Orphans' Court Act, sec. 195. siL^^jgh Valley R. R. Co. v. Mc- 3 Comp. Stat., 3884. Farland, 44 N. J. L., 674. *<*Robison v. Furman, 47 N. J. 82pagg ^^ infra. Eq., 307. Voorhees' Case, 57 N. ^ap^gg 230, infra. J. Eq., 291-294. 14 Probate Law and Practice. Court, ^* to an application for the allowance of counsel fees in a proceeding for a decree of distribution, in which proceed- ing the only question arising was as to who should be the dis- tributees, and it was held that the orphans' court was without jurisdiction to allow counsel fees to the unsuccessful litigants. This adjudication was affirmed by the Prerogative Court, sub. nom. Smith v. McDotujld.^^ Court to Adjudge Who Shall Pay Costs. In all litigated suits in the orphans' court, the court shall adjudge and direct which party shall pay the costs and expenses of such litigation, and shall have the power to apportion and determine the costs and expenses to be paid by either party.®** AFFIDAVITS. Proctor Not to Take. No proctor or counsellor shall take any affidavit for use in any proceeding before the Orphans' Court or Surrogate in which he or any firm of which he is a member appears as proctor or counsel of record.^' ^*In re Cornelia B. Halsey, Mar. ance of costs on probate of will in 1905. the orphans' court, see "Probate 856q n j Eq^ 765. Affirmed 71 of Wills," p. 188, infra. N. J. Eq., 261. s^Orphans' Court Rule 48. ^^Orphans' Court Act, sec. 19b. 3 Comp. Stat., 3884. For allow- CHAPTER III. THE SURROGATE— HIS OFFICE, DUTIES AND JURISDICTION. Historical. Upon the surrender of the government of the province of New Jersey to the crown by the Proprietors in 1702, Lord Cornbury was appointed governor of the province ; and by the commission and instructions given him the whole ecclesiastical jurisdiction over New Jersey was reserved to the Bishop of London, excepting "the collating of benefices, granting of licenses for marriages and probate of wills,'' which powers were granted to Lord Cornbury, and without variation to his several successors.^ At an early date, the provincial governors, to facilitate the transaction of business, appointed deputies wnth the name of surrogate to act in their stead, the name being derived from that of the deputy appointed by the English Bishops to take cognizance of questions of ecclesiastical jurisdiction. These surrogates appointed by the provincial governors had concur- rent jurisdiction with them throughout the state. This condi- tion of affairs continued until the adoption of the constitution of 1776, whereby the governor was constituted the "ordinary or surrogate-general." The governors under the constitution, in their capacity as ordinary, continued appointing deputies or surrogates, in the same manner as their provincial predecessors had done, until 1784, when an act was passed providing that the ordinary should thereafter appoint but one deputy or surro- gate in each county, and that the power and authority of the surrogate should be limited to the county for which he was appointed. In 1822 (Elmer's Digest, 547) the appointment of his surrogates was taken from the ordinary and conferred upon the joint meeting of the-council and assembly, and their term of office fixed at five years. In 1844, the surrogate, by the constitution adopted in that year (Sec. IV., par. 2), was made 'See Learning & Spicer, p. 639. 55 56 Probate Law and Practice. a constitutional officer and the method of his selection provided for, which was thereafter to be election by popular vote. This divorced him from his former status as deputy, and made him an independent officer, whose duties were fixed by the Legisla- ture in the revision of 1846, which, among other things, pro- vided that there should be but one surrogate elected in each county, "and the power and authority of the surrogate shall be limited to the county in which he is, or shall be elected." — Rev. 1846, p. 827. This act has never been repealed.^ There is no doubt that this statute was intended to, and does, limit the jurisdiction of the surrogate to matters arising in his particular county, and does not grant a general jurisdiction to admit to probate the wills of non-residents of state or county. As to wills of residents of this state, his jurisdiction is now by statute expressly limited to cases where the testator resides in his county at the time of death.^ Nature of Office, In admitting wills to probate, as well as in the grant of let- ters of administration and of guardianship, the surrogate holds a court and acts in a judicial capacity, and his acts can only be reviewed by appeal to the orphans' or prerogative court ; they cannot be impeached collaterally. The only question that can be raised otherwise than by appeal is whether he had jurisdic- tion.* But the acts of the surrogate are not regarded as final in so far as they affect realty ; e. g., in the case of the pro- bate of a will devising lands which may be attacked collaterally in a suit for ejectment involving such lands.^ 24 Comp. Stat., p. 5056, sec. i. J. Eq., 583- In re Whitehead's Es- ^Orphans' Court Act, sec. 14, p. tate, 94 Atl. Rep., 796-8. The ordi- 201, infra. Chadwick's Case, 80 nary has no jurisdiction to enter- N. J. Eq., 471-474. tain proof of a will in solemn *Quidort v. Pergeaux, 18 N. J. form, as a means of setting aside Eq., 472. Ryno v. Ryno, 27 N. J. a decree of a surrogate admitting Eq., 522. In re Evans, 29 N. J. a will to probate, after the statu- Eq., 571. Straub's Case, 49 N. J. tory period for appeal has expired. Eq., 264. Affirmed 50 N. J. Eq., In re Whitehead's Estate, 94 Atl. 795. Buecker v. Carr, 60 N. J. Eq., Rep., 796. 300. Steele v. Queen, 67 N. J. L., ^wiikjnson v. Trustees, 38 N. J. 99. Crawford v. Lees, 93 Atl. Rep., Eq., 514. Crawford v. Lees, 93 201. In re Queen's Estate, 82 N. Atl. Rep., 201. The Surrogate's Court. 57 In addition to his judicial powers, the surrogate is, as will be seen, made, by the statute,*^ the recorder of the papers and decrees of his own court — in fact, clerk of his own court. In addition thereto, he is clerk of the orphans' court. The dis- tinction drawn by section 157 and 162 of the Orphans' Court Act make this fact perfectly clear. Section 159' expressly defines his duties as clerk of the orphans' court and section 160* defines his duties as clerk of his own, or surrogate's court." Jurisdiction. The jurisdiction of the surrogate is purely statutory, and extends to the probate of wills and grant of letters of adminis- tration and of guardianship in uncontested cases, and to such other matters as are mentioned in the statute. A full consid- eration of the surrogate's jurisdiction over each of the several matters committed to him will be found in connection with the various subjects of his jurisdiction.^*^ May Issue Subpoena To Appear. The surrogates of the several counties of this state are hereby authorized to issue process of subpoena to any person within this state to appear before them to give evidence in any case or matter pending before said surrogates. Every person subpoenaed as a witness by any of the surrogates of this state who shall not appear, or appearing shall refuse to serve or give evidence, in any such action, shall forfeit and pay for every such default or refusal, unless some reasonable cause be assigned, such fine not exceeding fifty dollars, nor less than one dollar, as the surrogate issuing such subpoena shall think proper to impose and in default of the payment of such fine shall be committed to the county jail of the county of the surro- gate issuing such subpoena as aforesaid, until such fine is paid, unless sooner discharged by the order of the said surrogate, which fine, when collected, shall be paid over to the county collector of the county in which the said surrogate was elected. ^^ ^Orphans' Court Act, sec. 158, loSee Probate of Wills, p. 188, p. 58. infra. infra. "Letters of Administra- ^Page 62, infra. tion," p. 251, infra. "Letters of sPage 59, infra. Guardianship," page 741, infra. »Steele v. Queen, 67 N. J. L., ^^P. L. 1915, P- MO. 99. 58 Probate Law and Practice. Commissions To Take Depositions De Bene Esse. An amendment to the Evidence Act'- provides that the provisions of that act in relation to the examination of wit- nesses by depositions shall apply to any proceeding in the court of chancery, supreme court, circuit court, court of common pleas, orphans' court, or before any of the surro- gates of this state, wherein the testimony of witnesses may be required as the basis of judicial action by virtue of any statute or other law of this state. '^ Validity of Acts of Surrogate. The statute provides that the probate of wills, and letters testamentary, of administration and of guardianship, issued by the surrogate under said act, shall have the same validity and effect as the probate of wills and letters of administration or guardianship issued by the register of the prerogative office in the name of the ordinary, with the seal of office affixed.'-^ When the time within which appeal from the surrogate may be taken has elapsed, the proceeding is a finality until it is disturbed by a direct attack upon it, which should originate before the surrogate ; the orphans' court cannot on application set it aside.'^ MISCELLANEOUS FUNCTIONS OF SURROGATE. Surrogate to Record Wills; Records and Transcripts as Evidence. The surrogate of each county shall record, in books to be provided for that purpose, at the expense of the county for which they shall be used, all wills proved before him or before the orphans' court, together with the proofs thereof, all letters of guardianship, letters testamentary and letters of adminis- 122 Comp. Stat., 2216. 574- Straub's Case, 49 N. J. Eq.. 132 C. S., 2235, sec. 47, as amend- 264-265. Affirmed 50 N. J. Eq.. ed by P. L. 1915, p. 141. 795- Crawford v. Lees, 93 Atl. i^Orphans' Court Act, sec. 156. Rep.. 201. In re Queen's Estate. 3 Comp. Stat., 3872. 82 N. J. Eq.. 583, and see "Nature i^In re Evans, 29 N. J. Eq., 571- of Office." p. 56, supra. The Surrogate's Court. 59 tration, by him issued or granted, and all things concerning the same, and also all inventories proved before him ; which records shall be of the same force, validity and etTect as the like records in the prerogative office, and the transcript of such records, certified under the hand and seal of office of the surro- gate, shall be received in evidence in every court of this state, and have the same validity and effect as transcripts certified by the register of the prerogative court. ^^ Surrogate To Index Records and Papers. It shall be the duty of the surrogate to keep all papers and records appe^rtaining to his office properly indexed in an alphabetical manner, in which records of all the official acts (which are made of record in said office) of the previous week (so far as the same can be done) shall be recorded, properly indexed in manner aforesaid ; upon any failure to perform said duties the surrogate shall forfeit and pay the sum of ten dol- lars for each and every week he shall neglect said duties, to be sued for and recovered by the director of the board of chosen freeholders in the county where the delinquency shall happen, in his own name, to be applied, when recovered to and for the use of the county.'" Surrogate Required To File Certain Documents, The surrogate is required, by statute, to file all administra- tion and guardianship bonds by him taken, and other instru- ments in writing required bylaw in conducting the business of his office, or which were heretofore used to be filed in the pre- rogative office.'^ Surrogate for Time Being May Sign Entries and Certifi- cates. The surrogate for the time being is authorized to sign all entries of record and the certificate of the filing of papers in his ofiftce, either as surrogate or clerk of the orphans' court : and such signature by the surrogate in office shall be as good "'Orphans' Court Act, sec. 158. 3 Coinp. Stat.. 387^- 3 Comp. Stat., 3872. "^Orphans' Court .\ct, sec. 157. '^Orphans' Court Act, sec. 160. 3 Comp. Stat., 3872. 6o Probate Law and Practice. and effectual as if signed by the surrogate or clerk of the orphans' court at the time the said entries of record or the filing of such papers were or should have been made.^^ Evidential Value of Surrogate's Records and Transcripts. The records kept by the surrogate, under the provisions of this act, and the transcript of such records under the hand and seal of office of the surrogate, shall be received as evidence in any of the courts of this state.-*' Duty of Surrogate To Transmit Wills, Etc., To Prerogative Court. Every surrogate shall, on the first Monday of February, May, August and November, in each year, transmit to the reg- ister of the prerogative court all wills and inventories proved by him, and a return of all letters of administrations granted during the preceding three months, to be filed in the said regis- ter's office.-^ Penalty For Taking Illegal Fees. If any surrogate shall take other or greater fees than by law allowed, or shall take fees for services not performed, he shall, for every such offense, forfeit and pay the sum of thirty dol- lars, to be recovered in an action of debt, with costs of suit, before any court having cognizance thereof, by the party aggrieved.-- Surrogate or Deputy Surrogate May Administer Certain Oaths. Any oath, affirmation, affidavit, deposition or proof required to be made or taken in any proceeding before the surrogate or in the orphans' court of any county or necessary or proper to be used before such surrogate or court for any purpose whatever, including the proof of wills, may be made and taken i^Orphans' Court Act, sec. i6i. -'Orphans' Court Act, sec. 165; 3 Comp. Stat., 3873- 3 Comp. Stat. 3873. ^oQrphans' Court Act, sec. 162. 220rphans' Court Act, sec. 166. 3 Comp. Stat., 3873. 3 Comp. Stat., 3873. The Surrogate's Court. 6i by and before the surrogate or deputy surrogate of such county.-^ Certain Oaths Taken Before Deputy Surrogates Valid. All oaths, affirmations and affidavits, and certificates thereof heretofore taken or made before or by any one of the deputy county clerks or deputy surrogates of any of the counties of this state are hereby confirmed and made valid and legal and effectual as if such deputy county clerk or deputy surrogate had been given full power and lawful authority to take such oaths, affirmations and affidavits by virtue of an act entitled "An act to amend an act entitled 'A supplement to an act enti- tled "An act relative to oaths and affidavits (Revision).'' approved March twenty-seventh, one thousand eight hundred and seventy-four,' " which supplement was approved March twelfth, one thousand eight (sic) hundred and eight.-* Admissibility in Evidence. The record of any oath, affirmation or affidavit, or certified as mentioned in the next preceding section, is hereby made good and effectual in law, and the same or a certified copy thereof may be used and given in evidence in the same manner and with like effect as if the said oath, affirmation or affidavit had been made before and certified by an officer then having full power and lawful authority to take the same.-" Practice When Surrogate is Executor, Administrator, &c. If any surrogate before whom the probate of any will is required to be made, or by whom the letters of administration, or of guardianship are required to be issued, or any other official act as surrogate is required to be done in the administra- tion or settlement of any estate, shall be the executor, adminis- trator, guardian or trustee, the duties required to be performed by the surrogate by this act with respect to the probate of the will, or the issuing of letters, or the administration or settle- ment of the accounts of such surrogate, may. in such cases, be 2-Orphans' Court Act, sec. 164. -"•?. L. 191 1. p. 21. sec. i. 3 Comp. Stat., 3873. 25p i^ ig£i_ p_ 21, sec. 2. 62 Probate Law and Practice. performed Ijy a judge of the orphans' court of the same county.-*^ Surrogate To Be Clerk of Orphans' Court. The surrogate, as clerk of the orphans' court, shall keep regular minutes of the trials and proceedings in said court, and shall record, in books to be kept for that purpose, all orders and decrees of the court ; and all bonds required by law to be taken by the surrogate or given in pursuance of any order or decree of the orphans' court, and all accounts of executors, adminis- trators, guardians, assignees and trustees, and all partitions, sales of land and acceptances, revocations, requests, renuncia- tions and releases necessary or proper to be made, if desired by any party in interest.-^ COSTS. Surrogate to Tax — Recovery. The bills of costs shall be drawn, taxed and filed by the surrogate, who shall, in case the same be not paid, issue execu- tion therefor against the goods and chattels, and lands and tenements, of the party adjudged to pay the same; and the court shall have power to enforce the payment thereof by attachment or other process in the same manner as other orders and decrees of the court are enforceable.-^ Costs To Be Paid To Surrogate. The costs, when paid or levied, shall be received by the surro- gate, who shall pay to the sheriff and crier, each their fees, as the same shall be taxed, and the residue to the persons entitled thereto.-^ Fees Allowed. The surrogates and other officers of the orphans' court shall receive, for the services hereinafter mentioned, the fees there- unto annexed, and no more ; and a sheet or folio shall contain one hundred words. ^^Orphans' Court Act, sec. 167. ^^Orphans' Court Act, sec. 198. 3 Comp. Stat., 3873. 3 Comp. Stat., 3885. -'Orphans' Court Act, sec. 159. -^Orphans' Court Act, sec. 199. 3 Comp. Stat., 3872. 3 Comp. Stat., 3885. The Surrogate's Court. 63 Fees To Be Received By the Surrogate for Services Directed By Law To Be Performed By the Register of the Pre- rogative Court, and to Be Paid Over To Him: For recording the name of each testator, the year in which the will was proved, and fiHng the will, twenty-five cents ; Recording the name of each intestate where administration hath been granted, and the year when granted, twelve cents ; Filing every inventory, twelve cents. Fees of Surrogate and Clerk of the Orphans' Court: For drawing applications for probate or for letters of administration, taking proof and recording the same, one dollar and sixty cents ; For drawing and taking depositions on will or inventory, one dollar and sixty cents ; Engrossing a will, codicil and proof, each sheet, fourteen cents ; Recording a will, codicil and proof, each sheet, ten cents; For making and signing every order or decree, one dollar ; Granting probate, one dollar and twenty cents ; Engrossing probate, fourteen cents ; Recording probate, ten cents ; Drawing and taking depositions to codicils, seventy-four cents ; Drawing administration bond and taking deposition thereon, one dollar and sixty cents ; Granting letters of administration, one dollar and twenty cents; Engrossing letters of administration, fourteen cents; Recording letters of administration, ten cents ; Filing administration bond, ten cents; Recording administration bond, each sheet, twelve cents ; Drawing and making appointment of appraisers, and draw- ing the oath for the appraisers, one dollar and twenty cents; Recording inventory and proof, each sheet, ten cents ; Drawing bond and petition for guardianship, one dollar and sixty cents : Reading bond and petition for guardianship, twelve cents; 64 Probate Law and Practice. Filing bond and petition for guardianship, ten cents ; Granting letters of guardianship, one dollar and twenty cents ; Engrossing letters of guardianship, fourteen cents ; Recording letters of guardianship, ten cents ; Drawing petitions, stating a list of debts, credits on applica- tion for sale of real estate, entering sale and making copies, one dollar and seventy-six cents ; Exhibiting proofs of advertising rule to show cause, entering decree and copies thereof, and receiving and filing report of sales, five dollars and four cents ; For advertising rule of court or notice, when done by the surrogate, one dollar and twenty-cents ; For services enjoined by the act concerning contracts of real estate made by testators and intestates in their life-time, the same fees as allowed for the sale of land ; Drawing petitions, reading, filing and recording decree appointing commissioners for the division of real estate, and a certified copy of such decree, four dollars and eight cents ; Recording report of commissioners, each sheet, ten cents ; Recording drafts for each and every course, four cents ; Drawing petition on application for rule to limit time to creditors, entering the rule and decree, making the rule abso- lute, and a certified copy of the decree, five dollars and four cents ; Drawing citation or other process, thirty-six cents ; Sealing the same, seventeen cents ; Entering every action, ten cents ; Entering the return of a writ, twelve cents ; Entering every rule or order of court, twelve cents ; Copy of such rule or order, ten cents ; Searching the records, fourteen cents ; Swearing each witness, seven cents ; Reading every petition or other writing given in evidence, twelve cents ; Filing every citation, exception, or other paper, ten cents ; Indexing each paper required to be indexed, ten cents ; Entering every discontinuance, twelve cents : Entering every decree, twelve cents ; Taxing every bill of costs, sixty cents ; The Surrogate's Court. 65 Issuing execution for costs, sixty cents : Entering and filing appeal, twenty-four cents ; Copies of citations, exceptions, records and other papers, each sheet, ten cents ; Seal and certificate, thirty cents ; Taking depositions, each sheet, fourteen cents ; Taking the examination of every witness, for each sheet, twenty cents ; Recording certified copy of proceedings in cases of lunacy, transmitted to the court, each sheet, ten cents ; Recording all bonds required to be taken by or filed with the surrogate, each sheet, twelve cents ; Recording accounts of executors, administrators, guardians and trustees, partitions, requests, renunciations, releases, receipts and discharges, and all other papers required by this act to be recorded and not otherwise provided for. each folio, twelve cents : For auditing, stating and reporting the accounts of execu- tors, administrators, guardians, trustees and assignees, on estates not exceeding ten thousand dollars, fifteen dollars : Over ten thousand dollars and not exceeding fifty thousand dollars, thirty dollars ; Over fifty thousand dollars, and not exceeding five hundred thousand dollars, at the rate of one^tenth of one per centum, and where estates exceed five hundred thousand dollars the court shall fix and determine the additional fees to be allowed on such excess ; provided, such further and additional fees may be allowed in any case, as the court shall think reasonable.'^" Method of Computing Surrogate's Fees on Accounting. In computing the amount of an estate for the purpose of fixing the fees of a surrogate for auditing and reporting an account, the balance transferred from a prior account should be excluded. ^^ Fees Reduced in Certain Cases. Whenever it shall appear that the estate, real and personal, 30Orphans' Court Act, sec. 200. siHeath's Case. 52 N. J. Eq.. 3 Comp. Stat.. 3885. 807. 6 66 Probate Law and Practice. of any testator, intestate, minor, or ward, does not exceed two hundred dollars the fees upon proceedings for probate of a will, administration or guardianship, up to and including the letters issued and copies of said letters as well as the fees of filing and recording an inventory, shall be one-half of the fees heretofore allowed by law, and whenever it shall appear that such estate does not exceed one hundred dollars, there shall be no fees charged; provided, however, if it shall afterwards appear in any case that the value of the estate, real and per- sonal, exceeds or exceeded two hundred dollars, then the said estate shall be liable for and pay the balance of the fees that would have been collected had no deduction been made under the provisions of this act.^^ Whenever it shall appear that the estate, real and personal, of any testator, intestate, minor or ward does not exceed two hundred dollars, no fees shall be charged upon the auditing, stating and allowance of the account of the executor, trustee, administrator, or guardian ; and when it shall appear that such estate does not exceed the sum of five hundred dollars, the fees upon the auditing, stating and allowance of the account of the executor, trustee, administrator or guardian shall be one-half of the fees heretofore allov/ed by law ; provided, however, that for the recording of said account and any and all orders relat- ing thereto the fees shall be the same as heretofore allowed by law.^^ Fees Payable in Advance. The surrogates shall be personally liable to their respective counties for the payment of all such fees and costs as are men- tioned in the first section of this act, and for their own protec- tion it shall be lawful for them to exact the payment of such fees and costs before filing any paper, entering and docketing any writ, order or judgment, recording any paper, making a copy or search, or performing any other services in their said offices for which costs, fees or compensation, is allowed ; and for convenience it shall be lawful for the said surrogates to 32P. L. 1914, p. 215, amending 3 is a supplement to the Orphans' Comp. Stat., p. 3866. sec. 200a. Court Act and in part the Act of 33p. L. 1915, p. 326. This act 1914- The Surrogate's Court. 67 receive from suitors and their attorneys reasonable deposits of money in advance to answer such fees and costs, rendering an account thereof to the person making such deposit at least once in four months.^* AFFIDAVITS. Proctors Not to Take. Xo proctor or counsellor shall take any affidavit for use in any proceeding before the Orphans' Court or Surrogate in which he or any firm of which he is a member aj)pears as proc- tor or counsel of record. ^^ 3"?. L. 1898, p. 228. 4 Comp. ■•''Orphans' Court Rule 48. Stat, p. 4642, sec. 36. CHAPTER IV. POWER OF PROBATE COURTS TO CORRECT AND REVOKE THEIR DECREES. In General. That courts of probate have the power to open, review, modify, correct, vacate and set aside their orders and decrees is a doctrine recognized and affirmed by the overwhelming weight of authority in this country^ and by a long and unbroken line of precedents and authorities in England.- The reason upon which the rule is based is two-fold ; first, that this power is, and always has been, incident to all courts of general jurisdiction,^ and second that such power is absolutely essen- tial to prevent a failure of justice.* As is said in 3 Bac. Abr.. ^Gaines v. Chew, 2 How. (U. S.), 619-646. Gaines v. Hennen, 24 How. (U. S.), 553-567- Roy V. Segrist, 19 Ala., 810. Vaughn v. Sugg, 2 So. (Ala.), 32. Steven- son V. Superior Court, 62 Cal., 60. French v. County Home, 80 Atl. (Md.), 913. Stetson v. Bass, 9 Pick. (Mass.), 26-29. Waters v. Stickney, 12 Allen (Mass.), i. Crocker v. Crocker, 84 N. E. (Mass.), 476. Morgan v. Dodge. 44 N. H., 255. Pew V. Hastings, I Barb. Ch. (N. Y.), 45^. Camp- bell V. Thatcher, 54 Barb. (N. Y.), 382. George's Appeal, 12 Pa. St.. 260. Bowen v. Johnson, 5 R. I., 112. Rix V. Smith, 8 Vt., 365. Smith V. Rix, 9 Vt., 240. Adams V. Adams. 21 Vt., 162 Brunson v. Burnett, 2 Pinn. (Wis.), 185-189. ^Barnesly v. Powel, i Ves. Sr., 284. Harrison v. Weldon, 2 Str., 911. Nicol V. Askew. 2 Moore P. C, 88-92. Blackborough v. Davis, T Salk., 38. Prosser v. Wagner, i C. B. (N. S.). Trower v. Cox, i Addams, 219. Hayle v. Hasted, i Curt Eccl., 240. Goods of Napier. I Phillim. R., 83. Noell v. Wells, i Lev., 235, S. C. I Sid., 359. Allen v. Dundas, 3 T. R., 125. Wilkin- son V. Robinson, 14 Jur., 72. Car- olus V. Lynch, i Lees Ecc. Rep., 13. Cornish v. Cornish, id., 14. Burgis v Burgis, Id., 121. Ogilvie v. Hamilton, Id., 357. Smith v. Corry, Id., 418 Comyns' Dig. tit. Administrator, B., 8. Bacon's Abr. tit. Administrator. Wentw. on Exrs.. 48. Toller on Wills, 73, 74. I Williams on Executors, 399, 508, 509, 512. 521, 524 and notes. ^Smith v. Rix, 9 Vt., 240. Adams V. Adams, 21 Vt., 162-166. Brun- son v. Burnett, 2 Pinn. (Wis.), 185. ■^French v. County Home, 80 Atl. (Md.). 911. Stetson v. Bass, 9 Pick. (Mass.), 26-29. Pew v. Hastings, i Barb. Ch. (N. Y.),' 452-454. Campbell v. Thatcher, 54 Barb. (N. Y.), 382-386. Bowen v. Johnson, 5 R. I., 112-119. Rix v. Smith, 8 Vt., 365-370. 68 Control of Decrees. 6q 50, in speaking of the ecclesiastical tribunals of England, in reference to this power, "it would be absurd to allow a court jurisdiction herein and at the same time deprive them of the liberty of vacating and setting aside an act of their own. which was obtained from them by deceit and imposition." Indeed, the second of the above reasons necessarily follows from the first; for. assuming, as has already been shown, that our pni- bate courts are courts of general jurisdiction, whose decrees cannot be attacked collaterally^ it follows that if their decrees, obtained by fraud, mistake, or accident, cannot be reviewed and corrected by them, such decrees must, after the expiration of the time in which an appeal may be taken, stand, and cannot be corrected at all — a result which would be intolerable. As was said by the Supreme Court of ^Massachusetts in Waters v. Stickney'' this power does not make the decree of a court of probate less conclusive in any other court, or in any way impair the probate jurisdiction ; but renders that jurisdiction more complete and effectual, and by enabling a court of probate to correct mistakes and supply defects in its own decrees, better entitles them to be deemed conclusive upon other courts. In considering the power of our orphans' courts and surro- gates over orders and decrees, it must, of course, at the outset, be conceded that the power of the surrogates and orphans' courts in respect to the jurisdiction exercised by them is only that conferred by statute. The jurisdiction in that respect must be found in the express enactment of some legislative act, or in necessary implication therefrom." But it must also be borne in mind that, although the juris- diction of these courts is thus limited, yet, within those limits, it is general, and not special ; and. as a necessary corollary, that, within those limits, the court is not entirely confined to the powers specially granted by the legislature, but may exercise the revisory power over its orders and decrees incident, as has been seen above, to all courts of general jurisdiction.^ This distinction between courts of limited jurisdiction and •''See pp. 48 and 58, supra. 390. Affirmed 65 N. J. Eq., 399. •12 Allen (Mass.), 1-15. *In re Clement's Appeal, 25 N. ^Murray v. Lynch, 64 N. J. Eq., J. Eq., 508. yo Probate Law and Practice. courts of special jurisdiction is clearly pointed out by the supreme court in Obert v. HammeP as follows: "I apprehend the term 'limited jurisdiction' to be somewhat ambiguous, and that the books sometimes use it without due precision. Our supreme court is limited by acts of the legis- lature ; so likewise is the court of common pleas ; and the newly constituted circuit courts : yet each of them exercises a general jurisdiction. The word limited seems to be used some- times carelessly instead of the term special, for I take the true distinction between courts to be, such as possess a general, and such as possess only a special jurisdiction for a particular pur- pose, or clothed with special powers, for the performance of specific duties, beyond which they have no manner of authority ; and these special powers to be exercised in a summary way ; either by a tribunal already existing for general purposes : or else by persons appointed, or to be appointed in some definite form. . . . "But the orphans' court is not organized for a single pur- pose, it has a general jurisdiction as broad as the common pleas, or circuit court, or perhaps the supreme court itself, it did no more than give a new dress to powers coeval with the exclusive of its appellate and superintending authority. The statute of the i6th of December, 1784,^° though made as far back as the Revolution, did not create a court before unknown ; province, and which the ordinary and his surrogates had always exercised in the prerogative court, professing in its title, only to ascertain, to regulate and to establish. It confers no attribute of a special court, for one purpose only, but a jurisdiction for the general administration of justice within certain great departments. Therefore, if the orphans' court exercises a limited juris- diction, still it is not a special one, and is entitled to the same liberal presumptions, as any supreme court ; that what is done, is rightly done until reversed. It is no special jurisdiction for a particular purpose, but a permanent court for the administra- tion of justice ; its powers are inexhaustible by action ; its juris- diction spreads over vast departments of matter."^^ 9i8 N. J. L.. 73-78. iiAnd see also to the same effect loPaterson, 59. Hess v. Cole, 23 N. J. L., 116-121. Control of Decrees. 71 Orphans' Courts and Surrogates. In the two cases last cited, it is, as has been seen, the juris- diction of the orphans' court that is specifically in question, and that this court is one of general jurisdiction has, indeed, been repeatedly affirmed;^- but it is obvious that the reasoning of the opinions is equally applicable to the surrogate, and it must be considered as well settled that the surrogate also holds such a court. Thus, in Quidort v. Pergeanx^^ it was said that, "like the acts of all other regularly constituted tribunals, the acts of the surrogate cannot be impeached collaterally" ; and this case is cited in In re Evans^* as establishing the doctrine that "the proceedings of the surrogate, in admitting a will to probate, are those of a regularly established court, and are to be treated accordingly," and this doctrine has been approved in many cases. ^^ And in the very recent case of Crazvford v. Lees^^ Vice Chancellor Leaming. after an extended review of the history and jurisdiction of the surrogate, held that "a grant of probate and letters testamentary made by a surrogate, which conforms to the requirements of the statute as to form and proofs, is as conclusive as a similar grant made by the ordinary," upon the ground that, "in the absence of fraud of the parties, a judg- ment of a court of general jurisdiction cannot be collaterally impeached, if the court had jurisdiction of the subject-matter of the controversy and the parties" ; that the surrogate's court cannot "be regarded as a court of inferior jurisdiction, when considered in connection with the duties which it is required to perform"; and that "proceedings before the surrogate are here i^Obert V. Hammel, i8 N. J. L., ^^Steele v. Queen, 67 N. J. L.. 72). Den v. O'Hanlon, 21 N. J. L., 99. Ryno v. Ryno, 27 N. J. Eq., 582. Hess V. Cole, 23 N. J. L., 522. Straub's Case, 49 N. J. Eq.. 116. Plume V. Howard Savings 264. Affirmed 50 N. J. Eq., 795. Institution, 46 N. J. L., 211. Py- Buecker v. Carr, 60 N. J. Eq., 300. att V. Pyatt, 46 N. J. Eq., 285. In re Hodnett. 65 N. J. Eq., 329. Clark V. Costello. 59 N. J. L., 234. In re Queen, 82 N. J. Eq., 583. In Hohokus V. Erie R. R. Co., 65 re Whitehead's Estate, 94 Atl. N. J. L., 353- Rep., 796. i^iS N. J. Eq., 472. •«93 Atl. Rep., 201. 1*29 N. J. Eq., 571. 72 Probate Law and Practice. placed upon precisely the same plane as those of the orphans' court, or even common law courts of general jurisdiction." It has been repeatedly held in this state, and must be regarded as settled, that the orphans' court has the power to correct and revoke its decrees.^" As regards the surrogate, while there has been no express decision upon the question, and, in fact, the court in In re Evans^^ expressly refrained from deciding it, it is almost impossible to arrive at any different conclusion. As has been seen above, all the cases in this state, wherein the question of the possession of the revisory power by courts of probate has been directly raised concerned the orphans' court; but an examination of the reasons upon which the decisions in these cases have been based clearly shows that they apply with equal force to the surrogate's court. Thus, in Vincent v. Vincenf^ the Court of Chancery refused to set aside probate as to a complainant, who alleged that his authority to a proctor to acknowledge service on his behalf had been obtained by fraud, and said: "For the further reason that courts invested with jurisdiction for probate have generally power to check and revise proceedings for probate tainted with mistake, fraud, or illegality, a court of equity will not entertain jurisdiction to set aside a will, or the probate thereof, where the fraud in the probate proceedings is such that a probate court itself has power to give relief, this court should not undertake to control the decree for probate by directing consent to another probate. It is settled, under our decisions, that the orphans' court is a superior court of general jurisdiction in probate and other special cases, not an inferior court of limited or special jurisdiction. Where a decree is entered in this court against a defendant on an unauthorized appearance of a solic- itor, the decree will be set aside as against the defendant, on motion, and the same control over its judgments, or decrees, by inquiring into the authority of its attorneys to appear, may be exercised by every court of general jurisdiction." Moreover, although, as has been said above, there has as yet i^In re Clement's Appeal, 25 N. cent, 70 N. J. Eq., 272. J. Eq., 508. Githens v. Goodwin, '^29 N. J. Eq., 57i- 32 N. J. Eq., 286. Vincent v. Vin- ^^70 N. J. Eq., 272. Control of Decrees. 73 been no express decision as to the surrogate's powers to modify or revoke his decrees, there are several dicta which show quite clearly that our courts take it for granted that he has this power. Thus, in Ryno v. Ryno'-'^ where the question was as to probate which had been granted by the surrogate, the Court of Errors and Appeals said: "If the probate of the will were irregular or voidable for any cause, the remedy of the husband was by appeal to the ordinary, or by proceeding for the revo- cation of the letters." So in Straub's Case,'-^ the court said : "When the time within which appeal may be taken has elapsed, the -judgment (of the surrogate) is a finality until it be disturljed by a direct attack upon it, which should originate before the surrogate.'' It must, then, be regarded as established that both the orphans' court and the surrogate have power to open, review, modify, correct, vacate and set aside their orders and decrees, when necessary to prevent a failure of justice. ''^27 N. J. Eq., 522. "M9 N. J. Eq., 264. Affirmed 50 N. J. Eq., 795- CHAPTER V. APPEAL FROM DECREE OF SURROGATE. General Provisions. Any person aggrieved by any order or proceeding of a surro- gate in proving an inventory or granting letters of administra- tion, or of guardianship may, by filing a petition of appeal with the surrogate within twenty days after such order or proceeding, appeal therefrom to the orphans' court, which appeal the said court shall hear in a summary way, and afifirm or reverse the order or proceeding complained of, either wholly or in part/ An appeal will not lie directly to the prerogative court from an order of the surrogate granting letters of admin- istration. - From Probate of Will. Proceedings of surrogates respecting the probate of wills shall be subject to appeal to the orphans' court by any person interested, or other person legally representing him, and to pro- ceedings thereon, as if the will had not been proved ; provided, that such appeal be made within three months after such pro- ceedings before the surrogate, or within six months after such proceedings in cases where the person appealing resides out of t'his state at the death of the testator.^ Method of Taking Appeal. Section 201 and 202 of the Orphans' Court Act* are a part of the sub-division of that act which regulates appeals from the surrogate, and should be read together in determining the method of taking the appeal. The first section referred to requires the filing of a petition of appeal with the surrogate, and limits the time within which such petition may be filed in ^Orphans' Court Act, sec. 201. ^Orphans' Court Act, sec. 202. 3 Comp. Stat., 3888. 3 Comp. Stat., 3888. 2Grissom's Case, 56 N. J. Eq., *See this page, supra. 373- 74 Appeal. 75 the cases enumerated in that section. The succeeding section provides for an appeal in proceedings regarding the probate of wills, and extends the time of appealing to three or six months, according to the residence of the appellant, without stating how the appeal shall be prosecuted. As this section prescribes no method for taking the appeal, it would appear that the proceeding set out in section 201 was intended to apply to both sections, and that an appeal from the surrogate's order of probate must be taken by a petition filed with the surrogate, and not in the orphans' court. ^ In the case of In re Will of James R. Sayre, Jr., '-"^ a notice of appeal was filed with the surrogate by the appellant within the time limited for taking an appeal, and thereafter a petition of appeal was filed in the orphans' court, but not until the period for taking an appeal had elapsed. A motion to dismiss the appeal was made on the ground that a petition should have been filed with the surrogate within the time lim- ited for taking the appeal, under the terms of the decision in IValdron v. Layton.^ The orphans' court of Essex County, Davis, J., held that the question before the prerogative court in IValdron v. Layton differed from the question before the orphans' court in the case at bar, in that in the Waldron case neither the notice of appeal nor the petition of appeal was filed with the surrogate ; and it was further held that the statement in the decision in the case of IValdron v. Layton, to the effect that the petition of appeal must be filed with the surrogate, and not with the orphans' court, must be considered as dictum ; and the court declined to dismiss the appeal.^ Subsequent to the decision in the case of In re Will of James R Sayre, Jr..'^ it was provided by a rule of the orphans' court that in all cases of an appeal from any order, or decree, of the surrogate, the party appealing shall file with the surro- gate a petition of appeal, addressed to the surrogate, in which shall be briefly stated the order or decree complained of, the grounds of appeal and the names of all persons concerned; and "Waldron v. Layton, 71 N. J. ^In re Will of James R. Sayre, Eq., 726. Jr., 32 N. J. L. J., 207. 5332 N. J. L. J., 207. ^332 N. J. L. J., 207. 871 N. J. Eq.. 726. 76 Probate Law and Practice. a copy thereof shall, within ten days thereafter, unless the orphans' court shall in its discretion grant further time, be served upon the executor, administrator or guardian, in case of an appeal from the probate of a will or from an order grant- ing letters of administration or guardianship, and in other cases upon the adverse party.^ Appellant to Cause Issue of Citation. The appellant shall, within ten days after filing any petition of appeal with the surrogate, unless the orphans' court shall for good cause grant further time, cause the surrogate to issue cita- tions to all the persons concerned, named in said petition of appeal, to appear before the orphans' court of the same county on a day therein to be named and shall cause said citation to be duly served; and the said orphans' court shall at the time and place mentioned in said citation, or at such other time or place as it may then appoint, hear and determine the matter in controversy." Rights of Persons Cited on Appeal. The decree of the surrogate admitting a will to probate oper- ates as a conclusive adjudication which can be avoided only by an appeal taken within the time allowed by the statute.^" Pro- ceedings under an appeal should be confined to ascertaining and establishing the rights of the party prosecuting the appeal. Under this statute, the proceedings below are made "subject" to appeal at the option of one qualified to exercise that right ; the language used cannot be construed to mean that all who could, but have not availed themselves of the option within the time fixed by law, become joint appellants, and entitled to con- trol the action of the diligent suitor. The action of the orphans' court in issuing citations cannot invest one cited with any right he did not previously possess ; not having taken an appeal, his right is lost, and the citation cannot restore it. While the sec- tion of the act under consideration does not authorize or pro- ^Orphans' Court Rule 49, which supra. became effective April i, 1916, and ^Orphans' Court Rule 50. after the decision of in re Sayre, ^''See p. 58, supra. Appeal. JJ vide for the citation of parties whose rights have been settled by the decree of the surrogate, from which they did not appeal, yet it is quite proper that some notice of the appeal should be given to such as might be injured by a reversal of the surro- gate's decree ; but when thus in court, not having appealed, they can only be heard in support of the decree below. To hold otherwise would permit him who, for want of an appeal, has no standing in court, to contest a decree from which he has taken no appeal, and to allow him a right which the law denies to him, namely, that of proceeding on his own behalf. ^^ Dismissal of Appeal by Orphans' Court. The orphans' court has inherent jurisdiction to dismiss an appeal from a decree of a surrogate for lack of prosecution, or other sufficient cause, and may, with the consent of appellant, dismiss such an appeal without notice to the persons who have been cited to appear, and without hearing the subject-matter of the appeal. ^- The orphans' court rules provide that if appellant shall fail to serve a copy of the petition of appeal as provided in rule 49'" or shall fail to cause citation to be issued by the surrogate as provided in rule 50,^* or shall, after citations are issued, fail to cause the same to be duly served or fail to diligently prosecute his appeal, any party interested in the proceedings may there- upon apply to the orphans' court, upon five days' notice to the appellant, to dismiss the said appeal, and that court, may in its discretion dismiss the said appeal with costs.^^ Hearing on Appeal. On an appeal from the surrogate to the orphans' court, the latter court hears the matters dc novo as though there had been no proceedings before the surrogate. In the case of an appeal from the probate of a will, the practice is the same as on a caveat.'""' In other cases the parties proceed as though ^^Mary Hynes' Case, 69 N. J. ^^Pagc 76, supra. Eq., 485. Affirmed 71 N. J. Kq., '^Pape 76, supra. 306. '•''Orphans' Court Rule 51. '-Mary Hynes' Case, 69 N. J. '■'•"For practice on caveat against Eq., 485. Affirmed 71 N. J. Eq., proliate of a will, see "Contested 306. Probate," p. 221. infra. 78 Probate Law and Practice. there had been no proceedings before the surrogate, that is to say; the petitioner before the surrogate examines his witnesses, who are subject to cross-examination on the part of appellant ; after he has rested his case, the appellant puts in his case, after which the petitioner is permitted to call witnesses in rebuttal. Appeal From Surrogate to Prerogative Court. All proceedings of surrogates, from which an appeal is not provided for in sections 201 and 202 of the Orphans' Court Act,^® shall be subject to appeal to the prerogative court by any persons interested, or other person legally representing them ; provided, such appeal be made within six months after any such proceedings.^" PRACTICE ON APPEAL. Who May Appeal. As has been seen,^^ the right of appeal is given to persons "interested" or "aggrieved." A party aggrieved or interested is one whose pecuniary interest is directly affected by the decree, or whose right of property may be established or divested thereby.^^ An appeal will not lie by a successful party for the purpose of having the decree affirmed, for the appel- lant is not aggrieved ;-*' and for the same reason, an appeal will not lie from an order made by the consent of the party appeal- ing from it.-^ An administrator pendente lite is not aggrieved by the appointment of a permanent administrator and has no standing to prosecute an appeal from such order ;-^ but where a treaty with a foreign power confers upon the consul of that power the right of administration upon estates of citizens of that power dying within the state, such consul has the right to i^Page 74, supra. various subjects as "Wills," "Ac- i^'Orphans' Court Act, sec. 203. countings," &c. for appeals in par- 3 Comp. Stat., 3888. ticular cases. i^Page 74, supra. ^oGreen v. Blackwell, 2>2 N. J. i^Swackhamer v. Kline, 25 N. J. Eq., 768. Eq., 503. Andress v. Andress, 46 ^ipembej-ton's Case, 40 N. J. N. J. Eq., 528. Young's Case, 67 Eq., 520. Affirmed 41 N. J. Eq., N. J. Eq., 553. Conover v. Wall- 349. ing, 15 N. J. Eq.. 167. Dietz v. 22McKenzie v. Minard, 67 Atl. Dietz, 38 N. J. Eq., 483. And see Rep., 936. Appeal. 79 join in an appeal from the surrogate's order improperly grant- ing administration upon a decedent's estate to decedent's cousin.-^ In a suit by a general legatee for his legacy, and in suits by creditors, where the suit does not involve the con- struction of the residuary clause of the will, the residuary leg- atee is represented by the executor, and has no standing to appeal.-* In Young's Case-'' it was questioned whether a person cited upon an appeal from a decree of the surrogate, who does not appear, or who, appearing, does not intervene, may appeal. The status of persons so cited was further considered in a later case reported under the name of Mary Hynes' Case"^^ where it was held that such persons, having taken no appeal, have no standing in court, and can only be heard in support of the decree below ; it would therefore seem to follow that they v.'ould have no standing to take an appeal except possibly in case the decree of the surrogate be reversed by the orphans' court. Nature and Effect of Appeal. The constitution and the statute confer upon any person aggrieved by a decree of the surrogate the right to appeal to the orphans' court. The nature and effect of such an appeal must be sought for in the civil law, whence it came. Appeals, prop- erly so-called, are a continuance of the same case, being only a transfer from one court to another for final trial and judg- ment. It was a mode of procedure unknown to the common law, and only known in England in the Court of Chancery, whose mode of proceedings was borrowed from the Roman civil law. From this source came the practice in the Ecclesias- tical court, which, except as modified, is the practice of the probate courts in this state. The effect of an appeal is to trans- fer the cause of action to the appellate tribunal. In respect to the matter appealed from, the transfer leaves nothing in the trial court for subsequent action ; all jurisdiction of questions 23In re Estate of Wicko Sinov- -''67 N. J. Eq., 553. cic, 80 N. J. Eq., 260. =«69 N. J. Eq., 485. Affirmed 71 2*Davison v. Rake, 45 N. J. Eq., N. J. Eq., 306. 767. 8o Probate Law and Practice. involved in litigation and embraced by the judgment terminates with the removal of the cause to the appellate tribunal. The loss of jurisdiction is so complete as to require a party who seeks relief from any error, except an error in making the record, or in omitting something from the record, to appeal to the higher courts ; after the case leaves the lower court, it can- not act upon any question involved in the appeal.-' The effect, therefore, of an appeal from the decree of a pro- bate court is to suspend the operation of the decree appealed from ; and when an appeal is taken from the probate of a will, the executors have no power to act, and the exercise of their functions is wholly suspended until the appeal has been deter- mined.-® APPEAL FROM DECREE OF ORPHANS' COURT. Who May Appeal — Time for Taking. Any person aggrieved by order or decree of the orphans' court, of whatever nature, may appeal from the same to the prerogative court ; provided, that the appeal, if from an order or decree of the court respecting the probate of a will or right of administration or the fairness of an inventory, shall be demanded within thirty days after such order or decree, and if from any other order or decree, the same shall be demanded within three months from the making of such order or decree, unless otherwise specially provided.-^ Constitutional Provisions. All persons aggrieved by any order, sentence or decree of the orphans' court, may appeal from the same, or from any part thereof, to the prerogative court; but such order, sentence or decree, shall not be removed into the supreme court, or circuit court, if the subject-matter thereof be within the jurisdiction of the orphans' court. ^° -'Hill's Case. 55 N. J. Eq., 764. -^Orphans' Court Act, sec. 204. 28Brown v. Ryder, 42 N. J. Eq., 3 Comp. Stat., 356. Bloomfield v. Ash, 4 N. J. 30(3Qnstitution of New Jersey, L., 361. Kayhart v. Whitehead, 77 Article VI, section 4, par. 3. As N. J. Eq., 12 Affirmed, 78 N. J. to who are so aggrieved as to en- Eq., 580. title them to apeal, see "Who May Appeal,"' page 78, supra. . Appeal. 8i Review of Proceedings of Orphans' Court by Certiorari. Where the subject-matter is within the jurisdiction of the orphans' court, the matter may not be removed to the supreme court by certiorari. ^^ Notice of Appeal. Notice of appeal from the order, sentence or decree of the orphans' court, or from proceedings of any surrogate, to this court, shall be filed with the surrogate ; said notice shall state shortly the parts of the order or decree appealed from, and a copy thereof shall, within five days from the filing thereof, unless the court shall in its discretion grant further time, be served upon the adverse party, or upon his proctor if he appeared by proctor in the court below. ^- An appeal from a decree of the orphans' court is made by filing a notice of appeal with the surrogate as clerk of that court. The notice of appeal must be in writing; an oral announcement of an intention to appeal is insufficient.^^ Appointment of Guardian Ad Litem for Infant Party. Where any respondent is a minor, if he does not procure a guardian ad litem, upon the appeal to be appointed within five days after the service upon him of the notice of appeal, the appellant may apply to the prerogative court ex parte for the appointment of such guardian, which application shall be pur- suant to the provision of rule fifty-four.^* TIME WITHIN WHICH APPEAL MUST BE TAKEN. Computation of Time. The limitation of time within which an appeal is to be taken applies, not to the filing of the petition of appeal in the prerog- ative court, but to the demanding and filing of notice of the appeal with the surrogate.^^ The time is to be computed, not 3' Carroll v. Baxter, 65 N. J. L., Gloucester City v. Greene, 45 N. J. 478. Eq., 747- ^^Prerogative Court Rule 59. ''^^^^^ ^^' '"P''^' Prerogative 33Hillyer V. Schcnck, 15 N. J. ^""""^ ^"^^ ^7. Eq., 398. S. C. on appeal, ib.. 501. '"^^^'^ ""■ "^'"'-^'' 4 N. J. Eq.. Claypool V. Norcross, 36 N. J. Eq.. ^^^- ^'"y^"" ^- Schcnck, 15 N. J. 524. Affirmed 37 N. J. Eq., 261 Eq., 398. S. C. on appeal, ib., 501. 7 82 Probate Law and Practice. from the date of the announcement of the decision of the court, but from the time the decree is reduced to writing, signed and filed, and entered upon the minutes of the court f^ and the decree is not legally filed until the certificate of filing is signed by the surrogate.^' Where the court, at the time of announc- ing its decision, in the presence of the proctor of the party aggrieved, fixes a day for the signing of the decree, at which time the decree was actually signed and filed, no actual notice of the signing of the decree is necessary, nor is it material whether the party aggrieved, or her proctor, were actually in court when the decree was signed. ^^ In case a decree is amended, the time limit for taking an appeal from the portions of the decree which were not amended runs from the entry of the decree, while the time for taking an appeal from the amended portions of the decree runs from the entry of the amended decree.^® From Order Respecting Right of Administration. An appeal from a decree of the orphans' court revoking letters of administration and granting new letters to the same person must be taken within thirty days, although no new application for letters be made and no citations be issued for parties to come in and be heard. *° From Decree Allowing Counsel Fees. An appeal from a portion of a decree, admitting a will to probate, which awards costs and counsel fees, must be taken within thirty days from the entry of the decree.*^ The provisions of a decree, admitting a will to probate after a con- test thereon, allowing costs and counsel fees, are parts of the decree for the probate of the will, from which an appeal must be taken within thirty days after entering.*- s^Hillyer v. Schenck, 15 N. J Eq., 398. S. C. on appeal, ib., 501 Mount V. Slack, 39 N. J. Eq., 230- Young V. Young, 32 N. J. Eq,. 275 ^^Young V. Young. 32 N. J 39Hoit V. Hoit, 40 N. J. Eq., 551. Reversed, 42 N. J. Eq., 388. 4"Delany v. Noble, 3 N. J. Eq., 559- *^Hoit V. Hoit, 40 N. J. Eq., 551. Eq., 275. Reversed 42 N. J. Eq., 388. 38Hillyer v. Schenck, 15 N. J. ^^Hoit v. Hoit, 40 N. J. Eq., Eq., 398. S. C. on appeal, ib., 501. 551. Reversed 42 N. J. Eq., 388. Appeal. 83 Effect of Not Demanding Appeal Within Time Limited. The right of appeal is conditional upon its being demanded within the time limited by the statute. Unless an appeal is demanded within the period fixed by the statute, the right of appeal will be lost forever ;^^ and where a party has failed to comply with the statutory provision as to the time for appeal, his right of appeal cannot be revived by re-entering the decree in order to enable him to appeal. Where, however, by the neg- lect of the surrogate a decree was not filed, and appellant was in ignorance of its existence until after the time limited for taking an appeal, his right of appeal will not be lost ;" and where a decree was duly filed with the surrogate, and misplaced by him and the evidence showed that the surrogate had been frequently applied to by the proctor of the appellants, and in ignorance or forgetfulness of the order had informed him that no order in the case had been made, and careful search for the order was also made in the surrogate's office by the surrogate and proctor, it was held that, while the orphans' court had no power to direct the order to be re-filed, so as to extend the time for appealing, nevertheless the appellant could not by a mis- take of the surrogate be deprived of his right of appeal.*^ Court May Relieve Appellant in Laches. The time of filing the petition of appeal is regulated by rule of court; and whenever the rule has not been complied with, the court may, in its discretion, release the party from the effect of his laches.**' PROCEEDINGS IN THE PREROGATIVE COURT. Proctor and Counsel. On appeal to the prerogative court from the order, sentence or decree of the orphans' court, or from the proceedings of *"Hillyer v. Schenck, 15 N. J. Eq., 523. Eq., 398-401. S. C. on appeal, ib., *-''Mount v. Van Ness, 34 N. J. 501. Claypool V. Norcross, 36 Eq., 523. N. J. Eq., 524. Affirmed Z"] N. J. ^"Hillyer v. Schenck, 15 N. J. Eq., 261. Gloucester City v. Eq., 398. S. C. on appeal, ib., Greene, 45 N. J. Eq., 747-751- 501. **Mount V. Van Ness, 34 N. J. 84 Probate Law and Practice. any surrogate, the proceedings shall be conducted by proctor and counsel, and by guardians ad litem of minors, according to the practice of the court of chancery, except as hereinafter specified.*^ Petition of Appeal. In all cases of appeal to the prerogative court from any order, sentence or decree of the orphans' court, or from the pro- ceedings of any surrogate, the party appealing shall, within thirty days after filing his notice of appeal with the surrogate, unless this count shall in its discretion grant further time, file his petition of appeal with the register of this court, and shall within five days after filing the same serve a copy thereof on the adverse party, or upon his proctor if he appeared by proctor in the court below, or the appeal shall be considered as waived ; and any party interested in the proceedings in the court below may thereupon apply to this court to dismiss the appeal with costs.*^ Practice on Appeal from Decree on Account. Where the appeal is from the sentence or decree, of the orphans' court on the settlement of the account of an executor, administrator, guardian or trustee, if the appellant wishes to review the decision of the orphans' court as to the allowance or rejection of any particular items of the account, such items shall be specified in the petition of appeal, or the allowance or disallowance of any such item shall not be considered a suffi- cient ground for reversing or modifying the sentence or decree, appealed from. The respondent, in his answer to the petition of appeal in such cases, may also specify any items in the account as to which he supposes the sentence or decree is erro- neous as against him and in favor of the appellant ; and upon the hearing of the parties upon such appeal, the sentence or decree of the orphans' court may be modified, as to any such items, in the same manner as if a cross-appeal had been brought by such respondent.*^ ^''Prerogative Court Rule 58. ^^Prerogative Court Rule 62. ^^Prerogative Court Rule 60. Appeal. 85 Petitions To Be Addressed To Ordinary. All petitions should be addressed to the ordinary.'**" Character of Paper and Typewriting. Every petition and other pleading, and all orders and papers of every nature intended to be hied in any proceeding shall be printed, or fairly and legibly written by pen, or by typewriter with what is known as a "black record ribbon," and the paper upon which said pleadings or orders, are printed, or written, shall weigh at least seven pounds to the ream of five hundred sheets.^^ Entitling Cause on Appeal. Upon the removal of any cause or proceeding from any court to a court of appellate jurisdiction, in this state, whether by writ of error, writ of certiorari, appeal, or otherwise, the title of the cause or proceeding as originally instituted shall be retained, the character in which the parties appear in the writ of error, writ of certiorari, appeal, or other proceeding, being described after their names respectively. ^- What Petition Must Allege. The petition of appeal shall be addressed to the prerogative court, shall briefly state the general nature of the proceedings in the court below, and shall specify the part or parts thereof complained of as erroneous, except where the whole sentence, order or decree is alleged to be erroneous, in which case it shall be sufficient to state that the same and every part thereof, is erroneous. ^^ A matter not presented in the notice of appeal or petition of appeal from a decree upon exceptions to an administrator'? account cannot be considered.''* Amendment of Petition. An amendment of the petition may be allowed on terms."' ^oPrerogative Court Rule 2. ^^Frey's Case, 72, N. J. Eq., 346. '^iPrerogative Court Rule 3. '^^Embley v. Hunt, 28 N. J. Eq., 52?. L. 1900, p. 72, sec. I. 421. ''^Prerogative Court Rule 61. 86 Pkobate Law and Practice. Deposit on Appeal. In all cases of appeal from any order, sentence or decree of the orphans' court, or proceedings of any surrogate, the party appealing shall, within ten days after filing his petition of appeal in this court, deposit with the register one hundred dollars, to answer the costs of the appeal if the appellant shall not prosecute the same with effect ; and in default thereof, the said appeal may be dismissed by this court with costs.^*^ Appellant to File Transcript. The party appealing shall cause a transcript of all the pro- ceedings before the orphans' court or surrogate to be made authenticated and returned to this court within thirty days from the time of filing the notice of appeal in the court below, unless further time is allowed by this court, and in default thereof, the court may dismiss the appeal.^' What Transcript to Contain. The depositions taken in the lower court should be sent up with the other papers ;°** but on an appeal from an order of the orphans' court, it is improper for the appellant to annex to the record the argument of counsel."'^'* When Transcript Required to be Printed and Served. In case of appeal to the prerogative court from a sentence or decree of the orphans' court, the party appealing shall cause the evidence which has been reduced to writing in the court below and all exhibits, decrees, orders, petitions, accounts and other papers necessary to the presentation of the question at issue, if they together exceed one hundred folios in length, to be printed, or typewritten if the court shall so order, and shall deliver a copy thereof to the ordinary, and a copy to each op- posing party, at least twenty days before the time of hearing the appeal; and on failure thereof, the appeal may be dis- missed.*'*' •■'•^Prerogative Court Rule 63. -"^^Acker's Case, 70 N. J. Eq.. ^'Prerogative Court Rule 64. 669. ssRead v. Drake, 2 N. J. Eq.. '"'Prerogative Court Rule 65. 78. Clark V. Haines. 4 N. J. Eq., 136. Appeal. 87 Answer to Petition of Appeal. The respondent shall file an answer to the petition of appeal within fifteen days after the service of a copy of said petition of appeal ; and in default thereof, upon proof by affidavit of the service of the petition of appeal upon respondent, or his proctor if he has appeared, either in the prerogative court, or the court below, by a proctor of the prerogative court, the ap- pellant may have an order of course that the appeal be heard c.v parte as against such respondent.'"'^ Who Must Join in Answer. An executor who has formally renounced need not join in the answer to a petition of appeal from a decree of the orphans' court admitting the will to probate. ''- Matters Which Need not be Admitted by Answer. An answer need not expressly admit the taking of the ap- peal.®^ DISMISSAL OF APPEAL. Jurisdiction of Court. The validity of an appeal is to be decided by the appellate tribunal, so that a notice to dismiss an appeal from the orphans' court should be addressed to the prerogative court.*^* The pre- rogative court has general power to dismiss an appeal for fail- ure to prosecute, because the appeal was not taken in time, or for any other cause touching the validity of the appeal ; and so when an appeal is taken from an order or decree which is in- operative, and a reversal of which would be nugatory, the ap- peal will be dismissed.**^ When Application may be Made. The general rule is well established that an appellant may have his appeal dismissed at any time while the case remains within the jurisdiction of the appellate court, without notice ^^Prerogative Court Rule 66. *'*Hillyer v. Schenck, 15 N. J. •■'^Embley v. Hunt, 28 N. J. Eq., Eq., 398. S. C. on appeal, ib., 501. 421. ^^Gloucester City v. Greene, 45 o^Embley v. Hunt, 28 N. J. Eq., N. J. Eq.. 747. 421. 88 Probate Law and Practice. to the persons who have been cited to appear upon such terms as to costs as may be lawfully imposed;"'^ but an objection to the timeliness of an appeal to the prerogative court from a decree of the orphans' court surcharging an executrix's ac- count with certain money comes too late after the evidence has been taken, although an untimely motion to dismiss the appeal has been made and refused."^ Notice of Motion to Dismiss Appeal. No motion to dismiss an appeal in the prerogative court shall be heard, unless five days' notice of such motion has been given, or unless moved in the presence of the appellant or his proctor.®® For Failure to File and Serve Petition of Appeal. If appellant fails to file his petition of appeal within thirty days after filing his notice of appeal, or to serve the said peti- tion of appeal within five days after filing the same, the ordi- nary may dismiss the appeal with costs.®® For Failure to Make Deposit. If appellant fails to make deposit with the register of the prerogative court of one hundred dollars to answer costs of appeal within ten days after filing his petition of appeal, the appeal may be dismissed with costs.'^" For Failure to File Transcript. If appellant fails to cause a duly authenticated transcript of the proceedings in the court below to be returned to the prerog- ative court within thirty days from the time of filing the no- tice of appeal in the court below, unless further time is allowed by the prerogative court, the ordinary may dismiss the appeal. '^^ While the court has the power to dismiss an appeal because the transcript is not filed in time, the ordinary is not required ®^Mary Hyne's Case, 69 N. J. see "Court May Relieve Appellant Eq., 485. Affirmed 71 N. J. Eq., in Laches," page 83. supra. 306. "^Prerogative Court Rule 63, p. e^Carlin v. Carlin, 64 Atl., 86. supra. Rep., 1018. '■^Prerogative Court Rule 64, p. ^^Prerogative Court Rule 68. 86, supra. ^^Prerogative Court Rule 60, but Appeal. 89 to exercise that power unless he is satisfied that it should be done. This power is, moreover, rarely exercised for a slight lapse from conformity to the rule, if there has been disclosed on the part of appellant a disposition to prosecute his appeal diligently, and there appears to be some ground for a review of the order complained of'- For Failure to Print and Serve Transcript. If appellant fail to print and serve the transcript of proceed- ings in the court below at least twenty days before the time of hearing the appeal, the appeal may be dismissed.'^ DETERMINATION AND DISPOSITION OF CAUSE. Jurisdiction of Court. The jurisdiction of the prerogative court, on appeal from a decree of the orphans' court, in those classes of cases in which the prerogative court has original, as well as appellate, juris- diction, is not limited to a review of the propriety of the decree of the orphans' court; but the whole controversy is presented to the prerogative court as an original question to be deter- mined, either upon the evidence taken before the orphans' court, or upon that evidence supplemented by other proofs, or upon entirely new proofs, in the discretion of the court,'* and the deposition of a subscribing witness made before the surro- gate in proving a will also constitutes part of the evidence which may be considered on an appeal, and such a deposition, when supported by a perfect attestation clause raises a strong presumption of the due execution of the will.^*^ The proceed- ing in the prerogative court is in effect a trial de novo.'-' It naturally follows that on an appeal to the prerogative court that court is required to review not only questions of law but '2McKenzie v. Minard, 67 Atl. "*aFarley v. Farley, 50 N. J. Eq., Rep., 936. 434. Ludlow V. Ludlow, 36 N. J. "Prerogative Court Rule 65, Eq., 597, 602. Beggan's Case, 68 p. 86, supra. N. J. Eq., 572. ^*Rusling V. Rusling, 36 N. J. ^^Kayhart v. Whitehead, 77 N. Eq., 603. Smith v. Smith, 48 N. J. Eq., 12. Affirmed, 78 N. J. Eq., J. Eq., 566. 580. 90 Probate Law and Practice. also questions of fact.''' Thus, as has already been seen, on an appeal from a decree of the orphans' court founded upon the findings of a jury on an application for probate of a will, the ordinary may try the case de novo and order additional testimony taken for use on the appeal." As has been seen, an appeal to the prerogative court from a decree of the orphans' court is in effect a trial de novo, upon which additional testimony may be taken, if the circumstances of the case warrant it. Where, therefore, an appeal is taken from a decree of the orphans' court granting letters of adminis- tration or of guardianship, and new testimony is taken in the prerogative court, and that court does not approve the appoint- ment made by the court below, the prerogative court will not usually send the record back to the orphans' court, but will complete the judicial act in that court, and make its own ap- pointment." Where an order combines two adjudications, one appealable and the other not, an appeal will lie from the entire order ; but the appellate court will consider only that adjudication from which an appeal will lie.'° When Court Will Permit Additional Testimony to be Taken. It has already been seen that an appeal to the prerogative court from a decree of the orphans' court, in a matter in which the prerogative court has original jurisdiction, is in effect a trial de novo. The prerogative court may therefore, in this class of cases, in its discretion, permit new testimony to be taken and used on the hearing of the appeal. ^° Where it ap- pears that the order appealed from was a surprise to appel- lant, that is sufficient ground for permitting him to take new ^^Morris' Case, 65 N. J. Eq., 566. Read v. Drake, 2 N. J. Eq., 699. 78. Sayre v. Sayre, 16 N. J. Eq., ^'^See "Jurisdiction of Court," 505. Rusling v. Rusling, 36 N. J. p. 89, supra. Eq., 603. Personette v. Johnson, 78Read v. Drake, 2 N. J. Eq., 78. 40 N. J. Eq., 173. White v. Starr, Hill's Case, 55 N. J. Eq., 764. 47 N. J. Eq., 244. Kayhart v. '^Podesta v. Aloody, 69 N. J. Whitehead, yy N. J. Eq., 12. Af- Eq., 468. firmed, 78 N. J. Eq., 580. soSmith V. Smith, 48 N. J. Eq., Appeal. 91 testimony;®^ so where the omission to put in evidence before the orphans' court was due to the mistaken belief of counsel that there was no necessity for it f- so in case of newly dis- covered evidence f^ and so where the orphans' court rejected competent testimony.®* So an inquiry whether a guardian has made use of a balance due his wards on the filing of his ac- counts, may be made in the prerogative court. ®^ But where, in the orphans' court, counsel for caveators, on being asked by the court the ground of their contest of the will, stated that they would prove lack of testamentary capacity and undue influence, but introduced no such evidence, and on entry of a decree ad- mitting the will to probate took an appeal, they may not, on the overruling of their claim that the proof of execution is defec- tive, and the affirmance of the decree, be allowed to put in proof of lack of testamentary capacity and undue influence.®" The rule under consideration, however, applies as has been said, only to that class of cases in which the prerogative court has original as well as appellate jurisdiction;®' and so, there being no original jurisdiction in the prerogative court to ap- prove sales by administrators with the will annexed, additional proofs in that court are not admissible, and an appeal from the orphans' court must be decided upon the evidence before that court.®® Where one party is permitted to take further testimony, his opponent should be permitted to produce evidence in rebuttal. ®® Considerations Governing Determination of Cause. In deciding a cause brought before the prerogative court by appeal, that court, in determining questions of fact, will give ^'Personette v. Johnson, 40 N. ^''Saj-re v. Sayre, 16 N. J. Eq., J. Eq., 173. 505-508. Rusling v. Rusling, 36 N. "-White V. Starr, 47 N. J. Eq., J. Eq., 603-605. Heisler v. Sharp, 244-263. 44 N. J. Eq., 167. Affirmed 45 **"White V. Starr, 47 N. J. Eq., N. J. Eq., 367. In re Devine, 62 244-263. N. J. Eq., 703. ^*Reeve v. Townsend, 8 N. J. ^'^In re Devine, 62 N. J. Eq., Eq., 81. 703. 85In re Mott, 26 N. J. Eq., 509. s^Reeve v. Townsend, 8 N. J. ""Bogert V. Bateman, 65 Atl. Eq., 81. Tucker v. Tucker, 28 N. Rep. 238. J. Eq., 223. 92 Probate Law and Practice. great weight to the fact that the court below had the advantage of seeing and hearing the witnesses, and of being able thereby intelligently to determin-e what credit should be given to their statements ; and under such circumstances the court will not reverse a decree, unless it is clear that the court below erred in the conclusion it reached upon the evidence.^" The rule is set- tled that the prerogative court should not set aside the findings of the trial court as erroneous, unless clearly convinced of error."^ A decree of the orphans' court should not be reversed sim- ply on the ground of irregularity in the proceeding resulting in the decree, in a case where it is entirely clear that the ap- pellant has suffered no injustice or loss by reason of such ir- regularity.^- COSTS AND COUNSEL FEES. Jurisdiction. The practice in the prerogative court of allowing costs and reasonable fees to be paid out of the estate for services ren- dered for the benefit of those who take the fund, and who should in equity contribute toward the payment of the same, seems to be established.^^ So on an appeal by an executor from a decree disallowing his claim for services, upon excep- tions taken by one of the heirs, the costs of the respondent, including a reasonable counsel fee, will be allowed out of the estate, his action having been for the advantage of the estate.^* In a case where a surviving aunt and certain first cousins of an intestate decedent appealed from an erroneous decree of the orphans' court awarding distribution of a moiety of the de- cedent's personal property to grand-nephews, with the result that distribution was made to four surviving uncles and aunts and the representatives of fourteen deceased uncles and aunts, ^''Gunn V. Early, 71 N. J. Eq., ^^Munn's Ex. v. Munn, 20 N. J. 717. Eq., 472. Smith v. McDonald, 69 91-Wright V. Flynn, 69 N. J. Eq., N. J. Eq., 765. Affirmed 71 N. J. 753. Gunn V. Early, 71 N. J. Eq., Eq., 261. 717. ^•iMunn V. Munn, 20 N. J. Eq., 92Davison v. Rake, 44 N. J. Eq., 472. 506. Affirmed 45 N. J. Eq., 767. Appeal. 93 and the grand-nephews were exckided, it was held that, as the services of counsel in overthrowing the decree of the orphans' court and estabHshing the right to participate in the distribution of the decedent's estate by this large class of kindred were rendered for the benefit of all, his compensation should not fall upon the few who had sustained the issue for the benefit of the many, but that his fee should be paid out of the fund.^^ The prerogative court, on an unsuccessful appeal from the refusal by the orphans' court of probate of a will, has no power to allow proponent counsel fees in the appellate court-^" When Costs Will be Denied, Where the law involved is so well settled that there appears to be no good ground for appealing from a decree granting probate of a will, the court will not allow costs or counsel fees to appellant.'*' So where the orphans' court decided that an unsuccessful contestant of the probate of a will had reasonable cause for the contest, and ordered the costs to be paid out of the estate of testator, and the proponent of the will did not ap- peal therefrom, and no reasonable cause existed for protracting the contest by an appeal to the prerogative court, the costs and expenses of such an appeal will not be paid from the estate f^ and where an appeal from a decree sustaining exceptions to an account is in the interest of the trustee individually, or that of his wife, no costs will be allowed in the prerogative court on such appeal. ^^ When Unnecessary Testimony Taken. Where an order to take testimony to be used on the hearing of an appeal specified on what points it should be taken, and the respondents nevertheless caused considerable irrelevant testimony to be taken and printed, against the objection of ap- pellant, it was held that respondent should pay the costs there- of.^ So where testator's mental competency was clearly estab- ssShedaker's Case, 74 N. J. Eq.. a^In re Claus's Will, 54 Atl. 802. Rep., 824. »«Skillman v. Lanehart, 73 N. 9»Morton's Case, 74 N. J. F.q.. J. Eq., 351. 797- ^'McCurdy v. Neall, 42 N. J. 'Personette v. Johnson, 40 N. J. Eq.. 333- P^n- 532. 94 Probate Law and Practice. lished early in the hearing before the orphans' court, but a mass of testimony was subsequently taken before that court, covering over 2,000 printed pages, much of it irrelevant, unim- portant and taken with needless prolixity, appellant was de- creed to pay the costs of the respondent in the prerogative court ; but in the taxation of costs, one-half of the expense of transcribing and printing the cross-examination of the appel- lant's witnesses, and one-half of the expenses of transcribing and printing the direct examination of the proponent's wit- nesses, was disallowed.^ When Appellant Will be Charged With Costs. When there is a fair ground for re-examination, costs will not be awarded against appellant, though the decree be af- firmed f but where the existence of testamentary capacity in the deceased was early shown in the taking of the proofs sub- mitted on the part of the caveator, and was never afterwards doubtful, and he consequently had no reasonable cause for ap- pealing from the decree originally made by the orphans' court, the costs of such appeal should be borne by her.* On an appeal from an order of the orphans' court dismissing a petition to vacate a decree denying probate of a will, and to set aside letters of administration granted by the surrogate of the same county, the proceedings being solely to review the propriety of the dismissing order, and the jurisdiction of the prerogative court being purely appellate, it was held that that court is without authority to impose upon the defeated suitor counsel fees as part of the costs and expenses, unless author- ized by statute, or the settled practice of the court ; and that there is no statute nor any settled practice permitting such allowances.' Proceedings After Hearing. After reversal, the cause may be continued before the ordi- nary, or remitted for further proceedings before the orphans' -Wheaton's Case, 70 N. J. Eq., N. J. Eq., 531. 799. *Wheaton's Case, 70 N. J. Eq., ^Whitenack v. Stryker, 2 N. J. 799. Eq., 8. Goble v. Grant, 3 N. J. Hn re Queen, 82 N. J. Eq., 588. Eq., 629. Perrine v. Applegate, 14 Appeal. 95 court, at the option of the successful party.® So where the de- cree of the orphans' court setting aside an account is affirmed, the prerogative court may order that exceptions be filed in that court and the matter continued there until the final set- tlement of the account;' and so where, on appeal, certain al- lowances are struck out, the ordinary may order the register of the prerogative court to re-state the account.^ So where the prerogative court reversed a decree of the orphans' court ap- pointing a guardian for minors, the ordinary appointed a new guadian for said minors, and ordered that letters of guardian- ship be issued from the prerogative office.^ ''Alundy v. Mundy, 15 N. J. Eq., 764-768. 290-294. Trimmer v. Adams, 18 'Trimmer v. Adams, 18 N. J. N. J. Eq., 505. Osborn v. Rogers. Eq.. 505. 19 N. J. Eq., 429. Schuchhardt v. ^Runkle v. Cxale. 7 N. J. Eq., loi. Schuchhardt, 24 N. T. L. J.. "2. "Read v. Drake. 2 N. J. Eq., 78. See also Hill's Case. 55 N. J. Eq., PAKT II. Wills. CHAPTER VI. NATURE AND ESSENTIALS OF WILLS. In General. The prominent characteristic which distiguishes a will from all other dispositions of property is that it acquires no force until after the death of the testator, and may be revoked, can- celled or altered by him at any time during his life, provided the intent and a suitable act concur.^ Testamentary Intent Necessary. In order that a document may be valid as a will, it is essen- tial that it was intended when executed to operate as a will. Testamentary intent is essential to the validity of a will. So a paper writing in the form of a power of attorney, which does not appear upon its face to have been intended as and under- stood to be a will, even though it be executed in the manner prescribed by the statute for the execution of a will, will not be admitted to probate.^ Time of Taking EfTect. \Miile it is a general rule that the character and validity of a will are judicially determined by its admission to probate, and that, until probate, a will is wholly ineffectual as an in- strument of title, still it is settled tiiat a will takes effect from the death of the testator, and that executors derive their title under the will, and not by virtue of probate, which is merely the proof of their title; so if a conveyance be made by execu- tors under a power in the will, before probate, sul)sequent pro- bate will validate the conveyance.^ What Law Governs. The validity of a will of personal property is to be deter- mined by the law of the testator's domicile at the time of his 'Schouler on Wills, sec. lo, and ''Mackey v. Mackcy, 71 N. J. see Revocation of Wills. Rcj., 686. ^Combs V. Jolly, 3 N. J. Eq., 625. 97 98 Probate Law and Practice. death, and a will executed according to the law of testator's domicile will pass personal property wherever situate ;* and the validity of a legacy of personal property is to be determined by the law of the domicile of the testator.^ In respect to devises of lands, the rule is that the will must be executed in accordance with the formalities prescribed by the law of the state in which the land is situate.*' The rule is firmly established that the courts of one state or country are without jurisdiction over title to lands in another state or country. The clause of the Federal constitution, which re- quires full faith and credit to be given in each state to the records and judicial proceedings of every other state, is sub- ordinate to this rule, and applies to the records and proceedings of the courts only so far as they have jurisdiction.^ So a de- vise of land in New Jersey under a will of a non-resident must be determined by the laws of New Jersey.^ Contingent Wills. An instrument may be made which shall take effect as a will on the happening of a particular contingency named in it ; not the usual simple contingency of the testator's death, but his death after a certain manner, at or before a particular date, or during some special season of risk, or in case he shall or shall not leave such an estate or such persons surviving him-'' So where by a will testatrix had devised all her estate to her hus- band in fee, and later, she and her husband being about to travel abroad, she wrote a letter to her father, which was ex- ecuted in manner and form as required by statute for the exe- cution of wills, beginning with the words, "In case anything should happen to us, I would wish, &c.", and devising her es- *Nelson v. Potter. 50 N. J. L., 324. 324. 'Lindley v. O'Reilly, 50 N. J. L., ^Jenkins v. Guarantee Trust etc. 636. Nelson v. Potter, 50 N. J. Co., S3 N. J. Eq., 194. Affirmed L., 324. 55 N. J. Eq., 799. In re Grattan's ^Van Wickle v. Van Wickle, 59 Estate, 78 N. J. Eq.. 225 and cases N. J. Eq., 317. cited at page 232. ^Schouler on Wills and Admin- "Nelson v. Potter, 50 N. J. L., istrations, 140. Nature and Essentials of Wills. 99 tate to her sister, it was held to be a valid will, contingent upon the death of both while upon their travels. ^"^ Form and Contents. A will may be in any form, and need not be expressed in any particular formula ; but to support an instrument as a valid will, it must be shown that it was intended and under- stood by the testator to be his will, and was executed as a will with the formalities prescribed by the statute. ^^ So an instru- ment in the form of a letter will be admitted to probate, if executed as a will in accordance with the provisions of the statute. ^- A will may be written on several sheets of paper incorpo- rated together in sense as one instrument, even though they are not fastened together and are signed and attested on the last sheet alone, provided the different papers are obviously con- nected in their provisions and are sufficiently shown to com- pose a connected series, and provided also, that the execution was bona fide and meant to cover the whole. There is nothing in the law of New Jersey requiring each sheet to be signed, however wise a precaution that may be ;^^ and the fact that there is a blank page in a will does not impair its validity, where an uncompleted sentence on the page preceding the blank page is completed on the page succeeding it.^* The statute requires that the will be in writing.^^ The character of the writing is, however, unimportant. It may be with lead pencil, or ink, or partly printed and partly written.^® Incorporation of Extrinsic Documents. A testator may so set forth his disposition as to render it necessary to have recourse to some document other than the will, in order to elucidate or explain his intention. The docu- ^"Cowley V. Knapp, 42 N. J. L., Eq., 759. 297. i3johnsQ„'5 Case, 80 N. J. Eq., 11 Combs V. Jolly, 3 N. J. Eq., 525-532. 625. In re Phelan's Estate, 82 J*Matter of Collins, 5 Redf. N. J. Eq., 316. Affirmed 91 Atl. Surr. (N. Y.), 20. Rep., 1070. '^4 Comp. Stat., 5867, sec. 24, p. '-Cowley V. Knapp, 42 N. J. L., 125, infra. 297. Vernon v. Vernon, 69 N. J. "'40 CYC, 1092, and cases cited. 100 Probate Law and Practice. ment, if sufficiently identified, is then said to be incorporated in the will. Two things are- however, necessary to accomplish this result. First, The paper must be in existence at the time of the execution of the will and second, the description must not be so vague as to be capable of being applied to a number of instruments, but must describe the instrument intended in clear, definite terms. ^' All the cases require a writing, and hold it must be in esse at the time of the execution of the will, and that uncertainty in the reference is fatal. So a bequest of property to one, "to dispose of in accordance with any instruc- tions to her," fails, first, because the will does not sufficiently identify the writing to be incorporated, and secondly, because, by "instructions," the testator does not limit himself either to written instructions, or to mstructions then given. ^* And so where a testator devised and bequeathed the residue of his es- tate to trustees, whom he styled a board of trustees, and after making certain provisions for the organization of said board, added this language : "The property and estate herein be- queathed is to be held in trust by the said board of trustees for the following object, namely : I desire that my entire estate, with the accumulations, shall be used in establishing and con- ducting a school for apprentices and young mechanics on plans to be hereafter described by me, or in case of my death before perfecting said plans, the school above named is to be con- ducted on plans which I have from time to time described to most of the board of trustees herein named," and the testator did not perfect plans for the school after the will was made, but prior thereto, in conversations at various times with the different trustees, had communicated to them various crude and general ideas with reference to the schools, it was held that, as the statute requires a will to be in writing, the reference by the testator to the verbal communications made by him to the trustees would not incorporate those communications into his will.^^ And so an extrinsic instrument cannot be incorporated ^'Bryan's Appeal, 77 Conn., 240, ^^Magnus v. Magnus, 80 N. J. 58 Atl. Rep., 748. Phelps v. Rob- Eq., 346. bins, 40 Conn., 250. i Williams on i^Smith v. Smith, 54 N. J. Eq.. Executors (6th Ed.) 99. Magnus i. Affirmed 55 N. J. Eq., 821. V. Magnus, 80 N. J. Eq., 346. Nature and Essentials of Wills. ioi into a will by a clause stating that a sum is given in trust "for the purpose set forth in a sealed letter which will be found with the will," where the will contains no clear, explicit and unam- biguous reference to a specific document ; and under such circumstances parol evidence is not admissible to identify the document referred to.-'' A testator cannot in his will bequeath property to a class of persons who can be ascertained only by reference to a non-testamentary paper, which the testator might change from day to day, and thus enlarge or diminish his testamentary gifts as often as he chooses without observing the rules of law re- lating to the testamentary disposition of property ; the effect of permitting such a thing, would be to allow a testator to name the particular legatees to whom his estate is to go without ob- serving the formalities required by law in such cases. -^ So where a testator by his will ordered his executors to make a settlement with his creditors of debts outstanding at the time of his assignment for the equal benefit of creditors as shown by a list to be found with the will, such provision was held void as an attempt to bequeath property to persons who were only ascertainable by reference to a paper not executed as wills are required to be.-- The cases heretofore considered must be distinguished from those where legacies are given subject to deductions for ad- vancements to be ascertained from charges in a book of ac- count, or other evidence thereof, to which testator may refer. There is no doubt that a testator can provide that the amount to be received by a legatee shall be dependent upon a condition or fact to be ascertained aliunde. Thus a testator may provide that all advances made to, or debts owing by a legatee, whether made or incurred before or after the execution of the will, shall be deducted from his portion ; such amounts may be as- certained by parol evidence and may be varied by advance- ments made subsequent to the execution of the will. A fre- quent testamentary provision is that such debts, or advances, as are charged on testator's books against legatees shall be de- '•'Bryan's Appeal, 77 Conn. 240, Eq., 157. 58 Atl. Rep., 748. 22Hartwell v. Martin. 71 N. J. 2'Hartwell v. Martin. 71 N. J. Eq., 157. 102 Probate Law and Practice. ducted ; and these provisions are valid. In this class of cases, the testamentary disposition is complete, and needs no aid from other sources, although subject to debts, or advancements, for they may be proved without reference to any memorandum. The gift is complete ; its payment during the life of the testa- tor, in whole or in part, may be shown in exoneration.-^ 23Moore's Case, 6i N. J. Eq., 6i6. CHAPTER VII. TESTAMENTARY CAPACITY. In General. As a general rule, any person of sound mind, who has reached the age of discretion and is inider no restraint of will, is capable of making a testamentary disposition of his property in conformity with the prescribed rules of law.^ What Law Governs Capacity. The rule is well settled that capacity to bequeath personalty is governed by the law of the testator's domicile,- but with respect to devises of lands, the law of the state where the land is situate governs.^ Time to Which Question of Capacity Relates. The point of time at which the testamentary competency is to be tested is that of the execution of the will. The antecedent and subsequent condition of a testator is chiefly important as bearing upon that epoch.* Evidence of previous weakness and inability, if credible, is competent and relevant ; but if evidence of capacity during the period that the business was in hand is convincing and suf- ficient, the evidence of previous incapacity has no weight.^ So where less than a year after the execution of the will a com- mission of lunacy found that testator was of unsound mind, and had been so for three years preceding, but it was shown 'Schouler on Wills, Sec. 31. 2^ N. J. Eq., 447. Affirmed 28 N. ^Nelson v. Potter, 50 N. J. L., J. Eq., 437. Elkinton v. Brick, 44 324. N. J. Eq., 154. O'Brien v. Dwyer, ^Nelson v. Potter, 50 N. J. L., 45 N. J. Eq., 689. In re Buck- 324. Van Wickle v. Van Wickle, man's Will. 80 N. J. Eq., 556. In 59 N. J. Eq., 317. Lindley v. re Craft's Estate, 94 Atl., 606. O'Reilly, 50 N. J. L., 636. ^Armstrong v. Armstrong, 69 N. *Whitenack v. Stryker, 2 N. J. J. Eq., 817-820. Buckman's Case, Eq., 8. Turner v. Cheesman, 15 80 N. J. Eq., 556. N. J. Eq., 243. In re Wintermute, T03 104 Probate Law and Practice. by the testimony of witnesses that he possessed testamentary capacity at the time of making his will, the will was admitted to probate." So the validity of a will was sustained, where it was made to satisfactorily appear that, although the testatrix was addicted to the use of morphine, at the time the will was executed she was not under the influence of that drug.'^ So where it is claimed that the use of morphine and whiskey had deprived testatrix of testamentary capacity, evidence that at times prior to the execution of the will, and on occasions there- after, she had been stupefied, does not necessarily indicate in- capacity at the time of the execution of the will.^ So a testa- tor will be deemed to have had mental capacity to make a will, if it clearly appears that he comprehended his property, the natural objects of his bounty, the character of the business in which he was engaged and the disposition he resolved to make of his property, at the time when he gave instructions for the will and when he executed it, though it appears that at the pe- riod when the will was made he was in an incipient stage of a fixed mental disease, which at times had so aflfected him as to incapacitate him from making a will ;'' and where the evidence showed that the testatrix was old and subject to occasional mental delusions caused by defective vision and temporary sickness, but it was not shown that such delusions existed when the will was made or that they influenced the disposition of her property, it was held insufficient to establish want of testa- mentary capacity.^" DISABILITIES. Infants. At common law, an infant was incapable of making a will devising realty ; a boy after the age of fourteen years, and a girl after the age of twelve years could, however, make a will disposing of their goods and chattels, and that without the con- sent of their father or guardian. ^^ This rule prevailed in New "Brady v. McBride, 39 N. J. Eq., ^ciaffgy v. Ledwith, 56 N. J. 495. Eq.. 333. In re Craft's Estate, 94 ^Frost V. Wheeler, 43 N. J. Eq., Atl., 606. 573. loGilman v. Ayer. 47 Atl. Rep.. nn re Gilham's Will, 64 N. J. 1049. Affirmed 63 N. J. Eq., 806. Eq., 715. ^^Swinburne on Wills, p. 67. Testamentary Capacity. 105 Jersey until 1850, when a statute was enacted providing that no will of personal estate made after the fourth day of July of that year by any person within the age of twenty-one years should be good or effectual in law/- Married Women. At common law, a married woman was incapable of devis- ing real estate ; she might, however, with the consent of her husband, make a valid will of her personal estate. ^^ This rule prevailed in this state until 1864, when a statute was enacted providing that any will or testament thereafter made in due form of law, by any married woman above the age of twenty- one years, of any real or personal property, should be held to be as valid and effectual in law as if she were, at the time of making the said will, and at the time of her death, an unmar- ried woman ; provided always, that nothing in the statute con- tained should be so construed as to authorize any married woman to dispose, by will or testament, of any interest or es- tate in real property to which her husband would be, at her death, entitled by law, but such interest or estate should remain and vest in the husband in the same manner as if such will had not been made.^* Since this statute does not confer upon a married woman power to dispose by will of any interest to which her husband is at her death entitled by law in her real or personal prop- erty,^^ the right of the husband to a life estate in the lands of his wife at her death cannot be devised by her will, even though the husband consent thereto in writing ;^® but a married woman who was married in 1879, and who has not had issue born alive, may make a will disposing of her entire estate, real and per- sonal, without the consent of her husband ;^^ and a will of a married woman, which devises and bequeaths all of her estate, real and personal, to another, subject to the legal rights of her husband, if he survives her, and which appoints another than 124 Comp. Stat., 5871, sec. 28. Eq., 118. i^VanWinkle v. Schoonmaker, i^Middleton v. Stewart. 47 N. J. 15 N. J. Eq., 384. Eq., 293, overruling Beal v. Storm. "3 Comp. Stat., p. 3235, sec. 9. 26 N. J. Eq., 2n~y contra. i5Vreeland v. Ryno, 26 N. J. ^^Stoutenburgh v. Hopkins, 43 Eq., 160. Reversed 27 N. J. Eq., N. J. Eq.. 577. Affirmed 45 N. 522. Nelson v. Nelson, 57 N. J. J. Eq., 890. io6 Probate Law and Practick. the husband as executor, does not give to the husband, in case of his survival, any right in the personahy so bequeathed, as such a right is purely equitable, and is not one of his legal rights in his wife's estate.^* Degree of Mental Capacity Required. That understanding and those intellectual powers which are necessary to enable a man to make a valid testament are usu- ally denominated a sound and disposing mind and memory;^' but it is not essential that testator's mind should be unbroken, unimpaired and unshattered by disease, or otherwise,^*' nor is it necessary that testator should possess these qualities of mind in the highest degree, or even in as great a degree as he may formerly have done.-^ A person of very moderate capacity, may, under favorable circumstances, make a valid will, if it appears that he can comprehend his property, the natural ob- jects of his bounty and the disposition he has determined to make of his property.-- So a testator's memory may not be perfect, he may not have sufficient strength of memory and vigor of intellect to digest all parts of a contract, and he may yet be competent to make a will.-^ As has been seen above, while the mind may be to some de- gree debilitated, and the memory enfeebled, yet if the testator at the time of executing the will is capable of understanding the nature of the business in which he is engaged, if he is able to recollect the property of which he means to dispose, and the distribution which is made of it by his will, to recall the per- sons who are the objects of his bounty, and to discern, recol- lect and feel the relations, connections and obligations of fam- i^In re Fohvell's Estate, 68 N. 695, 775. Andress v. Weller, 3 N. J. Eq., 728. 2 L. R. A. (N. S.), Eq., 604. Clifton v. Clifton, 47 II93- N. J. Eq.. 227. i^'Den V. Vancleve, 5 N. J. L., -^Howell v. Taylor, 50 N. J. Eq., 695-775. In re Craft's Estate, 428. Andress v. Weller, 3 N. J. 94 Atl., 606. • Eq., 604. Waddington v. Buzby, ""Sloan V. Maxwell, 3 N. J. Eq., 45 N. J. Eq., 173. Bennett v. Ben- 563. nett, 50 N. J. Eq., 439-445- 2iDen V. Johnson, 5 N. J. L., 23in re Dillon's Will, 87 Atl., 454. Den V. Vancleve, 5 N. J. L., 161-164. 82 N. J. Eq., 322. Testamentary Capacitv. 107 ily and blood, he has sufficient testamentar}' capacity.-* So mere ignorance by testator of the kind or amount of his prop- erty will not invalidate a will, but only ignorance resulting from a mental incapacity to comprehend the kind and amount thereof.-^ There is no distinction between the degree of men- tal capacity requisite for the execution of a will of real estate, and that requisite for the execution of a will of personal prop- erty.-*^ Old Age and Infirmity. The infirmities of old age should not too readily be accepted as proof of imbecility or incapacity. It is important to bear in mind the remark of Justice Ewing, in Sloan v. Maxwell,^'' that "the power of disposing of property is an inestimable privilege of the old. It frequently commands attention and respect from kindred, when other motives have ceased to influence them. How often without it would the hoary head be neglected, de- serted and despised."-^ A person who is aged, infirm and almost blind may make a valid will if capable of recollecting the property she is about to dispose of and able to understand the disposition made of it in her will, to know the objects of her bounty and the nature of the business in which she is en- gaged.^^ So testamentary incapacity of a person eighty-two years old when he made his will is not shown by the facts that -*Lyons v. Van Riper, 26 N. J. man v. Ayer, 47 Atl. Rep.. 1049. Eq., 2,2,7- Rusling v. Rusting, 36 Affirmed, 63 N. J. Eq., 806. In re N. J. Eq., 603-607, and cases cited. Dillon's Will, 82 N. J. Eq., 322. Stoutenburgh v. Hopkins, 43 N. J. Johnson's Case. -So N. J. Eq., 525- Eq., 577- Affirmed 45 N. J. Eq., 536. 890. Waddington v. Buzby, 45 N. -'In re Livingston's Will. 37 Atl. J. Eq., 173. O'Brien v. Dwyer, 45 Rep., 770. N. J. Eq., 689. Bannister v. Jack- -"Sloan v. Maxwell, 3 N. J. Eq.. son, 45 N. J. Eq., 702. McCoon v. 563. Allen, 45 N. J. Eq., 708. Lee's 273 n. J. Eq., 563. 581. Case, 46 N. J. Eq., 193, and cases --"See also White v. Starr, 47 N. cited. Clifton v. Clifton, 47 N. J. J. Eq., 244-258. Eq., 227. Smith v. Smith, 48 N. J. ^^Waddington v. Buzby, 45 N. J. Eq., 566. Bennett v. Bennett, 50 Eq., 173. White v. Starr, 47 N. J. N. J. Eq., 439. Westcott v. Shep- Eq., 244. Buckman's Case, 80 N. pard, 51 N. J. Eq.. 31 5- Claffey v. J. Eq.. 556. Ledwith, 56 N. J. Eq., 333. Gil- io8 Probate Law and Practice. he was miserly, squalid, dishonest, profane and irascible, that he cancelled a codicil to his will merely because he believed the beneficiary named therein, who was not a relation, was insin- cere toward him, that thirteen years before the will was made he revoked a trust deed in the nature of a testamentary disposi- tion of his property, that seven years later he revoked an abso- lute gift of certain stocks, and that he gave the bulk of his es- tate to his executors in trust to reduce the national debt, he having no legitimate kindred to be disinherited or disap- pointed.^** So the will of a testator eighty-five years of age when he died, and who was blind for the preceding fifteen years, was sustained, though he gave most of his property to two of his sons with whom he lived.^^ So where the testatrix was eighty- three years of age when her will was executed, and was able to name over correctly twenty of her intended legatees to the scrivener, although forgetfulness in regard to some minor matters was shown, and it appeared that she had made an un- just and unfounded accusation against a person, her will was sustained. ^^ So the fact that a testatrix was ninety-eight years old at the time she made her will, is not, in the absence of fraud, circumvention or undue influence in procuring the will, sufficient ground for refusing to admit the will to probate f^ and mere forgetfulness of recent events in a testatrix eighty- three years old is no evidence of incapacity to make a will.^* So where the testatrix was about eighty-one years of age, and, from an injury to her hip, somewhat of an invalid, and al- though unable to read or write was thoroughly conversant with her own affairs- and with the kind and value of her property, and exhibited a full knowledge of the number and degree of kinship of her relations, she was held to have testamentary capacity.^'^ But where testator was more than eighty years old, 3oin re Lewis's Case, 33 N. J. 32;\fgrrill v. Rush, 33 N. J. Eq., Eq.. 219. 537. 31 Collins V. Osborn, 34 N. J. ^scoiijng y. Townlej', 21 N. J. Eq., 511. See also In re Humph- Eq., 353. rey, 26 N. J. Eq., 513. Sutton v. 34j;(j(]y's Case, 32 N. J. Eq., 701. Morgan, 30 N. J. Eq., 629. Kise v. Reversed, 33 N. J. Eq., 574. Heath, 33 N. J. Eq., 239. In re ^^Carter's Case, 60 N. J. Eq., Craft's Estate, 94 Atl., 606. 338. Testamentary Capacity. 109 suffered from delirium tremens, held illusions toward his wife and step-son, and made two very different wills within two weeks without any adequate reason therefor, he was held not to possess testamentary capacity.^® Physical Debility. Proof of extreme physical debility of a testatrix is not suf- ficient to establish incapacity to make a will.^' So where testator was suffering from Brights Disease, and for some time prior to the execution of his will was confined to his room, being enfeebled by the disease, and was also irrational at times from the result of narcotics, but on March 30th, pre- ceding the execution of his will, had executed a lease, requiring it to be read to him and objecting to an error made in readiiu' it, and died April 9th, and his attending physician gave evi- dence favorable to his testamentary capacity at the time of the execution of the will, it was held that the evidence was insuffi- cient to show lack of testamentary capacity.^^ Persons in Extremis. The mere fact that a person is dying at the time of the exe- cution of the will, standing alone by itself, is not sufficient to invalidate the will, if it is shown that the dying person pos- sessed testamentary capacity, as hereinbefore defined. So where a testatrix, seventy years old, made her will a few days after a paralytic attack, the will was sustained, it appearing that she was able to recognize her attendants and visitors, and conversed and consulted intelligently in regard to making her will f^ and under similar circumstances a will executed by a consumptive a few hours before he died was sustained.^" In a case where testatrix, when she made the will, which was in German, was seventy-two years of age, and could understand 36Edge V. Edge, 38 N. J. Eq., ^PHarris v. Betson, 28 N. J. Eq., 211. 211. In re Gahagan, 82 N. J. ^^Stoutenburgh v. Hopkins, 43 Eq., 601. N. J. Eq., 577. Affirmed 45 N. J. ^"Andrews's Case. 33 N. J. Eq., Eq., 890. 514. Ayres v. Ayres, 43 N. J. Eq., "«In re Barber's Will, 49 Atl. 565. O'Brien v. Dwyer, 45 N. J. Rep., 826. Eq., 689. no Probate Law and Practice. English with difficulty, and had been confined to her bed. was unable to retain nourishment and was slowly dying of starva- tion, and the attending physician was prescribing morphine to relieve her from pain, she being constantly under its influence, although capable of being aroused to intelligence, and her hus- band was present, but apparently did nothing to influence her, and it appeared that a former will in English had been made about a month previous, in which her property was not dis- posed of advantageously to her husband, and that testatrix, when making the second will informed the attorney making it that she had not understood the former will, as it was in Eng- lish, it was held that the testatrix possessed sufficient t£sta- mentary capacity.*^ Insanity — In General, A person who is totally insane is. of course, incompetent to make a will, for a testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory ; a man in whom this faculty is totally extin- guished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect ; it may be greatly impaired by mental disease ; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately ac- quainted, he may at times ask idle questions, and repeat those which had been asked before and answered, and yet his under- standing may be sufficiently sound for any of the ordinary transactions of life- He may not have sufficient strength of memory and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. The question is not so much what was the degree of memory possessed by the testator as this — had he a disposing memory? Was he capable, as has been said above, of recollecting the property he was about to bequeath, the man- ner of distributing it. and the objects of his bounty? To sum up the whole matter in the simplest and most intelligible form, were his mind and memory sufficiently sound to enable him to *iDieffenbach v. Grece, 56 N. J. Eq.. 365. Testamextary Cafacitv. Ill know and to understand the business in which he was en- gaged at the time he executed his will ?^- A testator may be subject to a partial mental derangement towards a particular individual, and this derangement may be the cause of depriving such individual of the bounty of the testator ; but if the person concerning whom testator is men- tally deranged is not one of his next of kin or heirs at law, who will be benefited by the setting aside of the will, such will will be held valid on the theory that the monomania of the testator did not and could not affect the testamentary disposition made by him as to persons other than the one concerning whom tes- tator was deranged, and that such person could in no wise be benefited by the setting aside of the will. The rule would, of course, be otherwise where the person concerning whom the delusion existed would benefit by the setting aside of testator's will.*^ Alere proof of attempts to commit suicide, followed by suicide, exhibit at most but a temporary mental affliction having no reference to the antecedent or subsequent periods of time." So the facts that testatrix talked to herself habitually, spoke disconnectedly, and never transacted any business, are not sufficient to disprove testamentary capacity.*^ Insane Delusions. A delusion has been defined to be the mind's spontaneotis conception and acceptance as a fact of that which has no real existence, except in its imagination, and its persistent adherence to it against all evidence.*® Another authority defines an in- sane delusion to be a fixed belief, based upon supposed facts which exist only in the diseased imagination of the deluded person, persisted in against indisputable evidence of its fals- ity.- The term "delusions," as applied to insanity, does not mean ■'-Den V. Vancleve, 5 N. J. L., ^''Krrickson v. Fields, 30 N. J. 695-775- Stackhouse v. Horton, Eq., 634. 15 N. J. Eq., 202-206. 4r.^jij(]lg(jit(,li y Williams, 45 N. ■♦^Stackhouse v. Horton, 15 N. J. Eq., 726. Reversed. 47 N. J. J. Eq., 202. Merrill v. Rush, 33 N. Eq., 585. Smith v. Smith, 48 N. J. Eq., 537. J. Eq., 566. Kern v. Kern, 51 N. **Koegel V. Egner, 54 N. J. Eq., J. Eq., 574-586. 623. ■•^Davenport v. Davenport, 67 N. J. Eq., 320. 112 Probate Law and Practice. a mere mistake of fact or being induced by false evidence to believe that a fact exists which does not exist;*® and a mis- taken conclusion arrived at, upon consideration of existing facts, is not an insane delusion, although the facts may not justify the conclusion.*^ Where a person is induced by false evidence, or by false statements, to believe a fact to exist which does not exist, or where, in consequence of his faith in evi- dence which is true, but which is wholly insufficient to prove the truth of what he believes, he believes a fact to exist which in reality has no existence, his belief may show want of dis- cernment, or of ordinary power of discrimination, and that he is consequently easily duped, but not that his mind is un- sound.^" So belief in spiritualism, that is, that there can be communication between the spirits of the dead and the living, is not an insane delusion.^^ The rule is entirely settled that a delusion, to have any ef- fect upon a will, must be such as did or would be likely to in- fluence the disposition made by the testator ; nor is it enough that the delusion may have existed at other times, for the point is, did it exist at the time of the execution of the will.^- If a testator possess sufficient mental power to take into account all the considerations necessary to the making of a proper will, though he is subject to an insane delusion, yet if it appears that such delusion neither influenced him, nor was calculated to in- fluence him in making his will, the will must be upheld. ^^ So intermittent mental delusions resulting from and depending en- tirely upon the disease from which testator suffered, and from which he was otherwise free, were held not to affect his testa- mentary capacity, where it appeared that when he executed the *8Middleditch v. Williams, 45 N. to 45 N. J. Eq., 726, at page ^2^. J. Eq.. 726. Reversed 47 N. J. Buchanan v. Pierie, 54 Atl. Rep"., Eq., 585. 583. (Pa.) *sDavenport v. Davenport, 67 N. ^-QAXm-dn v. Ayer, 47 Atl. Rep., J. Eq., 320. 1049. Affirmed 63 N. J. Eq., 806. soMiddleditch v. Williams, 45 N. In re Baker's Will, 90 Atl. Rep., J. Eq., 726. Reversed, 47 N. J. 1009. Eq., 585. 53Lee v. Scudder, 31 N. J. Eq., 'iMiddleditch v. Williams, 45 N. 633. Middleditch v. Williams, 45 J. Eq., 726. Reversed 47 N. J. N. J. Eq., 726. Reversed, 47 N. Eq., 585, and see reporter's note J. Eq., 585. Testamentary Capacity. 113 will he manifested no delusion f* and a testator's mental delu- sion as to his physical condition, or the cause thereof, does not constitute testamentary incapacity.^'^ So the mere existence in the mind of testator of a delusion that he had committed un- pardonable sins for which he was to suffer punishment after death is not sufficient to require a court to pronounce him in- capable of making a testamentary disposition of his property not influenced by such delusion.'^''' But where testatrix, about the time the alleged will was executed, had the insane delu- sion that she had killed a number of people, that some persons were trying to cut her heart out, that she had been to the Holy Land, and that she was married to one of the beneficiaries under the alleged will, all of which delusions had no existence except in the imagination and were without basis of reason, and it also appeared that she was afflicted with other insane delusions from a period of time one month prior to the execu- tion of the will until her death, and that at the time of the making of the will her reasoning powers were seriously im- paired, probate of the will was denied."'" Delusion and Prejudice Distinguished. It is important to distinguish between a will which is the product of a delusion and one which is the product of an aver- sion or prejudice. That the will to others, not having the means of knowing what the testator knows, not occupying his standpoint, not having lived his life, nor having his secret af- fections and hates, may seem unreasonable, injudicious and unjust, is no reason why it should be declared to be the product of a diseased mind. The testator has a right to make an un- reasonable, unjust and injudicious will, and his neighbors have no right, sitting as a jury, to alter the disposition of his prop- erty, merely because they may think that the testator did not do justice to his family connections; and hence it is quite clear that a delusion, and not a mere, aversion or dislike, is necessary to indicate such mental unsoundness as to preclude testa- ^*Lee V. Scudder, 31 N. J. Eq., •'"'"Grant v. Stamler, 68 N. J. Kq., 633. 555- ^^Hollinger v. Syms, 37 N. J. J^' In re Casey's Will, 24 N. J. I.., Eq., 221. Affirmed ib., 628. J. 465. ?ii4 Probate Law and Practice. mentary capacity.^^ So a will cannot be set aside on account of strong, violent, and unjust prejudice of the testator exhib- ited in the disposition of his property made by the will, if such prejudice be not founded on delusion and do not show mental incapacity.^^ Feeble Intellect and Eccentricity. As has been seen, a testator's memory may be impaired by age or disease, he may be unable to recollect the names of those with whom he has been intimately acquainted, he may at times do childish things, speak disjointedly, fly abruptly from one subject to another, ask idle questions or repeat those which have before been asked and answered, and yet may possess ca- pacity to make a will.*'° So where a testator knew the effect of making a will, and what property he had to dispose of, and was merely eccentric or erratic, both of which were the result of vanity and ignorance, and not of mental disease, he was held to have had testamentary capacity. *^^ Drunkenness. Habits of drunkenness do not of themselves destroy testa- mentary capacity, and it is not necessary that one in the habit of excessive indulgence in strong drink should be wholly free from its influence, when executing his will. If, however, fixed mental disease has supervened upon intemperate habits, the man is incompetent, and irresponsible for his. acts. If he is so excited by present intoxication as not to be master of himself. S8 Boylan v. Meeker, 28 N. J. L., re Wintermute, 2y N. J. Eq., 447. 274-2^7. Affirmed 28 N. J. Eq., 437. Lew- '^^Trumbull v. Gibbons, 22 N. J. is's Case, Zi N. J. Eq., 219. Frost L., 117. Lowe V. Williamson, 2 N. v. Wheeler, 43 N. J. Eq., 573. Clif- J. Eq., 82. In re John Gleespin, ton v. Clifton, 47 N. J. Eq., 227, 26 N. J. Eq., 523. Lewis's Case, and cases cited on p. 241. White 3:i N. J. Eq., 219. V. Starr, 47 N. J. Eq., 245-258. ""Whitenack v. Stryker, 2 N. J. Sanderson v. Sanderson. 52 N. J. Eq., 8. Stackhouse v. Horton, 15 Eq., 243. N. J. Eq., 202-205. Turner v. "iparnum v. Boyd, 56 N. J. Eq., Cheesman, 15 N. J. Eq., 243. In 766. Testamentary Capacity. 115 his legal acts are void f' but as has been said, habits of drunk- enness do not of themselves destroy testamentary capacity, al- though they produced the disease of which testator died a few weeks after making his will.®^ A man may habitually indulge in intoxicants, yet possess testamentary capacity, if at the very time of the execution of the will he was able to or did clearly comprehend the nature and effect of the business in which he was engaged.^* So where a testator had, by the excessive use of liquor, become insane, but after ten years' abstinence, includ- ing seven years' confinement in an asylum, had caused the in- quisition of lunacy to be vacated, and during the next two years and before making the will, judiciously carried on a farm, made improvements thereon, employed workmen, bought and sold property, without making any foolish bargains, collected rents, kept his account books neatly and independently, de- tected an error in his taxes and assessments and personally had it corrected by the commissioners of appeal, and at the execu- tion of his will showed a good recollection of his kindred and relations in life and comprehended the will in all its bearings, al- though after his insanity, he had never fully recovered his firm mental vigor, and after restoration of his property there were intervals in which he was incompetent to make a will, it was held that he possessed testamentary capacity, and that his will was valid.®'' To avoid a will because of the testator's drunkenness, it must clearly appear that he was so much under the influence of in- toxicants at the very time of making his will as not to compre- hend his act. Intoxication is temporary insanity, the brain being, incapable of performing its functions for the time being, but this species of derangement ceases when sobriety brings re- turn to reason.^* ''-Peek V. Cary, 27 N. Y., 9. 461. Andress v. Weller, 3 N. J. Eq., 6*Fluck v. Rea, 51 N. J. Eq., 604. Bannister v. Jackson, 45 N. J. 233. Eq., 702-707. Fluck V. Rea, 51 N. esPancoast v. Graham, 15 N. J, J. Eq., 233, affirmed ib., 639. El- Eq., 294. kinton v. Brick, 44 N. J. Eq., 154. '"'In re Howard, 9 N. J. L. J., ^^Kahl V. Schober, 35 N. J. Eq., 144. ii6 Probate Law and Practice. EVIDENCE. Presumptions and Burden of Proof. Every testator is presumed to be of sound mind until the contrary is proved ; and the burden of proof is upon the party attacking the testamentary capacity of testator.*^' So evidence of testator's widow and son, who caveated against the probate of the will, that at the time of executing the will testator had become weak by age and disease, and at times lacked the degree of mental force previously possessed by him, is insufficient to overcome proof showing testamentary capacity, given by those present when the will was signed, and by the testamentary wit- nesses.®® The burden resting upon one who attacks the testamentary capacity of a testator may be shifted by showing that insanity existed prior to the making of the disputed paper; after such proof, the proponent must show that the execution of the will was during a lucid interval. **" So where deceased was shown to have been suffering from pneumonia, accompanied by de- lirium, for three days before and until death, which ensued three days after the purported execution of a will, the burden is on the proponent to show that it was executed while deceased was in a lucid interval, with sufficient capacity to make a testa- mentary disposition of property.''' But the mere fact, standing alone, that testator had been confined in a hospital for the in- sane, and was discharged therefrom as improved, is not suffi- cient proof that he lacked testamentary capacity, where at the time of executing the will he knew the property of which he was possessed and where it was invested, and was desirous of ^"Trumbull v. Gibbons, 22 N. J. ®^Van Riper v. Van Riper, 69 N. L., 117. Boylan ads. Meeker, 28 J. Eq., 463. Affirmed 70 N. J. Eq.. N. J. L., 274. Turner v. Chees- 808. man, 15 N. J. Eq., 243. Whitenack •^^Boylan ads. Meeker, 28 N. J. V. Stryker, 2 N. J. Eq., 8. Sloan L., 274. Turner v. Cheesman, 15 V. Maxwell, 3 N. J. Eq.. 563. El- N. J. Eq., 243. Whitenack v. kinton v. Brick, 44 N. J. Eq., 154. Stryker, 2 N. J. Eq., 8. Goble v. McCoon V. Allen, 45 N. J. Eq., Grant, 3 N. J. Eq., 629. Elkinton 708. Smith V. Smith, 48 N. J. v. Brick, 44 N. J. Eq., 154. Eq., 566. In re Craft's Estate, '"Coughlin's Case, 68 N. J. Eq., 94 Atl., 606. 582. Testamentary Capacity. 117 disposing of it by will, because conscious of the fatal nature of his illness, and was able to form a judgment as to what he should do with his property, with a consideration of the circumstances, and employed means, such as a sane person would adopt to have his intention as to the distribution of his property put into effect. '^^ Presumptions when Drunkenness is Alleged. Inebriety, althoiigh long continued and resulting occasionally in temporary insanity, does not require proof of lucid intervals to give validity to the acts of a drunkard, as is required where general insanity is proved. Consequently, where habitual in- toxication is showai, there will be no presumption that there was incapacitating drunkenness at the time the wnll was made ; such condition must be affirmatively proved or the presumption of capacity will prevail. ^- Competency and Sufficiency of Evidence — In General. In will contests involving the questions of testamentary ca- pacity and undue influence, the evidence is always permitted to take a wide range, necessarily covering much of the life history of the one whose will is being contested, and going largely into the relations existing between the testator and those dealing with him." While, as has been seen, the time of the execution of the will is the period to which the court must look to ascertain the state of mind of the testator, still it is competent to show the state of the testator's mind at any time previous or subsequent to the execution of the will. Such proof is, however, always liable to be overcome, if it be satis- factorily shown that the testator at the time he executed the writing was mentally competent.'^* The reason of the rule is, that the mind does not ordinarily pass suddenly and sharply from sanity or capacity into the opposite condition, nor from ^iGrant v. Stamler, 68 N. J. Eq., N. J. Eq., 154- 555. "Barber v. Baldwin. 128 S. W. "Lee's Case, 46 N. J. Eq., 193. (Ky.), 1092. Koegel V. Egner, 54 N. J. Eq., ^*Whitenack v. Stryker, 2 N. J. 623. In re Howard, 9 N. J. L., Kq., 8. Boylan v. Meeker, 28 N. J., 144. Andress v. Weller, 3 N. J. J. L., 274. Eq., 604. Elkinton v. Brick, 44 ii8 Probate Law and Practice. the latter into sanity or capacity, but gradually and impercep- tibly. Of course, the value of such evidence weakens as the time lengthens in either direction from the date of the execu- tion of the will, and at last ceases entirely.'^ It is largely in the discretion of the court to fix the period within which the testimony of capacity should be limited. Since, however, such evidence is admissible only for the pur- pose of showing the mental capacity of the testator at the time of the execution of the will, such evidence should not be ad- mitted unless it will tend to show his condition at that time.^* Thus, evidence has been held admissible of the testator's men- tal condition fifteen months before he made his will,'^ and in another case four years before;'^ and on an issue of con- genital insanity, it was held proper to limit evidence of insanity to six years before the will was made.'*' Declarations and Conduct of Testator. The declarations of a testator made either before or after the execution of the will are competent to show the condition of his mind, though not to prove imdue influence ;^° but the testimony of witnesses as to oral declarations belongs to a class of proofs which should be received with great caution and only after critical and suspicious examination.^^ Where the insanity of the testator is in question, and undue influence is sought to be established, it is competent to show that the disposition of his property by the writing propounded for probate is in opposition to his intention^- ; but evidence that testatrix, after she made the will in question, denied that she had made a will, and said she would not make any, while com- ^^Dale's Appeal, 57 Conn., 127- N. J. L., 274. In re Vanderveer, 143, 17 Atl. Rep., 757^763. 20 N. J, Eq., 463. Reversed, 21 ^^McCoy V. Jordan, 184 Mass., N. J. Eq., 561. RusHng v. Rusling, 575, 69 N. E., 358. 36 N. J. Eq., 603-608. Middleditch ^^Shailer v. Bumstead, 99 Mass., v. Williams, 45 N. J. Eq., 726. Re- 112. .^ versed 47 N. J. Eq., 585. See also J^Brashears v. Orme, 93 Md., "Declarations of Testator." p. 170, 442, 49 Atl. Rep., 620. infra. 79Hardy y. Martin, 200 Mass., ^i Smith v. Smith, 48 N. J. Eq., 548, 86 N. E., 939- 566. s'^Den v. Vancleve, 5 N. J. L., ^ ^^Turner v. Cheesman, 15 N. J. 695-775. Boylan ads. Meeker, 28 Eq-, 243-265. Testamentary Capacity. 119 petent to show that the will is spurious, or that the testatrix had not testamentary capacity, is not competent to show undue influence;*^ and where a testator by his will gave power to his son, a semi-imbecile, to make a testamentary disposition of the property given him by the will, it was held that this fact not only did not establish the testamentary capacity of the son, but was to be treated as the opinion merely of the father in regard to the son's competency to make a will.*^* So the mere fact that a testator changes some of his bequests in a subsequent will is no ground for questioning his capacity, or its validity, or for refusing it probate, since he is not obliged to disclose his mo- tives or to explain the reasons for the changes, or even to men- tion them in his will.*^ Commission of Lunacy. Upon a question of capacity, a commission of lunacy is com- petent, but not conclusive evidence.**' The inquisition simply makes a prima facie case of lunacy.*" Testimony as to Testator's Business Ability, Testimony of witnesses as to testator's ability to transact business is competent upon an issue of mental capacity; and when it is shown by such testimony that testator was able to transact business with sagacity and decision, his testamentary capacity will be established.** So where testator during his life had managed his own business and accumulated an estate of considerable value, and, though he had been ill for a month, went to the office of his attorney and there consulted concerning a will which had been drawn for him in accordance with previ- 83Barker v. Barker, 36 N. J. Eq., sTAber v. Clark, 10 N. J. L., 217. 259; but see Boylan ads. Meeker, Hill v. Day, 34 N. J. Eq.. 150. 28 N, J. L., 274. Mott V. Mott, 49 N. J. Eq., 192. 8* .Mexander's Case, 27 N. J. Eq., Kern v. Kern, 51 N. J. Eq., 574- 463. Affirmed 29 N. J. Eq., 649. 583. Sbarbero v. Miller, 72 N. J. ^-'Dietz's Case, 41 N. J. Eq., 284. Eq., 248. Affirmed, 74 N. J. Eq., Affirmed 42 N. J. Eq., 689. 453- sawhitenack v. Stryker, 2 N. J. ^^In re John Gleespin, 26 N. J. Eq., 8. Hunt v. Hunt, 13 N. J. Eq., 523. Bannister v. Jackson, 45 Eq., 161. Yauger v. Skinner, 14 N. J. Eq., 702. N. J. Eq., 389. •' 120 Probate Law and Practice. ous instructions, after which the will was executed in the pres- ence of witnesses who testified to testator's capacity, evidence of his physician that testator was erratic and impulsive and at some times more rational than others, but that at no time was he capable of any really consecutive, methodical thought or ar- rangement, but went by fits and starts in all his business, was held insufficient to rebut such proof of capacity.*^ So where it is shown that a testator, who is claimed to have been incompe- tent to make a will, had both before the execution of the con- tested paper and afterward up to his death managed and cared for his property, which was large, and transacted his own busi- ness as he had previously done, and at the making of the will had shown knowledge of his estate, recollection of relatives and those who might naturally expect his bounty, and a judgment of what he desired to do in that respect, he was held competent to execute a will although experts expressed opinions against his capacity.^^' Unequal or Unjust Disposition of Property. Unless a will bears upon its face clear marks of being the product of an unsound mind, the fact that the disposition made by testator of his property is grossly unequal is not evidence of testamentary incapacity.*^^ A will may be contrary to the princi- ples of justice and humanity, may be shockingly unnatural and extremely unjust, nevertheless, if it appears to have been made by a person of sufficient age to be competent to make a will, and also to be the free and unconstrained product of a sound mind, the courts are bound to uphold it.®- If it be clear that the writ- ing propounded for probate is the will of a sound and disposing mind, the court cannot look beyond it for the testator's mo- 89Van Riper v. Van Riper, 69 N. J. Eq., 437. Kise v. Heath, 33 N. J. Eq., 463. Affirmed, 70 N. J. J. Eq., 239. Collins v. Osborn, Eq., 808. 34 N. J. Eq., 511. Turnure v. Tur- 90Wheaton's Case, 68 N. J. Eq., nure. 35 N. J. Eq., 437. Affirmed 562. Affirmed 70 N. J. Eq., 799. 2>7 N. J. Eq., 629. 9iTrumbull v. Gibbons, 22 N. J. ^^Middleditch v. Williams, 45 N. L., 117. Boylan ads. Meeker. 28 N. J. Eq., 726. Reversed, 47 N. J. J. L., 274. In re John Gleespin, 26 Eq.. 585. Smith v. Smith, 48 N. J. N. J. Eq., 523. In re Wintermute, Eq.. 566. 27 N. J. Eq., 447. Affirmed 28 N. Testamentary Capacity. 121 tives for the disposition of his property made by him ; the right of absolute dominion which every man has over his own prop- erty is sacred and inviolable.^^ So a testator may leave all of his property to his mistress and ignore his w'ife."* The law, however, looks upon an inofficious will with suspi- cion ; but if it can be accounted for on other reasonable hypo- theses, it will not be attributed to mental incapacity."^ The term "inofficious" is the equivalent of unnatural, and is pred- icable of such instruments as ignore the moral claims which the ties of kinship suggest. When there is a glaring disregard by a testator of a child, especially if such child is helpless by reason of infancy or disease, in favor of a stranger, the court, while saying that a man can do as he pleases with his property, will be alert in seeking the presence of some influence which must have warped the judgment and controlled the will of the testator."'' So, although the omission by a testator to make any provision for some of his children will not of itself suffice to establish incapacity, yet such an omission not satisfactorily accounted for is entitled to great consideration when there is any evidence of a fraudulent procurement of the will, or when the will was made by the testator in extremis in favor of those around him;"' and so inequality and injustice in the provisions of a will may suffice to call for an explanation from those in whose favor they are made."^ Conversely the fact that a will is natural and reasonable corroborates the correctness of the opinions of the subscribing witnesses that the testator possessed testamentary capacity."" Opinion Testimony. The abstract opinion of any witness, medical or of any other profession, upon the question of the testamentary capacity of ^"Turner v. Cheesman, 15 N. J. ^^Goble v. Grant. 3 N. J. Eq., Eq., 243. 629. 9*Smith V. Smith, 48 N. J. Eq., ssLynch v. Clements, 24 N. J. 566. Arnault v. Arnault, 52 N. J. Eq., 431. Middleditch v. Williams. Eq., 801. 45 N. J. Eq., 726. Reversed, 47 95Smith V. Smith, 48 N. J. Eq., N. J. Eq., 585- 566. ""In re Buckman's Will, 80 N. 9" In re Willford's Will, 51 Atl. J. Eq., 556-562. Rep., 501-502. 122 l^KOBATE LaW AND PRACTICE. a testator is of no importance. No judicial tribunal would be justified in deciding against the capacity of a testator upon the mere opinion of witnesses, however numerous or respectable. A man may be of unsound mind, and his whole neighborhood may declare him so; but whether that unsoundness legally amounts to incapacity for the discharge of the important duty of making a final disposition of his property is a question which the court must determine upon its own responsibility. It does not depend upon the uncertain or fluctuating opinion of wit- nesses, but is to be ascertained by the court by the application of certain rules of law in the exercise of a sound discretion regulated by those rules. The opinion of a witness must be brought to the test of facts, that the court may judge to what weight the opinion is entitled. It is proper to ask a witness his opinion as to the mental capacity of the testator to discharge the duty in question ; he must state, however, the facts upon which his opinion is based. The court will judge of the intel- ligence of the witness upon the subject to which he testifies, and the proper weight to be given to his opinion, from the facts and circumstances upon which he founds that opinion. ^'"^ Expert Testimony An opinion expressed by a physician that testator was inca- pable of making a will cannot require the court to ignore a testamentary disposition, if the evidence satisfactorily estab- lishes that the testator possessed capacity to make it under the liberal rules . laid down by our courts. The expression of opinion that, judging from his condition when the witness last observed him, the testator would not become more capable of making a will, while entitled to be considered, must obviously yield to evidence that satisfies the judgment that he did in fact possess testamentary capacity at the time when he executed the looStackhouse v. Horton, 15 N. v. Maxwell, 3 N. J. Eq., 563. Tur- J. Eq., 202-208. Waddington v. ner v. Cheesman, 15 N. J. Eq., 243. Buzby, 45 N. J. Eq., 173, and cases Garrison v. Garrison. 15 N. J. Eq., cited at page 174. Whitenack v. 266. Clifton v. Clifton, 47 N. J. Stryker, 2 N. J. Eq., 8. Lowe v. Eq., 22"]. Williamson, 2 N. J. Eq., 82. Sloan Testamentary Capacity'. 123 will ;' and opinions of expert witnesses expressed in answer to hypothetical questions which include statements of facts not established by evidence, must be accorded little weight where it appears that the opinions are based in whole or in part upon such facts.- The testamentary capacity of a testatrix who made her will while in the latter stages of consumption may be established against the hypothetical opinions of experts as to the effect upon the mind of the medicines usually employed in such cases. ^ Testimony of Subscribing Witnesses. In regard to the weight to be given to the opinion of the sub- scribing witnesses to a will as to testator's testamentary capac- ity, the older cases held that opinions of the testamentary wit- nesses and their statements of the events taking place at the execution of the will are most to be relied on in determining the mental capacity of the testator when he made the will.* The modern rule, however, is that the mere fact of a man's having affixed his signature to a will as a subscribing witness does not entitle his opinion as to the competency of the testator to any more weight than that of any one else who may be called upon to testify ; and if the subscribing witness is a stranger, and has no opportunity to ascertain and judge of the testator's capacity, his opinion is not entitled to as much weight as that of a friend who has conversed with the testator at about the same time;"' but as has been seen, the fact that the will is in itself natural and reasonable is a fact corroborative of the correctness of the opinions of the subscribing witnesses.^ A party opposing the probate of the will may show state- 'Grant v. Stamler. 68 N. J. Eq., Eq., 8. Sloan v. Maxwell, 3 N. J. 555- Eq., 563-573. -Wheaton's Case, 68 N. J. Eq., ^Turner v. Cheesman, 15 N. J. 562. Affirmed 70 N. J. Eq., 799. Eq., 243. Garrison v. Garrison, 15 Stackhouse v. Horton. 15 N. J. N. J. Eq., 266. Lee's Case. 46 Eq., 202. Pancoast v. Graham, 15 N. J. Eq., 193-201. N. J. Eq., 294. «Pancoast v. Graham, 15 N. J. •■'Andrew's Case, 33 N. J. Eq., Eq., 294. Clifton v. Clifton, 47 514. N. J. Eq., 227. *Whitenack v. Stryker. 2 N. J. 124 Probate Law and Practice. ments made out of court by one of the subscribing witnesses in order to contradict his testimony ;' but the bad character of a deceased witness for veracity cannot be given in evidence for the purpose of invalidating the will.* 'Otterson v. Hofiford, 36 N. J. ^goylan ads. Meeker, 28 N. J. L., 129, but see Bojlan ads. Meek- L., 274. er, 28 N. J. L., 274. CHAPTER VIII. EXECUTION OF WILLS. STATUTORY REQUIREMENTS, Provisions of Statute. In this state, four things are requisite to the execution of a valid will. i. It must be in writing. 2. It must be signed by the testator. 3. The signature must be made by him in the presence of two witnesses, or the making thereof acknowl- edged by him in their presence. 4. It must be declared by him in their presence to be his last will and testament. These requisites are not, except the third one. in the alternative. The third contains an alternative, but one of these alternatives must take place ; he must make the signature in the presence of the witnesses, or he must acknowledge the signature theretofore made to be his, which acknowledgment must be made in the presence of two witnesses ; and in addition to this he must declare the paper to be his last will and testament.^ 'In re Buck, 31 N. J. L. J., 84. will, in presence of two wit- In re McElwaine's Will, 18 N. J. nesses present at the same time, Eq., 499. Ludlow V. Ludlow, 36 who shall subscribe their names N. J. Eq., 597-599. Elkinton v. thereto, as witnesses, in the pres- Brick, 44 N. J. Eq., 154-166. The ence of the testator; and all wills statute provides as follows :/ "All and testaments of persons dying wills and testaments of persons since the day above mentioned, dying after this act shall take ef- made in the manner herein pre- fect, or who may have died since, scribed, by any person competent the fourth day of July, in the year by law to make such will, shall be of our Lord eighteen hundred and sufficient to devise, pass, and be- fifty, shall be in writing, and shall queath all estates and property, be signed by the testator, which real or personal, and all rights of signature shall be made by the tes- any kind, and to appoint a guard- tator, or the making thereof ac- ian or guardians to any child of knowledged by him, and such the testator during infancy.", 4 writing declared to be his last Comp. Stat., 5867, sec. 24. 125 126 Probate Law and Practice. Estates Per Autre Vie At common law, an estate per autre vie was not devisable, but upon the death of the tenant, the property was left open without any one having a legal title to it ; neither the rever- sioner, because the previous estate had not expired, nor the heir of the tenant, for the estate was not one of inheritance, nor the executor of the tenant, because it was a freehold and not a chattel interest. The consequence was that the first per- son who chose to take possession might do so, and was called a general occupant." This curious lawless condition of an estate for the life of another after the death of the tenant, the other still surviving, was abolished by the twelfth paragraph of the statute of frauds.^ In this state, the power to devise an estate per autre vie was first declared in Judge Patterson's Act concerning Wills.^** The section containing this power still appears as a section of the Act concerning Wills, and is a modification of the twelfth paragraph of the statute of frauds.* An estate per autre vie belonging to a married woman, who dies before the cestui que vie, passes by her will as realty, free 22 Bl. Com., 255. I Wasbh. and for transferring 01 uses into Real Proper., 93. possession," passed the seven- ^29 Charles II, par., 12. teenth day of March, in the year 3aPat. L. P., 189. of our Lord, one thousand seven ^Folwell V. Folwell, 65 N. J. hundred and thirteen-fourteen ; Eq., 526. Affirmed, 67 N. J. Eq., (i Gen. Stat., p. 875. Repealed, 72J. "All estates per autre zne see P. L. 1898, pages 711-713), and shall be devisable by will in writ- if no such devise thereof be made, ing, signed and published by the the same or so much thereof as party so devising the same in the shall not be so devised, shall go presence of three subscribing wit- to the executors or administrators nesses, and proved and recorded of the party who had the estate in the manner prescribed in and 'thereof by virtue of the grant, by the Act entitled "An Act for and shall be assets in their hands, confirming of conveyances of and be applied and distributed in lands made and to be made by the same manner as the personal wills and powers of attorney, and estate of the testator or intestate." declaring what exemplifications of see 4 Comp. Stat., 5876, sec. 24, records and other things shall be 4 Comp. Stat., 5861, sec. i, but holden and received for good evi- supra, which modifies the meth- dence of estates of inheritance, od of executing wills. Execution of Wills. 127 from any claim of a husband thereto as personalty by virtue of his jus tnariti.^ SIGNATURE BY TESTATOR. In General. In general, the maxim qui facit per alinm facit per se makes a signing by an agent a signing by the principal. The statute, however, says that the signature to a will shall be made by the testator, or the making thereof acknowledged by him. It does not speak of acknowledging or adopting the signature, but of making it. The fifth section of the statute of frauds,*^ which was in force in this state until the act of 17 13-14, required that wills should be signed by the testator, "or by some other person in his presence and by his direction." The statutes of this state of 1713-14 and of 185 1," in declaring the manner in which wills should be executed, have omitted these words, and must be held to have had an object in the omission. The words of our present act are stronger than those of the statute of frauds, as has been seen. They are, "the signature shall be made by the testator, or the making thereof acknowledged by the testator." In thus providing more carefully for the execution of a will, it must be supposed that they intended, by omitting the words of the English act, to require in all cases some actual signature by the testator him- self. The signing required by the statute must be held to be some signature, the making of some mark or signiim upon the paper, so as to identify and give efificacy to it by some act, and not by words merely. It follows, therefore, that it is not suffi- cient that the signature be made by another, though at the request and in the presence of the testator ; and no acknowledg- ment of such a signature by the testator will make it valid.* The object of the law in requiring that the signature of the testator to a will shall be made by him or the making thereof acknowledged by him in the presence of two witnesses in addi- tion to requiring that the testator shall also declare the paper ^Folvvell V. Folwell. 65 N. J. Eq., "^4 Comp. Stat., 5867, sec. 24. 526. Affirmed 67 N. J. Eq., 727. Hn re McElwaine, 18 N. J. Eq., "29 Charles II, ch. 3. 499. 10 128 Probate Law and Practice. to be his last will and testament in the presence of those two witnesses, is to have proof of the genuineness of the signature by the subscribing witnesses, without being obliged to resort to other evidence in addition to theirs as to whether the paper offered for probate contains the signature of the testator or not.^ Testator May Receive Assistance. The statutory requirement is complied with though the testa- tor's hand be guided in writing his signature or making his mark on the paper, if his purpose to sign and his best physical effort to do so participate in the act,^° and this without refer- ence to the question as to whether testator could write at the time.^^ Position of Signature. The statute provides that a will must be signed. It does not say it must be subscribed; and therefore the name of the testa- tor written in by himself on any part of the testament, with the intention that his name so written should be a signing of the will, satisfies the statute. The signature may be at the begin- ning, middle or end, or on the side. So if the testator writes his name in or under the attestation clause, with the intention thereby to make the same his signature, even if such clause be expressed in the third person, and the witnesses see him write it, and the will is duly executed in other respects, the testament is valid. ^- Acknowledgment of Signature By Testator. The statute^^ permits a testator to sign his will in the absence of the witnesses, provided he in their presence acknowledges the signature so made by him as his own;^* but ^In re Laing, 17 N. J. L. J., 266- Chaffee v. Baptist Alissionary Con- 270. vention, 10 Paige, 85. loin re McElwaine, 18 N. J. Eq., i-In re Phelan's Estate, 82 N. 499-503. Fritz V. Turner, 46 N. J. J. Eq., 316. Affirmed, ib., 647. Eq., 515. Reversed, 49 N. J. Eq., ^^4 Comp. Stat., 5867, sec. 24. 343. In re Blackslee, 24 N. J. L. See page 125, n, supra. J., 429. i*In re McElwaine, 18 N. J. Eq., 1^1 Williams on Executors, 64. 499. In re Laing, 17 N. J. L. Chase v. Kittredge, 11 Allen, 49. J., 266-270. Execution of Wills. 129 where the evidence proves that the testator did not sign the will in the presence of the two attesting witnesses, and there is no proof that he acknowledged his signature in the presence of either of them, probate of the will will be refused ;^'' and when it is clear that testator did not sign the will, no acknowl- edgment of the signature by him will be sufficient to satisfy the statute. ^^^ It is not necessary that the acknowledgment by the testator of his signature should be in words. It is sufficient if enough is said or done by him, or by another with his consent, to bring home to the witnesses the fact that the signature appended to the will is that of the testator. So evidence that the testator took his will, a holograph, to two old friends, who were famil- iar with his signature, and exhibiting it to them, said : "This is my will, do you recognize the signature as mine?" and that on their answering in the affirmative, he asked them to sign the will as witnesses, is sufficient to show that the testator acknowledged his signature to such witnesses.^' The testator must, however, by some act or sign adopt the statements of the third person as his own, otherwise there will be no acknowl- edgment. So where a testator did not sign his will in the pres- ence of the attesting witnesses, and made no sign or assent when the scrivener said, apparently with reference to the paper: "This is his name," there is no valid acknowledgment of the signature. '^^ And so the fact that a testator said the paper was his will is not an acknowledgment of his signature within the meaning of the statute ; he must not only declare the paper to be his last will and testament, but he must either sign the paper in the presence of the witnesses, or must in their presence acknowledge the signature thereto to be his.'^ When Signature Must Be Made or Acknowledged. It is now settled, in this state, that a true interpretation of the Wills Act requires that the witnesses are to attest by their i-'Tn re Coles' Will, 47 Atl. Rep., Eq., 761. Affirmed, 57 N. J. Eq., 385. In re McElwaine, 18 N. J. 664. Eq., 499. i8\[a„„ers v. Manners, 72 N. J. i^In re McElwaine, 18 N. J. Eq., Eq., 854. 499. i^In re Buck, 31 N. J. L. J., 84. '^Stewart v. Stewart, 56 N. J. 130 Probate Law and Practice. subscription the testator's signature or acknowledgment of sig- nature, as well as the publication of the will by him in their presence, and that it is essential to the validity of a will that everything required to be done by the testator should precede in point of time the subscription of the witnesses. If, there- fore, the witnesses to a will sign before the testator, the will is invalid.^" In the Presence of Witnesses. The statute requires that both the witnesses shall be present when the signature is made, or the making thereof acknowl- edged by the testator ;-^ but if the subscribing witnesses were so situated that they could and naturally would see the signing, it is sufficient,^- and it is not necessary that the witnesses should see what the testator wrote or be able to identify his signature, so long as they could see him write.-^ Where the will is signed in the same room with the witnesses, it is prima facie a compliance with the statute ;-* but where the fact that one of the witnesses was not in the same room with the testator, at the time the testator and the other witness signed the will, is clearly proven, the burden is thereupon imposed upon the proponent to establish that the witness in the adjoining room could see the execution of the will and that his signature in attestation thereof could be seen by the testator and the other subscribing witness.-^ PUBLICATION OF WILL BY TESTATOR. Necessity, Requisites and Sufficiency. To comply with the requirements of the statute, there must ""Lacey v. Dobbs, 63 N. J. Eq., ^sL^cgy v_ Dobbs, 61 N. J. Eq., 325. Bioren v. Nesler, 77 N. J. 575. Reversed 63 N. J. Eq., 325. Eq., 560. Beggan's Case, 68 N. J. Ayres v. Ayres, 43 N. J. Eq., 565. Eq., 572. 24Ste^art v. Stewart, 56 N. J. 2iCompon v. Mitton, 12 N. J. L., Eq., 761. Affirmed, 57 N. J. Eq.. 70. Ludlow v. Ludlow, 36 N. J. 664. Eq., 597. Ayres v. Ayres, 43 N. J. ^sgerdan's Case, 65 N. J. Eq.. Eq., 565-569. 681. Bogert v. Bateman, 65 Atl. ^^Compton V. Mitton, 12 N. J. Rep., 238. L., 70. Execution of Wills. 131 be some declaration by the testator in the presence of the wit- nesses that the instrument which he executes is his will, and a communication by liim to the witnesses that he desires them to attest it as such, so that the witnesses know that it is testa- tor's will which they are asked to witness.-'' but it is not neces- sary that the testator should, by his own words, declare the writing to be his last will ; this may be done in his presence and hearing by another acting for him and with his assent, or the publication of the will may be by act or sign. It is suffi- cient if enough is said or done in the presence and with the knowledge and acquiescence of the testator to give the wit- nesses to understand distinctly that the testator desires them to know that the paper produced is his will, which they are to attest as such ;-' and all that is required is that the testator should make this known clearly, in any way by which one mind can communicate with another.-"^ So where, after the testator had signed the will in the presence of the witnesses, one of them in the presence of the other asked if the paper was all right, and the testator replied : "That is all right, John, that is my will," it was held that the instrument was sufficiently declared by the testator as his last will.-^ So where deceased employed a scrivener to draw his will, and was directed by the scrivener to come to his house with two witnesses to witness its execution, and deceased called upon a friend and requested him and his son to accompany him to the house of the scrivener to witness the execution of his will, exhibiting to them at the same time a folded paper, whereupon they immediately went with the deceased to the scrivener's house, deceased on the way stating to them his reasons for making a will, and at the house and in the presence of the scrivener a folded paper was pro- 26Mundy v. Mundy, 15 N. J. N. J. Eq., 725. Affirmed. 52 N. J. Eq., 290. Ludlow V. Ludlow, 36 Eq., 2i7- Robbins v. Robbins. 50 N. J. Eq., 597. N. J. Eq., 742. Hildreth v. Mar- -^Mundy v. Mundy, 15 N. J. Eq., shall, 51 N. J. Eq., 241. Vernon v. 290. Turnure v. Turnure. 35 N. J. Vernon, 69 N. J. Eq., 759. Eq., 437. Affirmed, 2,7 N. J. Eq., ^Hn re Dillon's Will, 87 Atl. 629. Ludlow V. Ludlow, 36 N. J. Rep., 161. 82 N. J. Eq., 322. Eq., 597- Ayres v. Ayres, 43 N. J. 2!./^yrgs y Ayres, 43 N. J. Eq., Eq., 565. Elkinton v. Brick, 44 N. 565. J. Eq., 154. Darnell v. Buzby, 50 r52 Probate Law and Practice. duced by deceased, which the witnesses believed was that pre- viously shown to them and that drawn by the scrivener, and thereupon it was duly signed and witnessed, it was held that this transaction, commencing with the announcement by deceased at the house of his friends that he was about to make his will and the exhibition of a paper as if it was that to be executed, and ending at the house of the scrivener, when a similar paper was produced by deceased and executed, was a continuous one. and that a formal and sufficient publication was thus shown. ^"^ Equivocal acts and words which are fully susceptible of a meaning inconsistent with will making will not. however, be a sufficient declaration of a will, though they be supported by a perfect attestation clause, the contents of which are, however, not made known to both witnesses f^ and where two of three witnesses to an alleged will did not know that the instrument was intended as a will it was held that there was not a compliance with the statute as to publication.^^'' By Assenting to Statements of Another. It is settled law that a testator may publish a will by assent- ing to a statement made in his presence, and that such an assent may be made by some act or sign. If, however, there was no act or sign by the testator adopting such statement as his own, publication cannot be inferred."- Where the scrive- ner, or other person, announces to the witnesses that the paper in question is the will of the testator, who is present and hears the statement made, and without more the testator thereupon executes the will, this is a sufficient publication ; his intelligent execution of the will after such a declaration is an acquiescence in and assent to it.^^ So where a will contained the usual attestation clause, and it appeared that when the witnesses were soBreining's Case. 68 N. J. Eq., Eq., 573. Affirmed, 77 N. J. Eq., 553. 560. In re Gahagan, 82 N. J. Eq.. 3iDarnell v. Buzby, 50 N. J. 601. Eq., 725. Affirmed, 52 N. J. Eq., ^sHildreth v. Marshall, 51 N. J. 337. Eq., 241. Bioren v. Nesler, 76 3iain re Van Handlyn's Will. 83 N. J. Eq., 573. Affirmed, 77 N. N. J. Eq., 290. J. Eq., 560. Manners' Case, 72 N. 32Manners' Case, 72 N. J. Eq., J. Eq., 854. 854. Bioren v. Nesler, 76 N. J. Execution of Wills. 133 requested to sign the will, it was spoken of as the testator's will, and one witness testified that the other told him in the presence and hearing of the testator what the paper was, and also that the will had been read aloud in the presence of the testator, who expressed his approval of it, in the presence of all the witnesses, before it was signed, it was held that there was sufficient evidence of publication to warrant probate.^* Time When Publication Must Be Made If the publication is made before the testator signed, it is a sufficient compliance with the statute.^^ To make the will valid, the publication must, however, as has been seen, precede the subscription of the will by the witnesses.^*"' In the Presence of Witnesses. The statute requires that both the witnesses and the testator should be present when the declaration is made that the instru- ment about to be executed is his last will.^' Evidence The best recollection of a witness is sufficient to establish a fact coming within his observation and hearing ; and when that fact is the use of words by a testatrix, from which the witness knew that the paper which she and the other witness were requested to sign was a will, it is sufficient to establish it as a will, even though the witness is unable to recall the exact language used.'^ SIGNATURE BY WITNESS. In General. The provision of the statute of wills requiring the witnesses to subscribe their names to the will in the presence of the testa- 3*Turnure v. Turnure, 35 N. J. Eq., 560. Beggans' Case, 68 N. J. Eq., 437. Affirmed. 37 N. J. Eq., Eq., 572. 629. 3-(3ompton v. Mitton, 12 N. J. ^^Errickson v. Fields, 30 N. J. L., 70. Ludlow v. Ludlow, 36 N. Eq., 634. Mandeville v. Parker, J. Eq., 597. Ayres v. Ayres. 43 N. 31 N. J. Eq., 242-248. J. Eq., 565-569. •■'oLacey v. Dobbs, 63 N. J. Eq.. ^^Vernon v. Vernon. 69 N. J. 325. Bioren v. Nesler, ^^ N. J. Eq.. 759-762. 134 Probate Law and Practice. tor is designed to prevent substitution and fraud upon an intending testator."" No amount of proof that the offered paper signed by deceased was that which the subscribing wit- nesses signed will avail to establish it as a will, if it fails to show that their signatures were affixed in the presence of the deceased.*'^ In order to comply with the provisions of the statute, the witnesses must be in such a position when they sign the will as witnesses that the testator can see them and be able to distinguish the act which they are performing.*^ It is not, however, necessary that the witnesses be so close to the testa- tor that he sees the signatures made by them. If witnesses, when they sign, are in a position where testator can see the motion of their pens, even though he cannot distinguish the letters which the pens are forming, it will be a compliance with the statute.*- Burden of Proof. Where the will is signed by the witnesses in the same room with the testator, it is prima facie in the presence of the testa- tor.*^ On the other hand, an attestation made in another room is prima facie not in the presence of the testator.** Address of Witness Unnecessary. There is no legal requirement that a witness to a will should append a statement as to his residence to his signature.*^ In the Presence of Each Other. The statute concerning wills does not in express words require that the witnesses shall sign the will in the presence of 39Mandeville v. Parker. 31 N. ■'sMandeville v. Parker, 31 N. J. J. Eq., 242. Beggans' Case 68 N. Eq., 242-252. Stewart v. Stewart, J. Eq., 572. 56 N. J. Eq., 761-765- Affirmed, 57 40Beggans'. Case, 68 N. J. Eq., N. J. Eq., 664. Ayres v. Ayres, 43 572. N. J. Eq., 565-570. 4iMandeville v. Parker, 31 N. J. ^^Mandeville v. Parker, 31 N. J. Eq., 242. Ayres v. Ayres, 43 N. Eq., 242-252. Ayres v. Ayres, 43 J. Eq., 565. N. J. Eq., 565-570. ^^Ayres v. Ayres, 43 N. J. Eq., ^^In re Sandmann's Will, 68 Atl. 565. Lacey v. Dobbs, 61 N. J. Eq., Rep., 754. 575. Reversed, 63 N. J. Eq., 325- Execution of ^^'ILLs. 135 each other. In the case of Iv re Clark's [f^/7/.*" it was held that under the provisions of the statute of wills it is not requi- site to the valid execution of a will that the witnesses should sign in the presence of each other. This case was affirmed on appeal by the Court of Errors and Appeals, but that court declined to express an opinion as to whether such a require- ment, though not distinctly expressed in the act, results by natural and necessary implication from the statutory lan- guage.*' Request To Witness To Attest Will. The witnesses must attest the will at the request of the testa- tor,*^ but it is not necessary that the testator should openly make the request ; his acquiescence when the witnesses are called in for that purpose by another is sufficient.*® So a request may be implied by the reading of the attestation clause in the pres- ence of the testator and the witnesses after the signing by the witnesses.^" When Signature of Witnesses Must Be Made. It is settled that the witnesses are required by the statute to attest by their subscription the testator's signature or acknowl- edgment of signature, as well as the publication of the will by him in their presence, and that it is essential to the validity of the will that everything required to be d''ine by the testator should precede in point of time the subscription of the wit- nesses. If, therefore, the witnesses sign before the testator, or before the publication of the will by him, the will is invalid.'^' Who May Be Witnesses — In General, The general rule is that all persons competent to give testi- ^'■'52 Atl. Rep., 222. J. Eq.. 565-572. Elkinton v. Brick, *'Clark V. Clark, 64 N. J. Eq., 44 N. J. Eq., 154. Darnell v. 361. Huzby, 50 N. J. Eq., 725. Af- ■♦^Whitenack v. Stryker, 2 N. J. firmed, 52 N. J. Eq., 337. Eq., 8. Mundy v. Mundy, 15 N. J. ^"Stewart's Will, 2 Redf. Sur., Eq., 290. Darnell v. Buzby, 50 N. N. Y., 77. J. Eq., 725. Affirmed, 52 N. J. ^^Lacey v. Dobbs, 63 N. J. Eq., Eq., 337. 325. Bioren v. Nesler, 77 N. J. ^'•'Whitenack v. Stryker, 2 N. J. Eq., 560. Beggans' Case, 68 N. Eq., 8. Mundy v. Mundy, 15 N. J. Eq., 572. J. Eq., 290. Ayres v. Ayres, 43 N. 136 Probate Law and Practice. mony in a court of law may be witnesses to a will.'^- A person who is unable to write his name, but makes his mark, is a com- petent witness to the execution of a will f^ but a person who. from inattention or abstraction, is unconscious and insensible of what is being said and done when publication is made, does not witness the will.'* Devisees and Legatees. If any person hath attested the execution of any will or codicil, after the first day of IVIarch, in the year of our Lord one thousand seven hundred and fifty-three, or shall attest the execution of any will or codicil hereafter to be made, to whom any beneficial devise, legacy, estate, interest, gift or appoint- ment of or afifecting any real or personal estate, other than and except charges on lands, tenements or hereditaments, for the payment of any debt or debts, hath been or shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment, shall, so far only as concerns such person attest- ing the execution of such will or codicil, or any person claim- ing under him or her, be utterly null and void, and such person shall be admitted as a witness to the execution of such will, or codicil, notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will or codicil.'"' It is to be observed that this statute does not affect the com- petency of legatees or devisees as witnesses to a will. A will witnessed by a legatee or devisee is valid, and will be admitted to probate, the only effect of the statute being to deprive the legatee or devisee of his legacy or bequest ; but a husband may be a witness to a will under which his wife receives a devise. ^^ Executors. At common law an executor who was not a residuary legatee and had no beneficial interest in the estate might be a witness to the execution of the will, being considered as a mere trustee 5240 CYC, 1 1 10 and cases cited. ^^4 Comp. Stat., 5862, sec. 4. s^Compton v. Mitton, 12 N. J. See also. Case v. Hasse, 93 Atl. L., 70. Rep., 728. 54Robbins v. Robbins, 50 N. J. s^Lippjncott v. Wikoff, 54 N. J. Eq., 742. Eq.. 107. Execution of Wills. 137 and nominal party having no real interest in the contest. In Snedekers r. Allen:'' Mr. Justice Pennington said that an exec- utor may be a witness to establish a will, unless he takes an interest under it. and that the practice in this state of allowing a reasonable compensation for services did not alter the case ;^* and the appointment of the husband of a devisee or legatee as executor does not disqualify him from being a witness. ^^ Creditors In case by any will or codicil, made or to be made, any lands, tenements or hereditaments, are or shall be charged with any debt or debts, and any creditor whose debt is so charged, hath attested or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil."" KNOWLEDGE OF CONTENTS OF WILL. Presumption and Burden of Proof. When a will is signed and published with the usual solemni- ties and in the usual manner, the presumption is that the testa- tor knew its contents,''^ and in ordinary cases, where the testa- tor is in health and of ability, it is not necessary to show that the will was read over to him. or that he knew the contents thereof ;"- but it will not be presumed, from the fact that testa- tor had testamentary capacity, that he would not have executed the will without understanding its contents.'"' The burden of proof is upon him who denies such knowledge ; but where it appears affirmatively that the testator did not read the will himself, and that it was not read to him, it must then be shown to the satisfaction of the court that he was in some other wav 5^2 N. J. L., 32-41. Patton V. Hope. 2>7 N. J. Eq.. 522. •'^See also Lippincott v. Wikoff, "-Day v. Day, 3 N. J. Eq., 549. 54 N. J. Eq., 107 Kahl v. Schober, 35 N. J. Eq.. 461. s^Lippincott V. Wikofif, 54 N. J. Brick v. Brick, 44 N. J. Eq., 282. Eq., 107. Barker v. Streuli, 69 N. J. Eq.. •'''*4 Comp. Stat., 5863, sec. 5. 771. **'Day V. Day, 3 N. J. Eq., 549. ♦'^Harris v. Vanderveer, 21 N. Maxwell's Case, 8 N. J. Eq., 251. J. Eq., 561. 138 Probate Law and Practice. made acquainted with the contents of the instrument, and approved them."* If a will is shown to have been in the testator's possession long enough for him to read it, the proponent need not prove that any one saw him read it, or heard it read to him in his presence, because, if he had the intelligence and capacity to read it himself, the law will presume, if an opportunity was afforded him, that he was acquainted with its contents.**^ So where a testatrix, after the execution of a will, drawn accord- ing to instructions given to one who conveyed them to the draftsman, has the executed paper in her possession a sufficient length of time and with the opportunity and ability to acquaint herself with its contents, and she then preserves it, it will be conclusively presumed that the will was drawn according to her instructions, especially when it follows her announced intentions, and provides for no unnatural disposition of her estate ;"*' and so the fact that testatrix executed a codicil which in express terms confirmed the will, but which made changes therein, tends to prove that testatrix was acquainted with the will.«^ Where Testator is Incapacitated. If the testator be incapable of reading the will, whether from blindness, sickness, illiteracy or any other cause, it must be made to appear that the will was read, or its contents fully made known to him and that he gave them his approval.''* In the case of Patton v. Hope'''-' it was, however, held that the mere fact that testator could not read or write will not, in the absence of any evidence to induce the court to suspect that he may have been imposed upon, render it necessary for the pro- 6*Day V. Day, 3 N. J. Eq., 549, ^'In re Cooper's Will, 75 N. J. and see "Where Testator is Inca- Eq., 177. Affirmed, 76 N. J. Eq., pacitated," this page, infra. 614. esBrick v. Brick, 44 N. J. Eq., e^Day v. Day, 3 N. J. Eq., 549- 282. Catherine McLaughlin's Harris v. Vanderveer, 21 N. J. Case, 69 N. J. Eq., 479. In re Eq., 561. Lyons v. Van Riper, 26 Cooper's Will, 75 N. J. Eq., 177. N. J. Eq., 22>7- Hildreth v. Mar- Affirmed, 76 N. J. Eq., 614. shall, 51 N. J. Eq., 241, 250. Barker v. Streuli, 69 N. J. Eq., 771. '^^2,7 N. J. Eq., 522. ^^^Catherine McLaughlin's Case, 69 N. J. Eq., 479- Execution of Wills. 139 ponent of a duly executed will to prove that testator knew its contents when he executed it : the execution of the will according to law raises a presumption that testator understood its contents. Where the testator is a foreigner, whose knowledge of the language in which the will is written is shown to have been imperfect, it is always necessary to show that he was made acquainted with its contents before execution. Obviously the best method of acquainting a foreign born testator with the contents of a will written in the English language is by per- mitting him to read a properly made written translation in his native tongue. If this is not practicable, an oral translation, or even a succinct summary of its material provisions in his own language, made to him by some one in whom he can con- fide, may suffice. When such a person makes a will, the legal presumption will not be in favor of the instrument, but the person who propounds it for probate must show by clear and convincing proof that the testator understood its character and contents.'^** Method of Establishing Knowledge of Contents. It is not necessary that the proof of the testator's knowledge of the contents of the will should come from any particular source or from witnesses; it may be established by ordinary means of proof, like any other fact.'^ So if it can be shown that the will in question is substantially in accordance with the instructions of testator, it may be considered as sufficient evi- dence that he was acquainted with its contents ;'- and so if it can be established, either by direct proof or by circumstances, that the will in question was truly copied from a previous will, with the contents of which the testator was familiar, the instru- ment will be admitted to probate, though it was neither read by him nor in his hearing.'^ And so where a subscribing witness, a lawyer, testified that he drew the will in accordance with testator's instructions, but that while his impression was strong that he read it over to the testator, he was not absolutely sure ^"In re Gardella, 25 N. J. L. "-'Day v. Day. 3 N. J. Kq., 540. J.. 139- '"Day v. Day, 3 N. J. F.q., 549. ^' Lyons v. Van Riper, 26 N. J. Eq., 337- 140 Probate Law and Practice. that he did so, it was held sufficient to establish a prima facie case that the testator, though illiterate, knew the contents of the will before he executed it. It would be rather surprising if a lawyer remembered with certainty all of the details of a transaction of this character some years after its occurrence. Few lawyers called upon to testify to the preparation and exe- cution of a will, years after the occurrence, can speak regard- ing it from absolute recollection ; and unless it appear that some motive existed to induce the draftsman to withhold the contents of the document, an impression based upon his usual course of conduct, that he read it to the testator would be suffi- cient to justify the presumption that it was done."* EVIDENCE. Attestation Clause. An attestation clause is made for the purpose of preserving in permanent form a record of the facts attending the execution of the will, so that in case of the failure of the men.ory of the subscribing witnesses, or other casualty, they may still be proved ; and the courts have accordingly held that on proof of the authenticity of the signatures of the subscribing witnesses, the facts stated in the attestation clause must be accepted as true until it is shown by affirmative proof that they are not.''' The statute, however, does not prescribe any form in which the witnesses shall affirm their attestation.'*' By a perfect attestation clause is meant one that asserts the performance of all tlie acts required to be done under our statute of wills to make a valid testamentary disposition.'^^ Where the attestation clause states the performance of some of the requisite acts, but omits to state the performance of other '•iBowe V. Naughton, 67 Atl. 312-325. Affirmed, 39 N. J. L.. Rep., 184. 113. "^Farley v. Farley, 50 N. J. Eq., '^''Stewart v. Stewart, 56 N. J. 434. Lacey v. Dobbs, 63 N. J. Eq., Eq., 761. Affirmed, 57 N. J. Eq., 325. Bioren v. Nesler, 77 N. J. 664. Swain v. Edmunds, 53 N. J. Eq., 560. Bloom v. Terwilliger, 78 Eq., 142. Affirmed, 54 N. J. Eq., N. J. Eq., 221. In re Gahagan, 82 438. Beggans' Case, 68 N. J. Eq., N. J. Eq., 601. 572. 76 Allaire v. Allaire, 37 N. J. L., Execution of Wills. 141 acts also requisite on reason and authority, the proponent must estabhsh by evidence the performance of the latter acts.^* On proof of the authenticity of the signatures of the sub- scribing witnesses, the facts stated in the attestation clause must be accepted as true until it is shown by affirmative proof that they are not ; the burden of proof is thrown upon the con- testant to negative its averments.''' So where it is doubtful on the evidence whether the will was signed in the testator's pres- ence, the presumption arising from the statement of the attesta- tion clause is not overcome.^" So if the attestation clause is perfect, and shows on its face that all the requisites demanded by the statute have been complied with, and the subscribing witnesses when called admit their signatures, but through defect of memory, or other cause fail to testify to the due exe- cution of the will, it may be established by the presumption arising from the attesting clause, unless there be affirmative evidence given to disprove its statements,*^ and so where it appears from the attestation clause that the will offered for probate was signed and declared by the testator to be his last will in the presence of the subscribing witnesses, the statutory requirement that both witnesses should be present at the same time is shown to be complied with.*^ '■^Ayres v. Ayres, 43 N. J. Eq., Affirmed. 54 N. J. Eq., 438. In 569. Beggans' Case, 68 N. J. Eq., re Sandmann's Will, 68 Atl. Rep., 572. Bioren v. Nesler, "j^ N. J. 754. Berdan's Case. 65 N. J. Eq., Eq., 573. Affirrned. ^^ N. J. Eq. 68r. In re Gahagan, 82 N. J. 560. Bo we V. Naughton. 67 Atl. Eq., 601. Rep., 184. Allaire v. Allaire, yj ^'^Tappen v. Davidson, 2"] N. J. N. J. L., 312. Affirmed, 39 N. J. Eq., 459. McCurdy v. Neall, 42 L., 113. N. J. Eq., 333- ""Manners' Case, 72 N. J. Eq., ^lAHaire v. Allaire, zi N. J. L., 854. Allaire v. Allaire, 37 N. J. 312. Affirmed, 39 N. J. L., 113. L., 312. Affirmed, 39 N. J. L., Mundy v. Alundy, 15 N. J. Eq., 113. Mundy v. Mundy, 15 N. J. 290. In re Alpaugh, 23 N. J. Eq., Eq., 290. Tappen v. Davidson, 27 507. McCurdy v. Neall, 42 N. J. N. J. Eq., 459- Patton v. Hope, Eq., zzz. 37 N. J. Eq., 522. Elkinton v. 82Allaire v. Allaire, 37 N. J. L., Brick, 44 N. J. Eq., 154. Farley 312-327. Affirmed. 39 N. J. L., V. Farley, 50 N. J. Eq., 434. Swain 113. In re Kirkpatrick, 22 N. J. V. Edmunds, 53 N. J. Eq., 142. Eq., 463. 142 Probate Law and Practice. Where Subscribing Witnesses Are Dead or Absent from the Jurisdiction. If a will contains a perfect attestation clause, and if by rea- son of the death of the attesting witnesses, or their absence beyond the reach of process, or for any other cause, a founda- tion be laid for the introduction of secondary evidence, proof of their signatures will be evidence that what they attested did in fact take place.^^ Presumption May Be Rebutted. It is settled that the presumption arising from an attestation clause may be overcome by the evidence of the two witnesses who subscribed it, by that of other witnesses attacking its accu- racy, or by facts and circumstances irreconcilable with its verity. It will not be overcome, however, by mere forgetful- ness of the witnesses, or either of them. If the attestation clause is perfect, and one of the attesting witnesses corrobo- rates its accuracy, the testimony of the other attesting witness suggesting doubt, or his want of recollection, will not justify denial of probate.®* So where a will contained a perfect attestation clause and one of the witnesses, who was the attor- ney who drew the will, testified to its execution with all the required formalities, the court properly admitted the will to probate, though the other subscribing witness was not clear that the instrument was executed in accordance with such for- malities.®^ *But where the attestation clause of a will states that the testator declared it to be his will in the presence of the witnesses, the presumption arising from the attestation clause does not overcome the testimony of the witnesses that the tes- tator did not declare the instrument to be his will.®** And so where both of the subscribing witnesses, when called, while 83Allaire v. Allaire, 37 N. J. L., 72 N. J. Eq., 854. Mundy v. Mun- 312-325. Affirmed, 39 N. J. L., dy, 15 N. J. Eq., 290. Bioren v. 113. Nesler, T7 N. J. Eq., 560. 84McCurdy v. Neall, 42 N. J. ^'^In re Sandmann's Will. 68 Atl. Eq., 333. Berdan's Case, 65 N. J. Rep.. 754. Eq.. 681. Bogert v. Bateman, 65 ^^In re Clark's Will. 52 Atl. Atl. Rep., 238. Gunn v. Early, Rep.. 222. Affirmed, 64 N. J. Eq.. 71 N. J. Eq.. 717. Manner's Case, 361. Execution of Wills. 143 admitting the genuineness of their signatures testified that the paper was not signed by testator, nor the signature thereto acknowledged by him in their presence, and that their signa- tures were not made at the same time, nor in the presence of each other, although the evidence of one witness was open to serious doubt as to his recollection of the transaction, the evi- dence of the witness being found credible and to establish that he did not see the attestation clause or know its contents, and that the statements therein certified were not in fact true, it was held that the presumption arising from the attestation clause was overcome, and that probate should be denied.^" Burden of Proof. In the absence of an attestation clause, the burden is on the proponent to aftirmatively prove* compliance with all the statu- tory requirements.^^ So where the testamentary witnesses to a will were at variance as to the time when they subscribed their names and as to whether they had done so before or after the deceased had executed the paper, and the testimony of the witness who asserted that the signatures of the witnesses were made before the deceased executed the paper was corroborated by a witness present at the time, it was held that a conclusion against the validity of the execution was justified.^^** Proof of Execution. If one witness testify expressly to the fulfillment of every ceremony required by the statute, it will be sufficient.^" Testimony of Subscribing Witness. The testimony of the subscribing witnesses to a will that it was duly executed in their presence cannot be overcome, unless impeached, nor should it be disregarded upon proof simply of *^Berdan's Case, 65 X. J. Eq., J. Eq., 572. In re Van Handlyn's 681. Will, 83 N. J. Eq., 290. ssMundy v. Mundy 15 X. J. Eq., 8«Beggans' Case, 68 N. J. Eq., 290. Stewart v. Stewart, 56 N. J. 572. Eq., 761. Affirmed, 57 N. J. Eq., ""Mickle v. Matlack, 17 N. J. L.. 664. Vernon v. Vernon, 69 N. J. 86. Compton v. Mitton, 12 N. J. ^-q-. 759- Bioren v. Nesler, "]•] N. L., 70. Whitenack v. Stryker, 2 J. Eq., 560. Beggans' Case, 68 N. N. J. Eq., 8. 1 1 144 Probate Law and Practice. the improbability of their statements. ^^ So where three sub- scribing witnesses testified to the genuineness of testator's sig- nature, and the only evidence offered in opposition to the will was that of one expert and two non-expert witnesses, who gave opinions, from comparison of handwritings, disproving the genuineness of the signature, the will was admitted to pro- bate.^- When on appeal the record of a will, together with the depositions of the attesting witnesses made at the time of pro- bate, is offered in evidence, it is competent for the opposing party to show statements made out of court by one of the sub- scribing witnesses who had made such deposition, in order to contradict the statements thereof as to the due execution of the will. Such evidence standing alone will not, however, invali- date the instrument. ^'^ Declarations of Deceased Subscribing Witnesses. On a charge of fraud or forgery, the declarations and bad character of a deceased subscribing witness are admissible in evidence to impugn the presumption arising from his attesta- tion and signature ; but standing alone and unsupported, they are not sufficient to overcome such presumption.^* ^ Testimony of Others Than Subscribing Witnesses. The subscribing witnesses must be produced, if procurable, and great weight is given their testimony ; but the probate of the will is not dependent upon their recollection or veracity, and other testimony may be adduced to controvert or sustain their testimony.^^ So a will signed by the testator and a sufficient number of witnesses may be established by testimony aliunde that the formalities prescribed by the statute have been observed.^'' o^Boylan ads. Meeker, 28 N. J. ssSchouler on Wills, (3d. ed.), L., 274. sec. 348. Underbill on Wills, ^-Conway v. Ewald, 42 Atl. Rep., sec. 211. Paige on Wills, sec. 366. 338. 9fi Allaire v. Allaire, 37 N. J. L., ^^Otterson v. Hofford, 36 N. J. 312-325. Affirmed, 39 N. J. L., L., 129. 113. Compton V. Mitten, 12 N. J. s^Boylan ads. Meeker, 28 N. J. L., 70-75. L.. 274. CHAPTER IX. APPOINTMENT OF EXECUTORS. In General. The nomination of an executor in a will may be either express or constructive ; in the latter case he is usually called executor according to the tenor. ^ Any words conferring upon a person, expressly or by implication, substantially the rights and powers of an executor, amount to an appointment. It is sufficient if any language is used from which the intention of the testator to invest such person with the character of execu- tor may be inferred. - Where a will confers upon a person the powers and imposes the duties of an executor, such person is executor according to the tenor, although not named as such, or though he be named as trustee.^ So a direction to an individual to receive the prop- erty, to pay debts, and to divide the residue constitutes him an executor according to the tenor of the will.* So where a tes- tator's will directed his brother, after his debts were paid, to invest his property in some safe bank and to pay the interest thereon to his father, and further provided for the disposition of the same after his father's death, it was held that the brother was an executor according to the tenor f and so where the will, which was in the form of a letter, gave directions as to the dis- position of testator's property, and concluded : "I know of nothing else, my dear Eliza, to troul)Ie you with, and trust that this will not involve you in much," letters testamentary were ^i Williams on Executors, 189. ■'In re Goods of vSaunders. 11 ^Woerner on Administration, Jur. N. S., 1027. In re Goods of 503. Carpenter v. Cameron, 7 Cooper, 8 Jur., N. S., 394- Grant Watts, 51-58. Wolff e v. Loeb, g8 v. Spann, 34 Miss., 294. Ex Parte Ala., 426. 13 So. Rep. 744. Bay- AfcDonnell, 2 Bradf., (N. Y. eaux V. Bayeaux, 8 Paige (N. Y.), Sur.), 32. Ex Parte McConnick, 333-336. 2 Bradf., (N. Y. Sur.), 169. ^Lavaggi V. Borella, 7i N. J. ^Ex Parte McDonnell 2 Bradf., Eq., 419. (N. Y. Sur.), 32. 146 Probate Law and Practice. issued to the person to whom the letter was addressed." A direction to a person to pay debts or funeral expenses, not out of the general estate, but from a particular fund, will not, however, constitute him an executor/ So a mere direction to a legatee to pay the funeral expenses out of his legacy will not make him an executor f and the mere fact that testator makes an infant his executor, and appoints a guardian for the infant, does not constitute the guardian an executor.^ And where a will provided that the executors and witnesses should receive one sovereign for their trouble in seeing that everything was justly divided, and the will did not name any executor, but beneath the signature of the testatrix, and opposite the names of the subscribing witnesses, were the words, "executors and witnesses," it was held that there was no appointment of executors. ^^ If a testator bequeaths all of his goods to certain persons, whom he names, in trust for certain objects, constituting them trustees and conferring upon them the rights belonging to executors, but does not name any executor, the trustees will be held to be executors according to the tenor of the will.^^ The appointment of executors by construction or implication is not favored. In doubtful cases, administration with the will annexed must be resorted to.^" Appointment By Implication. An executor may be appointed by implication, as where a testator says: "I will that A be my executor, if B will not ;" in this case B may be admitted to the executorship.^^ So where a testator, without nominating his wife as executrix, appointed J. C. H. sole executor in the event of the death of ^In re Goods of Manley, 31 L. ^^In re Goods of Baylis. i L. R. J. P., 198, 8 Jur. N. S., 493- P- 21; 11 Jur. N. S., 1028. In '''In re Goods of Toomy, 3 S. & re Goods of Chappell. 37 L. J. P.. T.. 562. 32. In re Goods of Gale, 18 L. T. ^In re Goods of Smith, 10 Jur. N. S. 696. Myers v. Daviess, 49 N. S., 1084. Ky.. 394. Richards v. Moore, 5 9In re Goods of Stewart, L. R., Redf.. (N. Y. Sur.), 278. 3 P. & D., 244. i^Hartnett v. Wandell, 2 Hun. lojn re Goods of Woods, i L. R. (N. Y.), 552. P., 556. i'"i Williams on Executors, 192. Appointment of Executors. 147 his wife during the minority of his children, tlie wife was held to be appointed by implication.^* But where a testatrix, after naming executors, provided that if they should both die "prior to my decease," or in case they should both decline to act, then L. D. should be executor, and neither of them died until after testator's death, and one of them acted as executor and died, it was held that L. D. was not appointed executor by implica- tion, as in order to have him succeed to the administration of the estate, it would be necessary to reject the words, "prior to my decease." ^^ Delegation of Power of Appointment. A testator may delegate to a person named in the will the power of naming an executor.^'' So where the language of the will was, "I must beg A to appoint some one to see this my will executed," it was held that A might appoint himself.^' But where the will made C executor and trustee with power to appoint, by deed or will, other persons as co-trustees or suc- ceeding trustees, and C died without taking probate, but by will appointed E to be succeeding trustee in respect to the original testator's estate, it w^as held that in the language of the will the distinction between "trustees" and "executors" was so marked that E was not by C's will constituted executor of the will of the first testator. ^^ Where a will in appointing executors provided, "I authorize, empower and request my said executors" to appoint others to act with them in case the number of executors should fall below a certain number, it was held that a duty was imposed upon the executors to make such appointment, and that upon their failure to do so the court would compel the appointment.' '' So a will making the executors trustees, and in case of the death of one authorizing the survivors to appoint his successor, i^Bayeaux v. Bayeaux, 8 Paige Curtis, 51 N. E. Rep., 913. (Ind.) (N. Y.), 32i3- Bishop v. Bishop, 56 Conn., 208. ^^Fosdick V. Delafield, 2 Redf. ^^In re Goods of Ryder, 2 Sw. (N. Y. Sur.), 392. & Tr., 127. i«Hartnett v. Wandcll, 60 N. Y. i^Moss v. Bardswell, 3 Sw. & 346. In re Alexander's Will, 16 Tr., 187. Abb. Prac. (N. Y.), 9. Wilson v. i^Hutton v. Hutton, 41 N. J. Eq., 267. 148 Probate Law and Practice. imposes upon such appointee not only the duties of executor, but clothes him with the trust estate.-" But a provision in a will naming one as attorney of the estate, and directing the executrix to consult and employ him in all matters pertaining thereto, gives no power to the attorney to act as executor.-^ Conditional Appointment. A testator may in his will nominate a person as executor and provide that such appointment shall take effect upon the hap- pening of a certain event. Thus, where a testator's will appointed his son one of the executors, provided that he had arrived at the age of twenty-one years at testator's death, and testator died before his son reached the age of twenty-one years, the appointment of the son as executor was held not to take effect ;-- and where a testator by his will appointed his son, residing in Australia, executor, "if and when he shall return to England." it was held that the return of the son to England eight years after testator's death was a return within the meaning of the will, though he only came to England for the benefit of his health and returned to Australia six months later.'^ soMulford V. Mulford, 42 N. J. 22Knox v. Newman, 44 N. J. Eq., 68. Eq., 309. 2iln re Ogier's Estate, loi Cal.. -Hn re Arbib (1891), i Ch., 601. 381, 35 Pac. Rep., 900. CHAPTER X. FRAUD AND UNDUE INFLUENCE. General Principles. In adjudicating upon the admission of wills to probate, it is the manifest duty of the court to uphold the right of free tes- tamentary disposition of property and not to attempt to annul or control it by considerations wholly at variance with that right. It is its duty to sustain the instrument and admit it to probate, if it finds that it is the duly executed last will and testament of the testator. If he is proved to have been possessed of testamentary capacity at the time of making the will, and the will does not appear to have been the result of any fraud, and it is proved to have been duly executed, the court has no right to reject it.^ What Constitutes Undue Influence. Undue influence has been defined to be such influence as dominates the will of the testator and produces a testamentary disposition which he would not have made if not coerced by such influence.- The influence which the law denominates as undue must be such as to destroy the free agency of the testa- tor and amount to moral or physical coercion. It must be proved, moreover, that the act done was the result of such co- ercion. There must be a control exercised over the mind of the testator, or an importunity practiced which he could not resist, or to which he yielded for the sake of peace f and so ^Turner v. Cheesman, 15 N. J. N. J. Eq., 367. Haydock v. Hay- Eq., 243. Dietz's Case, 41 N. J. dock, 33 N. J. Eq., 494. Affirmed Eq., 284, 296. Affirmed, 42 N. J. 34 N. J. Eq., 570. Earle v. Nor- Eq., 689. Dumont v. Dumont, 46 folk, 36 N. J. Eq., 188. Affirmed, N. J. Eq., 223. Sanderson v. San- 37 N. J. Eq., 315. Elkinton v. derson, 52 N. J. Eq., 243-254. Brick, 44 N. J. Eq., 154. Fritz v. ^Byrnes v. Gibson. 6S Atl. Rep., Turner, 46 N. J. Eq., 515-517. Re- 756. versed, 49 N. J. Eq., 343. Clifton ^Lynch V. Clements, 24 N. J. v. Clifton, 47 N. J. Eq., 227. White Eq., 431. Moore v. Blauvelt, 15 v. Starr, 47 N. J. Eq., 244. Ben- 149 150 Pkobate Law and Practice. false representations made to a testator by a beneficiary, which merely induce the testator to the immediate execution of a pre- viously contemplated action, do not amount to undue influ- ence ;* but the fact that a testator had been induced to make a new will by false representations as to the contents of an exist- ing will is a proper element in the consideration of the question of undue influence, though the new will may not materially vary from the former one in respect to the subject-matter of the false representations.^ The undue influence which vitiates a will must be an influ- ence whereby some one is materially injured ; so where testator divided his property equally among his children, or approxi- mately so, there can be no complaint of undue influence f but a person cannot be unduly influenced to do that which it is his legal duty to do, and so where a testator had made his will devising a certain property which was subject to a mortgage which stood as collateral to the testator's own bond, and it was sought to show that the devisee unduly influenced the testator to pay such mortgage debt, thereby increasing the value of the property devised to him, it was held that even though it be proven that the devisee did in fact by importunity, or threats, constrain the testator against his will to pay the mortgage, this would not affect the validity of the will, as in paying the mort- gage the testator simply did what it was his legal duty to do.'^ Extent of Influence. The extent of the influence, whether powerful or slight, is wholly immaterial, the test being whether it was sufficient to render the will invalid.^ nett V. Bennett, 50 N. J. Eq., 439. ^j^joore v. Blauvelt, 15 N. J. Eq., Westcott V. Sheppard, 51 N. J. Eq., 367. 315. Schuchhardt v. Schuchhardt, •'In re Tunison's Will, 83 N. J. 62 N. J. Eq., 710. Ramsdell v. Eq.. 277. Streeter, 62 N. J. Eq., 718. Car- "Bennett v. Bennett, 50 N. J. rol V. Hause, 48 N. J. Eq., 269. Eq., 439. Gilham's Case, 64 N. J. Eq., 715. ^Turner v. Cheesman, 15 N. J. Buckman's Case, 80 N. J. Eq., Eq., 243. Lynch v. Clements, 24 556. In re Tunison's Will, 83 N. N. J. Eq., 431. Haydock v. Hay- J. Eq., 277. In re Brengel's Will, dock, 33 N. J. Eq., 494. Affirmed, 95 Atl. Rep., 750. 34 N. J. Eq., 570. Earle v. Nor- ^Stewart v. Jordan, 50 N. J. Eq., folk, 36 N. J. Eq., 188-192. Af- 733- firmed, 37 N. J. Eq., 315. Carroll V. Hause, 48 N, J. Eq., 269. Fraud and Undue Influence. 151 Condition of Mind and State of Testator's Health. The question whether an act is the product of undue influ- ence or not must always be largely controlled by the condition of mind and state of health of the person alleged to have been unduly influenced. ** That degree of influence which deprives a testator of his free agency, which he is too weak to resist, and which renders the instrument not his free and unrestrained act, will be sufficient to invalidate it, not only in relation to the person by whom it is procured, but as to all others who are intended to be benefited by the undue influence.^" Indicia of Undue Influence. What influence amounts to undue influence, in the legal sense, cannot be defined or described with exactness, but only HI general and approximate terms. Each case must be decided by the judicious application of general principles to the special facts and circumstances of the case.^^ It is only in exceptional cases that direct proof of undue influence can be had. The proof of it is generally by presumptions arising from circum- stances which produce conviction. There are well recognized indicia of vmdue influence, which, the courts hold, raise a pre- sumption, or justify an inference against the instrument, un- less the proponent can show that the will was the testator's free act ; such as the fact that the testator was enfeebled in mind ; within the control of the principal beneficiary, who was the draftsman of the will and present at its execution ; that nat- ural objects of the testator's bounty were excluded from the testator's society by the beneficiary when the will was made ; clandestinity and the like ;^- but whether in any given case there was undue influence exerted upon the testator must be deter- mined from the facts. It is not a presumption, but a conclu- sRaydock v. Haydock, 33 N. J. Eq., 431. Waddington v. Buzby, Eq., 494- Affirmed, 34 N. J. Eq., 45 N. J. Eq., I73- 570. izw^hite V. Starr, 47 N. J. Eq., lOLynch v. Clements, 24 N. J. 244-261. In re Barber's Will, 49 Eq., 431. Atl. Rep., 826. Sickles' Case, 63 iiLynch v. Clements, 24 N. J. N. J. Eq., 233. Affirmed, 64 N. J. Eq., 791. 152 Probate Law and Practice. sion.^^ So the existence of influence which arises from un- lawful or immoral relations, operating on a testator when a will is made, does not raise a presumption against the instrument, but will be regarded as a significant fact which calls for close and suspicious scrutiny/* Suspicious Circumstances. Suspicious circumstances, susceptible of an interpretation which favors honesty, are insufficient to establish undue influ- ence in the making of an officious will ;^^ and the mere posses- sion of influence, together with the opportunity and motive to assert it, is not sufficient to establish undue influence.^** Where, however, proof of the opportunity to exert influence is supple- mented by proof of the existence of relations of a confidential character, justifying the inference that testator relied upon the advice and assistance of the beneficiary in business matters, or by proof that the beneficiary exercised an actual control over the testator, as by excluding from communication with him others who would naturally be objects of his testamentary bounty, the burden of proof shifts, and explanation or denial is required." Fraud. While undue influence embraces fraud, fraud by no means embraces every species of undue influence, since it is quite sup- posable that one may readily exercise a degree of influence i^Moore v. Blauvelt, 15 N. J. Eq., 515. Reversed, 49 N. J. Eq.. Eq., 367. In re Humphrey, 26 343. Howell v. Taylor, 50 N. J. N. J. Eq., 513. Affirmed, 27 N. J. Eq., 428. Sanderson v. Sander- Eq., 567. son, 52 N. J. Eq., 243. i*Arnault v. Arnault, 52 N. J. ^'^Byrnes v. Gibson, 68 Atl. Rep., Eq., 801. Middleton's Case, 68 756. Schuchhardt v. Schuch- N. J. Eq., 584. Affirmed, ib., hardt, 62 N. J. Eq., 710. In re 798. In re Willford's Will, 51 Carter's Will, 60 N. J. Eq., 338. Atl. Rep., 501, and see "Burden of In re Willford's Will, 51 Atl. Rep., Proof," p. 161, infra. 501. In re Eatley's Will. 82 N. J. i^In re John Gleespin, 26 N. J. Eq., 591. In re Tunison's Will, Eq., 523. Kise v. Heath, 33 N. J. 83 N. J. Eq., 277. Eq., 239. Brick v. Brick, 43 N. J. ^'^Zelozoskei v. Mason, 64 N. J. Eq., 167. Affirmed, 44 N. J. Eq., Eq., 327, and see "Burden of 282. Fritz V. Turner, 46 N. J. Proof," p. 161. infra. Fraud and Undue Influence. 153 over the testator in producing the testamentary act, which upon every just ground is fairly entitled to be considered extreme and unreasonable, either in character or degree, without its being really fraudulent. ^^ A will which is the product of fraud, or fraudulent conduct, will be denied probate. So if a woman at or before a marriage ceremony represents herself as competent to marry, or conceals the fact that she is not so qualified, and her supposed hus- band consequently makes a will in her favor, believing her to be his wife, whereas she knew she had another husband liv- ing when she married said testator, such testamentary disposi- tion will be held void, if the representation or concealment was fraudulent and induced the execution of the will. Where, how- ever, testator was informed as to all the facts in the case, and was told by the woman, before marrying her. that she had a husband living, who, she thought, had obtained a divorce from her, and they were married with full knowledge of the facts, it was held that such circumstances showed no fraudulent rep- resentation or concealment.^^ Unfulfilled promises for the pay- ment of money by the widow of testator to a caveator, who withdrew from the contest in reliance thereon, and such prom- ises by the widow to others, who did not caveat, though ready to aid in the contest against the probate, but refrained there- from because of the promises, do not amount to fraud, either on the court, or on such persons, and are not ground for set- ting aside a decree admitting the will to probate; the parties merely having withdrawn from the contest relating to their personal rights and interests in consideration of promises which were not performed.-" Creation of False Impressions in Mind of Testator. Undoubtedly a knowingly false representation of facts to one who proposes to make a testamentary disposition of prop- erty, intended to influence and actually influencing his testa- mentary act, made by one who seeks and obtains advantage thereby, may be admitted to be an exertion of an influence that isLynch v. Clements, 24 N. J. 20Myer's Case, 67 N. J. Eq.. 560. Eq., 431, at p. 435. Affirmed, 69 N. J. Eq., 793- laPhilip Dries Case, 69 N. J. Eq., 475- 154 Probate Law and Practice. is undue, the will of the deceased being deemed to be dom- inated, not by excessive persuasion, threats or force, but by fraud.^^ It is essential however, in order to avoid a will for fraud of this nature, that the statements made should be false. Thus, where the only evidence of undue influence was the ex- citing of the testator's anger against his daughter because of certain visits of a certain person at her house, and it was not shown that the number of such visits was misrepresented, or that his mind was excited to an undue degree of indignation on that account, it was proper to admit the will to probate. " A case of undue influence by false statements or suggestions on the part of a daughter who lived with testatrix will not be made out by mere proof that she acquiesced in her mother's strong prejudice against the caveator by reason of an inference drawn by her in respect to caveator's conduct, without proof that she knew, or at least had reason to believe, that her moth- er's prejudice was unwarranted by the facts. If her mother had questioned her with respect to the facts, and especially if she had connected such questioning with her preparations to make a will, perhaps duty would have required her to disclose the real facts, and her suppression of them might be consid- ered fraudulent, and, if it influenced the mother, the influence might be considered undue f^ and a decree admitting a will to probate was reversed, where it appeared that testator was a semi-imbecile, subject to the influence of a sister, who was made his principal legatee, and who exerted influence against another sister by telling testator that the other sister intended to put him in an insane asylum.-* The mere fact that a favored legatee and devisee openly denounces a person who is discrim- inated against, to a testatrix who is well in body and strong in mind, and is surrounded by friends, is not sufficient proof to create a presumption against the instrument.^^ ^^Stewart v. Jordan, 50 N. J. -^Alexander's Case, 27 N. J. Eq., 733. Zelozoskei v. Mason, Eq.. 463. Affirmed, 29 N. J. Eq., 64 N. J. Eq., 327- 649- 22In re Corblis' Will, 52 Atl. ^sDumont v. Dumont. 46 N. J. Rep., 996. Affirmed, 65 N. J. Eq., Eq., 222,. Salter v. Ely, 56 N. J., 768. 357. Affirmed, 58 N. J. Eq., 581. 23Zelozoskei v. Mason, 64 N. J. Eq.. 227. Fraud and Undue Influence. 155 Advice or Suggestions. Mere advice or suggestions to a testator that an indicated testamentary disposition would be productive of justice be- tween the natural objects of his bounty does not destroy the freedom of testator's will, nor constitute undue influence suffi- cient to vitiate the will.-^ To attempt to persuade a testator, however, is treading upon dangerous ground, for the result may be that he will be led to assent to that which, of his own free will, he would not have assented to. It is impossible to distinguish by a fixed rule between acts which are within the bounds of legitimate influence and those which make the in- fluence undue. Similar acts may be trifling and of no im- portance in the case of one person, and overmastering in the case of another. Their efifect must depend upon the relations between the parties and the character, strength and condition of each, and must be determined by the application of sound sense to the facts of each case.-^ Suggestions and persuasions by members of testator's house- hold as to what disposition he should make of his property are not necessarily improper. They would not constitute in- fluence which is undue unless they became importunities so pressing, or repeated, as to render testator powerless to resist them.^* So where testator was enfeebled with disease and lived with his wife and certain children at home, other children living elsewhere and visiting him occasionally, and he had previously declared his intention not to make a will, and under his will certain children living at home received a larger share of his property than they would have had if he had died intes- tate, and there was evidence that his wife had suggested to him that it would be unfair to his other children if a certain child should receive an equal share of his estate, owing to his previous gifts to her, it was held that this evidence was insuffi- cient to show undue influence on the part of the wife and the children who resided at home.^® 26Elkinton v. Brick, 44 N. J. ^sArmstrong v. Armstrong, 6q Eq., 154. Tunison v. Tunison, 4 N. J. Eq., 817-826. Brad. Sur. (N. Y.), 138. -Hn re Barber's Will, 49 Atl. 27Elkinton v. Brick, 44 N. J. Rep., 826. Eq.. 154-166. 156 Probate Law and Practice. Importunity. As has already been seen, it is impossible to distinguish by a fixed rule between acts which are within the bounds of legitimate influence and those which make the influence undue ; and the effect of all acts must depend upon the relations be- tween the parties to them, and the character, strength and con- dition of each, and must be determined by the application of sound sense to each given case.^° Suggestion, and even persua- sion, may be safely used with the testator, if they do not de- stroy free agency, or amount to moral or physical coercion. No rule can be laid down to define the limit of legitimate in- fluence, but each case must depend upon and be determined by the circumstances and conditions which surround it.^^ So the fact that a testator's wife urged upon him the propriety of leaving his property to her does not constitute undue influ- ence,^- nor does the fact that a wife requests her husband to appoint her one of the executors of his will f^ but importunity, which cannot be and is not resisted, is undue influence.^* AfTection and Kind Offices. The influence of affection and kind offices, unconnected with fraud or contrivance, though it induces gratitude and testa- mentary recompense, is not undue,^^ and the influence exerted by members of testator's household, if arising only from good- will and affection, is not undue. ^"^ So influence, the result of ^^Elkinton v. Brick, 44 N. J. Eq., son, 2 N. J. Eq., 82. In re Glee- 154- spin, 26 N. J. Eq., 523. Eddy's 3iMcCoon V. Allen, 45 N. J. Case, 32 N. J. Eq., 701. Reversed. Eq., 708. Anderson v. Eggers, 61 33 N. J. Eq., 574. Dumont v. Du- N. J. Eq., 85. Reversed, 63 N. J. mont, 46 N. J. Eq., 223-230. Clif- Eq., 264. ton v. Clifton, 47 N. J. Eq., 227. 32Hughes v. Murtha, 3 N. J. White v. Starr, 47 N. J. Eq., 244. Eq., 288. Lynch v. Clements, 24 N. J. Eq., 33Black v. Foljambe, 39 N. J. 431. Byrnes v. Gibson, 68 Atl. Eq., 234. Rep., 756. 34Elkinton v. Brick, 44 N. J. Eq., 36Armstrong v. Armstrong, 69 154. N. J. Eq., 817-826. In re Craft's 35In re Eatley's Will. 82 N. J. Estate. 94 Atl. Rep., 606. In re Eq., 591- Trumbull v. Gibbons, 22 Eatley's Will, 82 N. J. Eq., 591. N. J. L., 117. Lowe v. William- Fraud and Undue Influence. 157 kind and faithful services by an attendant for many years, is not undue, and will not invalidate a bequest to such attendant f^ and so influence acquired by kind offices, though exerted over a testator above eighty years of age, whose bodily faculties are impaired, and who, without good reason, entertains feelings of hostility to his family, cannot invalidate the will.^^ Threats. Threats of personal estrangement and non-intercourse ad- dressed by a child to a dependent parent, or threats of litiga- tion between the children to influence a testamentary disposi- tion of property by the parent, constitute undue influence.'® So where a widower, eighty years old and bedridden with paralysis, having five children, made a will leaving to one son and his wife, who lived with him, nearly all his property for their lives, having been influenced to do so by the threat of this son that otherwise he and his wife would leave the testator, it was held that the will was a product of undue influence.'**' EfTect of Confidential Relations Between Testator and Ben- eficiary. The existence of confidential relations between the testator and a favored beneficiary, standing alone, does not necessarily constitute undue influence. It is but natural that a person when disposing of his property in anticipation of his decease should give it to those with whom he is on terms of friendship, rather than to strangers. He will naturally remember the claims of his wife and his children ; or, in case he has no im- mediate kindred, he may be prompted by gratitude or affec- tion to benefit those with whom he resides, or with whom he is connected socially.*^ So the mere fact that the sole beneficiary of the will was the confidential companion and business ad- viser of the testator for several years prior to his death is not 37In re Eddy, 32 N. J. Eq., 701. ^ogickles Case, 63 N. J. Eq.. 233. Reversed, 33 N. J. Eq.. 574. Affirmed, 64 N. J. Eq., 791. 38Lowe V. Williamson, 2 N. J. *^i Underwood on Wills, 206. Eq., 82. In re Brengel's Will, 95 In re Eatley's Will, 82 N. J. Eq.. Atl. Rep., 750. 591, and see "Effect of Confiden- •'"Moore v. Blauvelt, 15 N. J. tial Relations." p. 162, infra, l-.q., 367. 158 Probate Law and Practice. of itself evidence of undue influence.*- And so the mere fact that testatrix had great confidence in her brother, appealed to him for advice, and accepted from him such assistance and counsel in the management of her business as she had a right to expect from one standing in so close a relation, and that this brother rendered such assistance, cannot and ought not to be made the foundation and sole support of a claim that he im- properly influenced her in favor of his children ; there should be proof of other facts or circumstances from which it may be fairly inferred that the will of the testatrix was dominated by that of the brother, and her free agency thereby destroyed.*^ So the confidential relationship existing between a testator and his spiritual, as well as secular, adviser, who was made residu- ary legatee, is not alone sufficient to raise a presumption of undue influence.** A relation par amour carries no presump- tion of the exertion of undue influence by the mistress ; but as the law abhors immorality, when the influence which produces a will arises from an immoral relation, its existence, standing as a significant fact, will be closely and suspiciously scrutinized by the courts, to observe whether the challenged act of the man was induced by an undue interference with his free action.*' The existence of confidential relations between the testator and the favored legatee, supplemented by other indicia of undue influence, such as the exclusion from testator of the natural objects of his boimty, clandestinity in the execution of the will or the active participation of the favored legatee in procuring its execution, will in many cases raise a presumption of undue influence. Thus, where it is established that testator was mentally enfeebled by disease, and under the control of the principal beneficiary, who was present at the execution of the will, and that the natural objects of the testator's bounty were excluded from his society when the will was made, the burden is upon such legatee to show that the instrument was *-Wheeler v. Whipple, 44 N. J. ^^Arnault v. Arnault, 52 N. J. Eq., 141. Affirmed, 45 N. J. Eq., Eq., 801. Schwalber v. Ehman, 367- 62 N. J. Eq., 314. Middleton's 43McLaughlin's Case, 69 N. J. Case, 68 N. J. Eq., 584. Affirmed, Eq., 479- ib., 798. In re Willford's Will, **In re Sparks' Case, 63 N. J. 51 Atl. Rep., 501. Eq., 242. Fraud and Undue Influence. 159 executed without the exercise of undue influence by him.*'' This rule has been extended to a case in which testatrix pos- sessed testamentary capacity "equal to any woman" ;■*' and where the testator has made an unnatural disposition of his property, it is applied still more strictly.*^ So where testator was ninety years of age, and had exhibited signs of mental de- cline, and had made a prior will making an almost equal dispo- sition among his children, and his later will favored the child accused of exerting undue influence, and none of testator's children, except the son who was alleged to have unduly in- fluenced the testator, were present when the will in question was made, and by said son's direction it was concealed from them, it was held, in view of testator's mental condition, to warrant the setting aside of the will for the undue influence of the son.*^ So where a testator, who was weak minded and easily influenced, and who was in the last stages of consump- tion, went to live with a boyhood friend, an active business man of acute mind, and about a month later made his will, leaving all his property to the friend and not mentioning a sister, his next of kin, and the will was drawn by a lawyer, who was named as executor, with whom the beneficiary had his office, the beneficiary bringing written instructions from the testator to the lawyer for the disposal of his property, it was held suffi- cient to establish that the will was executed under the undue influence of the beneficiary.^" Operation and Effect. When it is shown that a portion only of a will is the product of undue influence, and such portion can be severed from the ^•'Haydock v. Haydock, 34 N. J. Sparks' Case, 63 N. J. Eq., 242, Eq., 570. Dale v. Dale, 38 N. J. and see "Effect of Confidential Eq., 274. Byard v. Conover, 39 N. Relations,'' p. 162, infra. J. Eq., 244. Waddington v. Buzby, ^^Ramsdell y. Streeter, 62 N. 43 N. J. Eq., 154. Reversed, 45 J. Eq., 718. N. J. Eq., 173. Brick v. Brick, 43 ^^Carroll v. Hause, 48 N. J. Eq., N. J. Eq., 167. Affirmed 44 N. J. 269. Eq., 282. Boisaubin v. Boisaubin, '♦"Edwards v. Edwards, 63 N. J. 51 N. J. Eq., 252. Koegel v. Eg- Eq., 224. ner, 54 N. J. Eq., 623. Claffey v. ^oBarkman v. Richards, 63 N. J. T.edwith, 56 N. J. Eq., 333. In re Eq., 211. 12 i6o Probate Law and Practice. remainder, the whole will is not necessarily void, but the por- tion unaffected by the undue influence will be admitted to pro- bate.^^ But in a case where there is great doubt upon the evidence, the court will not reject so much of the will as, from fraud in its inception or other cause, is not to be taken as testa- tor's will, and admit the residue to probate f- and where it is impossible to determine to what extent specific legacies have been tainted by undue influence, the whole will must be set aside on the ground of undue influence/'^ A will obtained by undue influence may be ratified by the testator's retaining it in his possession uncancelled for any considerable length of time after its execution, and after the removal of the influence.'"'* In the case of Small v. SmalU^^ the will remained uncancelled for four years. In Wilson v. Moran,^^ it so remained for six years ; and in Pierce v. Pierce,^' it was kept by the testator nearly two years after its execution, when he was alleged to have been intoxicated. EVIDENCE. PRESUMPTIONS AND BURDEN OF PROOF. General Rules. The legal presumption is always in favor of the will : and one who contests its validity on the ground that it was the product of undue influence must primarily establish that such influence existed as is called undue.^^ As has been said above, whether in any given case undue influence was exerted upon sijarman on Wills, 37. In re 54j„ re Seaman, 6 N. J. L. J., Cooper's Will, 75 N. J. Eq., I77- 201. Taylor .v. Kelly, 31 Ala.. 59. Affirmed, 76 N. J. Eq., 614. and see Shailer v. Bumstead, 99 Mass., in re Will of Henry Vanderveer, 112. 20 N. J. Eq., 463-470. Reversed, ^^^'4 Greenl. (Me.) 220. 21 N. J. Eq., 561. •'^63 Bradf., 172-178. s^In re Vanderveer. 20 N. J. sr^g Mich., 412-418. Eq., 463. Reversed, 21 N. J. Eq., •'•^Byrnes v. Gibson, 68 Atl. Rep., 61. 756. Day v. Day, 3 N. J. Eq., 53In re Cooper's Will, 75 N. J. 549- In re Craft's Estate, 94 Atl. Eq., 177. Affirmed, 76 N. J. Eq., Rep., 606. In re Eatley's Will, 82 614- . N. J. Eq., 591. Fraud and Unduk Influence. i6i testator, must be determined from the facts ; it is not a pre- sumption, but a conclusion."''' As has been said before, mere possession of influence, and opportunity and motive to exert it, afford no presumption of undue influence : it must appear, either directly or by justifiable inference from facts proved, that the influence was exerted, and operated to dominate testator and to coerce him to make a disposition of his property which he would not otherwise have made.®" So the inference of undue influence will not be drawn alone from proof of opportunity to exert it, nor will influence be deemed undue which may be reasonably inferred to have been produced by kind attentions and services rendered by the beneficiary.®^ Suspicious circumstances susceptible of an interpretation which favors honesty are insufiicient to establish undue influence, in the production of an ofiicious will."- Fraud in the making of the will should not be inferred because it was possible or even probable, but should be shown by positive proof, or by circumstances of such force as not to permit of serious doubt f^ and though fraud in procuring a will may be inferred, the inference cannot lawfully be drawn, unless it is natural and necessary, and the court will refuse to impute fraud when the evidence does not necessitate a belief in its existence."* Burden of Proof — In General. The general rule is that the party alleging fraud or undue influence must prove it, either directly, or by establishing such circumstances as will warrant a presumption against the instru- ment which, in the absence of affirmative evidence showing that the paper was the spontaneous act of the testator, must control ""^In re Humphrey, 26 N. J. Eq., Atl. Rep., 756. and .see "Suspicious 513. Affirmed, 27 N. J. Eq., 567. Circumstances," p. 152, supra. ^"Schuchhardt v. Schuchhardt, *^-Howell v. Taylor, 50 N. J. Eq., 62 N. J., Eq., 710, and see "vSus- 428 and see "Suspicious Circum- picious Circumstances," p. 152, stances." p. 152, supra, supra. "•Tn re Vanderveer, 20 N. J. P"q., 6iln re Anastasia Davis, 73 N. 463. Reversed, 21 N. J. Eq., 561. J. Eq., 617. Byrnes v. Gibson. 68 «*Dale v. Dale, 36 N. J. Eq., 269. Reversed, 38 N. J. Eq., 274. i62 Probate Law and Practice. as a conclusion of fact."' The burden is upon the party claim- ing a will to have been the result of undue influence to estab- lish, not only that such influence existed, but that it produced a testamentary disposition which the testator would not have made if he had not been coerced.'^" When undue influence is claimed to be established by inference from facts and proofs, and upon all the facts proved an equally justifiable inference may be drawn that the will executed was such as the testator vminfluenced would have made under the circumstances, the burden on contestants is not supported.*'' Effect of Confidential Relations. It is settled that the voidability of gifts inter vivos and the invalidity of wills upon the ground of undue influence rest upon difl:erent considerations. In the first class of cases, there arises a prima facie presumption of undue influence whenever a donee occupies a confidential relation to the donor. In this class of cases, it is essential that the donor shall have the oppor- tunity of receiving advice from an independent competent adviser. In the second class of cases, however, there is no prima facie presumption of undue influence merely because the beneficiary stood in a confidential attitude toward the testator, nor does the fact that the testator did not seek or have inde- pendent advice of itself raise a presumption of undue influ- ence.**^ The rule requiring a person disposing of his property by will to exercise judgment independently of the confidence induced by his confidential relationship with his legal adviser only requires that the testator exercise his independent judg- 65Kise V. Heath, Z2> N. J. Eq., 72, N. J. Eq., 617. Johnson's Case, 239-244. Stoutenburgh v. Hop- 80 N. J. Eq., 525. kins, 43 N. J. Eq., 577. Affirmed, •'ein re Anastasia Davis, 7i N. 45 N. J. Eq., 890. Dumont v. Du- J. Eq., 617. mont, 46 N. J. Eq., 223. Salter v. erschuchhardt v. Schuchhardt, Ely, 56 N. J. Eq., 357- Affirmed, 62 N. J. Eq., 710. 58 N. J. Eq., 581. Schuchhardt v. esgpark's Case, 63 N. J. Eq., Schuchhardt, 62 N. J. Eq., 710. 242. In re Cooper's Will, 75 N. Barkman v. Richards, 63 N. J. J. Eq.. 177. Affirmed, 76 N. J. Eq., 211. In re Anastasia Davis, Eq., 614. Fraud and Undue Influence. 163 ment, and does not reqnire proof of proper independent advice."^ The mere fact that proponent occupied a position of trust and confidence toward the testator, coupled with the fact that he is the residuary legatee, does not create a presumption against the validity of the legacy given by the will, and throw upon him the burden of establishing the absence of undue influence. So the mere fact that the sole beneficiary of the will was the confidential companion and business adviser of the testatrix for several years prior to her death does not throw the burden of proof upon such beneficiary to prove the absence of undue influence, when there is no evidence that he took advantage of her position.'" If, however, these bare facts are combined with other circumstances tending to show impo- sition, such a presumption arises, and the burden is cast upon the legatee to rebut it.'' Slight circumstances, in addition to such relations, will throw on the beneficiary the burden of showing that testator was not unduly influenced.'- Such is the case if the evidence shows that the testator was of weak mind.''^ So also if the legatee selects the witnesses, or makes an effort to exclude the natural objects of testator's bounty from his society, or conceals the making of the will or the fact that the will has been made.'* So if the legatee drew the will, or caused it to be drawn in his own favor.'' So where an attorney, who had been the legal ^^In re Cooper's Will, 75 N. J. 614. In re Gordon's Estate, 89 Eq., 177. Affirmed, 76 N. J. Eq., Atl. Rep., 33. 614. -sDale V. Dale, 38 N. J. Eq., ^^Wheeler v. Whipple, 44 N. J. 274. White v. Starr, 47 N. J. Eq., Eq., 141. Affirmed, 45 N. J. Eq., 244-261. Barkman v. Richards, 367. 63 N. J. Eq., 211-213. In re Anas- ''Hn re Gordon's Estate, 89 Atl. tasia Davis, 73 N. J. Eq., 617. Rep., 33. Spark's Case, 63 N. J. '^^Wheeler v. Whipple, 44 N. J. Eq., 242. In re Cooper's Will, 75 Eq., 141. Zelozoskei v. Mason, 64 N. J. Eq., 177. Affirmed, 76 N. J. N. J. Eq., 327. White v. Starr, Eq., 614. Zelozoskei v. Mason, 47 N. J. Eq., 244-261. 64 N. J. Eq., 327. Armstrong "^Dale's Appeal, 57 Conn. 127, V. Armstrong, 69 N. J. Eq., 817. 17 Atl. Rep., 757. Barkman v. In re Banvard's Estate, 89 Atl. Richards, 63 N. J. Eq., 211. In re Rep., 1024. Spark's Case, 63 N. J. Eq., 242. 72In re Cooper's Will, 75 N. J. White v. Starr, 47 N. J. Eq., 244- Hq., 177. Affirmed, 76 N. J. Eq., 261. 164 Probate Law and Practice. adviser of testatrix for some years, prepared her will and codi- cil, whereby he was appointed executor and received a specific legacy and a large share of the estate as residuary legatee, his son being also given a specific legacy by the will, and the attorney also procured the witnesses to the will and codicil, and both were executed under his personal supervision, it was held that there was a presumption of undue influence on his part, and that the burden of proof was on him to show that the will was the free act of the testatrix.'" So where a testator, who was weak-minded and susceptible to slight influence, resided with one of his four brothers, who then apparently dominated him, and who attended testator to the office of a lawyer, where, in his presence, testator made his will, by which he gave his entire estate to this brother to the exclusion of his other broth- ers, after which the favored brother took the will, endorsed it as the will of the testator, and retained it until after testa- tor's death, it was held that the burden was upon the favored brother to show that the instrument was executed without the exercise of undue influence by iiim.'" So where a woman, whose mind was enfeebled by long indulgence in drink, and who was frequently delirious for one or two days afterwards from the effects of the debauch, made a will in favor of a church, in the presence of the priest, who administered to her the last sacraments, which will was contrary to an agreement with her husband, and the priest kept the will and no one men- tioned it to the husband, it was held that the circumstances were indicia of undue influence, and that the burden of proof was upon the priest to show that the will was freely made."* But the relations between testatrix, a widow of about fifty years of age, suft'ering from a fatal illness, and her sister, the benefi- ciary, with whom she lived, testatrix being at liberty to visit other relatives, some of whom were at enmity with the bene- ficiary, who nursed and ministered to her, is not a confidential relation, such as would with other slight circumstances, create a presumption of undue influence.^" ^6In re Cooper's Will, 75 N. J. '^^n re Howard, 9 N. J. L. J.. Eq., 177. Affirmed, 76 N. J. Eq., 144. 614- •'9In re Eatley's Will, 82 N. J. "Boisaubin v. Boisaubin, 51 N. Eq., 591. In re Brengel's will, 95 J. Eq., 252. Atl. Rep., 750. Fraud and Undue Influence. 165 In the case of Dale v. Dale^° the Court of Errors and Appeals threw the burden on a son to show his mother's free agency in making a will, where it was made to appear that the mother was of feeble mind ; that this son was instrumental in prepar- ing the will ; that by it he took the bulk of the estate, to the exclusion of a brother for whom the mother had expressed affection before coming under the beneficiary's influence ; and that the mother was prejudiced against the injustice of disin- heriting a child, although the son charged with exerting the undue influence was hundreds of miles from his mother at the time the will was made, and had not seen her for weeks, though in correspondence with her about the execution of the will. When Burden Sustained. Where the burden is cast upon the proponents of a will to show that undue influence has not been exerted, such burden will, as a general rule, be sustained by a general denial of undue influence by the person alleged to have exercised it, if other- wise credible and not challenged by other facts ; but where testatrix made a will in favor of a church in the presence of the priest, who administered to her the last sacraments, and there were sufficient indicia of undue influence found to cast the burden of proof of showing the absence of undue influence upon proponents, it was held that such burden was not suc- cessfully sustained by a general denial by the priest of undue influence, coupled with a refusal to tell what was said in the confessional f^ and such burden will not be sustained by the opinions of the subscribing witnesses that the testator had not been influenced, and the fact that the testator, during the months covered by the process of will-making, had echoed the arguments of the favorite heirs for partially disinheriting a proper object of his bounty, where the favorite heirs did not testify and explain their participation in the making of the will or deny the exertion of undue influence.**- So the fact that the testator, while still surrounded by the same influences, ex- ^038 N. J. Eq., 274. 82ciaffey v. Ledwith, 56 N. J. s^In re Howard, 9 N. J. L. J., Eq., 333. 144. In re Eatley's Will, 82 N. J. Eq., 591-600. J 66 Probate Law and Practice. pressed his g'ratitude toward the beneficiaries and his satisfac- tion with the will he had made, is not sufficient to prove the absence of undue influence.^^ But the testimony of a legatee charged with having obtained a will by undue influence, cannot be arbitrarily disregarded, where such testimony is not contra- dicted by other credible testimony, or discredited by its own improbability.^* But the testimony of a legatee trying to save his legacy by his own testimony is to be viewed with careful and even jealous scrutiny; if, however, his statements are veri- fied by other circumstances, or by the experience of ordinary human conduct of persons similarly conditioned, they are not to be disregarded;^^ and the uncontradicted testimony of the beneficiary of a will that there was no attempt on her part to influence testator's testamentary disposition, and that the sub- ject of the will was not even mentioned between them, supports a finding that there was no undue influence exercised.*'' Effect of Participation of Legatee in Execution of Will. The fact that the draftsman of the will is a favored legatee, or even the sole legatee, while it calls for suspicious scrutiny, will not invalidate the will without some more certain evidence of fraud or undue influence.*^ No matter if the will is drawn by the principal, or even sole legatee, if it is made by a testator possessing adequate capacity, and it is shown that he knew its contents when he published it, and it appears to have been executed in the manner prescribed by the statute, the court must in obedience to the law of the land uphold it as the will of the testator and admit it to probate, unless satisfactory evidence is produced, showing that it is the product of fraud. Every person competent to make a will has a right, as incident to the right of testamentary disposition, when he desires to put his testamentary wishes into legal form, to the aid of any per- ssSickles' Case, 63 N. J. Eq., s-Rusling v. Rusling, 36 N. J. 233. Affirmed, 64 N. J. Eq., 791. Eq., 603. Brick v. Brick, 43 N. 8*In re Cooper's Will, 75 N. J. J. Eq., 167. Affirmed, 44 N. J. Eq., 177. Affirmed, 76 N. J. Eq., Eq., 282. Waddington v. Buzby, 614. 45 N. J. Eq.. 173. Bennett v. Ben- 85In re Willford's Will, 51 Atl. nett, 50 N. J. Eq., 439. Koegel v Rep., SOI. Egner, 54 N. J. Eq., 623. seQrant v. Stamler, 68 N. J. Eq., 555. Fraud and Undue Influence. 167 son he may select. This right in this respect is absohite; and when he exercises this right according to his own mind, free from all improper control, though he select the person he intends to make his principal beneficiary, that fact standing alone, and in the absence of any evidence tending to show an abuse of confidence, constitutes no reason whatever why pro- bate of the will should be refused.*** So evidence that the hus- band of the chief beneficiary under a will instructed the drafts- man was held insufficient to establish undue influence, where it appeared that the provisions of the will were those insisted on by the testatrix, and that they were radically diti'erent from the provisions he had suggested.*^ So the facts that the drafts- man of the will is executor, and his wife and son are favored legatees, while they call for suspicious scrutiny, will not invali- date the will without more certain evidence appearing of fraud or undue influence. ^^ The fact that present and former members of testator's household, giving attention to him when he sorely needed it, remained in his room while he gave instructions to his lawyer, and while he executed his will, which was very favorable to them, even though their conduct in that respect may be charac- terized as indecorous and improper, will not justify the infer- ence that such presence constituted undue influence, because that requires the assumption that their presence operated to destroy testator's free agency and so dominated his will as to compel him to do what he did not desire to do; if their pres- ence reminded him of their love and attention, and recalled or stimulated his own feelings of affection for them, the influence thus produced cannot be said to be undue, unless it deprived him of the power to do what he wanted to do.^' But where the person who drafts a will, which bestows upon him a sub- stantial part of the testator's estate, procures its execution in his own family, with no other witnesses present, except one ^^Bennett v. Bennett, 50 N. J. soQilman v. Ayer, 47 Atl. Rep., Eq., 440. Waddington v. Buzby, 1049. Affirmed, 63 N. J. Eq., 806. 45 N. J. Eq., 173. Johnson's Case, ^^Waddington v. Buzby, 45 N. J. 80 N. J. Eq., 525. In re Cooper's Eq., 173. Will, 75 N. J. Eq., 177. Affirmed, oiArmstrong v. Armstrong, 69 76 N. J. Eq., 614. N. J. Eq., 817-825. i68 Probate Law and Practice. whom the evidence discloses as his intimate friend, the court in which probate of the will is sought should be cautious and careful in its examination of the facts, and in its determination that it was the free act of the testator. This is particularly so when he who drafts the will is not related to or connected with the alleged testator, and there is no proof of such a degree of intimacy as would render it apparently natural that the testator should pass over the claims of near relatives, with whom he was on terms of affection, in favor of the scrivener ;^- and a lawyer, employed by a testatrix with unsettled testamen- tary notions as to the disposition of her entire estate, to draw her will, can participate in her bounty in a material degree, only after a very clear exhibition that his conduct was fair and unobjectionable, and that the testatrix exercised with relation to her bounty to him a judgment independent of the confidence induced by his confidential relation to her.®^ Unequal or Unjust Disposition of Property. The right or dominion over property is not a natural one. It is a product of the social compact, bestowed as a reward for the virtues or superiority by which the property was produced or acquired. When a man dies, the property which he has accumulated must remain behind him, and he possesses no nat- ural right to transmit it to persons of his selection. Under natural law, at his death, it would go to the strong, and those to whom he would give it might never take. Here again the social compact pledges itself to enforce his disposition of it. The only requisites to this enforcement are, that he shall observe specified formalities, be of certain age, and possess mental capacity. His power of disposition is absolute. Pos- sessing capacity, he may give to whom he pleases. This power is a weapon to the weak and the old, who, without it, might be despised and neglected. The courts cannot reject a will, be- cause it does not comport with their ideas of propriety and jus- tice, or even because it appears to be unreasonable, unjust, injudicious and cruel, li the testator observes the require- 92Skillman v. Lanehart, 73 N. J. ^^Farnum v. Boyd, 56 N. J. Hq- 344 Eq., 766. Fraud and Undue Ixfluexce. 169 nieiits of the law, and possesses capacity, he may lawfully make an unjust will.''^ In the case of Den v. Gibbons:"' Chief Justice Green used the following language: "If this will be invalid, no virtue of the testator can sustain it. If valid, no vices of the testator can impair it. ]\Iuch less can the validity of this will depend upon the consistency of its provisions with our ideas of fairness or propriety, or even with the principles of justice and humanity. Such a test of its validity would be certainly subversive of an absolute control and dominion which the law gives to everv man over his own property. The question for decision is not. is this a fair will, a just will, an equitable will, the will of a right thinking man and a kind-hearted father, but is it Thomas Gib- bons' will?" It is only upon allegations of fraud that the court will inquire into the reasons for changes and inequalities in testamentary dispositions ; and then it will consider them merely in connection with and as corroborative of proofs which tend to show that the will was not the voluntary act of the per- son who made it."" "Inofficious" is the equivalent of unnatural. The term is predicable of such instruments as ignore the moral claims upon the testator which the ties of kinship suggest. When, as has before been seen, there is a glaring disregard by a testator of a child — especially if such child is helpless by reason of infancy or disease — in favor of a stranger, a court, while saying that a man can do as he please with his property, will be alert in seek- ing for the presence of some influence which must have warped his judgment and controlled his will. The testamentary act is so unlike the product of a healthy and independent mind, that the act alone is strongly evidential of the existence of some extrinsic undue influence. The probative force of such a test- amentary act rises and falls in the degree of its unreasonable- ness ; and therefore the character and degree of probative force 9*Smith V. Smith, 48 N. J. Eq., J. Eq., 446-458. Dumont v. Du- 566-590. Bennett v. Bennett, 50 mont, 46 N. J. Eq., 223. Bennett N. J. Eq., 439. V. Bennett, 50 N. J. Eq., 439, and ^^22 N. J. L., 117-141. see "Unequal or Unjust Disposi- ^Hn re Eatley's Will, 82 N. J. tion of Property," page 168. Eq., 591. Kitchell v. Beach, 35 N. supra. 170 Probate Law and Practice. of extrinsic testimony required to prove undue influence must increase in the proportion that the unreasonableness of the testamentary act diminishes.''' But where the beneficiary in a will had been a clerk for the husband of the testatrix, and had lived in the family for a number of years and had become influential in domestic, as well as business aft'airs, subsequently becoming a partner of the husband, and, after his death, a part- ner of testatrix, and was engaged to be married to her, her will leaving all her property to him was not an "inofficious" instru- ment, ignoring the moral claims which the ties of kinship sug- gest, but, in view of the relations, the beneficiary's years of careful devotion to the business, his economical management, and the fact that testatrix had no children, a reasonable one.''^ Inequality or even injustice towards some of a testator's chil- dren in the amounts given to them by the will does not prove undue influence;^'' and where a testatrix left nothing to the widow and children of a deceased son (assigning as a reason that they were otherwise amply provided for), but treated her other children with substantial equality, it was held not to show undue influence on the part of her son, who was the executor.^**" As has been said above, the existence of influence which arises from unlawful or immoral relations bearing on a testator when his will is made, does not raise a presumption against the instrument, but will be regarded as a significant fact, which calls for a close and suspicious scrutiny.^ ADMISSIBILITY OF EVIDENCE. Declarations of Testator, Where undue influence is set up in impeachment of a will, the ground of invalidity to be established is that the conduct of others has so operated upon the testator's mind as to con- strain him to execute an instrument to which of his free will 9^In re Willford's Will, 51 Atl. Eq.. 436. Affirmed, 2,7 N. J. Eq., Rep. 501. In re Eatley's Will, 629. 82 N. J. Eq., 591. looBarker v. Streuli, 69 N. J. '98in re Willford's Will, 51 Atl. Eq., 771. Rep., 501. lArnault v. Arnault, 52 N. J ss'Turnure v. Turnure, 35 N. J. Eq., 801. Fraud and Undue Influence. 171 he would not have assented. This involves two things — first, the conduct of those by whom the influence is said to have been exerted ; and second, the mental state of the testator as pro- duced by such conduct, which may require an exposition of the strength of mind of the decedent and his testamentary pur- poses, both immediately before the conduct complained of and while subject to its influence. In order to show the testator's mental state at any given time, his declarations at that time are competent, because the conditions of the mind are revealed to us only by its external manifestations, of which speech is one. Likewise the state of the mind at one time is competent evi- dence of its state at other times not too remote, because men- tal conditions have some degree of permanency. Hence, in an inquiry respecting the testator's state of mind before or pend- ing the application of the alleged influence, his words, as well as his other behavior, may be shown for the purpose of bring- ing into view the mental condition which produced them, and. through that, the antecedent and subsequent conditions. To this extent his declarations have probative value ; but for the purpose of proving matters not related to his existing mental state, the assertions of the testator are mere hearsay. They cannot be regarded as evidence of previous occurrences, unless they come within the recognized exceptions to the rule exclud- ing hearsay testimony.- The rule is well settled that, on an issue whether a will is the product of undue influence, the declarations of the testator respecting previous occurrences which are alleged to have exerted the influence are not evi- dence to prove or disprove such occurrences f and this rule applies to declarations of a testator made after the exectition of the will.* -Rusling V. Rusling, 36 N. J. 47 N. J. Eq., 349. Mirldleditch v. Eq., 603. Byrnes v. Gibson 68 Williams, 45 N. J. Eq., 7-26. In Atl. Rep., 756. re Anastasia Davis, 73 N, J. Eq., 2Boylan ads. Meeker, 28 N. J. 617. L., 274. Kitchell v. Beach, 35 N. ^Pemberton's Case, 40 N. J. J. Eq., 446. Barker v. Barker, 36 Eq., 520-528. Affirmed, 41 N. J. N. J. Eq., 259. Rusling v. Rusling, Eq., 349. Kitchell v. Beach, 35 N. 36 N. J. Eq., 603. Pemberton's J. Eq., 446. Gordon's Case, 50 N. Case, 40 N. J. Eq., 520. Affirmed, J. Eq., 397-425. 172 Probate Law and Practice. Diaries kept and letters written by a testator, either before or after the execution of the will, while proper evidence as bearing upon the mental capacity and the condition of the mind of the testator with reference to the objects of his bounty, are not competent evidence of the facts stated in them, or to prove fraud or undue influence. They may be given in evi- dence for the purpose of showing his relations to the people around him and the persons named in the will as beneficiaries. They, are, however, entitled to no weight in proving external facts, either as to fraud or undue influence.^ Where the issue is whether a will was executed, or whether a will was made to have a certain tenor, or provision, the pre- existing design of the alleged testator is always relevant and to evidence the existence of that design, his antecedent declara- tions are admissible, when not too remote to be material. Such evidence is not competent as a declaration or narrative to show the fact of fraud or undue influence, at a previous period, but is admissible not only to show retention or loss of memory, tenacity or vacillation of purpose existing at the date of the will, but also in proof of long cherished purposes, settled con- victions, deeply rooted feelings, opinions, affections or preju- dices, or other intrinsic or enduring peculiarities of mind in- consistent with the dispositons made in the instrument at- tempted to be set up as testator's will.*^ So evidence that the testator, after he made the will in question, denied that he had made a will, and said he would not make any, but would leave his children to share equally in his property, while it is compe- tent to show that the will is spurious and that the testator had not testamentary capacity, is not competent to show undue in- fluence ;^ and so declarations of testator that he had made a will and remembered certain persons, and that he had thought a good deal about making the will, and that some people would not be satisfied, were admissible to show that he was aware of the contents of the will contested on the ground of undue in- »In re Cooper's Case, 75 N. J. egtate v. Ready, 78 N. J. L., 598. Eq., 177. Affirmed, 76 N. J. Eq., ^Barker v. Barker, 36 N. J. Eq., 614. Byrnes v. Gibson, 68 Atl. 259, but see Boylan ads. Meeker, Rep., 756. 28 N. J. L., 274. Fraud and Undue Influence. 173 fliience.^ Declarations made at the time the instrument is exe- cuted are admissible as part of the res gestae.^ Declarations of Third Parties. Upon the issue whether a will is forged, the circumstances attending its production and also what was said by the person having the custody of the will during the time he had it in possession and when it was produced for probate, showmg a design to produce or prove it as a genuine will, are competent evidence, and are admissible, not on the ground that the custo- dian is a subscribing witness to the will, but from necessity, because he knows its origin and history.^" Testimony as to Character of Deceased Subscribing Wit- nesses. On a charge of fraud or forgery, the declarations and the bad character of a deceased subscribing witness are admissible in evidence to impugn the presumption arising from the wit- ness' attestation and signature, but standing alone and unsup- ported are not sufficient to overcome such presumption.^^ Opinion Evidence. Testimony on a question of undue influence, which is but matter of opinion, is entitled to consideration only so far as it is sustained by facts.'- The opinion of a witness, whether a subscribing witness or not, is of but little value unless he can give the reasons for the opinion he expresses and can show that he had opportunities of observation to justify him in forming that opinion. '■■^ Admissions by Legatee. Where a legatee or devisee named in a will is defending the validity of the instrument under which he claims, his admis- sions are admissible against himself; and so are the declara- tions of one in privity with such legatee or devisee.'* Hn re Cooper's Will, 75 N. J. ^'Boylan ads. Meeker. 28 N. J. Eq., 177. Affirmed, 76 N. J. Eq., L., 274. 614- '2Moore V. Blauvelt, 15 X. J. sBoylan ads. Meeker, 28 N. J. Eq., 367. L., 274. i^Turner v. Cheesman, 15 N. J. ^'•Boylan ads. Meeker, 28 N. J. Eq., 243-262. f- ~7A- "Myers v. Myers, ()& Atl. Rep., 82. CHAPTER XL RE-PUBLICATION OF WILL BY EXECUTION OF CODICIL. In General. It was very early determined that the valid execution of a codicil would operate as a constructive re-execution of an ex- isting will, though the testator, in the codicil, did not in express terms ratify or confirm the will. The presumption of an inten- tion to re-publish or re-execute a will arising from the subse- quent execution of a codicil not referring to it, is, however, never conclusive, and may be rebutted by the character of the disposition made by the codicil/ Effect of Re-Publication. Publication of a codicil is a re-publication of the original will in the form it was at the time of the execution of the codicil, and proof of the execution of the codicil establishes the will in the form in which it existed at the time of the execution of the codicil ;' and so where testator, after duly executing his will, tore oflf the first sheet, and substituted another which he attached to the remaining sheets composing his will, and afterwards executed a codicil to his will, it was held that the execution of the codicil amounted to a re-publication of the will with the substituted sheet annexed.^ In the case of Shazv v. Camp* it was held that an unsigned, unattested sheet making an additional bequest, attached to a will after its execution, is made effective as part of the will ^Woerner on Administration, on Wills, sec. 216. Haven v. Fos- 86. Underwood on Wills, sec. ter, 14 Pick., 534. Hubbard v. 216. Jarman on Wills, 157. Hav- Hubbard, 108 111., 621. 64 N. E., en V. Foster, 14 Pick. (31 Mass.), 1038. In re Runkle, 2,7 N. J. L. J., 534. Kip V. VanCortland, 7 Hill. 325. Affirmed in unreported opin- 347. In re Runkle, 37 N. J. L. J., ion. 325. Affirmed in unreported opin- Hn re Runkle, 2>7 N. J. L. J., •o"- 3^5- Affirmed in unreported opin- ^i Woerner on Adm., 86. Jar- ion. man on Wills, 191. Underwood 4163 HI- 144, 45 N. E., 211. 174 Re-Pubucation of Wills. 175 by a subsequent codicil duly executed and attested, attached thereto. In Matter of Campbell,^ testator duly executed his will, and thereafter executed a second will, wherein all wills previously made by him were expressly revoked ; later he made a codicil to his first will, wherein no reference was made to the later will, and it was held that the effect of the codicil was to revive and re-publish the earlier will as of the date of the codi- cil, so that the codicil and the earlier will constituted the final testamentary disposition of the testator. The same result was reached in the cases of Blackett v. Ziegler,^ Appeal of Neff,'' and In re Knapp's JVill,^ and by the great weight of authority, it is held that a duly executed codicil, attached to or referring to a paper which was never duly signed or published as a will, amounts to a re-publication of the paper in question, and has the effect of giving operation to the whole as one will f and so if a testator makes his will while non compos and afterwards recovers his understanding and executes a codicil to the will, the execution of the codicil re-publishes the will.^** Annexation of Codicil to Will Unnecessary. A codicil need not be actually annexed to the will, in order to have it operate as a re-publication.^^ A codicil revives the will by incorporating it with itself and becoming a part of it. The acknowledgment of the former will must appear by some reference to it in the later duly executed writing, but the re-pub- lished will need not be present when the codicil is executed, and no intention to re-publish it need appear to exist, whether the codicil is written on the same or on another paper. The fact that the later paper refers to the former as a will, or pur- ports to be a codicil to it, raises a presumption of intention to 5170 N. Y., 84, 62 N. E., 1070. N. J. L. J., 325-337. Affirmed in ^133 N. W., (Iowa), 901. unreported opinion. M8 Pa., 501. "In re Runkle, 37 N. J. L. J., *23 N. Y. Sup., 282. 325-327. Affirmed in unreported ^Beall V. Cunningham, 42 Ky., opinion. 390, 39 Am. Dec, 469. Stover v. ^^Van Cortlandt v. Kip, i Hill, Kendall, 41 Tenn., 557. In re 591. i Wocrner on Admn., 86. Kelly's Estate, 84 Atl. Rep., 593 Rood on Wills, sec. 395. i Un- (Pa.). Anderson v. Anderson, L. derwood on Wills, ser. 295. R., 13 Eq., 381. In re Runkle, 37 13 176 Probate Law and Practice. re-publish, which can be avoided only by a contrary intent appearing on the face of the later writing.^- Prior to the Runkle case/^ the only New Jersey case in which this subject appears to have been considered was McCurdy v. Ncall?^ In this case, testator's will, to which he had attached a codicil, was attacked on the ground that it had not been executed in conformity with the statute. After reviewing the evidence and finding a valid execution of the will, the ordinary (Runyon) said, "But further, it cannot be denied that the codicil was executed with all due formalities. It is proved to have been so executed. It expressly confirms the will, so far as the codicil is consistent with it, and is there- fore a re-publication of the will itself, supplying all omissions and remedying all defects, if any, in the execution of the latter." No particular words are necessary to be used in a codicil to effect a re-publication of the will to which it is annexed. It is only necessary that it shall appear that the testator referred to and considered the paper as his will at the time he executed the codicil. ^^ i2Rood on Wills, sec. 395. i^Qorj- y Porter, 2,2> Grat.. 278 1337 N. J. L. J., 325- (Va.). "42 N. J. Eq., 333- CHAPTER XIT. REVOCATION OF WILLS. REVOCATION BY TESTATOR'S ACT. In General. As has already been seen.^ revocability is an inlierent and essential element of a will, without which the instrument in question cannot properly be classed as a will. In New Jersey, the method by which a testator may revoke his will is pre- scribed by the statute, which provides that no devise or Ijequest in writing-, of any lands, tenements, hereditaments or other estates whatsoever in this state, or of any estate per autre vie, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or oblit- erating the same by the testator himself, or in his presence, and by his direction and consent : but all devises and bequests of any lands, tenements, hereditaments, or other estates what- soever in this state, or of any estate per autre vie, shall remain and continue in force until the same be burnt, cancelled, torn or obliterated by the testator or by his directions in manner aforesaid, or unless the same be revoked or altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or more subscribing witnesses declaring such revocation or alteration.^ This statute was later amended so as to provide that all written revocations of wills shall be executed in the same manner as wills are hereby required to be executed, and when so made shall be sufficient to revoke any last will, or any part thereof.^ Method of Revocation in General, The method of revocation is entirely statutory. As has been seen a will can only be revoked by being burned, torn or oblit- erated by the testator himself, or in his presence and by his ^See p. 97, supra. ^4 Comp. Stat., p. 5870, sec. 25. 24 Comp. Stat., p. 5861, sec. 2. 177 178 Probate Law and Practice. direction and consent, or by a revocation in writing executed in the same manner as wills are required to be executed ;* but any mutilation of a will indicating testator's intent to revoke the same is a sufficient revocation. Thus the tearing out by the testator of the seal affixed to a will and of part of his signa- ture, and the obliteration of the rest of his name and of the names of the witnesses, constitutes cancellation of the will.^ So tearing a will into several fragments will suffice, though the fragments be gathered up afterwards,** and so a memorandum in the margin of the will, opposite each cancelled part, in the handwriting of the testator and signed with his name or initials, stating that he wished to erase that part constitutes a can- cellation thereof.^ Intention to Revoke. Revocation involves two distinct requisites ; the physical act of destruction, and the intent with which that act was done. All the destroying in the world, without intention, will not revoke a will, nor will all the intention in the world, without destroying, even though the execution of that intent was frus- trated by the most glaring f raud.^ So where a testator asked his wife if she had brought his will from its place of deposit according to his instructions, at the same time informing her that he wished to burn it up, and the wife replied that she had burned it up, it was held that this did not amount to a revoca- tion, the will not having been burnt.'' So proof that the inten- tion to destroy a will was frustrated by fraud, even though the person committing the fraud may have been the beneficiary, will not prevent the probate of the instrument, if regularly executed. The statute has pointed out the modes in which a will may be revoked ; and a mere intention to perform the stat- utory act of revocation is not a performance of the act itself.^" ^Boylan v. Meeker, 28 N. J. L., ^In re Kirkpatrick's Will, 22 N. 274. Mundy v. Mundy, 15 N. J. J. Eq., 463-465. Eq., 290. ^Sickles' Case, 63 N. J. Eq., 233. ^Smock V. Smock, 11 N. J. Eq., Affirmed, 64 N. J. Eq., 791. 156. In re White, 25 N. J. Eq., ^Mundy v. Mundy, 15 N. J. Eq., 501. 290. eSweet v. Sweet, i Redf. (N. Y. I'^Sickles' Case, 63 N. J. Eq., Sur.), 451- 233. Affirmed, 64 N. J. Eq., 791. Revocation of Wills. 179 So where, testator having thrown the will in the fire, a relative snatched it out, and then, upon the request of the testator to deliver it back to him, pretended to throw it in the fire, but did not do so, the will was held to be unrevoked and entitled to probate.^^ And so the cancellation of a will by mistake or accident will not render the will invalid, as the act would want the animus revocandi}- By Whom Act May Be Performed. The statute provides that the revocation must be "by the test^or himself, or in his presence, and by his direction and consent."^" Partial Revocation. It is well settled that cancellation of part of a will revokes the legacies cancelled, but does not afifect the residue of the will.^* So a cancellation of a legacy by the testator by drawing lines with a pen through the words is a sufficient revocation. ^^ Where it appears that a will was partially cancelled by the testator, the will should be probated with the cancelled parts omitted.^" There has been some discussion in the courts as to whether any distinction should be made between pencil cancellations and ink cancellations of a will written in ink ; and numerous cases will be found holding that a pencil cancellation either in whole or in part, of a document written in ink must be considered to be prima facie deliberative, rather than final, while cancella- tions in ink have the prima facie efifect of being final in their character. This question has, however, been recently settled in this state by the establishment of the rule that if the charac- ter of the pencil erasure clearly indicates an intent to obliter- ate the marked portions, it is prima facie as effectual as though (lone with ink, and that the difference in the material used "Reed v. Harris, 6 Ad. & E., i-»Hilyard v. Wood, 71 N. J. Eq., 209. S. C, 8 A. D. & E., I. 214. i^Smock V. Smock, 11 N. J. Eq., '^In re Kirkpatrick, 22 N. J. Eq., 156. 463. ^34 Comp. Stat., 5861, sec. 2. i^Hilyard v. Wood, 71 N. J. Mundy v. Mundy, 15 N. J. Eq., Eq., 214. 290. i8o Probate Law and Practice. creates no stronger presumption in favor of one method than the other. It is the intent which controls ; and in the absence of any evidence other than the paper presented for probate, the testator must be presumed to have intended the pencil erasures to be as final as if done with ink. The manner in which the erasure is made, whether with ink or pencil, its intent and its effect upon other uncancelled portions of the will, may repel the presumption of finality ; but such repellant cir- cumstances apply with equal force to ink and to pencil cancella- tions.^' So pencil marks drawn by a testator through certain clauses of his will, with the intent at the time to revoke such clauses, will have that effect given them, notwithstanding the subsequent employment of the instrument so cancelled as the text from which a fair copy was to be made, w^hich copy was never executed by testator, but was found at his death with a pencil line drawn through the first page.^® In some jurisdictions it has been held that the cancellation of a legacy in a wall, with the effect of increasing the residuary bequest, in efliect amounts to creating a new clause in the wall, constituting another and distinct testamentary disposition, which must be authenticated by the observance of the statu- tory requirements for the execution of wills ; and that the attempted revocation is therefore ineffective.^^ In this state, however, the prerogative court has held that the method of revocation is entirely statutory, and that so long as it is the revocation of a devise or bequest, an obliteration for such pur- pose will be authorized by law without regard to its effect upon other portions of the wall, even though such obliteration effects substantial changes in the w'ill.'° Time To Which Question of Intent Relates, In the case of partial revocations, there is but one point of time as to which the intent of the testator is to have controlling i^Hilyard v. Wood, 71 N. J. Eq., "Miles Appeal, 68 Conn., 237. 214. Frothingham's Case, 75 N. 36 Atl. Rep., 39. 36 L. R. A., 176. J. Eq., 205. Reversed, 76 N. J. Eschbach v. Collins, 61 Md., 478. Eq., 331- 2ocollard v. Collard, 67 Atl. isFrothingham's Case, 76 N. J. Rep., 190. Eq., 331. Revocation of \\'ills. i8i effect, and that is the time of the doing of the very act that constitutes such revocation.-^ Conditional Revocation. It is elementary law that to constitute a valid revocation or cancellation of the whole or any portion of a will, the existence of an intent to so revoke or cancel is indispensable," and the intent to revoke or cancel must be absolute and have something more than a conditional existence; there must be an intention to revoke at all events. The rule is well settled that where interlineations or erasures are made in a will, with the expecta- tion that the will in its altered form will be a valid will, which expectation fails of realization because the alterations have not been properly attested, such alterations will not affect the wnW, and it takes eff'ect regardless of the changes. An alteration of this character is a conditional revocation, sometimes called a dependent relative revocation.- For this reason, revocation of part of a will has been denied, and the will admitted to probate as originally executed, where the testator had erased the name of one executor and substituted that of another.-* The rule likewise applies where a testator has so entirely erased the name of a legatee that it is no longer legible, and has substituted another name for it. In such a case, the court will receive evidence to show what the original name was, and will restore it to the probate, if satisfied that the testator revoked the first bequest only on the supposition that he had effectually supplied a new legatee.-' In the case of In Re Penniman,-^ where there were interline- ations and erasures in a will, and upon the margin of the attest- ation clause there were written in the handwriting of the test- ator the words: "The erasures and interlineations made by William A. Penniman this the 2Tst day of August, 1871, and 2iFrothingham's Case, 76 N. J. Prob. N. S., 70, 6 Jur. N. S., 56. Eq., 331. 25Matter of McCabe, L. R., 3 P- 22Sickles' Case, 63 N. J. Eq., 233. & D., 94. Brooke v. Kent, 3 Affirmed, 64 N. J. Eq.. 79i- Moore, P. C, 334- U Eng. Re- "In re Frotliingham's Will, 76 print, 136. In re Runklcs' Will, N. J. Eq., 331. 37 N. J. L. J., 325- Affirmed in ^♦Harris's Goods, i Swabey & unreported opinion. T., 536. Parr's Goods, 29 L. J., ^620 Minn., 245. i82 Probate Law and Practice. witnessed by J. K. Sidle and H. G. Sidle," which writing was signed by the two witnesses, it was held that where a portion of a will was cancelled with a view to a new disposition of the property, and the proposed disposition failed to be carried into effect, the presumption in favor of revocation by the cancelling would be repelled, and the will would stand as originally framed. And the decisions in Wolf v. Bollinger,^' and Mcln- tyre v. Mclntyre,-^ were to the same effect. So in Thomas v. Thomas,-^ it was held that where a part of a will was cancelled or erased by the testator with a view to a new disposition of the property, and the new disposition failed to be carried into effect for want of authentication, the presumption in favor of revocation by the cancellation or erasure would be repelled, and the will as originally executed would stand as far as it was practicable to ascertain what the original words were ; in such a case, the supposed revocation would be deemed to have been conditional, and dependent upon the efficacy of the new dis- position intended to be substituted. So where the testator erased the name of a legatee and inserted that of another."'^ So where the testator tore out a page of his will containing a certain bequest and devise and a gift of a contingent remainder to his brother and sister, and had it re-written, omitting the name of his sister as a contingent remainderman, with the intention of revoking the devise to her only."*^ Revocation By Subsequent Will or Codicil. It is a principle, as ancient as it is familiar, that no man can have two wills. The last will is of necessity a revocation of all former wills, so far as it is inconsistent with them. So if one having made his will afterwards make another will or codicil inconsistent therewith, but not expressly revoking it, the execu- tion of this instrument will nevertheless operate as a revocation of the earlier will ; but this implied revocation has effect only = '62 111., 368. W. 104; AlcCabe's Goods, L. R. 28x20 Ga., 67, 102 Am. St. Rep., 3 Prob. & Div.. 94, 42 L. J., Prob. 71, 47 S. E., 501. N. S., 79, 29 L. T. N. S., 249; 2976 Minn., 237, 77 Am. St. Rep., Wolf v. Bollinger, 62 111., 368. 639, 79 N. W., 104. Reeve's Goods, 13 Jur., 370. soThomas v. Thomas, 76 Minn., ^lyarnon v. Varnon, 67 Mo. 237, yy Am. St. Rep., 639, 79 N. App., 534. Revocation of \\*ills. 183 when the last will is inconsistent with the former, for it may be a will of different goods, or different pieces of land, so that the two may be taken conjointly as the will of the testator. On the other hand, if the later will contains an express revocation of the earlier, it is immaterial whether the latter be or be not inconsistent with the former. It is nndoubtedly true that the revocation clause is not always imperative, and that its effect depends upon the intention of the testator ; but that intention must in every case be gathered from the contents of the instru- ments themselves. Patrol testimony is inadmissible for this purpose. It is never admissible to contradict by parol the terms of a will, or to overturn its plain provisions. ^- It is, however, an established rule not to disturb the disposi- tion of the earlier will further than is necessary for the purpose of giving effect to the later codicil or w'ill f'-^ but, as has been seen, if the later will contain an express revocation of all former wills, it is immaterial whether the latter be or be not inconsistent with the former, and such revocation will extend to codicils and all other testamentary writings.^* A subsequent will may be contingent on the happening of a certain event ; and if such event does not come to pass, the first will wall remain in full force and effect. ^^ Where two wills of the same testator are found, the will of earlier date will remain uncancelled and unrevoked, if the one of later date is not duly executed, or is declared invalid or void.^® Revival of Prior Will by Revocation of Later. The destruction or cancellation of a later will containing an express revocation of a former will does not revive the prior will, unless it affirmatively appears that the later will was revoked by the testator with intent to revive the prior will.^^ 32Smith V. McChesney, 15 N. J. ^cBoylan v. Aleeker, 28 N. J. L., Eq., 359. Snowhill v. Snowhill, 23 274. N. J. L., 447- 3^Moore's Case, 72 N. J. Eq., 33Snowhill V. Snowhill, 23 N. J. 371, distinguishing Randall v. L., 447-454- Beatty, 31 N. J. Eq., 643. In re 3*Smith V. McChesney, 15 N. J. Diament's Estate, 92 At). Rep., Eq-, 359- 952. ^^Cowley V. Knapp, 42 N. J. L., 297. i84 Probate Law and Practice. But where it appeared that the decedent whose testamentary disposition was in question died, leaving a will executed in 1870, and in 1873 had executed another will containing a revo- catory clause, which will of 1873 was afterwards cancelled, and decedent had retained the will of 1870 in her possession, and after her death it was found with her valuable papers, it was held, from the circumstances surrounding the transaction, that the will of 1873 did not revoke that of 1870, because the revocatory clause was testamentary in character, and its can- cellation revived the former will retained by her."** And so, in order that the revocation of a later will shall operate to revive an earlier will, it must appear, from the circumstances surrounding the transaction, that the testator intended to revive such earlier will.^^ If a prior will be revoked by a subsequent one, and both be improperly destroyed, the contents of the first will cannot be established as the testator's will, although the contents of the second cannot be ascertained.**' EVIDENCE. Of Revocation of Will. Where a will appears to have been delivered to the testator immediately upon its execution, and, so far as appears, was never out of his possession, nor seen by any other person until his death, when it was found with testator's other papers ; under such circumstances, if the will be found cancelled in whole or in part, the presumption is that the alterations were the acts of the testator done anitno cancellandi.*^ This pre- sumption is, however, rebuttable.*- So where a will was found in the possession of the testator with the seals and signatures 38Randall v. Beatty, 31 N. J. White, 25 N. J. Eq., 501. Hilyard Eq., 643. In re Diament's Estate, v. Wood, 71 N. J. Eq., 214. Hol- 92 Atl. Rep., 952. combe v. Holcombe, 39 N. J. Eq., 39Moore's Case, 72 N. J. Eq., 592. In re Willitt's Estate, 46 Atl. 371- Rep., 519. *oDay V. Day, 3 N. J. Eq., 549- *-In re Willitt's Estate, 46 Atl. 41 Smock V. Smock, 11 N. J. Eq., Rep., 519. In re Diament's Estate, 156. In re Kirkpatrick's Will, 22 92 Atl. Rep., 952. N. J. Eq., 463- In re Will of Revocation of \A'ills. 185 torn off, or otherwise cancelled, it will be presumed that the cancellation was the act of the testator done animo canccl- huidi;*'^ and memoranda in the margin of the will, one opposite each cancelled part, in the handwriting of the testator, and signed with his name, or initials, stating that he wished to erase those parts, are evidence that the cancelling was the testator's act,^* and so a general allusion in a letter found in the same box with testator's will, and a conversation with the executor therein named shortly before testator's death, in reference to a bequest made by the will and which was then known by the executor, are too loose and uncertain to establish the will con- trary to the cancellation by the testator.*^ So where a person having no special interest to justify his asking the question asked the decedent some eight or ten days before his death : "Where his will was," and "If it was all right," to which decedent answered that "it was in his desk and was all right," and after the death of testator the will was found in his desk cancelled, it was held that this declaration was insufficient to rebut the presumption of cancellation.^'^ Of Alteration of Will. Text writers seem to agree that, where a will is produced for probate, upon inspection of which there is disclosed a man- ifest alteration which is unnoted, the presumption is that such alteration was made after execution.*' Nevertheless, assum- ing that such apparent unnoted alterations raise a presumption that they were made after execution, such presumption may be overcome by competent and sufficient evidence that they were made before execution.*^ So where an instrument offered for probate as a will was drawn by a family friend from instruc- tions of testator, and a typewritten copy had been sent to him, which testator copied in his own handwriting, and when his "Smock V. Smock, 11 N. J. Eq., ^"Schouler on Wills, 435. Un- 156. In re White, 25 N. J. Eq., derhill on Wills, 268. Paige on 501. Wills, 432. Ward v. Wilcox. 64 ^^n re Kirkpatrick Will. 22 N. N. J. Eq., 303- Affirmed. 65 N. J. J. Eq., 463, 465- Eq., 397- "In re White, 25 N. J. Eq., 501. "Ward v. Wilcox, 64 N. J. Eq.. ^'■■Smock V. Smock, 11 N. J. Eq., 303- Affirmed. 65 N. J. Eq., 397- 156. i86 Probate Law and Practice. legal adviser attended to witness the execution of the will, tes- tator informed him that he had increased the amount of a cer- tain bequest, giving his reasons therefor, and the instrument showed an unnoted alteration, it was held sufficient to over- come any presumption that the alteration was made after the execution.*'' Declarations of Testator. Upon the issue as to whether alterations appearing upon the face of a will were made before or after execution thereof, declarations of a testator made shortly before the execution of the will are admissible in evidence.^** REVOCATION BY OPERATION OF LAW. Total Revocation by Birth of Issue. Every last will and testament made when the testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leave a child, children or issue, or leave his wife, enceinte of a child or chil- dren which shall be born, such will shall be void, and such testator be deemed to die intestate.^^ Partial Revocation by Birth of Issue. If a testator having a child or children, born at the time of making and publishing his last will and testament, shall at his death, leave a child or children, born after the making and publishing of his said last will and testament, or any descend- ant or descendants of such after-born child or children, the child or children so after-born, or their descendant or descend- ants respectively, if neither provided for by settlement nor disinherited by the said testator, shall succeed to the same por- tion of the father's estate, as such child or children or descend- ants as aforesaid would have been entitled to, if the father had *nVard V. Wilcox, 64 N. J. Eq., In re White, 25 N. J. Eq., 501. 303. Affirmed, 65 N. J. Eq., 397- ^M Comp. Stat., 5865, sec. 20. soWard v. Wilcox, 64 N. J. Eq., Coudert v. Coudert, 43 N. J. Eq., 303. Affirmed, 65 N. J. Eq., 397. 407. Smock V. Smock, 11 N. J. Eq., 156. Revocation of Wills. 187 died intestate ; towards raising which portion, or portions, the devisees and legatees or their representatives, shall contribute proportionably out of the part devised and bequeathed to them by the same will and testament.''- That is, if testator has chil- dren living when he makes his will in which he made no pro- vision for after-born children, and after his death another child is born, the legatees named in the will must severally contribute such portions of their legacies as will make the share of such child equal to what it would have been had testator died intes- tate; otherwise the provisions of the will will not be dis- turbed."^ So where a testator gave his son a specific legacy, with a residuary legacy to his wife, and there were children born after the making of the will, no commissions for settling the estate could be added to the amount deducted from the son's legacy as the portion of the after-born child, but they must come out of the residue of the estate. ^^ The statute applies to a posthumous child,^^ but a provision for children who may be born after the making of the will will prevent the operation of the statute.''"' Revocation by Marriage. The marriage of a woman does not revoke her will, executed Ijefore such marriage.'^ Otherwise, however, at common law.^* 524 Comp. Stat., 5865, sec. 21. scstevens v. Shippen, 28 N. J. 33Wilson V. Fritts, 32 N. J. Eq., Eq., 487. Affirmed, 29 N. J. Eq., 59. Van Wickle v. Van Wickle, 602. 59 N. J. Eq., 317. Lutjen v. Lut- 57\Vebb v. Jones, 36 N. J. Eq., jen, 63 N. J. Eq., 39i- Reversed, 163. 64 N. J. Eq., 773. ^^i Jarman on Wills, no, and s^Lutjen V. Lutjen, 63 N. J. Eq., see note to Webb v. Jones, 36 N. 391. Reversed, 64 N. J. Eq., 773- J- Eq., 163, at page 164. 55Van Wickle v. Van Wickle, 59 N. J. Eq., 317- CHAPTER XIII. PROBATE OF WILLS. Nature of Proceedings. A proceeding for the probate of a will is not a civil action, but a judicial inquiry to ascertain whether the instrument pro- pounded for probate is the last will and testament of the decedent. Such proceedings, so far as the personal esta'te is concerned are in rem, in the strict sense of that term.^ For this reason, and for the further reason that courts invested with jurisdiction over probate proceedings have general power to check and revise such proceedings when tainted with mis- take, fraud or illegality, a court of equity will not entertain jurisdiction to set aside a will, or the probate thereof, nor can that court review the proceedings of the orphans' court, revoke the probate, or decree intestacy. - Necessity for Probate. The probate of a will is the judicial determination of its character and validity as such ; until it has been duly admitted to probate, a will is wholly ineffectual as an instrument of title. An unprobated will is, however, capable of conveying an inter- est in property devised ; and if a conveyance be made under a power in the will, before probate, subsequent probate will validate the conveyance.^ An executor derives his power from the will and not from its probate, and may receive and dispose of the personal estate of the testator before probate. It is only in order to assert his right to sue as executor that he must first probate the will.^ iMackin v. Mackin, 37 N. J. Eq., -Vincent v. Vincent, 70 N. J. 528. Grant v. Stamler, 68 N. J. Eq., 272. In re Whitehead's Es- Eq., 559- In re McLaughlin's tate, 94 Atl. Rep., 796. Will, 59 Atl. Rep.. 469. In re sMackey v. Mackey, 71 N. T. Veazey's Will, 80 N. J. Eq., 466. Eq., 686. Quidort V. Pergeaux, 18 N. J. Eq., ^Thiefes v. Mason, 55 N. J. Eq., 472. 456. Probate of Wills. 189 Duty to Produce Will for Probate. It is the duty of the executor to produce the will before the surrogate for probate, althougli any person who will be bene- fited by the probate of the will may present it or require it to be presented for probate.^ The statute provides that if an executor shall neglect for the space of forty days after the death of the testator to prove the will, then administration with the will annexed shall be granted to the persons entitled there- to." This act, if read literally, requires the executor to prove the will within forty days. It has been held, however, that it does not deprive an executor of the right to present a will for probate after the expiration of forty days, if no application for administration with the will annexed has been made after the forty days have elapsed and before such application for pro- bate.'^ The statute also provides that whenever application shall be made to the orphans' court of any county of this state, by any person in interest, alleging that he believes that any person or corporation has in his, her or its possession, or has knowledge of the existence or whereabouts of any paper writing purport- ing to be the last will and testament of any decedent, who dur- ing his lifetime was a resident of the county wherein such application may be made, and further alleging that the person, in whose possession such paper writing is alleged to be, refuses or neglects to produce the same to the surrogate of such county ^for probate, the court may, by order, require such person to appear before it and make discovery as to his possession of or knowledge of the existence or whereabouts of any paper writ- ing purporting to be the last will and testament of any decedent who during his lifetime was a resident of the county wherein such application may be made, by the examination of such per- son and other witnesses, and may order any such person having in his possession any paper writing purporting to be the last will and testament of a decedent a resident in such county dur- ing his lifetime, to lodge the same with the surrogate of the ^'Myer's Case, 69 N. J. Eq., 793- ^Orphans' Court Act. sec. 27, p. 799. 270, infra. ^Acker's Case, 70 N. J. Eq.. 669. I90 Probate Law and Practice. said county for probate, and may compel obedience to such order or decree by the same process and in the same manner as orders or decrees of the court of chancery are enforced.^ The prerogative court has power, at the instance of a party in interest, to issue a citation to a person having custody of a will to produce it for the purpose of probate; and a cita- tion will issue, under such circumstances, to an attorney having the custody of a will, although he claims a lien upon it for services.^ The Crimes Act"' makes it a misdemeanor to steal, destroy, cancel or conceal a will for any fraudulent purpose. Probate in Solemn and Common Form. There are two methods of obtaining probate known to the practice of the English ecclesiastical courts ; one in common form and the other in solemn form, or per testes. The proof is said to be in common form when the executor presents the will for probate in the absence of the parties to be affected thereby, and, without citing them, proceeds ex parte with his proof ; and it is said to be in solemn form when those in inter- est are cited to be present at the probate of the will. Where a will is proved in common form, the court, at any time within thirty years after probate, might, under the old law, on its own motion or at the instance of the next of kin or other person interested, require the executor to prove the will in solemn form.^^ The distinction between probate of wills in common and in" solemn form, while recognized in the practice of the English courts of probate, seems not to have attracted much attention • from the courts of this state until the publication of the opinion of Chancellor McGill, sitting as Ordinary, in Strauh's Case}- In that case, a will had been admitted to probate by a surro- gate, without objection. After the time for an appeal from the surrogate's act had expired, the orphans' court, upon a petition presented to it, alleging that the will was the product sp. L. 1911, p. 96. Ill Williams on Executors, 271, ^Braecher's Case, 60 N. J. Eq., et seq. 350. Affirmed, ib., 449. 12^9 N. J. Eq., 264. i"2 Comp. Stat.. 1793, sec. 161. Probate of Wills. 191 of fraud and undue influence, and praying that the surrogate's probate should be set aside, allowed an order to show cause why the prayer of the petition should not be granted, and upon argument discharged that order. Upon an appeal to the Prerogative Court from the order last named, the Ordinary determined that the orphans' court was without jurisdiction to initiate such a proceeding, but proceeded to express his opinion that upon an application to the surrogate, although made after the time for an appeal from his decree had expired, the surro- gate would have jurisdiction to cite the parties interested to ap- pear before the orphans' court, which court would have juris- diction to require the executor to prove the will in solemn form. The decision of the Ordinary in that case was affirmed by the Court of Errors and Appeals, for the reasons given by him.^' The affirmance by the Court of Errors and Appeals of the decision of the Prerogative Court in Straub's Case was not, however, intended to indicate the approval of the opinion of the ordinary respecting the jurisdiction to require probate in solemn form, as was shown in the per curiam opinion shortly afterward delivered in Gordon v. Olds}^ Afterward the opin- ion expressed by the Ordinary respecting the jurisdiction of the surrogate and the orphans' court in such cases was put to a judicial test. A will was admitted to probate by a surrogate without objection. After the time for appeal had expired, parties interested applied to the surrogate for citations to the executors, and to all parties in interest, requiring them to appear before the orphans' court of that county, for the pro- bate of the will in solemn form. The orphans' court declined jurisdiction; and upon an appeal to the Prerogative Court, the action of the orphans' court was approved and affirmed. The court, in reaching this conclusion, felt bound to treat the opin- ion of the Ordinary in the Straul) case as not correctly express- ing the powers of the surrogate and orphans' court in such matters, and held that after a will had been admitted to probate by the surrogate, and no appeal had been taken within the time limited by statute, no jurisdiction existed in the surrogate to refer to the orphans' court the question of probate in solemn I'Scharcr v. Schmidt, 50 N. J. 1*52 N. J. Eq., 319. Eq., 795- '■' '•'' ■'• 14 ig2 Probate Law and Practice. form, and no jurisdiction existed in the orphans' court to direct such probate;'^ and upon appeal to the Court of Errors and Appeals, the decree of the Prerogative Court was affirmed for the reasons expressed in its opinion.^*' In delivering the opinion in Murray v. Lynch,^' the Ordinary expressly refrained from considering the power of the Prerog- ative Court in respect to the probate in solemn form of wills produced and probated before the Ordinary. Whether the Ordinary might not require a will proved before him to be again proved in solemn form was not decided in that case, and remains to be considered.^* The jurisdiction in matters of probate and administration which existed in the English ecclesiastical courts, at the time of the instructions to Lord Cornbury in 1702, were by those instructions conferred upon the Governors of New Jersey. That jurisdiction was exercised by the successive governors of the provinces or colonies and by those of the state, after it was established, by the constitution of 1776. By the constitution of 1844, the same jurisdiction was transferred to the Chancel- lor, whose appointment was thereby provided for, to be exer- cised by him as Ordinary sitting in the Prerogative Court. The English ecclesiastical courts undoubtedly possessed power to require a will, which had been admitted to probate without notice to the parties interested, to be proved thereafter in solemn form upon notice to such parties. ^^ Was that power, conferred upon the successive colonial and state governors, transmitted to the chancellor sitting as Ordinary? If the power now rests in the Ordinary, in what cases should it be exer- cised ?-" isMurray v. Lynch, 64 N. J. of review has expired. In re Eq., 290. In re Whitehead's Es- Whitehead's Estate, 94 Atl. Rep., tate, 94 Atl. Rep., 796. 796. i^Murray v. Lynch, 65 N. J. Eq., i"64 N. J. Eq., 290. 399- The Ordinary has no juris- i^In re Hodnett, 65 N. J. Eq., diction to entertain proof of a will 329. in solemn form as a means of set- i^Consets Pr.. 10. Trist & C. ting aside a decree for probate by Prob. Pr., 353. Browne Prob. Pr., a surrogate who has acted within 99-275- 4 Burns Eccl. Pr., 196-199. his original jurisdiction and from 20 j^, ^e Hodnett, 65 N. J. Eq., whose decree the statutory period 329. Probate of Wills. 193 By section two of the act entitled "An Act respecting the prerogative court and the power and authority of the ordi- nary," approved April 16, 1846,-^ it was enacted that probate of any will should not be granted by the Ordinary until proof was made to his satisfaction that no caveat against proving such will had been filed in the office of the surrogate of the county where the testator resided at the time of his death, or that notice of the application to the Ordinary for such probate iiad been given to all persons concerned. This provision is included in section fifteen of the present Orphans' Court Act. It would appear that this legislation has always permitted an executor who propounds his will before the Ordinary to adopt one of two alternatives, namely — first, to submit the will upon mere proof that no caveat has been filed in the county in which the testator had his residence at the time of his death, or sec- ond, to give notice to all persons concerned of the application for probate. If he adopts the former alternative, and satisfies the Ordinary that no caveat has been filed, he may then pro- pound the will and obtain his probate, without giving notice ; if, however, a caveat has been filed, the Ordinary would not proceed to allow probate, except upon notice. But the alter- native provision is so general as to indicate plainly that it was intended to permit the executor to proceed for probate upon such notice, whether a caveat had been filed or not. Upon this construction of the act, it follows that any person noticed to attend the probate must be admitted to cross-examine the testamentary witnesses, and to produce evidence on the matter of the will, and a contest against the will could be maintained by him. It also follows that any person who has been noticed to attend, and who has refrained from attending, or who has attended and made no contest, would be thereafter estopped by the order admitting the will to probate from any further contest, at least on matters then apparent or discoverable. As it was a practice of the ecclesiastical courts of England to permit probate of an uncontested will on notice, and the powers of those courts were conferred on the governors of the colony and state, it would seem probable that such legislation, adopted -'Rev. Stat., p. 203. 194 Probate Law and Practice. shortly after the period when the Chancellor became Ordinary under the constitution of 1844, was rather a regulation of a practice recognized as existing than the creation of a new prac- tice. It would appear that the power to order a will, which has been admitted to probate without notice, to be afterwards proved with notice, has either not been exercised, or has been exercised in rare instances by the courts of this state. That such power existed in the English ecclesiastical courts, and was together with the other powers of those courts, conferred on the Ordinary of the colony and state, would appear to be beyond dispute. That it has not been taken away from the Ordinary by legislation would seem equally clear. Its disuse does not show abandonment, if it could be thus abandoned. It would therefore appear that the Prerogative Court has the authority to require an executor, who has proved a will before it without notice, to prove the same will with notice to all the parties, whenever a proper case for such action is presented. As to what is a proper case requiring such action, it would appear that probate in solemn form ought not to be compelled unless upon some good ground shown. It is manifestly unnecessary, to prove that the probate previously granted has been improperly granted, to show that the testator did not in fact possess testamentary capacity, or that the will was in fact the product of undue influence, etc. It should be sufficient to justify the Ordinary in requiring probate on notice if there is made to appear to him a fair ground for contesting the validity of the will, in respect to its execution, or the testamen- tary capacity of the testator, or undue influence. As to who may apply for probate in solemn form, it would seem that where any person who was sni juris and had knowledge of the death of the testator and of grounds for contesting his will, or might by due diligence, have obtained knowledge of such grounds has neglected to caveat against probate being granted, he should not afterwards be heard to demand that the executor be required to reprove the will on such grounds. A convenient practice of requiring the executor to reprove the will in solemn form, upon notice to all parties concerned, is that now in use in the English Probate Courts, whereby an executor is ordered to Probate of ^^'ILLS. 195 bring in his probate and show cause why it should not be re- voked and the will pronounced invalid. " PROBATE OF WILL OF PERSON PRESUMED TO BE DEAD. Jurisdiction. The act of 1797"^ provides that where any person has been absent from the state for more than seven years and has not been heard from within that time, such person shall be presumed to be dead, in any case wherein his or her death shall come in question. The presumption, arising upon proof satis- fying the terms of this act, is a presumption of law, and the death is presumed to have occurred at the termination of seven years from the time when the person was last heard from.-* The judicial interpretation of this statute has declared it to be an embodiment in statutory form of the rule of the common law that on proof that a person has been absent from his usual abode, without being heard from for seven years, his death will be presumed. It follows, therefore, that upon proof raising a presumption of death under the provisions of this act, the will of a person so presumed to be dead may be admitted to probate.-^ PROBATE OF WILLS BEFORE SURROGATE. Jurisdiction of Surrogate. The statute provides that the surrogates of the several coun- ties of this state shall take depositions to walls and admit the same to probate and grant letters testamentary thereon ; but in case doubts arise on the face of a will, or a caveat is put in against proving a will, or a dispute arises respecting the exist- ence of a will, the surrogate shall not act in the premises, but "In re Hodnett, 65 N. J. Eq., ard Savings Inst., 46 N. J. L., 211. 329. Burkhardt v. Burkhardt, 63 N. 232 Comp. Stat., 1904, sec. r. J. Eq., 479. Meyer v. Madreperla, 2^Wambaugh v. Schenck, 2 N. J. 68 N. J. L., 258. Sternkopf's L., 214. Smith V. Smith, 5 N. J. Case, 72 N. J. Eq., 356. Eq., 484. Osborn v. Allen, 26 N. ^ssternkopf's Case, 72 N. J. Eq., J. L., 388. Clarke v. Canfield, 15 356. N. J. Eq., 119. Hoyt v. Newbold, 45 N. J. L., 219. Phime v. How- 196 Probate Law and Practice. shall issue citations to all persons concerned to appear in the orphans' court of the same county, which court shall hear and determine the matters in controversy.-^ The surrogates have, however, no jurisdiction to admit to probate the will of a non- resident having a domicile at the date of his death in another state, although decedent left property in this state, except as ancillary to probate by the courts of testator's domicile. The original jurisdiction of the surrogate over the probate of wills is confined to those of persons domiciled within his county at the time of death.-' As has already been seen by the provisions of section thirteen of the Orphans' Court Act-** jurisdiction is conferred on sur- rogates to take depositions to wills and to admit the same to probate and grant letters testamentary thereon, except in three classes of cases, viz: (i) where doubts appear on the face of a will. i. e., on the face of the paper offered as a will; (2) when a caveat is put in against proving a will, and (3) when disputes arise respecting the existence of a will. In any of these excepted cases, the surrogate is not only forbidden to act, but is expressly required to issue citations to all persons concerned to appear in the orphans' court of the same county, and to that court is expressly given jurisdiction to hear and determine the matters in controversy. -° When a caveat is filed against the probate of a will and the surrogate cites all persons in interest to appear in the orphans' court, or where doubts arise upon the face of the will and the surrogate certifies the will into the orphans' court, the surrogate is not thereby stripped of all jurisdiction over the case. The jurisdiction of the orphans' court attaches only to the matter in controversy, and it is over that matter only that the surrogate is ousted of jurisdiction. After the orphans' court disposes of the matter in controversy, further proceedings should be con- ducted before the surrogate. So where the orphans' court, upon a caveat against the probate of a will, decrees the same 260rphans' Court Act, sec. 13, 3 "Foreign Wills," p. 211, infra. Comp. Stat., 3816. 2«Page 195, supra. 27Chadwick's Case, 80 N. J. Eq., ^^Murray v. Lynch, 64 N. J. Eq., 471. As to ancillary proceedings 290-295. Affirmed, 65 N. J. Eq., upon wills of non-residents, see 399. Probate of Wills. 197 to be invalid, proceedings for the probate of another will of decedent or for the appointment of an administrator should be before the surrogate.^'' Nature of Caveat. A caveat is incident to all ecclesiastical courts, and prevents the case from being proceeded with w'ithout the caveator being heard. ^^ The nature, design and operation of a caveat are simply to suspend the act of probate until an investigation of the validity of the instrument may be had before a competent tribunal. ^- Effect of Filing Caveat. The filing of a caveat deprives the surrogate of his jurisdic- tion.^^ It does not commence a proceeding for probate, but stands as a challenge to such proceeding, forbidding probate by the surrogate, orphans' court, or Ordinary, until notice of the proceeding shall be given to the caveator,"* and. where the will appoints a guardian, prevents such testamentary guardian from prosecuting a claim to the sole custody of the children.^' Who May File Caveat — In General, All persons w4io have any interest in the result of a conten- tion against the probate of a will, or who may be injured by admitting a will to probate, are entitled to file a caveat thereto :^*' but only such persons are entitled to do so. Where, therefore, testator leaves a child and a brother and sister, the latter have no standing to caveat against the probate of his will, for in case they succeeded in their attempt to set aside 3oin re Queen, 82 N. J. Eq., 583- 34Fisher's Case. 49 N. J. Eq.. 3iln re Coursen's Will, 4 N. J. 5I7- Eq., 408. Slocum V. Grandin, 38 soSlack v. Perrine, 19 N. J. L. N. J. Eq., 485-488. Affirmed, 40 J., 40. Fisher's Case, 49 N. J. Eq.. N. J. Eq., 342. 517. Slocum v. Grandin, 38 N. j. 32In re Maxwell, 3 N- J- Eq., Eq., 485- Affirmed, 40 N. J. Eq., 611. 342. 33Slocum V. Grandin. 38 N. J. ^RCoursen's Case, 4 N. J. Eq.. Eq., 485-488. Affirmed, 40 N. J. 408. Pancoast v. Graham, 15 N. J. Eq., 342. T\q.. 294. 198 Probate Law and Practice. the will, they could not benefit thereby, as testator's entire estate would pass to his child."' Infants. A caveat in behalf of an infant must be filed in the name of the infant by his next friend duly admitted to prosecute the suit; relatives of such infant have no right to file a caveat.^^ Attorneys in Fact. When a caveat is filed by a person who claims to be an attorney in fact for non-resident legatees under a former will, he must produce his authority to appear for them."^ Executor of Will. An executor propounding a will for probate is obviously without power to file a caveat against the probate thereof, or to raise a dispute respecting the existence of a will.*'^ Withdrawal of Caveat. When a caveat is filed, the surrogate cannot move until some one applies to him to admit a specified paper to probate as the will of the decedent. This calls upon him to act. Then if the application be urged, the effect of the caveat, under the statute, is to require him to cite the caveator and other persons concerned to appear in the orphans' court. After the applica- tion is made to the surrogate, and before he issues the cita- tions, the application remains with him, and if the caveat be withdrawn, it must be withdrawn from him ; and such with- drawal will operate as a discontinuance of the contest, and enable him to proceed with the probate of the will.*'^ It fol- lows, therefore, that a caveator may withdraw his caveat at his pleasure before the jurisdiction of the orphans' court has attached by the issue of citations, and the jurisdiction of the 3'Middleditch v. Williams, 47 N. *oiii re Chamberlain, L. R.. i P. J. Eq., 585. & D., 316. Murray v. Lynch, 64 38Middleditch v. Williams, 47 N. N. J. Eq., 290-302. Affirmed, 65 J- Eq., 585- N. J. Eq., 399. 3^Pancoast v. Graham, 15 N. J. "Fisher's Case. 49 N. J. Eq., Eq., 294. 517. Probate of Wills. 199 surrogate is thereupon restored.^- So where citations upon a will have been issued by the surrogate which name a return day which has already passed, such citations are to be consid- ered as if no return day had been inserted therein, for the day named is an impossible date ; and it has therefore been held that under such circumstances caveator may withdraw his caveat as though no citations had been issued.^'' Probate of a will will not be set aside because a legatee was induced to withdraw her caveat by false representations made to her by persons not interested in the matter, and with which no person interested in the estate is chargeable."** The function of a caveat is ended when it has raised a con- troversy and the jurisdiction over the subject matter of the controversy has attached to the orphans' court.*"' To complete the jurisdiction of the court, jurisdiction over the necessary parties is the only other requisite ; and this is obtained by the service of citations issued by the surrogate to "all persons interested." It follows, therefore, that the withdrawal of a caveat after the issue of citations, and pending the hearing in the orphans' court, will have no effect whatever upon the legality of the proceeding.**^ Doubts on the Face of the Will. Where interlineations, erasures, or cancellations appear upon the face of the will which affect or alter the terms there- of, without any memorandum attested by the subscribing wit- nesses, showing when or by whom they were made, doubts arise as to whether such interlineations, erasures or cancella- tions were made before or after the execution of the will, and whether they were made by the testator or by an- other. In such case, the statute, as has been seen, deprives the surrogate of jurisdiction, and requires him to issue cita- *2Myer's Case, 69 N. J. Eq., 793. ^^Young's Case, 67 N. J. Eq., Thurston v. Gough, 42 N. J. Eq., 553. Myer's Case, 69 N. J. Eq., 346. 793- *3In re Leonard's Will, 47 All. ■*'''Slocum v. Grandin, 38 N. J. Rep., 222. Eq., 485. Affirmed, 40 N. J. Eq., **Kinney v. Emery, 38 N. J. 342. Myer's Case, 69 N. J. Eq., Eq., 1 01. 793. 200 Probate Law and Practice. tions to all persons concerned to appear in the orphans' court of the same county, which court is required to hear and deter- mine the matter in controversy.*' But the power of the sur- rogate to issue citations on the ground that doubts appear upon the face of the will, will not arise, except on an adjudica- tion by himself that such doubts do appear on the face of the will i*^ and. conversely, a decree admitting a will to probate amounts to an adjudication that no doubts appear on the face of the will.*'-' When Administration Granted, or Later Will is Discovered. Where administration has been granted of an estate, and afterwards a will shall be produced to the surrogate, or where probate of a will shall have been granted, and afterwards a later will shall be produced, the surrogate shall issue a citation to all persons interested, returnable to the orphans' court, to show cause why probate of such will should not be granted; and upon admitting to probate such will, the court shall require the administrator or prior executor to make final settlement of his account, and shall make such order in relation to the commissions as shall be just and equitable. ^° Acts of Administrator Before Notice of Will Valid ; Rem- edies of Executors. All lawful acts done bona fide, by any administrator, before notice of a will, and all purchases made of such administrator bona fide, before such notice, shall remain good, and shall not be impeached or altered by any executor or executors, on such will afterwards appearing; provided, always, that when at any time after such will shall appear, the executor or executors shall have the same remedy against such administrator, or administrators, for the goods and chattels, rights and credits, remaining unadministered, as he, she or they might have had before the making of this act.'^ ^"Orphans' Court Act. sec. 13, "sCrawford v. Lees, 93 Atl. p. 19s, supra. Rep., 201. ^Murray v. Lynch, 64 N. J. soQrphans' Court Rule, 7. Eq., 290-302. Affirmed, 65 N. J. 513 Comp. Stat., p. 2258, sec. i. Kq.. 399. Probate of Wills. 201 Application for Probate. Application for probate of the will of any person who was resident in this state at his decease, and for letters testamen- tary thereon must be made to the surrogate of the county in which the testator resided at the time of his death,''- and the surrogate ought to decline to receive a will presented without an application in writing, such as is required by the rule f" but if he receives it, and finds a caveat against its probate filed, and thereupon cites the persons concerned, pursuant to the direction of the statute, it is clear that the jurisdiction of the orphans' court attaches to the controversy.^* When Application May Be Made. No will shall be proved before the ordinary, or surrogate, until after ten days from the death of the testator."' In com- puting the ten days required to elapse before application for probate may be made, the day of death and that of probate must both be excluded. Thus, where testator died on Decem- ber nineteenth, probate cannot be granted until December thirtieth. ^"^ Form and Contents of Application for Probate. The application for probate of a will is required to be in writing, verified by affidavit, and to state the residence of the applicant, the names of the heirs at law and next of kin of the deceased, so far as the same are known, with their residence or post-office address and the manner or degree in which they severally, stand related to him or her, and shall also state the ages of any of said heirs or next of kin who may be minors ; v.hich application is required to be recorded by the surrogate in a book to be kept for that purpose. ^^ ^'-'Orphans' Court Act, sec. 14. ^oOrphans' Court Act, sec. 15, 3 3 Comp. Stat., 3817. Comp. Stat., 3817. s^Orphans' Court Rule i, this ^^In re Evans, 29 N. J. Eq., 571. page, infra. ''^Orphans' Court Rule i. 5*Young's Case, 67 N. J. Eq., 553- 202 Probate Law and Practice. Withdrawal of Application for Probate. An application for the probate of a will may be withdrawn at any time before citations are issued.^* Depositions. The statute authorizes the surrogate to take depositions to wills.^'^ If the will has a perfect attestation clause, the depo- sition of one of the witnesses that all of the requirements of the statute have been complied with will be sufficient.''"' Where, however, testator signs his name with a mark, pru- dence would dictate that the testimony of both subscribing wit- nesses be taken. If the will does not contain an attestation clause, or if the attestation clause be defective, the burden of proof is upon the proponent, and the depositions of both wit- nesses are recjuired."^ / In most states, the testimony of both subscribing witnesses is required, even though the will have a perfect attestation clause. New Jersey standing almost, if not quite alone, in admitting a will to probate upon the deposition of a single witness. Where, therefore, it is necessary that ancillary pro- ceedings be taken in another state for any purpose, as where there are lands in another state which pass under the provi- sions of the will, as a matter of prudence the testimony of both subscribing witnesses should be taken. The subscribing witness or witnesses must be produced, if procurable, and great weight is given to their testimony ; but the probate of a will is not dependent upon their recollection or veracity, and other testimony may be adduced to contro- vert or sustain their testimony."- So a will signed by a testa- tor and a sufficient number of witnesses may be established by testimony aliunde that the formalities prescribed by the statute have been observed.®^ 58In re Leonard's Will. 47 Atl. Eq., 290. Swain v. Edmunds, 53 Rep-' ^^^- N. J. Eq., 142. Affirmed, 54 N. T. soQrphans' Court Act, sec. 13, Eq., 439. p. 195, supra. 62Schouler on Wills, (3d ed.), eoMickle v. Matlack, 17 N. J. sec. 346-348. Underbill on Wills, L., 86. Compton v. Mitton, 12 N. sec. 211. Paige on Wills, sec. 366. J. L., 70. Whitenack v. Stryker, 2 esAHaire v. Allaire, 37 N. J. L., ^- J- ^^^ ^- 312-325. Affirmed, 39 N.J. L., 113. "iMundy v. Mundy, 15 N. J. Compton v. Mitton, 12 N. J. L.. 70-75. Probate of A\'ills. 203 If both witnesses be dead, and the will has a perfect attesta- tion clause, the will may be proven by proof taken by the surrogate of the genuineness of the signatures of the witnesses and of the testator.'"'* If both witnesses be dead and the will has no attestation clause, or if that clause be defective, the will cannot be proven, unless it so happens that there were present at the execution of the will persons other than the witnesses who are able to testify that all of the requirements of the stat- ute as to the execution of wills were complied with. Method of Taking Deposition of Non-Resident Witness. If any subscribing witness to a will shall reside out of this state, whose testimony is material, the surrogate, orphans' court, or ordinary, before whom such will shall be produced for probate, may issue a commission annexed to such will, and directed to the judge of any court of law, mayor, recorder, or other chief magistrate of any city or town, where such witness may be found, or to any consul or vice consul of the United States stationed in any foreign state or kingdom, or to any master in chancery of New Jersey, or to any notary public, commissioner of deeds, attorney or counsellor at law duly admitted to practice in this state, especially deputized by any such surrogate, orphans' court or ordinary, authorizing the taking of the deposition of such witness to the said will ; and the deposition of such witness taken under oath or affirmation, and duly certified by the person to whom such commission shall be directed, shall have the same operation as if the same bad been taken before the surrogate, court or ordinary who issued such commission.®^ This statute as amended in 1913 apparently provides for two methods by which the deposition of a non-resident witness may be taken. First by Commission "directed to the judge of any court of law, mayor, recorder or other chief magistrate of any city or town where such w^itness may reside" and second, by the court specially deputizing a Master in Chancery, G^ Allaire v. Allaire, 37 N. J. L., ^sp l 1913, p. 102, amending 311. Affirmed, 39 N. J. L., 113, Orphans' Court Act, sec. 16. 3 and see "Attestation Clause," p. Comp. Stat., 3818. 140, supra. 204 Probate Law and Practice. commissioner of deeds, notary public or attorney or counsellor at law of this state to go into the foreign state and there take the deposition of such subscribing witness. It does not author- ize the issuing of a commission to a commissioner of deeds or notary public of a foreign state. Qualification of Executor. It has always been the practice in this state, before grant- ing letters testamentary to an executor, to require him to take an oath well and truly to perform the duties of his office, to pay the debts of deceased and the legacies mentioned in the will, as far as the goods and chattels of testator which shall come into his hands will extend, and to well and truly account when thereunto lawfully required. This oath has been termed the "qualification" of the executor, and while recognized by our courts as necessary,*^** is not required by statute. Its origin must be found in the practice of the ecclesiastical courts of England. By a constitution of Archbishop Stratford, it was provided that "after the testament shall be proved according to custom before the Ordinary," the execution or administration of any goods shall not be committed, but to such as shall faithfully promise to render a just account of their administration when they shall be thereunto duly required by the Ordinary.*^' Swinburne says: "In what manner soever the testament be proved, the executor before he be admitted by the Ordinary to execute, and before he have the will under the seal of the Ordinary, is to promise by virtue of his oath to make a true account when he shall be thereunto lawfully called by the Ordinary."«« Burns, in his work on Ecclesiastical Law, tells us that by Canon 132 it was ordained that "henceforth every executor or suitor for administration shall personally repair to the judge in that behalf, or his surrogate, and in his own person take the oath accustomed in these cases." The ordinance further pro- vides that if by reason of sickness, age, or other just impedi- ment the executor be unable to appear personally before the ««See in re Maxwell, 3 N. J. 674 Burns Eccles. Law. 209. EQ-. 611. 68Swinburne on Wills, 427. Probate of \\'ills. 205 judge, it shall be lawful for the judge to grant a commission "to some grave ecclesiastical person abiding near the party aforesaid" to administer the accustomed oath/"'» The oath to be administered to the executor or administrator is given by Burns, who wrote in the year 1786, in the following language: "You shall swear that you believe this to be the true last will and testament of A. B., deceased; that you will pay all the debts and legacies of the deceased, as far as the goods shall extend and the law shall bind you ; and that you will exhibit a true and perfect inventory of all and every the goods, rights and credits of the deceased, together with a just and true account into the registry of the Court of when you shall be lawfully called thereunto. ""° It is interesting to note how closely the oath used in present day practice conforms with the foregoing language. The fore- going outline will also answer the question, doubtless often propounded, as to why under our practice an executor or administrator is required to take an oath well and truly to per- form his duties and a guardian is not so required. Inasmuch as the canons and rules from which was derived our practice requiring an executor or administrator to take an oath of office before entering upon his duties prescribed that the oath should be administered by the officer granting the probate or letters of administration it would seem to fol- low that if under modern practice the oath is to be required, it should only be taken before the Ordinary or surrogate, i. e., the officer admitting the will to probate or granting the ad- ministration. The power of a surrogate to issue a commis- sion to take the oath is at best very doubtful. Qualification by Corporation Executor &c. In all cases where any corporation authorized by law and its charter to act as trustees, executors, administrators or guardian, shall be appointed executor, administrator, or trustee of any estate or guardian of any infant or lunatic, it shall and may be lawful for the president, cashier, treasurer, tru.st of- ficer or assistant trust officer of such corporation to take and o»4 Burns Eccles. Law 210. ^"4 Burns Eccles. Law, 210. 2o6 Probate Law and Practice. subscribe for such corporation any and all oaths or affirmations required to be taken or subscribed by such executor, adminis- trator, trustee or guardian. ^'^'^ Bond of Executor. No bond is required from an executor who is a resident of New Jersey, unless expressly required by the terms of the will. A non-resident executor is, however, required to give bond in the same manner as is required in the case of adminis- tration with the will annexed, except in cases where the will provides that no security shall be required of the person or persons named as executor or executors therein. '^^ LETTERS TESTAMENTARY. In General. Letters testamentary cannot be granted to any person ex- cept one named in the will ; but the nomination in the will may be either express or constructive; if the latter, the ex- ecutor is usually called executor according to the tenor. '- An executor is not lightly, or by slight or indirect circum- stances, to be excluded from the trust the testator intended to confide in him ; and if the executor named in a will is capable in law, he will not be excluded unless he has by some act of his own deprived himself of the executorship.^^ So the fact that the person named in a will as executor is a non-resident is no ground for refusing to grant him letters testamentary ;'* nor is the fact that the person named in a will as executor claims a considerable part of the estate under a conveyance to him by the testator, which was adjudged to be a mortgage under the form of an absolute conveyance, resulting in antag- onistic feelings between the executor and the legatees. '^^ Where ToaP. L. 1915. P- 505. 7*Acker's Case, 70 N. J. Eq., 669, "^Orphans' Court Act, sec. 51, but see "Non-Resident Executors p. 311, infra. to Give Power of Attorney," p. ■'■21 Williams on Executors, 189. 208, infra. See also, "Appointment of Ex- "Acker's Case, 70 N. J. Eq., ecutors," p. 145, supra. 669. "3In re Maxwell, 3 N. J. Eq., 611. . . Probate of Wills. 207 a will names two persons as executors, and letters testamentary are taken out by one of the persons so named, but the other does not apply for nor take out letters, the latter is not precluded from thereafter applying for and taking out letters and pro- ceeding with the administration of the estate jointly with his co-executor.'*^ Executor Filing Caveat to Will. Where a will is admitted to probate, an executor named therein, if capable in law, is not excluded, unless he has by some act of his own deprived himself of the executorship. His renunciation may be either express or implied. The filing by him of a caveat against the probate of a will is clearly not an express or actual renunciation, for it speaks in no such lan- guage, nor can it be deemed an implied renunciation ; and it does not deprive the executor of the right to qualify, in the event of the will being admitted to probate. '^^ Insolvents, Bankrupts, Etc. A testator has the right to impose confidence in w4iom he pleases, and may select as his representative an irresponsible person ;'* but where it is shown that property in the hands of an executor is insecure or unsafe, he will be required to give se- curity." Idiots and Lunatics. Idiots and lunatics are incapable of being executors.''" Infants. At common law, an infant might be an executor, but by the statute of 38 Geo. Ill, an infant was disqualified from acting.^' In New Jersey, while there is no statute applying to the case, still it is not the practice to grant letters to an infant. In such '•Tn re Maxwell, 3 N. J. Eq.. Eq., 289. I Williams on Execu- 611. tors, 187. '''In re Maxwell, 3 N. J. Eq., "''Orphans' Court Act, sec. 140, 611. p. 312, infra. ^^Holcomb V. Coryell. 12 N. J. ''"i Williams on Executors, 188. 8' I Williams on Executors, 184. 2o8 Probate Law and Practice. case the proper course to pursue is either to obtain the grant of letters of administration durante minore aetate to the guard- ian of the minor, or administration cum testamento aniiexo may be granted to such person as is entitled thereto.®- Effect of Appointing Debtor Executor. The appointment of a debtor as executor or executrix, shall not, unless otherwise expressed in the said will, be construed so as to discharge such executor or executrix, from the payment of the debt, but the said debt shall be considered assets in his or her hands, to be accounted for in the same manner as any other part of the personal estate.^^ Acceptance of Executorship. The mere nomination by a testator does not constitute a person an executor ; he must accept the trust. An implied ac- ceptance will, however, be sufficient ;** and the probate of the will by the executor is conclusive evidence of his acceptance.-^ Non-Resident Executors, Etc., to Give Power of Attorney to Surrogate for Service of Process. Every executor, administrator, trustee or guardian not a resident within this state shall file with the surrogate of the county, or with the register, or clerk of the court, of this state, from which he, she or-^it has received or may hereafter receive letters testamentary or of administration, or such let- ters and power and authority as have been or may hereafter be granted, a duly executed instrument in writing constituting the said surrogate, register or clerk, and his successors in of- fice, his, her or its true and lawful attorney upon whom all original process in any action at law or in equity against the estate which he, she or it may represent and therein shall set forth the post-office address, street and number, and shall agree that any original process against the estate shall be of the ^-As to grant of administration ^32 Comp. Stat., p. 2261, sec. 8. durante minore aetate, see p. 283, 8*1 Williams on Executors, 225. infra. s^Schenck v. Schenck, 16 N. J. Eq., 174- Probate of Wills. 209 same force and effect as if duly served on such executors, ad- ministrators, trustees or guardians within this state. ^® Method of Service of Process. Service of such process shall be made by leaving a copy of the same with the surrogate or deputy surrogate, register or clerk, or with any clerk employed in the office of such surro- gate, register or clerk, together with a fee of two dollars to be taxed in the plaintiff''s costs of suit. The surrogate or deputy surrogate, register or clerk shall forthwith notify the executor, administrator, trustee, or guardian of such service by mailing a letter with a copy of the process served enclosed, with full postage thereon prepaid, directed to such executor, adminis- trator, trustee or guardian at the post-office address given in the said power of attorney.®' Effect of Failure to File, or of Revocation of Power of Attorney. If the power of attorney is not executed and filed as afore- said, within ten days after notice served upon said executor, administrator, trustee or guardian, either in person or by mail as may be directed; or if at any time said power of attorney is revoked by such executor, administrator, trustee or guard- ian, any letters testamentary, or of administration, or any au- thority whatsoever of any kind which may have been granted by such surrogate or by any court of this state, or by any judge of any court of this state, shall forthwith and im- mediately be and become null, void and revoked, and any per- son or persons or any competent and duly authorized corpora- tion of this state, upon giving notice of such application as may be directed, may then petition the surrogate or court or whomsoever may have the power and authority, for letters of substitution in the place and stead of those revoked as afore- said which may then be granted.®* 8«P. L. 1912, p. 551, sec. I. 88P L 1912, p. 551, sec. 3. *^P. L. 1912, p. 551, sec. 2. 2IO Probate Law and Practice. Contest of Grant of Letters Testamentary. There appears to be no method by which the right of an executor, named in a will, to letters testamentary can be con- tested. Filing a caveat with the surrogate against the grant of letters, without objecting to the probate of the will is in- effective, as the statute provides only for a caveat against the probate of the will. If it be said that the filing of such a caveat raises a dispute regarding the grant of letters, which requires the surrogate to issue citations to the parties in interest, re- quiring them to appear before the orphans' court to settle the matter in controversy, the answer is that the orphans' court is a court of statutory jurisdiction ; and as there is no provision in the statute conferring jurisdiction upon that court to hear and determine a contest as to the right of letters testamentary, it would appear that the court is without jurisdiction to de- termine such a controversy. In Berry's Case,^^ a caveat was filed against the grant of letters testamentary, on the ground that the executor had been guilty of fraud in transactions with the testator ; the court granted letters testamentary to the ex- ecutor, and, upon appeal, the Prerogative Court sustained the action of the orphans' court, but raised the question as to its jurisdiction, stating that that question had not been argued upon the appeal. VALIDITY OF PROBATE BY SURROGATE. In General. The decree of the surrogate admitting a will to probate, so far as the same relates to personal property, is final, and cannot be attacked collaterally. The only method by which the pro- bate of a will by the surrogate can be attacked is by appeal ; and after the time limited by the statute for taking such ap- peal has expired, there is no method of attacking the sur- rogate's decree^** It is settled that a decree of a surrogate ad- «»7i N. J. Eq., 719. Rep., 201. Except, however, by 9"Murray v. Lynch, 64 N. J. direct attack before the surrogate. Eq., 290. Affirmed, 65 N. J. Eq., See 'Tower of Probate Courts to 399. Young's Case, 67 N. J. Eq.. Correct and Revoke their Do 553- Crawford v. Lees, 93 Atl. crees," page — , supra. Foreign Wills. 211 mitting a will to probate is in effect an adjudication that no doubts api)ear on the face of the will, and that such decree can- not be attacked collaterally on the ground that doubts in fact appeared on the face of the will and that the surrogate was therefore without jurisdiction to admit the will to probate.^' A decree of a surrogate admitting a will to probate is, however, only prima facie evidence of the validity of the will, in so far as the same relates to real estate.''- FOREIGN WILLS. Probate of Copy of Will Probated in Another State. When any will of a decedent, not resident in this state at the time of his death, shall have been admitted to probate in any state or territory of the United States or the District of Co- lumbia or in any foreign state or kingdom, and any person shall desire to have the said will admitted to probate in this state for any purpose, application therefor may be made by pe- tition duly verified to the ordinary or to the surrogate of any county in this state ; and it shall be the duty of the ordinary, or such surrogate, upon a copy of such will, or of the record of such will, and the certificate of probate thereof being filed in his office, certified and attested as a true copy thereof by the person or persons, officer or court admitting the same to pro- bate, to admit the same to probate and to issue letters testa- mentary or of administration with said will annexed and to record the same in his office without the production of the original will, if it shall appear by the record of probate accom- panying the same that said will was executed in accordance with the laws of this state; and if it shall not by said probate proceedings so appear, then upon proof taken under a commis- sion, if necessary, or in any other manner provided by law, of the due execution of said will, in accordance with the laws of this state, which proof may be taken in the same manner as if the original will had been produced before him; but the person to whom such letters may be issued shall not be "^Crawford v. Lees, 93 All. Rep., 201. Allaire v. Allaire 37 ^^P-' 201. N. J. L.. 3^2 affirmed 39 N. J. L. '^^Crawford v. Lees, 93 All. 113. 212 Probate Law and Practice. obliged to file an inventory or account, unless the ordinary or the orphans' court of the county in which probate may be granted shall so order, and any such will being proved and recorded shall have the same force and eftect as if the original will had been produced and admitted to probate and letters tes- tamentary or of administration with the will annexed, had been thereon issued in this state; the record of such will and the probate proceedings had thereon, or a certified copy of said record, shall be received in evidence in all courts of this state ; provided, that where said will has been admitted to pro- bate in any state or territory in the United States or the Dis- trict of Columbia, the copy herein required to be filed shall be exemplified and authenticated according to the Act of Con- gress, and where said will has been admitted to probate in any foreign state or kingdom without the United States, such copy shall be certified in the manner required by the laws of such foreign state or kingdom or make it legal evidence there, and a recital in the certificate that the same is so certified, shall be prima facie evidence of that fact.^^ What the Record o£ Foreign Probate Must Contain, The record exemplified from another state must contain the proofs taken on the probate/^* Effect of Probate. This section does not give executors under the will the right to maintain a suit in this state without taking out letters tes- tamentary.^^ The act of the surrogate in admitting to probate a foreign will, under the statute, is a judicial proceeding, in which the foreign probate is used merely as evidence ; and the subsequent reversal of the original probate by the court of the state in »30rphans' Court Act, sec. 23, 636. McCarthy v. McCarthy 57 3 Comp. Stat., 3820. N. J. Eq., 587. but see P. L. 1915, 9*Allaire v. Allaire, 37 N. J. L., 605, page 213. infra. 312. Affirmed, 39 N. J. L., 113. ^^Porter v. Trail, 30 N. J Eq Nelson v. PoUer, 50 N. J. L., 324. 106. Lindley v. O'Reilly, 50 N. J. L., Foreign Wills. 213 which it was made will not annul the proceedings by the sur- rogate.^*^ Proceedings for Probate. The proceedings for the probate of a foreign will are, as will be seen from the foregoing, identical with those upon the will of a resident of New Jersey, except that the exemplified copy of the will takes the place of the original will, and that it is unnecessary to take the testimony of the subscribing w^it- nesses, unless the proofs taken in the foreign jurisdiction and forming a part of the exemplified record do not show that the will was executed in accordance with the statutory require- ments of this state, in which case the surrogate may take the deposition of the subscribing witnesses, or may issue a commis- sion for that purpose, as in the case of a will of a resident of this state. Original Probate of Foreign Will in This State. Neither the Prerogative Court nor the surrogate of any county of this state has general jurisdiction to admit to probate the last will and testament of a non-resident having a domi- cile at the date of his death in another state, although decedent left property in this state, except as ancillar}^ to a probate by the courts of the locality of such domicile. The original juris- diction of both the Ordinary and surrogate over the probate of wills is confined to those of decedents whose domicile was, in the case of the Ordinary, in this state, and in the case of the surrogate, within his county, at the time of death.-*' Copy o£ Foreign Will May be Recorded to Make Title to Lands. A copy of any will or of the record of any will of a decedent not resident in this state at the time of his death, admitted to probate in any state or territory of the United States or the District of Columbia, or in any foreign state or kingdom, and of the certificate, order or decree of probate thereof, and if title to land of said decedent depends or shall depend on the convey- »«Allaire v. Allaire, yj N. J. L., »"Chadwick's Case, 80 N. J. Eq., 312. Affirmed, 39 N. J. L., II3- 471. 214 Probate Law and Practice. ance by an executor or executors, administrator with the will annexed or administrators with the will annexed, of the record of the grant of letters testamentary thereon or of administration with the will annexed thereon, or of the copy of the letters tes- tamentary thereon or of administration with the will annexed thereon, exemplified and authenticated according to the act of congress, if it be the record of any state or territory of the United States or the District of Columbia, or certified in the manner required by the laws of the foreign state or kingdom in which such will shall have been proved and recorded to make it legal evidence in such foreign state or kingdom, if it be the record of a foreign state or kingdom, heretofore or hereafter filed and recorded in the ofifice of the surrogate of any county in this state, shall, if it thereby appears that said will was ex- ecuted in accordance with the laws of this state, have the same force and efifect in respect to all lands and real estate whereof the testator died seized, as if said will had been admitted to probate and said letters testamentary or of administration with the will annexed thereon had been issued in this state ; and such will and the certificate, order or decree of probate thereof shall be of like force and efifect, although the records so ex- emplified or certified as aforesaid are or shall be devoid of or defective in respect to the proofs of the execution thereof, whenever it shall appear from the attestation clause attached to the will or forming part thereof that such will was executed in accordance with the laws of this state, and all conveyances of such real estate heretofore or hereafter made by any ex- ecutor or executors, or administrator or administrators with the will annexed, trustee or trustees, substituted trustee or trustees, or the survivor or survivors of them, or by any devisee or devisees or persons claiming under such devisees, shall be as valid as if said will had been admitted to probate and let- ters testamentary or of administration with the will annexed had been issued in this state, and such record or certified copies of said will, proofs, order for probate and letters or of the record thereof, shall be received in evidence in all courts of this state."® 980rphans' Court Act, sec. 24, 3 Comp. Stat., 3821, as amended by P. L. 1915, p. 605. Foreign Wills. 215 The amending statute of 191 5 makes a radical change in the law. Prior to its enactment, unless the record showed by tes- timony of the subscribing witnesses therein contained that the will was executed in accordance with the laws of this state, the recording of such record would not pass the title to lands in this state therein devised ; whereas, under the act as amend- ed, if the record discloses that the will has an attestation clause, and it thereby appears that such will was executed in accord- ance with the laws of this state, the order or decree of such pro- bate thereof is made prima facie evidence of the due and legal execution of such will and no proofs of the execution thereof are required. What Wills May Be Recorded. This section applies only to foreign wills which have been admitted to probate in the state from which the copy of the will has been exemplified ; probate in the foreign jurisdiction as evidence of the factum of the will is a condition precedent to its being made a record in this state, and that jurisdictional fact must appear by the certificate transmitted with the copy of the will.^° Effect of Record. The effect of this section is to make such record, or a tran- script thereof, competent evidence, dispensing with proof by subscribing witnesses, and leaving the legal effect of the will as to devises of lands to be determined as it would be if the original will were produced and proved ;^°° but the mere filing in the surrogate's office of an exemplified copy of the record of probate of a will in a foreign state does not confer jurisdic- tion upon an orphans' court in this state over the executor named in the will. Before the-orphans' court can acquire such jurisdiction, it is necessary for the executor to prove the will in this state and take out letters testamentary thereon.' s^Lindley v. O'Reilly, 50 N. J. iVanDyke v. VanDyke, 36 N. J. L., 636. Eq., 521. Affirmed, 38 N. J. Eq., lo^Nelson v. Potter, 50 N. J. L., 280. .124. 2i6 Probate Law and Practice. The probate of a will in one state, though conclusive as to personalty, if the probate be made at the testator's domicile, is of no force in establishing its efificiency or validity as to a devise of lands in another state ; it can obtain such force only by virtue of some law of the state in which the lands lie.- So where a vendor suing for specific performance of a contract to purchase real estate relies on title through a foreign will admitted to probate in a foreign jurisdiction, he need not rely on sections 24 and 25 of the Orphans' Court Act,^ authoriz- ing the recording of the certificate of probate of the will in a foreign jurisdiction and additional proof as to its execution, without the production of the original ; but he may at the final hearing produce in court the original will, and prove its due execution, and thereby obviate any objection to the suf- ficiency of the certificate of probate and proof under the statute.* EflFect of Reversal of Foreign Probate. The subsequent reversal of the foreign decree admitting the will to probate will not affect the record in this state. ^ Proof of Execution of Foreign Will. Where an exemplified copy of any will, or of the record of any will admitted to probate in any state or territory of the United States or the District of Columbia, or foreign state, has been or shall be filed, pursuant to law, in the ofiice of the surrogate of any county of this state, and it shall not ap- pear by the record of probate accompanying such will whether or not such will was executed in the manner required by the laws of this state to transfer or afifect the title to real estate situate in this state, it shall be lawful for the orphans' court or the surrogate of the county in which such exemplified copy of the will is filed, to receive proofs as to the due execution of said will without the production of the original will ; and, when necessary, said court or surrogate may order that a 2Nelson v. Potter, 50 N. J. L.. ^gcott v. Carter, y(i Atl. Rep., 324. 1056. ^See page 213. supra, and this ^Allaire v. Allaire, 2>7 N. J. L. page, infra. 312. Affirmed, 39 N. J. L., 113. Foreign Wills. 217 commission issue to take the testimony of non-resident wit- nesses, and the proofs so taken shall be riled with said exem- plified copy of the will or of the record thereof, and recorded in such surrogate's office, and shall have the same force and ettect as if the same were a part of the j)roofs on which the original will was admitted to probate in such state, territory. District of Columbia, or foreign state ; and all conveyances of real estate heretofore or hereafter made by any executor or executors, administrator or administrators with the will an- nexed, trustee or trustees, or the survivor or survivors of them, by virtue of the power and authority conferred in any will so duly proven to have been executed in accordance with the laws of this state, or by any devisee or devisees named in said will, or persons claiming under such devisees, shall be as valid as if said will had been admitted to probate and letters testa- mentary, or of administration with the will annexed, had been issued in this state; and such records or copies thereof, duly certified, shall be received in evidence in all courts of this state.'^ Certain Defects in Records Heretofore Filed Validated. Where any foreign will or a copy thereof, or a copy of the record of any foreign will or of the exemplification thereof, shall have been probated, filed or recorded in this state, prior to the fourth day of July, A. D., one thousand eight hundred and eighty-eight, and said record or exemplification of such foreign will, from any foreign state, territory of the United States, District of Columbia or Kingdom, shall be informal, or cannot be found in the office of the surrogate or register of wills of any county in this State wherein such foreign will shall have been probated, it shall be lawful for any person in- terested therein to file with any such surrogate or register of wills an exemplified copy of the probate in such foreign state, territory of the United States, District of Columbia or king- dom, and upon the filing thereof, whether prior to or after the fourth day of July, A. D., one thousand eight hundred and eighty-eight, said exemplification of such probate shall be re- ceived in all the courts of this state in the same manner and ^Orphans' Court Act, sec. 25. 3 Comp. Stat., 3821. 2i8 Probate Law and Practice. to the same extent and effect as if such exemphfication had remained on file in the office of such surrogate or register of wills continuously from the date of the probate of such for- eign will in this state. Any foreign will, or a copy thereof, or a copy of the record of the probate of any foreign will, filed, recorded or pro- bated in this state prior to the fourth day of July, A. D., one thousand eight hundred and eighty-eight, shall be deemed to be valid and effectual in law, notwithstanding the fact that the copy of any such foreign will or the record thereof or the certificate of probate thereon, or the letters granted thereon in any such foreign state, territory of the United States, District of Columbia, or Kingdom, or the exemplification thereof, on which such foreign will was probated in this state, fail to set forth or contain the proofs that the will was made and executed in the manner and with the formalities prescribed by the statute of this state for devises of lands; and all con- veyances of such real estate heretofore or hereafter made by any executor or executors, or administrator or administrators with the will annexed, trustee or trustees, or the survivor or survivors of them, or by any devisee or devisees, or persons claiming under such devisee or devisees, shall be as valid as if said will had been admitted to probate and letters testamentary, or of administration with the will annexed, had been issued in this state upon proofs taken that the said will was made and executed in the manner and with the formalities prescribed by the statute of this state for devises of lands ; and such record of any such proceedings in this state, or certified copies thereof, shall be received in evidence in all courts of this state. ^ Whenever the will of any person residing in this state, who died prior to January first, one thousand eight hundred and ninety -five, which has not been admitted to probate (or the probate thereof denied) in this state, but which has been ad- mitted to probate in any state or territory of the United States or in the District of Columbia, and of which a copy together with a copy of the certificate, order or decree of probate, or of the record thereof, duly exemplified and authenticated ac- cordmg to the act of Congress, has been filed and recorded, ^P. L. 1911, p. 671. Record of Probate as Evidence. 219 or hereafter shall be filed and recorded, in the surrogate's office of any county in this state, then for the purpose of mak- ing title to real estate in this state, if it shall appear either from the attestation clause attached thereto, or forming a part thereof, or by the certificate, order or decree of probate, or the proofs of probate, or from any and all of them that said will was executed in the manner and form as required by the laws of this state, the record of such will shall have the same force and effect in respect to lands and real estate whereof the tes- tator died seized as if said will had been admitted to probate in this state, and all conveyances of such real estate heretofore or hereafter made by any executor or executors, trustee or trustees, or the survivors or survivor of them, or bv any de- visee or devisees, under such wall shall be as valid as if said will had been admitted to probate in this state and such record or certified copies thereof shall be received in evidence in all courts of this state, and any person interested in such will, or thereunder, may cause such copy of such will, or of the record thereof, certificate, order, or decree of probate and written proofs, if any there be, to be filed and recorded in the sur- rogate's office in any county of this state/* EVIDENTIAL VALUE OF RECORD OF PROBATE. Statutory Provisions. The statute requires that the surrogate shall record all wills proved before him or before the orphans' court, together with the proofs thereof and the letters testamentary issued thereon ; and the act provides that a transcript of such record, certified under the hand and seal of the surrogate, shall be re- ceived in evidence in every court of this state, and have the same validity and effect as transcripts certified by the register of the prerogative court.** This section was designed to make copies of records of wills prima facie evidence for the sake of convenience and to dispense with the production of the sub- scribing witnesses in support of title by devise ; but when "aP. L. 1915, p. 369. sQrphans' Court Act, sec. 158. 3 Comp. Stat., p. 3872. 220 Probate Law and Practice. such record is produced, the ordinary principles of evidence become applicable.^ Probate as Evidence of Execution of Will. The probate of the will of any person, resident in this state at the time of his or her decease, which has been or hereafter may be admitted to probate in this state, shall be conclusive evidence of the formal execution of said will, in any suit. action or proceeding, not commenced within seven years from the time of such probate; provided, that the affidavit, de- position or testimony of the subscribing witnesses thereto, or one of them, shall state that said will was signed by said testator; provided further, that the attestation clause of said will states that said will was signed and declared by such tes- tator to be his last will and testament in the presence of the subscribing witnesses thereto, who were both present at the same time and who signed their names as witnesses thereto in the presence of such testator, and in the presence of each other, or words to that effect; and provided further, that the time during which any person claiming as. or under, the heir of such testator shall be under the age of twenty-one years shall not be taken as part of said period of seven years; and pro- vided further, that nothing herein contained shall afifect any suit, action or proceeding heretofore commenced and now pending.^" Copy of Record of Will May be Recorded in any County. Such Record Competent Evidence. When any will devising lands shall have been duly admitted to probate before the ordinary or any surrogate of this state, it shall be lawful for the surrogate of any county in this state, on the application of any person interested therein, upon filing a certified copy of such will and the application for probate thereof, proofs, order for probate and letters testamentary thereon, to record the same; and such record, or a certified copy thereof, shall be received in evidence in any trial or con- ^Otterson v. Hofford i(> N. J. 104 Comp. Stat., 5872, sec. 35. L., 129-133. Nelson v. Potter, 50 N. J. L., 324-329- Contested Probate. 221 troversy respecting the title to lands in such county, in the same manner as if the said will had been originally admitted to probate before such surrogate. ^^ Validity and Effect. A certified copy of the surrogate's proceedings, on an ap- plication for probate, has the effect of a record, against which no averment will be admitted by the Ordinary.^- If the proofs contained in the record of the probate of a will devising lands show that the will was executed with all the formalities re- quired by law, the {)robate will be prima facie evidence, and will, of itself, be sufficient in an action of ejectment to establish the title, if not overcome by counterproof ;^" but the heir at law is not concluded by the probate from disproving the prima facie title shown by its production. He may controvert the effect of the probate by proof of the insanity of the testator, or the want of any of the legal requisites of a valid will, and may impeach its validity in any manner which would be permitted if the original will had been produced and proved by wit- nesses.^* What the Transcript Must Contain. Unless a transcript of the record of probate of a will de- vising lands contains the proof taken before the surrogate as required by the statute, it will not be admitted in evidence.'^ CONTESTED PROBATE. General Principles. Proceedings to contest wills are of two classes ; those brought to contest wills which have not as yet been admitted to pro- iiQrphans' Court Act, sec. 21, i*Den v. Allen, 2 N. J. L., 33, 3 Comp. Stat., 3819. Otterson v. Hofford, 36 N. J. L., i^In re Coursen's Will, 4 N. J.' 129. Allaire v. Allaire, 37 N. J. Eq., 408. See also Orphans' Court L., 312. Affirmed, 39 N. J'. L., ii:v Act section 156, page 5X, supra. Nelson v. Potter, 50 N. J. L., 324- i^AUaire v. Allaire, 37 N. J. L., 329. 312. Affirmed, 39 N. J. L., 113. i^Den v. Allen, 2 N. J. L., 32. Nelson v. Potter, 50 N. J. L., 324- Allaire v. Allaire, 37 N. J. L., 312. 329. Affirmed, 39 N. J. L., 113. Nelson V. Potter, 50 N. J. L., 324-329. 222 Probate Law and Practice. bate, and those begun after the will has been probated by the surrogate. The latter class of proceedings are inaugurated by an appeal, and will be considered in the chapter devoted to that subject.^*' The former, as has already been seen, are begun by filing a caveat with the surrogate. This class will now be con- sidered. A will may be contested on the ground of lack of tes- tamentary capacity, for fraud or undue influence in procuring the execution of the will, or because it was not executed with all of the solemnities prescribed by the statute.^' No pleadings are filed by either the proponent or the caveator, other than the caveat filed by the caveator and the petition of probate filed with the surrogate by proponent when the will is pro- duced for probate. Parties. When a caveat is filed, the legislative scheme requires that citations be issued to "all persons concerned." Who, then, are the persons concerned? When a caveat is filed, and a will is presented, or when a dispute arises respecting the ex- istence of a will, the matter goes to the orphans' court, to be considered under its power and authority to hear and de- termine all such disputes and controversies. The citation of the parties to these disputes and controversies affords reason- able protection to all interested. A caveat may, as has been seen, be filed by any person who would be injured by the probate of a will, and its function is to prevent probate with- out the caveators having an opportunity to be heard, but it concerns the caveator alone ; it may, as has been seen, be withdrawn at his pleasure before the jurisdiction of the or- phans' court has attached. Therefore any one interested in promoting or preventing the probate of a supposed will is en- titled to make himself a party" to the proceedings by filing a caveat"; and our statute secures an opportunity for such inter- '•'See "Appeal," p. 74, supra. Influence," p. 149, supra. "Execu- ^^See "Testamentary Capacity," tion of Wills," p. 125, supra, p. 103, supra. "Fraud and Undue Contested Probate. 223 vention by requiring ten days to elapse between the death of a testator and the probate of his will. When the legislature provided for thus converting "non- contentious business" before the surrogate, whose final action would be conclusive on all persons interested in the decedent's estate, into "contentious business" before the orphans' court, which is to hear and determine all disputes and controversies, but without any greater conclusiveness attaching to its final decree, it is reasonable to suppose that by the provision for notice to all persons concerned only those persons who had made themselves parties to the contention were intended. It follows that when caveats are filed against the probate of a will, the service of citations upon the caveators and upon those propounding the will for probate, vests in the orphans' court of the proper county complete jurisdiction over the ([uestion of probate. ^^ Service of Citations. The statute^^ directs that all process of the orphans' court shall be served by the sherifif ten days before the day whereon it shall be returnable, in the same manner as writs of summons are required to be served by the Practice Act.-° Citations issued out of the orphans' court may be issued into any county of this state and shall be served by the sheriff, or other proper officer of such county, and the court is authorized to enforce obedience to all such citations in the same manner as if the same had been served within the county where such citation is issued. ^^ Provision is also made by the statute for service on non-resi- dents. -- isMyers' Case, 69 N. J. Eq., .i^Orphans' Court Act, sec. 176. 793. overruling Young's Case, 67 p. 40, supra. N. J. Eq., 553, which held that -"Orphans' Court Act. sec. 176, those benefited by the will and in- p. 40. supra. terested in supporting its probate. siQrphans' Court Act, sec. 176, as well as the heirs at law and p. 40, supra. next of kin of the alleged testator ^^Ste Orphans' Court Act, sec- should be cited. tion 177, page 40, supra, and sec- tion 183, page 49, supra. 16 224 Probate Law and Practice. Hearing. In a contested will case, the burden is primarily upon the proponent to make out a prima facie case.-^ He therefore calls the attesting witnesses and examines them in regard to the facts and circumstances attending the execution of the will, after which the caveator is permitted to cross-examine. While it is the better practice to produce both attesting witnesses to the will, still there is no hard and fast rule requiring a pro- ponent of a will, under an ordinary caveat, to produce before the orphans' court all of the witnesses to the alleged wall, or to show by legal evidence that he was unable to do so. There has been conferred on the court jurisdiction to determine whether the paper propounded is a will — i. e., a paper executed with the formalities required by the statute, by a person capable of making it. The burden of proof rests, as has been seen, upon the proponent. When he presents proof sufificient to justify the court in finding that the paper was duly executed, he may rest his case. If he presents such sufficient proof, the court may act upon it, unless it is met and overcome by counter- proof.=^* After the examination of the attesting witnesses, the pro- ponent rests his case. If the testimony produced fails to establish a prima facie case of due execution, the court will, without further testimony, deny probate of the will. If, on the other hand, proponent establishes a prima facie case, the caveator opens his case in opposition to the will, and calls witnesses to testify in support of his contentions; he then be- comes the moving party, and the burden is upon him to estab- lish by a preponderance of evidence the objections urged against the validity of the will.-'"' After the caveator has rested his case, the proponent is permitted to introduce testimony by way of rebuttal of that of the caveator, under the general rules of evidence govern- 23Ward V. Wilcox, 64 N. J. Eq., Whitenack v. Stryker, 2 N. J. Eq., 303. -Affirmed, 65 N. J. Eq., 397. 15. Whitenack v. Stryker, 2 N. J. Eq., ^sSee "Testamentary Capacity," ^5- p. 116. supra. "Fraud and Undue 2*Ward V. Wikox, 64 N. J. Eq., Influence," p. i6o,- supra. "Execu- 303. Affirmed, 65 N. J. Eq., 397. tion of Wills," p. 143, supra. Contested Probate. 225 ing trials in a court of law. After the testimony has been com- pleted, and both sides have rested their respective cases, the court will, after consideration of the testimony, make its decree admitting or denying probate of the will, as the circumstances of the case may require. When in a contest pending in the orphans' court evidence is taken by a master, or by the surrogate, or in open court, and reproduced from a stenographer's notes, a judge of the court, succeeding a predecessor who sat when the evidence was taken, may use it in determining the questions presented in the con- test.-*^ Evidence. Proceedings for the probate of a will are, as has been seen, not a civil action, but a judicial inquiry to ascertain whether the instrument before the court is the last will and testament of the deceased. Therefore section 4 of the Evidence Act,-*^* prohibiting parties to an action against a personal representa- tive of a decedent from testifying as to transactions with or declarations by such decedent, is inapplicable. An executor and proponent of a will, and a beneficiary thereunder, or the attorney and counsel of the testator in the execution of a will, may all testify as to transactions with or declarations by the decedent, evidencing testamentary capacity, but their interest may be considered in determining their credibility.-' The rules applicable to the admissibility of evidence in con- tests involving testamentary capacity, undue influence, &c., will be considered in connection with those subjects.-^ Allowance to Widow or Children Pending Determination of Contest. In all cases where any contest has arisen or shall arise in any court of this state touching the prol)ate of any paper purport- 26In re Martin Nolan, 71 N. J. Veazey's Will, 80 N. J. Eq., 466. Eq., 207. 28See "Testamentary Capacity," 2«a2 Comp. Stat., 2218, sec. 4. p. 116, supra. "Fraud and Undue -"Mackin v. Mackin, y? N. J. Influence,"' p. 160, supra. "Revoca- Eq., 528. Grant v. Stamler, 68 tion of Wills," p. 184, supra. "E.x- N. J. Eq., 555. In re McLaugh- ecution of Wills," p. 140, supra. lin's Will. 59 Atl. Rep., 469. In re 226 Probate Law and Practice. ing to be the last will and testament of any person, it shall and may be lawful for the ordinary, or the judge of the orphans' court in the county where such paper is probated, upon peti- tion made for that purpose by the widow of such deceased per- son or by any child or children of the deceased, or by any child or children of any deceased child or children of the deceased (and if any such child or children be within the age of twenty- one years, then by the next friend of such child or children), to make an order upon the person or persons having custody of such estate for the payment of such allowance for the sup- port and maintenance of such widow or of such child or chil- dren, out of the income of the estate of such deceased person as the ordinary or the judge of the orphans' court may deem just, pending such contest, and such further allowance out of the income, or, if need be, out of the corpus of such estate, as may be necessary to meet the expense incurred or to be in- curred in conducting such contest concerning the probate of such will ; provided, that the person hereinabove described as a widow shall have been ceremonially married to the deceased person, and shall have been living with him as his wife at the time of his death; and the ordinary or the judge of the or- phans' court shall prescribe such rules to secure summary hearing and relief upon such petition as they may deem neces- sary.-^ An allowance out of the corpus of a decedent's estate for the support and maintenance of the widow and children of testator should be refused unless it be made to appear that the contesting petitioner has reasonable cause for contesting the validity of the will."*^ Trial of Disputed Probate in the Circuit Court. Jurisdic- tion of Orphans' Court. When any caveat shall be filed against the probate of a will, or any appeal shall be taken from the proceedings of any surro- gate respecting the probate of a will, the orphans' court may, on 290rphans' Court Act, sec. 22, as JOIn re McPherson, 24 N. J. L. amended by P. L., 1905, p. 302, 3 J., 619. Comp. Stat., 3819, sec. 22. Contested Probate. 227 application of the caveator, appellant, or proponent, certify the questions involved in such controversy into the circuit court of the same county, for trial before a jury.^^ Certifying questions into the circuit court is discretionary with the orphans' court ; the provisions of the act are not man- datory.^- But query whether the orphans' court can impose upon the application for such trial any condition as to the time of trial. ^^ Application. The application to certify a case into the circuit court for trial before a jury must be made before the trial in the or- phans' court is begun."* Proceedings in Circuit Court. Upon the tiling of the certificate of the orphans' court with the clerk of the circuit court, the said court shall have juris- diction to try the said cause upon an issue to be framed by -the judge holding said court; the notice of trial and proceedings for summoning and impaneling a jury and for the trial of the cause shall be the same as in causes commenced in the cir- cuit court.^^ At the trial, the proponent proceeds to examine the attesting witnesses and to make out a prima facie case of a valid will, as in trials in the orphans' court. The caveator, or appellant, as the case may be, then presents his case, after which the proponent may present testimony by way of rebuttal. Upon the trial before the circuit court of the issue framed by the circuit judge, the testimony of the witnesses shall be taken down stenographically, and, if required by either of the parties, shall be reduced to writing, and exceptions may be taken to the admission and rejection of testimony which shall be entered upon the record.^® 3'Orphans' Court Act, sec. 18. 34Sutton v. Morgan, 30 N. J. 3 Comp. Stat., 3818. Eq., 629. 32Brothers v. Pickel, 31 N. J. ^sOrphans' Court Act, sec. 18. Eq., 647. 3 Comp. Stat., 3818. 33Enibley v. Hunt, 29 N. J. Eq., ^cOrphans' Court Act, sec. 19, 3 306. See also Orphans' Court Act Comp. Stat., p. 3819. section 182, p. 47, supra. 228 Probate Law and Practice. Where a cause is certified into the circuit court, that court has no power, under the provisions of the Act of March 23d, 1900,^^ to send the case into the common pleas for trial.^' Motion for New Trial. The verdict of the jury is subject to be set aside and a new trial granted in the circuit court, as in other cases in said court ; and the judge may, on application for a new trial, certify the same to the supreme court for its advisory opinion.^" Where a party claims to be aggrieved by any proceedings at the trial of an issue at the circuit, his remedy is by motion for a new trial, or to appeal. The orphans' court cannot re-try the same issue, after the return of the verdict. *** Alleged irregularities in the trial at circuit are properly disposed of by application to the circuit court for a new trial ;*^ and objections addressed to the discretion of the circuit judge and overruled by him, or objections w^hich, if raised at all, ought to have been raised in the circuit, are no ground for reversing the decree of the orphans' court.*- Transcript of Proceedings in Circuit Court to be Re- turned to Orphans' Court. After the trial is finally concluded in the circuit court, it is the duty of the judge before whom such issue is tried forth- with to certify and return to the orphans' court the proceed- ings thereon had, and the verdict of the jury ; together with the testimony, if the same shall have been reduced to waiting; a copy of the charge to the jury; all exceptions which shall have been taken at the trial to the admission or rejection of evidence, or to the charge to the jury ; a certified copy of the costs which shall have been taxed, and a statement of the ex- 37P. L. 1900, p. 349, sec. 48. 2 4oEtnbiey y, Hunt, 29 N. J. Comp. Stat., 1720, sec. (^-7. Eq., 281. Affirmed, ib., 306. 38Bumstead v. Judges, 56 N. J. ^igrnbley v. Hunt, 29 N. J. Eq.. L- 414- 306. 390rphans' Court Act, sec. 18. ^syoumans v. Petty, 33 N [ 3 Comp. Stat., 3818. See also 4 Eq., 532. Comp. Stat., 5873, sec. n. Contested Probate. 229 penses of the said trial ; which certificate and return shall be filed by the surrogate.^^ Orphans' Court to Make Decree. Upon the return into the orphans' court of the transcript of tlie proceedings in the circuit court, the orphans' court pro- ceeds to make a decree touching the probate of the said will in accordance with the finding of the said issue, and may make such order concerning the costs and expenses and allowance of counsel fees as may be made in cases where the hearing upon a caveat against proving a will is had before the orphans' court.** After an issue has been certified from the orphans' court and tried at the circuit and a verdict returned, the orphans' court has no authority to re-try the same issue. The act does not authorize the orphans' court to ignore or disregard the verdict, and proceed itself to try the questions which were the subject of the issue, but gives the power of granting a new trial to the court before which the issue is brought.*^ The only other remedy of a person aggrieved is to appeal to the pre- rogative court. *^ Costs. The statute provides that the same costs shall be taxable as in other cases in the circuit court.*^ APPEAL FROM ORPHANS' COURT DECREE. Appeal Lies to Prerogative Court. An appeal to the Prerogative Court will lie from a decree of the orphans' court based upon the verdict of a jury on a case certified to the circuit court. *^ ^^Orphans' Court Act, sec. 19. *^Orphans' Court Act, sec. 18, 3 3 Comp. Stat., 3819. Comp. Stat., 3818. **Orp?mns' Court Act, sec. 19. 3 ^sKitchell v. Beach, 35 N. J. Eq., Comp. Stat., 3819. 446. For practice on appeal to *^Embley v. Hunt, 29 N. J. Eq., prerogative court, see "Appeal.' 281. Affirmed, ib., 306. p. 80, supra. *6Kitchell V. Beach, 35 N. J. Eq., 446. _>30 Probate Law and Practice. Jurisdiction of Prerogative Court. When an appeal from the decree of the orphans' court founded upon the findings of a jury is taken to the Prerogative Court, the Ordinary is not Hmited to a review of the propriety of the decree of the orphans' court upon the matter submitted to that court's judgment, nor is he restricted by the determina- tion of the issues considered at the trial in the circuit court; whether the paper shall be admitted to probate as a will is presented to him as an original question, which he may de- termine either upon the evidence taken upon the trial in the circuit court, or upon that evidence supplemented by other proofs, or upon new proofs, at his discretion ;*^ and this not- withstanding the provisions of the Act of 1892^° relative to the effect of a jury trial in proceedings touching the probate of wills.''^ But on an appeal from a decree denying probate upon the finding of a jury that the contested writing was not the will of the testator, because it was the product of undue influence, the appellate court will carefully scrutinize the ver- dict of the jury before reaching a result not in accord there- with.^- Objections addressed to the discretion of the circuit judge and overruled by him, or objections, which, if raised at all, should have been raised in the circuit, are no ground for reversing the decree of the orphans' court. ^^ If the evidence taken at the circuit has not been reduced to writing, it can be taken anew in the Prerogative Court, and other testimony than that produced below admitted.^* COSTS AND COUNSEL FEES. Statutory Provisions. In causes respecting the probate of a will, or of a codicil to a will, if probate be refused, the court may order the costs ^^Rusling V. Rusling. 35 N. J. s^gchuchhardt v. Schuchhardt, Eq., 120. Affirmed. 36 N. J. Eq., 62 N. J. Eq., 710. 603. Kitchell V. Beach, 35 N. J. ^sYoumans v. Petty, 33 N. J. Eq., 446. Smith v. Smith, 48 N. Eq., 532. J. Eq., 566. 5*Rusling v. Rusling, 35 N. J. 6op. L. 1892, p. 28. 4 Comp. Stat., Eq., 120. Affirmed, 36 N. J. Eq., 5873, sec. 37- 603. ^^Sanderson v. Sanderson, 52 N. J. Eq., 243. Contested Probate. 231 and expenses of the litigation to be paid by the person or per- sons propounding the will or codicil, or to be paid out of the estate of the deceased; but, if probate be granted, the court shall order the party or parties contesting such will or codicil to pay the costs and expenses of the litigation, unless it shall appear to the court that the person or persons contesting such will or codicil had reasonable cause for contesting the validity of the same, or shall not have offered on the trial or hearing, any evidence other than the subscribing witnesses to the will or codicil ; and in case it shall appear to the court that the person or persons contesting such will or codicil, had reason- able cause for contesting the validity thereof, the court may order that the cost and expenses of the litigation, as well on the part of such contestant or contestants as on the part of the person or persons propounding such will or codicil for probate, be paid out of the estate of the deceased.^^ Historical Sketch of Legislation. The practice which obtained previous to the Act of 1855^^ was to charge the entire costs of both parties to a contest over the validity of a will upon the estate ; but by the statute of 1855, it was enacted that if probate was granted, the costs of both parties should be paid by the caveator, except in cases where no evidence other than that of the subscribing witnesses was offered by such contestant. In 1861,^' it was enacted that if probate was granted, and caveator had offered other evidence than that of the subscribing witnesses, the court, if it ap- peared that such caveator had "reasonable cause therefor," might make such decree respecting the costs and expenses as could have been made prior to 1855.^* In General. Costs and counsel fees were not recoverable at common law ; they are purely the creatures of statute.'^'-* It therefore follows s^Orphans' Court Act, sec. 197. ^sgcction 197, supra, was cnact- 3 Comp. Stat., 3885. ed .in its present form in 1876, sBNix. Dig. (4th Ed.), 651, p. 60. (Rev. 791, par. 177). "Nix. Dig. (4th Ed.), p. 656, ^oLehigh Valley R. R. Co. v. par. 86. McFarland, 44 N. J. L., 674. 232 Probate Law and Practice. that the only power of the orphans' court to allow costs and counsel fees must flow from some statute granting that power.^"' Thus, the power to impose a counsel fee as part of the ex- penses and costs of litigation upon the estate of a decedent is derived solely from the provisions of section 197 of the Or- phans' Court Act,**^ and is thereby limited to cases of litigation arising on a contest respecting the validity of a will offered for and admitted to probate. The orphans' court has no power to order proctors' fees to be paid out of the estate of the de- ceased in proceedings to open the probate of a will on the ground that some of the next of kin had not been cited on the application for probate, and that the withdrawal of a contest had been induced by fraud.®- Under section 197 of the Orphans' Court Act,*^^ the court is authorized to include counsel fees to both sides as part of the costs and expenses of the litigation f* and in a will contest initiated by a caveat, where persons in interest other than the caveator and proponent have appeared and taken part in the controversy, it is lawful to allow fees to counsel representing these proper parties, as well as to those who represent the necessary parties ; in other words, the controversy being in- augurated, all parties who lawfully participate in it have an equal standing before the court, and an equal claim to its con- sideration.®^ But to entitle a party to costs, he must have some interest in the contest. A caveatrix who, if she had succeeded in invalidating some bequests, would have derived no benefit therefrom, is not entitled to costs.*'® Charges of Expert Witnesses. The charges of an expert produced by one of the parties to a will contest, without previous authority therefor from the court, will not be allowed from the estate of the decedent. In eoSmith v. McDonald, 69 N. J. e^Bioren v. Nesler, 76 N. J. Eq., Eq., 765. Affirmed, 71 N. J. Eq., 576. Kayhart v. Whitehead, 77 N. 261. J. Eq., 12-15. «iPage 230, supra. «5Bioren v. Nesler, 76 N. J. Eq., «2Meyer's Case, 71 N. J. Eq.. 576. 724- 66\Yaij-, y Bruere, 53 Atl. Rep., s^Page 230, supra. 822. Contested Probate. 233 the case of Sanderson z'. Sanderson,^'' it was held that it would establish an unwise precedent to mulct a decedent's estate with the charges of such witnesses, and that, if it be necessary to have the assistance of experts whose charges are to be borne by the estate, their production should be au- thorized, and they should be chosen by the court after hearing the parties to the contest. Effect of Testamentary Provisions. Where the will provides that if any of the legatees attempt to prevent the probate of the will they shall pay all expenses of both sides, it has been held that the condition is good, and, a caveat having been filed, that costs of probate should be paid by the caveators.*'^ When Litigation Unnecessarily Protracted. Where testimony in opposition to the probate of a wmII is protracted to an unnecessary extent, costs which would other- wise have been given will be denied,^'' and so where the litiga- tion is needlessly protracted and expensive.'" So where in a cause respecting the probate of a will the validity of the will is not questioned, but probate is resisted on other grounds, and is granted, the costs and expenses of litigation will not be charged upon the testator's estate.'^ Costs of Proponent. An executor propounding a will for probate, acting in good faith and without proof of fraud, is entitled to costs out of the estate, whether probate be granted or refused ;'- but if a will 6-52 N. J. Eq., 243-255. 7iBurr v. Burr. 53 N. J. Eq.. c«Hoit V. Hoit, 42 N. J. Eq., 388, 627. reversing S. C, 40 N. J. Eq.. 478. '^Perrine v. .\pplegate. 14 N. J. Kayhart v. Whitehead, 77 N. J. Eq., 531. Boylan v. Meeker, 15 Eq., 12. N. J. Eq., 310. Whitenack v. eaCoHins v. Townley, 21 N. J. Stryker, 2 N. J. Eq., 8. Day v. Eq., 353. In re Wintermute, 27 N. Day, 3 N. J. Eq., 55o, but see Skill- J. Eq., 447. Affirmed, 28 N. J. man v. Lanehart. 73 N. J. Eq., Eq., 437. 351- ^oMallett V. Bamber, 33 N. J. Eq., 253. 234 Probate Law and Practice. is offered for probate by a legatee or party interested, other than the executor, he will, if unsuccessful, be condemned in costs, unless he merely interrogates the witnesses to the will." Costs of Caveator if Probate Denied. If probate be denied, the party contesting the validity of the will is entitled to costs out of the estate.'* COSTS OF CAVEATOR WHEN PROBATE GRANTED. Where Only Subscribing Witnesses Are Called. The general rule is well settled that the next of kin or legatee under a former will is entitled to public and full probate of a will by the subscribing witnesses. He will not, therefore, be condemned in costs for requiring such probate, if he merely interrogate the witnesses produced in support of it, unless his conduct be clearly vexatious."^ When Evidence Other Than That of Subscribing Wit- nesses Offered. Although the allowance of the costs and expenses and counsel fees of the caveators against the probate of a will is, by statute,'*"' discretionary with the court, yet when there exist no reasonable grounds for contesting such probate or the litigation is needlessly protracted and expensive, such allowance should be denied.''^ If the party contesting the will "have no reasonable cause" therefor, he must pay the costs of both parties; if he have reasonable cause, that fact may, in the discretion of the court, exempt him from the payment of costs to the successful party.'* So where probate of a will is resisted upon an immaterial issue "Perrine v. Applegate, 14 N. J. "Alallett v. Bamber, 33 N. J. Eq-. 531. Eq.. 253. '^Perrine v. Applegate, 14 N. J. "sPerrine v. Applegate, 14 N. J. Eq-. 531. Eq., 531. Mallett v. Bamber, 33 "Perrine v. Applegate, 14 N. J. N. J. Eq., 253. In re Sebring's Eq., 531. Orphans' Court Act, sec. Will, 93 Atl., 686. Orphans' 197, p. 230, supra. Court Act, sec. 197, p. 230, supra. ""Orphans' Court Act, sec. 197, p. 230, supra. Contested Probate. 235 under misapprehension of the law. in which misapprehension the proponent shares, costs will not he charged upon the es- tate ;''' and so where testator was twenty-four years of age, of sound mind, unmarried and childless and without brother or sister, and had for nine years resided at the home of a friend, to whose daughter he devised his estate, there being no evidence of undue influence, caveator's costs were not allowed from the estate.*^ When probate is granted, if the party contesting the validity of the will sets up insanity or calls witnesses other than the subscribing witnesses of the will, he may be required, in the discretion of the court to pay costs to the opposite party.*^ And so where, in a will contest on the ground of lack of testamentary capacity, it was shown that the contest- ant had so acted in a business transaction with the testator as in effect to recognize his contractual capacity, and he made no attempt to deny or disprove such action, but nevertheless con- tinued the contest, he was held not entitled to counsel fees.^- Where it cannot be said that a will contest is without merit, an allowance of a counsel fee to a party to the contest is proper ;*^ and, in an exceptional case, when strong and well- founded doubts exist as to the mental capacity of the testator, and with respect to the force and character of the influence under which the testamentary act was performed, the caveators are entitled to their costs and reasonable counsel fees f* but it is only in an extreme case that costs will be allowed to an un- successful party contesting a will.-^ The habitual use of morphine by the testatrix constitutes "reasonable cause" for contesting the validity of the will, and justifies the court in ordering that costs of litigation be paid out of the estate.-'* So where testator was of great age w^hen he executed his will leaving the bulk of his property to one T»Burr V. Burr, 53 N. J. Eq., 214. Hollinger v. Syms, 37 N. 627. J. Eq., 221. Affirmed, ib., 628. «oHiggins v. McQuirk, 61 N. J. «^hi re Eddy, 33 N. J. Eq.. 574- Eq., 613. ssperrine v. Applegate, 14 N. siPerrine v. Applegate, 14 N. J. J. Eq., 53i- hi re Wintcrmutc. Eq., 531. 27 N. J. Eq.. 447- Affirmed. 28 82Grant v. Stamler, 68 N. J. Eq., N. J. Eq., 437- 555. »«Frost V. Wheeler, 43 N. J. Eq., ''■■'Hilyard v. Wood, 71 N. J. Eq.. 573- 22^6 Probate Law and Practice. child, with whom he had Hved for years, his other children have the right to require it to be clearly proved that he ex- ecuted the will understanding that it was his testamentary act f' and so in a question of fraud in the execution of a will, where there were reasonable grounds for the action of the caveators in contesting the will, their costs and expenses, in- cluding proper counsel fees, must be allowed out of the estate.*^ Payment of Costs. Where a will is contested and sustained, and costs and counsel fees allowed to both parties, in paying the costs and ex- penses, the executors should first charge them upon the residu- ary estate, and make up the deficiency out of the legacies to the caveators. If any further deficiency, the other legacies must abate proportionately.^^ s^Collins V. Townley, 21 N. J. J. Eq., 463-472. Reversed, 21 N. Eq., 353- J. Eq., 561. s^In re Vanderveer's Will, 20 N. ^^Stackhouse v. Horton, 15 N. J. Eq., 202-232. CHAPTER XIV. NUNCUPATIVE WILLS. In General. A nuncupative will, says Swinburn, is when a testator, with- out any waiting, doth declare his will before a sufficient number of witnesses.^ Nuncupative wills, as a rule, are not favored by the courts, for the very obvious reason that they are at best uncertain pro- ductions, depending upon the attention, intelligence, memory, and honesty of those who surround a dying testator. Not only may the remembrance of language be defective, but its in- tended meaning may be misapprehended and, indeed, loose ex- pressions of desire may, through stupidity or dishonesty, be fabricated into a testamentary act, where such an act was not intended." In New Jersey, the statute concerning nuncupative wills, passed in 1864, re-enacts almost literally the provisions relative to nuncupative wills contained in the statute of frauds.^ The term "nuncupative will," as used in the statute of frauds, has always been held by the English courts to mean a will not com- mitted to writing by the direction of the testator, one whose efficacy depended upon its being declared verbally by him to be his will. Directions or instructions for wills reduced to writing by the testator, or by some other person by his direction, have never been considered as nuncupative wills, but have uniformly been treated as written wills.* Nature and Essentials. It is essential to the establishment of a nuncupative will that it shall among other things clearly appear : First, that at the iSwinb. Pt. I, s. 12, pi. I. Go- ^20 Car., 2, ch. 3. dolphin Pt., I, c. 4, s. 6. Mn re Hebden's Will, 20 N. J. ^Male's Case, 49 N. J. Eq., 266- Eq., 473. 275- 237 238 Probate Law and Practice. time of uttering the words relied on the testator had a pres- ent consistent intention that the very words uttered should con- stitute his will, and that the witnesses so understood his lan- guage ; second, that the testator by his own language, before pronouncing the will, indicated to those about him, or to some of them, that they were to witness that the very words he pres- ently uttered were to constitute his last testament.^ A nuncupative will can only be a verbal declaration made in the presence of witnesses called on to witness it, and not reduced to writing by direction of the testator ; he must intend at the time that the verbal declaration so declared shall be his will. The very essence and substance of the matter is that the testator shall intend the declaration so made by him to be his will, and the words of the statute*^ require this construction ; they are "at the time of pronouncing the same bid the persons present." These words refer to the publication, or the pro- nouncing of the declarations as his last will and testament. This is a formal adoption of the declaration as his last will, not a postponing to a future execution of the adoption of it It follows, therefore, that where a will was drawn by an at- torney for the purpose of being executed as a written will, some hours before the testator's death, pursuant to his in- structions, but its execution was postponed until he should feel stronger, although he asserted that his will was as it had been drawn, and testator died without executing such will, the paper writing in question cannot be admitted to probate as a nuncupative will;^ and so where the will remained unexecuted solely because death unexpectedly intervened, it cannot be es- tablished as a nuncupative will.® When Valid. The statute provides that no nuncupative wall shall be valid, unless such will was made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwell- sMale's Case. 49 N. J. "Eq., 266. ^n re Hebden's Will, 20 N. J. cRev., 1877, p. 1245. 4 Comp. Eq., 473. Stat., p. 5864. sec. 13. ^Male's Case. 49 N. J. Eq., 266. Nuncupative Wills. 239 ing, or where he or she hath been resident for the space of ten days or more, next before the making of such will, except where such person was surprised or taken sick, being from his or her Own home, and died before he or she returned to the place of his or her dwelling.^ Last Sickness — What Constitutes. It is well established that the term "last sickness" in the provisions of the statute is not to be considered as signifying merely the illness, without regard to its duration, which termi- nated in the alleged testator's death, but as meaning in ex- tremis.^" That is, the law contemplates sudden and severe ilb ness immediately preceding physical dissolution, when there is neither time nor opportunity to make a written will and when, therefore, if there is to be a will, it must of necessity be a merely oral one. Blackstone says that the legislature has pro- vided against any frauds in setting up nuncupative wills by so numerous a train of requisites that the thing itself has fallen into disuse and is hardly ever heard of, except in the only in- stance where favor ought to be shown it — when the testator is surprised by sudden and violent sickness.^ ^ A nuncupation can only be sustained when it is the result of sheer necessity. If the decedent could have made a testa- mentary disposition in the manner prescribed by statute, a nun- cupative disposition will be of no avail. It follows, therefore, that where a decedent lived nine days after making a nuncupa- tive will, and possessed the capacity meanwhile to execute a written one, and could have made such written will, the nun- cupative will cannot be sustained. ^- Manner of Execution. The statute provides that no nuncupative will heretofore made or hereafter to be made, shall be good, where the estate thereby bequeathed shall exceed the value of eighty dollars, ■'Rev.. 1877, p. 1245. 4 Comp. Carroll v. Bonham, 42 N. J. Eq.. Stat., p. 5864, sec. 13. 625. i*^Prince v. Hazleton, 20 Johns., 112 Black. Com., 501. 502. Yarnall's Will, 4 Ivawle, 46. ^^Carroll v. Bonham, 42 N. J. Eq., 625. 17 ^40 Probate Law and Practice. unless the same be proved by the oaths of three witnesses at the least, who were present at the making thereof, nor unless it be proved that the testator at the time of pronouncing the same, did bid the persons present, or some of them, bear witness, that such was his or her will, or words to that effect.^ ^ The statute does not require a fixed form of speech for the rogatio testiiim. Its whole scope and policy is to perfect a method in which a will may be made by one in extremis when there is not time to resort to writing, and does not expect that such a person will be able to use the exact words of the statute. Hence the express license given to use words to the effect of those used in the law itself. The English statute did not ex- pressly require that the bidding of the persons present to wit- ness should be by words. It required a ''bidding, or to that effect." Our statute interpolates after the word "or," the word "words," so that its text reads "or words to that effect." Its license extends only to a change from the words of the statute to expressions of the testator in other language which have the same meaning. It is then, as has been said above, es- sential, to the validity of a nuncupative will that the testator shall by his own language indicate to those about him, or some of them, that they are to witness that the very words he is about to utter will constitute his last testament, — the main purpose of this vitally essential requirement being to provide for a marked distinction between loose declarations, casual conversa- tions and admissions as to testamentary intentions, extracted by surrounding friends, or instructions for a formal written testament, and the testamentary act itself, and to prevent the former from being passed off as the latter. In short, its office is to fix a clear boundary between the conditions of testacy and intestacy.^* The statute requires explicitly that the testator shall call upon those present to bear witness that such is his will. This is clearly a different act from pronouncing it to be his will. It is distinguished by the very words of the statute. Simply saying, "It is my will," or "I wish thus" is a declaration or "Rev., 1877, p. 1245. 4 Comp. i^Male's Case, 49 N. J. Eq., 26(5 Stat., p. 5864, sec. 13. at page 277. Nuncupative Wills. 241 pronouncing of what the will is. This the statute declares shall not be sufficient, but that the testator shall go through the form of bidding or asking those present to witness that it is his will. This is a salutary provision against fraud, being efficacious to prevent the conversation of a decedent, not meant to go into effect as a will, from being proved as such.^^ Statute Strictly Construed. The statute was so justly aimed at the prevention of a patent evil that since it came into existence, the courts, in view of its obvious purpose, and to give effect to it, have demanded strict- ness in proof of nuncupative wills in all essential points, whether they be such as show full compliance with the restraint of the statute, or such as show facts fundamentally indispen- sable to the probate, independently of the statute. Hence the testamentary capacity of the decedent, the animus testandi at the time of the alleged nuncupation and the bidding of those present, or some of them, to bear witness that such was his will, or to that eff'ect, technically called the rogatio testiitm, which is evidence both of the animus testandi and the intent to nuncu- pate, are required to appear by the clearest and most indis- putable testimony.^® Who May be Witnesses. The statute provides that all such witnesses as are and ought to be allowed to be good witnesses upon trials at law, by the laws of this state shall be deemed good witnesses to prove any nuncupative will, or anything relating thereto. ^^ Time for Proving. After six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any nuncupative will, except the said testimony, or the sub- ^^In re Hebden's Will, 20 N. J. ^"Rev., 1877, p. 1246, 4 Comp. Eq., 473, 477- Stat., p. 5865, sec. 17. i^Male's Case, 49 N. J. Eq.. 266-273. 242 Probate Law and Practice. stance thereof were committed to writing within six days after the making of the said will.^^ When Will May be Probated— Notice. No letters testamentary or probate of any nuncupative will, shall pass the seal of any court, till fourteen days at least after the decease of the testator shall be fully expired ; nor shall any nuncupative will be at any time received to be proved, unless process hath first issued to call in the widow or next of kindred to the deceased, to the end that they may con- test the same, if they please. ^^ Written Will Not to be Altered by Oral Will. No will or testament in writing, concerning any goods or chattels or personal estate, shall be repealed, nor shall any clause, devise or bequest therein be revoked, altered or changed, by any words or will by word of mouth only, except the same be in the lifetime of the testator, committed to writ- ing, and after the writing thereof, read unto the testator, and allowed and approved of by him or her, and proved to be so done by three witnesses at the least. -^ isRev. 1877, p. 1246. 4 Comp. -oRev., 1877, p. 1246. 4 Comp. Stat., p. 5865, sec. 14. Stat., p. 5865, sec. 16. i9Rev., 1877, p. 1246. 4 Comp. Stat., p. 5865, sec. 15. CHAPTER XV. LOST WILLS. Jurisdiction of Orphans' Court. Section 2 of the Orphans' Court Act,^ which declares that the orphans' court shall have "full power and authority to de- termine all controversies respecting the existence of wills," and sections 174 et seq.,- which provide for process to compel the appearance of any person before the orphans' court, and the making of orders for publication and for the enforcement of decrees, confer power upon that court to inquire whether a writing, executed as a will, and which was in existence unre- voked at the time of the testator's death, has been since lost or destroyed, and, if so, to prove the contents thereof.^ The grant of "full power and authority to hear and determine all controversies respecting the existence of wills" fairly includes this power ; and this function is not essentially different from that of determining whether a paper writing that is in exist- ence has been revoked in whole or in part.** Practice. The orphans' court having as has already been seen no juris- diction over the probate of wills except upon an issue sug- gested by the surrogate. It follows that a dispute in regard to the existence of a will must originate before the surrogate. A convenient practice in such a case is to file with the surrogate a petition reciting that the decedent is alleged to have died intestate but that he during his lifetime made and executed his will which has inadvertently been lost or destroyed whereby a controversy has arisen respecting the existence of a will and praying that the surrogate may cite all persons to appear in 'Page 41, supra. *In re Cassidy, 80 N. J. Eq.. ^See p. 39. supra. 163. 3In re Cassidy, 80 N. J. Eq., 163. 243 244 - Probate Law and Practice. the orphans' court. The petition should recite the names of all persons in interest and set up the terms of the will alleged to have been lost or destroyed and the circumstances attending its loss or destruction. Upon the filing of such a petition it becomes the duty of the surrogate to issue citations to all persons concerned, that is, to all persons who will be either benefited or injured by the probate of such lost will, requiring them to appear in the or- phans' court on a day therein named at which time that court will hear and determine the controversy. Instruments which May Be Admitted to Probate. The mere proof of the loss or destruction of a will does not as a matter of course let in the party to give secondary evi- dence of its contents. The rule is that he who voluntarily, without mistake or accident, destroys primary evidence, thereby deprives himself of the right to produce and use secondar}- evidence.^ The execution and contents of a lost will may be established by evidence aliunde; but the proof must be clear and convincing.'^ If the destruction of a will was accidental, or if it occurred without the agency or assent of the party offering it, secondary evidence is admissible ; but if it was voluntarily destroyed by the party, secondary evidence of its contents will not be ad- mitted, until it be shown that the will was destroyed under a mistake, and until every inference of a fraudulent design is re- pelled.^ Where an adequate motive for the destruction of a will is assigned by the party seeking to establish it, and clearly confirmed by the evidence, the court will not, upon mere conjecture, impute an inadequate and dishonest mo- tive.® So, where a will was accidentally destroyed without testatrix's knowledge, while in possession of her attorney, to whom she had delivered it after execution, and a pencil copy was produced, which was drafted by her attorney from her oral sWyckoff V. Wyckoff, i6 N. J. 'Wyckoff v. Wyckoflf, i6 N. J. Eq., 401. Eq., 401. eCoddington v. Jenner, 57 N. J. sWyckoflf *. Wyckoff, 16 N. J. Eq., 528. Affirmed. 60 N. J. Eq., Eq., 401. 447. Lost Wills. 245 instructions, and was identified by him as the pencil copy he made, and which he had dehvered to another attorney in his office, who drew the will conformably thereto, and delivered it to him with the pencil copy on the next day at the place appointed for the execution, the execution being witnessed, at the request of testatrix, by her attorney and another person who was called in for that purpose, and before the execution, the attorney compared the pencil copy with the will, and found it to be correct, it was held sufficient to establish the will ac- cording to the draft produced, and to authorize the probate of the draft.^ Where, upon an application to establish a will alleged to be lost, it appears that the deceased had made a will and de- posited it for safekeeping with the scrivener who drew it, and that in subsequent conversations between the testator and the scrivener the will was spoken of but on search after the tes- tator's death it was found that the will had disappeared with- out the knowledge of the depositary who believed it to have been clandestinely taken, and there is no evidence that tes- tator made any other will than this, the presumption is that the will in question was his last will.^° Evidence. In order to establish a lost will, all the witnesses to the will, if within the power of the court, must be examined; but if either of the witnesses is dead, or insane, or without the juris- diction of the court, the will may be established without the evidence of such witnesses ;^^ and the contents of a destroyed will may be proved by the .declarations of the testator re- garding the same.^- In a proceeding to establish a will under a charge of spoliation, it is not necessary to prove that the spoliation was committed by the individual charged in the petition, or to show by whom it was committed ; it is enough if the fact of the spoliation be established.^^ ^Coddington v. Jenner, 57 N. J. i^Bailey v. Stiles, 2 N. J. Eq.. Eq., 528. Affirmed, 60 N. J. Eq., 220. 447. i^Davenport v. Davenport, 67 N. lOHildreth v. Schillinger, 10 N. J. Eq., 320. J. Eq., 196. i3Bailey v. Stiles, 2 N. J. Eq.. 220. 246 Probate Law and Practice. The true rule is that a will may be established upon satisfac- tory proof of its destruction and of its contents, or substance, whether the proof of its destruction be by one witness, or by many; but the evidence must be clear, satisfactory, and con- vincing.^* i^Wyckoff V. Wyckoff, 16 N. J. Eq., 401, PART III. Executors, Administrators and Trustees. CHAPTER XVI. ADMINISTRATION. Necessity for Administration. Upon the decease of one owning personal estate, his next of kin do not become its owners. They acquire only that quali- fied equitable right to distributive shares of what shall remain after payment of the just debts and funeral charges of the de- ceased and the expense of settling his estate which is con- ferred upon them by the statute of distributions. This quaU- fied equitable right can only be worked out through a settle- ment of the estate by an administrator who alone has the title to personalty cast on him, and who alone is competent to sue, either at law or in equity, to reduce the personal property and rights of the intestate to possession.^ So the vested right of a legatee is, upon his death, transmitted to his personal repre- sentatives who alone have the power to take proceedings to collect the legacy; and by personal representatives are meant his executors or administrators. Next of kin of a decedent are not the personal representatives, and cannot come into court representing such decedent. - Upon the appointment of an administrator, the title to all of the personal property of his intestate vests in him. The title to an intestate's real property, on the other hand, vests in his heirs at law by operation of law. This paramount title of the personal representative is recognized in various ways. Thus, personal property of an intestate is not subject to seizure and sale under an execution issued on a judgment rendered against the decedent.^ So next of kin, heirs and creditors can- iBuchanan v. Buchanan, 75 N. ^Schouler on Executors, sec. 23c,. J. Eq., 274. Buchanan v. Buchanan, 75 N. J. 2Shaver v. Shaver, i N. J. Eq., Eq., 274. 437. Buchanan v. Buchanan, 75 N. J. Eq., 274. 249 250 Probate Law and Practice. not in their own names prosecute actions at law or suits in equity to recover the unadministered estate of a decedent, or to collect debts or other choses in action due him. The title to debts owed to the decedent vests in his executor or adminis- trator, upon the probate of his will or the granting of letters of administration, together with the right to all remedies given by law for their recovery. All goods and chattels, actions, and commodities which were of the testator, in right of action or possession, as owned at the time of his death pass on his death to his executor or administrator.* So moneys in the hands of a guardian of a deceased minor do not pass to his next of kin, but to the representative of the minor. As the minor is in- capable of making a valid testamentary disposition, the repre- sentative is necessarily an administrator and to him the guard- ian may safely pay the fimds in his hands. After administra- tion, what remains may then be distributed to those to whom the fund goes.^ Operation of Grant of Administration. The grant of administration operates only within the juris- diction where it is granted. It gives no legal right to collect debts or recover the possession of property elsewhere.® When Administration Unnecessary, In all cases where the total value of the real and personal assets of the estate of any intestate shall not exceed two hun- dred dollars, the husband or widow, as the case may be, shall be entitled absolutely to the same without administration and free from the lien of all debts of such intestate, and any bank, building and loan association, or other corporation or any per- son or association or society who shall have in its or his possession any of the assets of such an intestate and shall pay or deliver the same to his or her husband or widow, upon the *Hayes v. Hayes, 45 N. J. Eq., ^Wilcox's Case, 64 N. J. Eq., 461. Affirmed, 47 N. J. Eq., 567. 322. Buchanan v. Buchanan, 75 N. J. ePisano v. Shanley Co., 66 N. J. Eq., 274. Mathis v. Sears, 3 N. L., i. Normand v. Grognard, 17 J- L., 594- N. J. Eq., 425. Babbitt v. Fidelity Trust Co., 70 N. J. Eq. 651-656. Administration. 251 making and execution of an affidavit setting up that affiant is the husband or widow of such an intestate and that the value of such intestate's real and personal property will not exceed two hundred dollars, shall be forever discharged from all claims by any administrator of such intestate who may there- after be appointed or by any other person, for the assets so paid or delivered ; and this notwithstanding it may thereafter transpire that the total value of the estate of such intestate did in fact exceed the sum of two hundred dollars.^ Jurisdiction — In General. In uncontested cases jurisdiction over the grant of letters of administration is vested in the Ordinary^ or in the surrogate of the county where intestate resided at the time of his death/^^ or, if a non-resident, in the surrogate of the county wherein intestate left personal property.^^ It does not admit of doubt that the jurisdiction of the orphans' court does not arise in respect to the right of administration, except upon a dispute appearing which ousts the surrogate of his jurisdiction and confers it upon that court.^ Where, however, a disputed will is admitted to probate by the orphans' court and no executor is named in the will, or the executor has died or renounced, the orphans' court, as an incident to its jurisdiction to admit the will to probate, has jurisdiction to appoint an administrator with the will annexed, to execute the trusts created by the will which the orphans' court has by its decree established.^- GRANT OF LETTERS BY SURROGATE. Jurisdiction of Surrogate. The statute provides that the surrogate of the county in which the deceased shall be resident at the time of his death, shall have the power and authority to grant letters of adminis- tration on the estate of such deceased, in all cases where ad- "Orphans' Court Act, sec. 170, ^bOrphans' Court Act. sec. 20. as amended by P. L. 1915. P- 246. p. 252, infra. sp. L. 1900, p. 346, sec. I. 2 ^Russell's Case, 64 N. J. Eq.. Comp. Stat., 1722, sec. 76. 3I3-3I5- In re Queen, 82 N. J. soQrphans' Court Act, sec. 26, Eq., 583. this page, infra. i°In re Queen, 82 N. J. Eq., 583- 252 Probate Law and Practice. ministration may legally be granted thereon, unless a dispute arises as to the right of administration, in which case he shall issue citations to all persons concerned to appear in the or- phans' court of the same county, which court shall hear and determine the matter in controversy." Nature of Jurisdiction. The grant of administration is a proceeding in rem in the strict sense of that term, and constitutes the person to whom it is granted the administrator, whether such administration be rightfully or wrongfully granted.^- The only question which can be raised is whether the surrogate had jurisdiction ; thus, if the supposed intestate was not dead, or if letters lawfully granted to some one else were in existence, the grant would be void.^^ In granting letters of administration, the surrogate acts in a judicial capacity, and his acts can only be reviewed by appeal to the orphans' or prerogative court ; they cannot be impeached collaterally.^* ADMINISTRATION UPON ESTATES OF NON- RESIDENTS. Where a Non-Resident Leaves Property in This State. If any person, not a resident within this state, shall die or shall have heretofore died possessed of personal property or choses in action within this state or the evidence of which shall be in the hands of any resident of this state, or has died or shall die seized of any real estate or any interest therein with- in this state, the surrogate of the county in which such real es- tate or interest therein, choses in action or evidences thereof, or personal estate, are situate, upon application and proof to his satisfaction that such decedent died intestate, shall issue let- ters of administration upon the estate of such decedent to the iiOrphans' Court Act, sec. 26. Eq., 135. Quidort v. Pcrgeaux, 18 3 Comp. Stat., 3822. As to juris- N. J. Eq., 472-477. diction of the surrogate after a ^^Quj^ort v. Pergeaux, 18 N. J. contest has arisen, see "Probate of Eq., 472-477, and see "Validity of Wills — Jurisdiction of Surro- Acts of Surrogate," p. 58, supra, gate," p. 195, supra. i-«See "Validity of Acts of Sur- i^Annin v. Vandoren, 14 N. J. rogate," p. 58, supra. Administration. 253 administrator of such decedent, or to any person who would be entitled to administration, in case the decedent had resided in this state at the time of his death ; if any executor or ad- ministrator of a non-resident decedent shall neglect for the space of sixty days after the death of such decedent to make application in this state for letters testamentary or of adminis- tration upon or in respect to such decedent's estate, then upon the application of any person alleging himself or herself to have any debt or legal claim against such decedent, which, by the laws of this state, survives against the personal repre- sentatives of parties deceased, the surrogate may issue letters of administration to such person as he may select, either cum testameiito anne.ro or otherwise, as the circumstances of the case may require ; in case application is made under this sec- tion by any one except the executor or administrator, letters shall only be granted upon such notice to the executor or ad- ministrator as the surrogate may prescribe. ^^ Contests as to Non-Residence to be Determined by Sur- rogate. Section 29 of the Orphans' Court Act,^'' confers jurisdic- tion upon the surrogate over the grant of letters of administra- tion on the estates of persons who have died non-residents of this state. A contest over the right of administration in such cases will not oust the surrogate of jurisdiction, or confer jurisdiction in the first instance on the orphans' court, as in the case of deceased residents of the state under the provisions of section 26 of the Orphans' Court Act.^^ When the statute expressly provides, in respect to applications for administra- tion upon the estates of deceased persons who at death were residents of this state, a particular course of procedure, and by express words grants jurisdiction to the orphans' court, and in the same connection gives authority to the surrogate in respect to applications for administration upon the estates of deceased persons who were not at their death residents of this state and refrains from giving any authority to the orphans' i^Orphans' Court Act, sec. 29. '''Page 252, supra. 3 Comp. Stat., 3823. '^Page 251, supra. 254 Probate Law and Practice. court to deal with such an application, it is clear that there can be no implication that authority has been conferred upon that court in the latter class of cases. The foreign residence of a decedent at death being a jurisdictional fact essential to the jurisdiction of the surrogate, if persons in interest deny the foreign residence the surrogate is impliedly authorized to de- termine the residence, subject to an appeal to the orphans' court under section 201 of the Orphans' Court Act.^^ Assets Within County Necessary. Probate courts have no jurisdiction to grant administration upon the estate of a non-resident decedent who left no prop- erty within the state. ^^ Letters of administration upon the estate of a non-resident decedent may, however, be granted in this state, if assets of such decedent be brought into this state after his death f^ but if assets are brought into the state after decedent's death for a merely temporary purpose, it will not be sufficient to confer jurisdiction upon the courts of this state to grant administration here.-^ A debt due to a non-resident intestate is sufficient estate to authorize administration in the county where the debtor resides,-- and this even though it subsequently appears that such claim is invalid and incapable of being enforced;-^ and a debt due to a resident of another state from a person who re- moves into this state after such creditor's death will authorize the grant of administration in the county to which such debtor isPage 74, infra. Russell's ^ichristy v. Vest, 36 Iowa, 285. Case, 64 N. J. Eq., 313. Kohler v. Knapp, i Bradf. (N. i^Pinney v. McGregory, 102 Y. Sur.), 241. Mass., 186. Crosby v. Leavitt, 4 ^a^ppeal of Picquet, 5 Pick. Allen (Mass.), 410. VanGiessen (Mass.), 65. Pinney v. McGreg- V. Bridgford, 83 N. Y., 348. ory, 102 Mass., 186. Merill v. -°Robinson v. Robinson, 11 Ala., New England Life Ins. Co., 103 947. Pinney v. McGregory, 102 Mass., 245. Beers v. Shannon, 7^ Mass., 186. Stearns v. Wright, N. Y., 292. SI N. H., 600. Johnston v. Smith, 23Sullivan v. Fosdick, 10 Hun. 25 Hun. (N. Y.), 171. (N. Y.), 173. Administration. 255 removed.-* Xo particular amount of goods is necessary to confer jurisdiction.'-' ADMINISTRATION WHERE THERE ARE ASSETS IN TWO STATES. In General. The grant of administration on the personal estate of a decedent is vested primarily in the courts of his domicile. Ad- ministration taken out in another state is ancillary to the ad- ministration in the forum of the domicile. Such an adminis- tration depends upon the fact that there is property within the foreign jurisdiction to be administered upon and debts there to be paid, or is granted for the purpose of collecting the property of the deceased, realizing upon it, and remitting the proceeds to the primary administrator.-^' In strictness, the grant of ad- ministration operates only within the jurisdiction where it is granted ; it gives no legal right to collect debts or recover the possession of property elsewhere.-' It follows, therefore, that where intestate leaves assets in two states, administration may be rightfully granted in both states, although the right of suc- cession to the i)ersonal estate is to be regulated by the law of the domicile ;-* and each grant of administration operates only within the jurisdiction in which it is granted. -^ POWERS AND DUTIES OF FOREIGN REPRESENTATIVE. In General. The general rule is well settled that an executor or adminis- trator cannot in liis re])resentative capacity maintain any action, ■-'* Finney v. McGregory, 102 J. Eq., 425. Bahl)itt v. Fidelity Mass., 186. New England Mutual Trust Company, 70 X. J. Eq., 651- bife Ins. Co. v. Wood worth, 11 1 656. U. S., 138. Smith V. New York -"^Warnum v. Cann), 13 N. J. T,., Life Ins. Co., 57 Fed. Rep., 133. 3^6. Banta v. Moore. 15 X. J. ^sPinne}' v. McGregory, 102 ]•".().. 97. Normand v. Grognard, .Mass., 186. Harrington v. Brown, 17 N. J. Eq., 425. Jenkins v. 5 Pick. (Mass.), 519.. Guarantee Trust Comi)any. 53 N. ^^Pisano v. Shanley Co.. 66 X. J. Eq., 194-202. J. L., I. -"Normand v. Grognard, 17 N. -^Normand v. (Grognard, 17 X. J. Eq. 425. 18 256 Probatk Law and Practice. suit or proceeding, either at law or in equity, in the courts of any sovereignty other than that under whose laws he was ap- l)ointed or has qualihed, without obtaining an ancillary grant of probate or letters from the court of probate of such other sovereignty, unless power to sue in the foreign jurisdiction has been conferred upon him by statute.^" When a foreign administrator is appointed in another state, his appointment is ancillary to the administration in the place of domicile. For property which he obtains within the juris- diction where his letters are granted, after payment of debts in that locality, he accounts to the administrator at the domicile of the deceased.^^ If the fund in the hands of the foreign ad- ministrator is needed for the purpose of due administration in the place of domicile, the mode of reaching it would be to re- quire its transmission or distribution, after all claims against the foreign administration had been ascertained and settled. The distribution of the fund must be regulated by the law of the domicile of the intestate, but w^hether that distribution shall be made by the tribunals of the several states by which the letters are granted, or whether the balance for distribution shall be transmitted by the foreign administrator to the place of domicile, there to be distributed, depends upon the circum- stances, and rests in the sound discretion of the tribunal before which the account of the foreign administrator is brought for settlement. Where parties interested in the distribution reside in the state where foreign administration is granted, the fund will be retained and distributed there. ^- Payment of Debts to Foreign Representative. It is provided by statute that any payment by any resident or citizen of this state to any executor or administrator ap- pointed by letters obtained in another state or territory of the United States or District of Columbia, of or on account of any debt due to his or her testator or intestate, made before 3'iNormand v. Grognard 17 N. -iPisaiio v. Shanley Co.. 66 N. J. Eq., 425. Porter v. Trail, 30 N. J. L., 1-7. J. Eq.. 106. Babbitt v. Fidelity 32]v^ormand v. Grognard, 17 N. Trust Company, 70 N. J. Eq., 651- T- Eq., 425-427. 6;6. Administration. 257 letters testamentary or of administration shall be actually ij^ranted in this state, shall be as valid and ettectual as it made to an executor or administrator duly appointed in_ this state ; and such foreign executor or administrator mav, before any letters shall be actually granted in this state, release and dis- charge any lands or other security from any mortgage, judg- ment or other lien or incumbrance which was held by his or her testator or intestate, as fully and to the same effect as if he or she had been duly appointed in this state. ■' Foreign Representative May Maintain Suit in This State. Any executor or administrator by virtue of letters obtained in another state may prosecute any action or sue out execu- tion upon judgment or decree in any court of this state as if his letters had been granted in this state ; provided, that such executor or administrator shall first file in the otihce of the register of the prerogative court an exemplified copy of his let- ters, and upon such filing may bring all necessary actions in any of the courts of this state ; j)rovided, also, that security for the costs may be required from such executor or adminis- trator as if he were a non-resident of this state.'" 1 Letters of Foreign Administrator May Be Recorded. If any person shall desire to have the aj)i)ointment of any ad- ministrator appointed by letters obtained in another state or territory of the United States or District of Columbia recorded in this state, for the purpose of manifesting the authority of such administrator to release or discharge any lands in the state from any mortgage, judgment or other lien or encum- brance which was held by his or her intestate, it shall be law- ful for any surrogate of any county in this state wherein sucli land shall be, upon an exemplified copy of the record of the appointment of .such administrator being ])resented to him, to record the same and file the said copy in his office, and such record or certified copies thereof shall be recei\-ed a^^ exideiice in all c(jurts of this state."' ■'''2 Comp. Stat., 2265, sec. 19. 20. For power of surrogate to 3*2 Comp. Stat., 2265, sec. 21. record record of foreign wills, see "■'2 Coinj). Stat., p. 2265, sec. "Foreiun W'illv," p. jri, siijira. 1258 Probate Law and Practice. PRACTICE ON GRANT OF ADMINISTRATION. Petition for Letters of Administration. The first proceeding in an application for administration is to present a petition to the surrogate. The orphans' court rules ])rovide that the application for probate of a will, for letters of administration, for letters of administration with the will an- nexed, for substitutionary administration, or for substitution- ary administration with the will annexed, shall be in writing, verified by affidavit ; such application shall state the residence of the applicant, the names of the heirs and next of kin of the deceased, so far as the fame are known, with their residences or post-office addresses, and the manner or degree in which they severally stand related to him or her ; and shall also state the ages of any of said heirs or next of kin who may be minors ; which application shall be recorded by the surrogate in a book to be kept for that purpose.-""' Upon application to the surro- gate for letters of administration, administration with the will annexed, substitutionary adnnnistration or substitutionary ad- ministration with the will annexed, he shall require an affidavit of the value of the estate for administration of which the ap- ])lication is made.''' Any person authorized to administer oaths may take the affidavit to a petition for administration. Application for administration may be made at any time after the death of intestate. It is not necessary to await the expiration of ten days, as in case of an application for the probate of a will. Notice of Application, or Renunciation. Where application for administration, for administration with the will annexed, for substitutionary administration, or for substitutionary administration with tlic will annexed, is made by any person other than the next of kin or party first en- titled, or by one of several equally entitled to letters of admin- istration, the ])erson making such application shall produce to tlie surrogate the renunciation and request of the person so en- titled that letters be issued according to the application, or proof ^^'Orphan.s' Court Rule i. -^"Orphans' Court Rule 5. Admimstraiiox. 259 that at least ten days' notice has been gi\en to all ol ilic laxt of kin or parties by law entitled to such administration \vh() reside in this state, and that not less than ten nor more than sixiy days' notice, as the surrogate may by order direct, has been given to the said next of kin or parties by law entitled to such admin- istration who shall reside without this state. Notice to non- residents of the state of New Jersey may be sent by mail, with the postage thereon prepaid, addressed to the last known resi- dence of such next of kin or parties by law entitled to such administration ; which application and the renunciation and request, if any, shall be recorded in a book to be kept for that purpose.^® Where there are several persons of equal degree of kindred entitled to administration, it is necessary that they should agree among themselves as to who should administer. The unani- mous consent of the nearest of kin is necessary ; the consent of a majority is not sufilicient.. This consent must be in writing, and is called their renunciation. By it the next of kin renounce their right to administer, and usually, though not necessaril}-, request the appointment of one of their number, or a third per- son selected by them ; but all must unite in the selection of the same person. If all of the next of kin are unwilling to renounce in favoi of one of their number, or of a stranger, any one of the next of kin may give notice to all the other next of kin of his in- tention to apply for letters of administration, which notice must be served in accordance with the provisions of Rule 2 of the orphans' court.-'" On the day named in his notice, the aj)- plicant applies to the surrogate for letters, and hies with him proof of the service of the notices ; and if no written objection to his appointment has been filed with the surrogate, the latter will appoint such applicant. If objection to his appointment is filed with the surrogate, the latter is thereby deprived of jurisdiction over the matter, and he thereupon issues citations to all persons interested to appear in the orphans' court, which court hears and determines the matter in controversy.^" ssQrphans' Court Hule 2. ^"See "Contests as to Right of 39Page 258. supra. .Xdministration," p. 29 1, infra. 26o Probate Law and Practice. Where one of several next of kin applies for administra- tion, the surrogate should not in any case grant letters until proof has been made that the notice of the application pre- scribed by Rule 2*^ has been given to the others;" and if let- ters be granted without such notice, they will be held to be void." When a Stranger May Apply for Letters. Whenever any person has died, or shall die, intestate, within this state, and has left, or shall leave, no relations justly en- titled to the administration of his personal estate, or if the next of kin of any such intestate has not claimed, or shall not claim, the administration within forty days after the death of such intestate, it shall be lawful for the ordinary or the sur- rogate to grant letters of administration on such decedent's estate to any- fit person or persons applying therefor.^* Notice of Application. If the executor named in any last wiH shall not apply for the probate of said will and for letters testamentary thereon within forty days from the death of his testator, or if the next of kin of any person dying intestate shall not apply for ad- ministration for forty days from the death of such intestate, the surrogate may grant letters testamentary, or letters of ad- ministration, as the case may be, to any fit person who will ac- cept the same.*° In all cases where application for letters of administration is made under the provisions of Rule 3,*" the applicant shall give at least ten days' notice to the heirs, widow, next of kin or persons entitled to administration who are residents of the state of New Jersey, and not less than ten nor more than sixty days' notice, as the surrogate may by order direct, to the heirs, widow, next of kin or persons entitled to administration *'Page 258, supra. of Wicko Sinovcic, 80 X. J. Eq.. ■*-Sayre v. Sayre, 48 N. J. Eq., 260. 267. ^*Orphans' Court Act, sec. 28. ■i^In re Kirkpatrick, 22 N. J. 3 Comp. Stat., 3823. And see Eq., 463. Rinehart v. Rinehart, "Administration with the Will 27 X. J. Eq., 475. In re Estate Annexed," p. 270, infra. ■*50rphans' Court Rule 3. """'See this page, supra. Administration. 261 who reside without the state of New Jersey, or to those of them whose residences or addresses he can ascertain, of his in- tention to make such apphcation. which notices may be sent by mail with the postage thereon prepaid. Proof of service of the aforesaid notices shall be filed with the surrogate. ^^ This rule is as binding as the statute, and must be complied with ; and a valid grant of administration cannot be made without such compliance.*^ So letters granted to a creditor after the expiration of the time limited in the statute, but with- out proof of notice or the renunciation of the persons entitled to administration, are invalid.*^ Qualification of Administrator. An administrator is required to qualify in the same manner as an executor. l)y taking oath before the surrogate to well and truly administer, &c. This subject will be found fully discussed in. connection with the qualification of executors.^" Security Required of Administrator. Administrators are required to give bond in double the amount of the personal estate left by their intestate. This bond must be signed by at least two sureties, each of whom must own real estate to the value, over and above his just debts and liabilities, of the amount of the bond; or, if the administrator chooses, he may give a bond with a surety com- pany authorized to transact business in New Jersey as surety. A full discussion of this subject will be found in the chapter devoted to the consideration of the subject of "Bonds of Exec- utors, Administrators, Guardians and Trustees."'^ Issue of Letters of Administration. After the administrator has duly qualified and filed a bond approved by the surrogate, the latter makes his order directing that letters of administration be issued to him. The form of the letters is prescribed by statute and they constitute the evi- ^^Orphans' Court Rule 4. As ^'Hians v. Dabergott, 40 N. J. to nature of inquiry required, see Eq., 184. In re Estate of Wicko Orphans' Court Rule 16, page Sqi, Sinovcic, 80 N. J. Eq., 260. infra. '"See p. 204, supra. ■•'Orphans' Court Rule 4. "''See p. 306, infra. ^'^In re Estate of Wicko Sinov- cic 80 N. J. Eq., 260. 262 Probate Law and Practice. dence of the right of the administrator to act as such.^- If it becomes necessary to file evidence of the authority of the administrator with l)anks, corporations, &c., in order to obtain the transfer of funds, stocks, &c., short form certificates for this puri)ose can be obtained from the surrogate at any time after the grant of letters. WHO ENTITLED TO LETTERS OF ADMINISTRATION. In General. The statute provides that administration of the goods and chattels of an intestate shall be granted to the husband or widow or next of kin of such intestate, or to some of them, if they or any of them will accept the same ; and if none of them will accept thereof, to such other proper ])erson or persons as will accept the same.^" The principle which underlies the grant of administration is that it shall be committed to those who are the ultimate or residuary beneficiaries, that is, to those to whom the residue of the estate will go when the administration is completed. The right of administration grows out of the right of dis- tribution ; and consequently those who are entitled by the statute of distributions to what remains as the intestate's clear estate after the payment of debts and expenses of administra- tion have an exclusive primary right to administration.^* So where the only assets of a deceased intestate are a claim for damages against some person or corporation for negligence causing his death, the persons entitled to administration are those who will participate in the distribution of the fund, in case of a recovery, designated by the Death Act.^^ Non-Residents, The orphans' court rules provide that where upon applica- tion to the surrogate for letters of administration, administra- •'■■-Foi- form of letters, see p. 985. Eq.. 558, but see Degnan's Case. i»fra. 75 N. J. Eq., 197. s^Orphans' Court Act, sec. 27, ^Hn re Freccia 27 N. J. L. J., as amended by P. L. 1914, P- 69. 367, and see 2 Comp. Stat., 1908, 54Donahay v. Hall. 45 N. J. Eq., sec. 8. 720. Cramer v. Sharp, 49 N. J. Administration. 263 tion with the will annexed, substitutionary administration, or substitutionary administration with the will annexed, it shall appear that some of the next of kin or persons entitled to ad- ministration are residents of the state of New Jersey, and that others of said next of kin or persons entitled to administration reside without the state of New Jersey, the surrogate in grant- ing letters of administration shall give preference to residents of the state of New Jersey. ^'^ It is, however, improper, in any case, to grant letters of administration to a foreigner residing abroad, even though he be the only next of kin."'^ Order and Right of Administration. The order and right of administration of the estate of a decedent, beyond that of the widow and next of kin, which is provided for by the statute, being determined, as above stated, upon the principle that the ultimate beneficiaries are entitled to administration, the right of administration will be in those beneficially entitled under the statute of distributions."'- The priority of the right of administration may, however, be briefly stated as follows : I. On the Estate of a Husband. 1. The widow (who has a preferred, but not an exclusive right). 2. Children. 3. Issue of deceased children. 4. Nearest of kin in equal degree. II. On the Estate of a Wife. 1. The husband (who has a preferred, but not an exclusive right). 2. Children. 3. Issue of deceased children. 4. Nearest of kin in equal degree. III. On Estate of an Unmarried Child. I. IV hen child is a minor. (a) Father and mother have e(|ual rights. sGOrphans' Court Rule 6. cic, 80 N. J. Eq., 260. ^^In re Estate of Wicko Sinov- •'^vSee p. 6<)S, infra. 264 Probatk Law and Practice. (^b) Brothers and sisters, (c) Nearest of kin in equal degree. 2. IVhen Child is of full age. {3.) Parents and brothers and sisters have equal rights. {h) Nearest of kin in equal degree. Widow. Section 2y of the Orphans' Court Act. as it stood prior to the amendment of 1914,^-' was in substance a duplicate of the statute of 21 Hen. Mil. the amendment of 1914 adding the word "husband" to its provisions. Under this statute it has been held that while the widow has not an exclusive prior right, still under ordinary circumstances the widow will be preferred;*^'' and in New Jersey it would appear that the prac- tice is to grant administration to the widow, in the absence of disquahfying circumstances.^^ \\'hile the fact that the widow has remarried is no invincible obiection to her appointment, yet circumstances in some cases may induce the court to prefer a child.*"'- A separation by a wife from her husband, unless clearly shown to have been caused by her own misconduct, or to have been followed by such gross immorality as to affect her capacity, does not de- prive her of her interest in his personal estate, if he dies in- testate, or of her preference to administration thereof.''^ The right of the widow to administer upon her husband's estate is, as has been said, not an e.veliisiz-e right : that is. if she does not desire to qualifv as administrator, she cannot re- nounce in favor of a third person selected by herself, but all of the next of kin entitled to participate in the distribution of the intestate's estate nuist renounce before the surrogate may ap- point an administrator. But where the next of kin are minors, and the widow renounces her right of administration, the court is free to appoint any proper person to administer the estate, and, in the exercise of its discretion, may appoint the nominee •"''See p. 262. supra. s^HiU's Case. 55 X. T. Eq.. 764- ^"1 Williams on Executors. 353. 768. '^iHill's Case. 55 X. T. Eq.. 764- '^Hn re Estate of Runvon. 12 X. "6S- T. L. J.. 15. Administration. 265 of the widow so renouncing her right.''"* or may grant letters of administration durante minore (Vtatc.*'^ Husband. Prior to the enactment of the amendment to the statute of distributions in 1914, the husband took all of his wife's per- sonal property, and so had an exclusive right to administer upon her estate.'"'''' The amendment of 1914, however, gives the husband only the same rights in his wife's estate that a wife has in her husband's. The right of the husband to ad- minister upon his wife's estate therefore is the same as that of a widow to administer upon her husband's, viz : a preferred right of a])pointment merely. Rights of Widow and Next of Kin as Against a Stranger. The statute requires that letters 01 administration shall is- sue to the widow or next of kin in preference to a stranger, if any of them are fit and competent and will accept."" The court has no power to appoint a stranger while there is one of the next of kin able, comjjetent and willing to accept the trust, even though all others entitled join in requesting the appointment of the stranger,''^ and the statute is applicable to the appointment of substituted administrators :'"•" but where the conduct of the next of kin is such as to induce tlie court to ])elieve that they had previously declined appointment, the ap- pointment of a stranger by the court will not be set aside. ''^ Where, however, one of the next of kin supposed his proctor was insisting upon his apjjointment and was not consulted •■+In re .^Ipaugh's Estate, 83 N. Kq.. 558. Rinehart v. Rinehart. J. Eq., 616. 27 X. J. Eq.. 475. Wallace's Case, ''•''See "Administration durante 49 ^^^- J- Eq.. 530-549- niiuorc cctatc." p. 283. infra. «**Wallace's Case, 49 X. J. Eq.. ""Donnington v. Mitchell, 2 X. 530-549- Cramer v. Sharp, 49 X. J. Eq., 243. Johnson v. Cummins. J. Eq., 558. Rinehart v. Rinehart. 16 N. J. Eq., 97. Degnan's Case, 27 X. J. Eq.. 475. 75 N. J. Eq., 197. "-'Donahay v. Hall, 45 X. J. '''^Donahay v. Hall, 45 X. J. Eq., Eq., 720. 720. Sayre v. Sayre. 48 X. J. Eq., 'nVebb v. Rogers, 19 X. J. L. T., 267. Cramer v. Sharp, 49 N. J. 79- 266 Probatk Law and Practice. about the ai:)pointinent of a stranger, consent to such appoint- ment will not be imputed to liim.'^ In case of the death or re- nunciation of an executor, however, the right of the residuary legatee to administration is prior to that of the next of kin.'- The right of the next of kin to administration is purely personal, and is not coupled with any power or right on the part of the person possessing it to nominate or select the per- son to be appointed.'-^ So, where all of the next of kin rc^ nounce in favor of one of their number, the person so selected by the next of kin has no power to nominate a person as ad- ministrator; and if the surrogate appoints his nominee, with- out notice to the other next of kin, such appointment will be void.'* If the next of kin will not accept administration, it is for the court to appoint, in its discretion, such other proper person or persons as will accept it ; and the court is under no obliga- tion to select the person nominated by a majority of the next of kin, but may appoint one suggested by a minority, or may entirely disregard the suggestions of the next of kin and make its own selection. ^"^ The court will, however, generally, though not necessarily, be controlled in its selection by the wishes of the majority of the kin who are interested in the proper set- tlement of the estate.'*^ Where the appointing power has a discretion to select one or more from a class, and there are several claimants, it should, in deciding to whom the grant shall be made, give full con- sideration to the moral fitness and integrity of the several claimants ;' ' and in appointing an administrator from sev- eral applicants of the same degree of kinship, all else being ^iHill's Case, 55 N. J. Eq., 764. Eq., 475. In re estate of Wicko '-See "Wlio Entitled." p. z']!, Sinovcic, 80 N. J. Eq., 260. infra. ^"'Cresse's Case, 28 N. J. Eq.. ^^Cresse's Case, 28 N. J. Eq., 236. Cramer v. Sharp, 49 N. J. 236. Wallace's Case, 49 N. J. Eq., Eq., 558. 530-549- Cramer v. Sharp, 49 N. ^cWallace's Case, 49 N. J. Eq.. J. Eq.. 558. 530. "*Rmehart v. Rinehart, 27 N. J. "Cramer v. Sharp, 49 N. J. Eq., 558. Administration'. 267 equal, an older person will generally ho ])referre(l to a young^cr, and a male to a female.''' Infants. An infant, being unable to give a bond, cannot be appointed an administrator."'' It is upon the theory that the next of kin would take the residue that the statute confers the right of administration upon him or them. When the next of kin are. upon the foregoing theory. incai)able. by reason of infancy, of administering, such letters should go to some one interested for the next of kin. It follows, therefor, that where the next of kin is an infant, and a guardian is appointed during his minority, it is proper to appoint the person who has charge of the estate of the infant, viz., his guardian. He, as guardian of the estate of the next of kin has a superior interest in the residuary estate of the intestate. By reason of such superior interest, his appointment to administer for the benefit of the infant next of kin is proper.^" Heirs at Law. Where an estate has been decreed likely to lie insolvent, and real estate must be sold to pay debts, and it does not appear that the proceeds of the sale of the real estate will not be suf- ficient for that pur]:)ose, the heirs at law will be regarded as the ultimate beneficiaries of the estate, and, as such, entitled to administration.^' Married Women. At common law. a married woman might 1)C an executrix or administratrix, but could not accept the office without the consent of her husband.''- In this state it is, however, pro- vided by statute that a married woman mav l)e an executrix or administratrix, and that licr husl)and mav l)e accepted as ■'Hill's Case. 55 X. J. F.q.. 764. ^''Woodruff v. Snoover. 45 .^tl. "■'4 Griffiths baw Register. 1256. Rep.. q8o. Griffiths Treatise. 180. Carow v. ^'Donahay v. Hall. 45 N. J. Mowatt. 2 Edw. Ch. (N. Y.). 57. F.q., 720. Knox V. Nohcl. 27 N. Y. Sup.. ^-r Williams mi I'.xeciitors, p. 206. Affirmed, 77 Hun.. 230, 28 185. N. Y. vSup.. .355. 268 Pkobatk Law and Practice. surety on any bond which she may be required to give. This provision was enacted in 1898-^ and supersedes the doctrine enunciated in the cases of J rood v. Chctivood,^* and Lippin- cott V. JVikoff,"^^ where it was lield that a man marrying a woman, who is an executrix or administratrix, liy the marriage becomes an executor or administrator, in her right, and ac- countable as such. Right o£ Consul to Administration upon Estate of Resi- dent Alien. Most, if not all, of the treaties entered into between the United States and foreign powers contain a clause providing that among others Consuls-General shall enjoy in the two countries all the liberties, prerogatives, immunities, and privi- leges granted to functionaries of the most favored nation. This provision is usually called "the most favored nation clause." The treaty between the United States and Sweden, entered into in the year 191 1, and which is one of the latest, if indeed not the latest and most liberal treaty entered into by the United States, contains the following clause : "Article XIV. * * * In the event of any citizens of either of the two contracting parties dying without will or testament in the territory of the other contracting party, the consul-general, consul, vice-consul- general, or vice-consul of the nation to which the deceased may belong, or in his absence the representative of such consul- general, consul, vice-consul-general, or vice-consul, shall, so far as the laws of each country will permit, pending the ap- pointment of an administrator and until letters of adminis- tration have been granted, take charge of the property left by the deceased for the benefit of his lawful heirs and cred- itors, and moreover, have the right to he appointed as adminis- trator of sneJi estate. It is understood that when, under the provisions of this article, any consul-general (etc.) * * * is acting as executor or administrator of the estate of one of his deceased nationals, the said officer or his representative shall in all matters connected with, relating to or growing s^Orphans' Court Act, sec. 142, ^^27 N. J. Eq., 311. p. 317. infra. s"'54 N. J. Eq., 107. Administratiox. 269 out of the settlement of such estate be in such capacities as fully subject to the jurisdiction of the courts of the country wherein the estate is situated, as if such officer or representative were a citizen of that country and ])ossessed of no representa- tive capacity whatsover." It has been contended by consuls of various nations, where treaties contain the "most favored nation" clause, that under this treaty they possess an exclusive right to administration upon the estates of all subjects of the powers thev represent who may die intestate in this state. This question was con- sidered in the case of /;/ re Canncio Giirricri,'^''' where Tudge r^Iartin, sitting in the Essex County Orphans' Court, held that the language of the treaty with Sweden, "and moreover have the right to be appointed administrator of such estates," ap- parently refers to a right additional to that authorizing the taking charge of property in conformity with the laws of the country, and that the right to be appointed administrator is separate and distinct from the right to take possession of the property. It is evident that in addition to being privileged to take possession of the property of their nationals, consuls are given the further right to be one of those who may be ap- pointed as administrator. This se£ms to qualify them as proper parties to receive letters of administration. It does not exclude others ordinarily entitled to letters. Rule 2 of the orphans' court*^ directs that notice be given to all per- sons entitled to administration and the statute designates the widow and next of kin as persons entitled ; and it w^ould seem that the statement in the fourteenth article of the treaty with Sweden meant to add the right to be classed as one of those entitled to administration on the estates of decedents described in the article. The result is that the effect of these treaties is to place the consul of the nation, a subject whereof dies within this state, in the same position as the decedent's next of kin under the statute ; that is, he has an equal right with them to administer upon the estate of such alien^intestate, and his renunciation of such right must be procured, or the same notice of any apf)lica- ^"35 N. J. L. J., 240. s^See p. 258, supra. 270 Probate Law and Practice. tion tor adniinistration must l)e given him as is required to be given to the next of kin.®* ADMINISTRATION WITH THE WILL ANNEXED. When Necessary. When the testator neglects to appoint an executor, or where tiie appointment of an executor fails, administration with the will annexed, or, as it is sometimes abbreviated, administration c. t. a., will be granted. The appointment of an executor fails, I. Where the person appointed renounces or refuses to act ; 2. Where the person appointed dies before the testator, or is incapable of acting.**'' The statute provides that if any person die intestate, or if the executor named in any testament renounce the executor- ship, or neglect, for the space of forty days after the death of the testator or testatrix to prove such testament, then adminis- tration of the goods, chattels and credits of such intestate or of such testator or testatrix with the testament annexed, shall be committed or granted to the husband or widow, as the case may be. or the next of kin of such intestate, testator or testa- trix, or to some of them, if they or any of them will acce])t the same ; and if none of th^m will accept thereof, then to such other proper person or persons as will accept the same."° This statute can only be called upon to aid a party who shall institute proceedings under it prior to the application of the executor. The act, if read literally, requires the executor to prove the will within forty days. But the object of the law is to provide for a prompt administration of the estate of a de- ceased person ; and when neither creditors, legatees, nor next of kin make any move until after the executor has filed, in due form, his petition for probate, the reason for committing administration to another, that is, promptness in the settlement of the estate, disappears, for after the executor has instituted proceedings for probate, the presumption is that he will pro- s^See also, In re Estate of ^ ^^i Williams on Executors, 399. Wicko Sinovcic, 80 N. J. Eq., 260. -^"Orphans' Court Act. sec. 27. Matter of Erancisco Ereccia, 27 as amended bv P. E. 1914, p. 69. X. J. L. J., 367. Admixistratiox c. t. a. ' 271 ceed with all necessary promptness to carry out tiie wishes of the testator."^ Right of Executor to Renounce. The executor may renounce, though he cannot assign, his office, and even though in the lifetmie of the testator he has agreed to accept such office, it is still in his power to recede. ''- But if an executor administers any part of the personal estate, or performs any act as executor, without })roving the will, he will he taken to have accepted the office, and his right to renounce will be gone. The court may, however, jiermit him to renounce, though he no longer has an absolute right to do so.^--' Implied Renunciation. A renunciation cannot be made by an act /;/ pais, as, for in- stance, by a mere verbal declaration ; to give it validity, it must lie done by some act entered and recorded in the spiritual court."* So filing a caveat against the probate of a will by one of the executors named therein is not an implied renunciation of the executorship. ''° Agreement to Renounce. An agreement to renounce an executorship for a considera- tion is illegal, because against public policy."" Effect of Renouncing. If administration is granted in consequence of the failure of the executor to appear and prove the will, he may yet, after administration has been granted, come and prove the will f l)Ut if all the executors named in the will renounce or fail to '"Acker's Case 70 N. J. Eq. 669. •'-I Williams on Executors, 225 18 CYC. 80. 33i Williams on Executors, 227 18 CYC, 80. ■'Mn re Maxwell. 3 N. J. Eq. 611-612. I Williams on Executors -'.^ I • 19 ■'•"■In vv Ala.wvell. 3 N. J. Eq., 611. "'■•Ellic2, N. J. Eq.. 246. 246-247. 39Benson v. Wolf. 43 N. J. L., ^■'•i Woerner on Administration. 78-82. 406. Matter of Dennis Mulcahy. *°i Williams on Executors, 427. Essex Orphans' Court, July 29. Davenport's Case. 68 N. J. Eq., 1901. Skinner. J., and see Benson 611. V. Wolf, 43 N. J. L., 78-79. Dav- *'i Williams on Executors, 430. enport's Case, 68 N. J. Eq., 611. and see Reporter's Note to Dietz V. Dietz. 38 X. J. Eq., 483. Administration Pendente Lite. 285 court, or pending an appeal of proceedings on removal of ai. executor or administrator.** Pending the determination of an appeal from a decree of the orphans' court removing an executor, the Prerogative Court has the power to make proper orders to protect the estate from waste, and where necessary may appoint an administrator pendente life; and the court may resort to the evidence in the transcript sent up from the orphans' court in order to de- termine whether the principal case before it requires the ex- ercise of the power. ■'^ Application. Application for letters of administration pendente lite may be made by any person interested in the conservation of the estate ; thus, a creditor of the decedent may make such an application.*'' The application should be by petition, sworn to by petitioner. The petition should recite the facts which make the appoint- ment of such an administrator necessary or advisable, and should disclose the value and character of the property of the decedent, and the names and residence of all parties in interest. Notice of Application. Administrators pendente lite are the appointees of the court, and are not to be considered merely as the nominees or agents of the several parties on whose renunciations they are selected. The statutory rule of administration as to the widow or next of kin is not operative as to this class of administration.*" While notice of the application to all parties in interest is usually required, still it is not indispensable. The court, in the exercise of a sound discretion, may, on its own motion, make such appointment. When the court conceives that the corpus of the estate is in such jeoi)ardy that its preservation requires the court's action, it should appoint its officer as ad- i'«Davenport's Case, 68 N. J. ^ei^othrop's Case, 33 N. J. Hq., Eq., 611. 246. ^■''In re Marsh's Estate, 55 Atl. ^^Davenport's Case, 68 N. J. T^cp.. 299. Eq., 611. 286 Pkobatf; Law and Practice. niinistrator pendente lite to protect the estate and only in case of an abuse of this discretion can rehef be had by appeal. Such a power in the court is essential to the proper administration of litigated estates.*^ Who Entitled. The selection of the person appointed administrator pendente lite is a matter resting entirely in the discretion of the court.*'' The statute establishing the right to administration does not apply to administrations pendente lite. It is the practice of the court to decline to put a litigant party in possession of the property by granting administration, pending suit, to him, but to grant it to a nominee presumed to be indifferent between the contending parties.^" Administrators pendente lite are officers of the court, called into being to aid the court, in fact, to take the place of the court, in conserving the estate in independent and disinterested hands pending litigation. The court should not appoint nominees of either party, but should select indif- ferent persons, except in certain cases where executors may be appointed administrators pendente lite ;-'^ as, for instance, where the executor is not interested in the controversy, in which case considerations of economy in the administration of the estate demand his appointment /'- Bond. An administrator pendente lite \s required to give security in such sum as the court may require, the amount required resting in the sound discretion of the court. •'^" ^^Davenport's Case, 68 N. J. •''AVoenier on Administration, Eq., 6ir. sec. i8i. Davenport's Case, 68 N. •«"Dietz V. Dietz, 38 N. J. Eq.. J. Eq.. 611. 483. Davenport's Case, 66 N. J. ^-Woerner on Administration. Eq., 300. Affirmed, 68 N. J. Eq.. sec. 181. Haas v. Childs, 4 Dem., 611. 137. •"•"Dietz v. Dietz, 38 N. J. Eq., ^^'D'ltiz v. Dietz, 38 N. J. Eq., 483, and see Reporter's Note, ib. 483. Davenport's Case. 66 N. J. Davenport's Case. 68 N. J. Eq., Eq.. 300. Affirmed, 68 N. J. Eq., 6ir. 611. Administration Pendente Lite. 287 Powers and Duties. An administrator pendente life has all of the powers and is held to the performance of all of the duties of a general ad- ministrator, except that of distributing the estate. It is a mistake to suppose that an administrator pendente lite is an officer of the court merely to keep safely the goods of the decedent during the controversy concerning the granting of letters of administration or of letters testamentary, that he is only a stakeholder, and that no action can be brought by him or sustained against him except by permission of the court. The duties of the office are not thus limited. He not only holds the property until the suit terminates, but may maintain actions for recovering debts due to the deceased, collect his effects, and even obtain the possession of a leasehold estate by ejectment; but his power does not extend either to vest or distribute the proceeds. As an incident to his office, he may sue or be sued, may col- lect assets and pay debts; but he cannot pay legacies or make distribution of the estate, for the rights of the parties claiming the fund and its distribution are in litigation, and he may not anticipate the result. When these rights are established, his functions cease, and he must pay over all he has in hands in his character of administrator to the persons pronounced by the court to be entitled to further administration and distribu- tion. He may perform all such acts as cannot be delayed without prejudice or danger to the estate; and creditors will not be obliged to postpone their actions until they may be prejudiced in the collection of their claims or barred by the statute of limitations, while the parties interested in the estate, or its administration, are litigating their rights.^* So an administrator pendente lite may make expenditures for advertising the sale of the personal property belonging to the estate, or for preparing a catalogue of decedent's library, w^hich it was necessary to sell ;" and if he expends, in payment of debts of the estate and expenses of administration, a sum ^*Bcnson v. Wolf. 43 N. J. L., ^'-Matter of Dennis Mulcahy, 78. Essex Orphans' Court, July 29, 1901, Skinner, J. 20 288 Probate Law and Practice. exceeding the personal estate of decedent, he is entitled to be subrogated to the rights of the creditors against the lands of the deceased.^*' If an administrator pendente lite pays a legacy, which the character of his appointment does not authorize him to do, he will nevertheless be allowed such payment in his account- ing, provided the party who received it was entitled to it, and the estate able and liable to pay the same after all prior charges were provided for.^^ So an administrator /'(?//rf^7?^^ lite may bring suits with all of the authority of a general adminis- trator,^^ and can bind the estate by a settlement of a claim belonging to it;^" he can also be sued for a debt of the in- testate. "^ But he can sell property of the estate which he does not need to convert into money to enable him to execute his trust only when he acts, in so doing, upon an honest and well- founded apprehension, predicated upon the exercise of a reasonable care and caution, that to longer hold it will endanger or prejudice the estate.*'^ Duration of Appointment. The authority of administrators pendente lite is more lim- ited than that of any other administrator, and ex vi termini ceases the moment the suit pending which they were appointed is terminated. If the suit be concerning the probate of a will, and the will is established, they are at once superseded by the executor, or, if occasion requires, by the administrator with the will annexed, and can then no longer act as administrators, either in relation to third persons or to each other. If, on the other hand, the will is refused probate, administration at large is to be granted to those who by law are entitled to it.*'- ^^Woolley V. Pemberton, 41 N. ^oGj-gce v. Helm, gi Mich., 450; J. Eq., 394, and cases cited on 51 N. W. Rep., iro6. P- 397- ooBensoj^ y_ ^NoM, 43 N. J. L., ^■^Steelman v. Wheaton, y2 N. y2>. J. Eq., 626. Affirmed, 73 N. J. «' Pluck v. Lake, 54 N. J. Eq., Eq., 743- 638. ssBenson v. Wolf, 43 N. J. L., R^Oavenport's Case, 68 N. J. 78-81. Estate of Calvin, 3 Md. Eq.. 611. Cole v. Wooden, 18 N. Ch., 278. Kaminer v. Hope, 18 S. J. L., 15. C, S6i. Administration Pendente Lite. 289 Although, as has been said, the functions of an administrator pendente lite cease when the suit in which he is appointed is at an end, the suit is not at an end if there be an appeal pend- ing from the decree granting general administration or the decree granting probate, as the case may be, until the appeal shall have been determined ; and the powers and functions of an administrator pendente lite, which are suspended by the ad- mission of the will to probate and the qualification of the ex- ecutors, revive on appeal from the decree of probate, and continue until the determination of the appeal.'^"' Duties after Termination of Litigation. When the litigation in reference to the will, pending which an administrator pendente lite was appointed, has been con- cluded, his duty is to account for what he has received and to pay or deliver over whatever, if anything, may appear to re- main in his hands, to the person or persons pronounced by the court to be entitled thereto for further administration. ''■^ Removal. • As officers of the court, administrators pendente lite are re- movable at its pleasure. *^-^ AppeaL An appeal will lie from a decree of the orphans' court dc: ciding whether or not an administrator pendente lite should be appointed ;*'*' but no appeal will lie because the appointee of the court is objectionable to either party, or because of the amount of the bond required by the court to be given by him. The se- lection of an administrator pendente lite and the amount of se- curity to be required of him are matters within the di-scretian of the orphans' court, and a party who has applied to that court for the appointment of an administrator pendente lite is not 63Brown v. Ryder, 42 N. J. Eq., ''J^Davcnport's Case, 68 N. J. .356. Eq., 611. «*Woolley V. Pemberton, 41 N. ««Dietz v. Dietz, 38 N. J. Eq.. J. Eq., 394. 483. Davenport'.s Case, 68 N. J. Eq., 611. 29© Probate Law and Practice. aggrieved by a decree for the appointment of a particular person, and fixing the security to be given by him.*'' EXECUTORS DE SON TORT. Who Accountable as Executors De Son Tort. Whereas it is sometimes practiced to the defrauding of creditors, that such persons as are entitled to the administration of the goods of others dying intestate, if they require it, will not accept the same, but sufifer or procure the administration to be granted to others of indigent circumstances, from whom they, or others, by their means, by deeds of gifts, or by letters of attorney, obtain the estate of the intestate into their hands, and yet be not subject to the payment of the debts of the in^ testate, and so the credtiors cannot have or recover their just debts and demands ; therefore be it enacted, that all and every person and persons, wJio shall obtain, receive and have, any goods or debts of any person dying intestate, or a release, or other discharge of any debt or duty that belonged to the in- testate, upon any fraud as aforesaid, or without such valuable consideration, as shall amount to the value of the said goods or debts, or near thereabouts (except it be in or towards the satisfaction of some just debt, of the value of the same goods or debts, to him or her owing by the intestate at the time of his or her decease) , shall be charged and chargeable as ex- ecutor of his or her own wrong, so far only as all such goods and debts coming to his or her hands, or whereof he or she is released or discharged by such administrator, will satisfy ; de- ducting, nevertheless, allowance of all just debts, upon good consideration, and without fraud, owing to him or her by the intestate, at the time of his or her decease, and all payments made by him or her, which lawful executors or administrators, might and ought to have and pay by the laws of this state.^* Where after the death of her husband a widow assumes con- trol of his estate without any administration being granted e^Dietz v. Dietz, 38 N. J. Eq., 682 Comp. Stat., p. 2260, sec. 3. 483. Davenport's Case, 66 N. J. ^^2 Comp. Stat., p. 2260, sec. 3, Eq., 300. Affirmed, 68 N. J. Eq., and see also Tuite v. Tuite. 72 N. 61 1. J. Eq., 740. Contested Administration. 291 thereon, she is chargeable with the value of the property de- rived from her husband, less all payments made by her with which a lawful administrator might have been credited under the express provisions of the statute."'-* So an executor who does not prove the will of his testator, but disposes of his personal property otherwise than as directed by the will, is responsible to the legatees of the testator for this conversion ; and his executor or administrator is likewise responsible to such legatees.'" But a person becomes an executor de son tort only when intermeddling with assets which affect the adminis- tration ; and therefore persons who, under a void provision of a will, receive and deal in real estate and the revenues there- from, are not executors de son tort, as such assets go to the heirs. "^ CONTESTS AS TO RIGHT OF ADMINISTRATION. How Inaugurated. It has been seen that the statute vests in the surrogate juris- diction to grant administration of the estates of intestates resi- dents of his county, unless a dispute arises as to the right of ad- ministration, in which case he is required to issue citations to all persons concerned to appear in the orphans' court of the same county, which court is required to hear and determine the matter in controversy. ■^- A dispute as to the right to administration is inaugurated by filing with the surrogate either a caveat against the grant of administration, a cross-petition for administration or, after the grant of administration by the surrogate, by appeal to the or- phans' court. Any of these methods will raise a dispute as to the right of administration, and requires the surrogate to issue citations. A caveat or cross-petition may be filed at any time prior to the grant of letters by the surrogate. To entitle a person to the right to contest the grant of ad- ministration, he must be a person in interest, that is, one who ^"Thiefes v. Mason, 55 N. J. ''^Orphans' Court Act, sec. 26. Eq., 456. Sec p. 251, supra. 7^Mink V. WalktT. 81 N. J. Eq., 1 12. 292 Probate Law and Practice. would be injuriously affected by the grant of letters to the petitioner, or whose rights would be violated. Thus where a person claiming to be the widow of intestate, when she was not so in fact, made application for administration upon his estate, his next of kin have the right to contest her right to administra- tion ; and there can be no doubt that a creditor of an intestate may contest the right to administration of one whom he be- lieves to be an improper appointee and whose appointment would endanger his claim. A caveat or cross-petition may be withdrawn, and the juris- diction of the surrogate restored, at any time before the cita- tions issued by the surrogate have been returned served.'^ Proceedings in Orphans' Court. Upon the return of the citation into the orphans' court, the original petitioner calls witnesses to substantiate his claims. After he has closed his case, those of the objector are heard. Costs of Contest as to Right of Administration. Where there is a contest as to which one of two or more persons shall be appointed as administrator, the costs, as a rule, should be imposed on the parties, or one of them, and not on the estate ;' * but where the administrator whose title is impeached is a stranger who successfully defends his title to the ofifice, a counsel fee will be allowed out of the estate.^^ ^3See "Withdrawal of Caveat," "^Webb v. Rogers, 19 N. J. L. p. 198, supra. J., 79- "■*Cramer v. Sharp, 49 N. J. Eq., 558-563. CHAPTER XVII. TRUSTEES. Nature of Office. A trustee is one in whom some estate, interest or power in or affecting property is vested for the benefit of another. While an executor is a trustee in the broadest sense, he is not one in the general acceptation of the term.^ The offices of executor and of 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 each respective capacity. His respective duties as executor and trustee are as distinct as though these duties were vested in different persons, and his accounts in these respective capaci- ties should be kept separately. - What Constitutes an Appointment of a Trustee. The language in which the trusteeship is created is imma- terial, as is the term by which the office is named by the will, whether executor or trustee, or whether it is given no name ; as in a case where a testator gives all his property to a per- son and directs him to pay the income to one for life, and the residue to another at the termination of the life estate. The office of executor or trustee is determined by the character of the estate confided to the nominee by the will, and the powers to be exercised by him as the representative of the testator. Any person who by will is required to perform duties, or upon whom devolves a trust not pertaining to the office of an ex- ^In re Kibbler's Case, 78 N. J. Eq., 166. In re Quimby's Estate, Eq., 217. In re Quimby's Estate, 84 N. J. Eq., i. 84 N. J. Eq., I. 3Brush v. Young, 28 N. J. L.. -Ayres v. Shepherd, 64 N. J. 237. In re Hibbler's Case, 78 N. J. Eq., 217. 293 294 Probate Law and Practick. editor, is a trustee.^ So an executrix of a will which gives her a life-estate in the real and personal property of the testator becomes a trustee for the residuary legatees, on proving the will, and is under obligation to keep accurate accounts of the estate and to keep its funds separate from her own.^ Acceptance of Trust. Where a will creates a trust and appoints the same persons as executors and trustees, the probate of the will is conclusive evidence of the acceptance by the executors of the trust. It is not discretionary with them whether they will or will not act as trustees. By accepting the office of executor, they be- come ex-officio trustees, charged with all the duties and re- sponsibilities of the office.^ Right of Foreign Corporations to Act. In Sattcrthivaite's Estate,''' it was held that the mere fact that the trustee appointed by the testator was a foreign cor- poration did not disqualify it from acting. In that case the ex- ecutors had completed their administration of the estate, and were prepared to turn over the balance to the trustee, a cor- poration organized under the laws of another state and not qualified to act as such in this state; and the court directed the fund to be paid to such foreign corporation, upon its enter- ing into bond to faithfully perform its duty as such trustee, with a surety company, authorized to transact business in this state, as surety, and with a further proviso that such surety company should act as agent of the trustee to receive and ac- cept service of all notices and orders in respect to the trust. It will be observed that in this case the sole duties of the trustee were to receive the fund and pay the income derived therefrom ; and it is very doubtful whether this decision is an authority for permitting a foreign corporation named in a testator's will as executor to qualify as such, in a case where such cor- "Hunt V. Smith, 58 N. J. Eq., sSchenck v. Schenck. 16 N. J. ^5- Eq., 174. „^^,_ «6o N. J. Eq., 347. Trustees. 295 poration has not qualified itself to act in such cases pursuant to the statute in such case made and provided." Devolution of Office in Case of Death of Trustees. Upon the death of one of several co-trustees, the office of trustee will devolve, with the estate, upon the survivors, and ultimately upon the heir or personal representatives -of the last survivor. Trusts of real estate, upon the death of the trustee, devolve upon his heir at common law, his eldest son ; trusts of personalty vest in his executor or administrator.* Where Administrator c. t. a. Is Appointed. Where the trust created by the will is an active one, to in- vest the residue and pay over the interest and to keep the premises devised in good and sufficient repair, it does not de- volve upon the administrator with the will annexed.^ So a trust to pay over the interest of a fund to certain persons during their lives, and to divide the principal thereafter, does not devolve upon an administrator with the will annexed.^" So where a will makes a provision for testator's . widow a charge on the executors, the administrator with the will an- nexed is not charged with the duty of making such provision. ^^ And so where a testator devised and bequeathed real and per- sonal estate to his executors in trust for his son during his life, and on his death to be divided among his daughters, and the will was probated, but no letters taken out by the executors, and one of the executors died and the other being out of the state, letters of administration with the will annexed were "See also Bell v. White, 76 N. ''Stoutenburgh v. Moore. ZT N. J. J. Eq., 49, and see Orphans' Court Eq., 63. Affirmed, 38 N. J. Eq., Rules 41 to 44, pages 303 et seq., 281. In re Quimby's Estate, 84 infra. N. J. Eq., i. ^Schenck v. Schenck, 16 N. J. '°Lanning v. Sisters of St. Eq., 174. Zabriskie v. M. & E. Francis, 35 N. J. Eq., 392. R. R. Co., 2>l N. J. Eq., 22. Af- ^'Lindsley v. Personette, 35 N. firmed, 34 N. J. Eq., 282. Brown J. Eq., 355. V. Pancoast, 34 N. J. Eq., 321. ^g6 Probate Law and Practice. granted, it was held that the trust did not vest in the adminis- trator.^- APPOINTMENT OF NEW TRUSTEES. In Case of Death of Trustee or Refusal to Act. When any trustee, heretofore or hereafter appointed by last will, shall neglect or refuse to act, or shall die before the execution and completion of the trust committed to him, the orphans' court of the county where such testator resided at the time of his death, shall have power to appoint some suitable person or persons to execute such trust ; and the said court is hereby authorized and required to take from such trustee or trustees a bond, with one or more sufficient sureties being freeholders, conditioned for the due performance of the said trust; and the trustee or trustees so appointed shall have all the power of the said trustee or trustees so neglecting, refus- ing or dying; provided, ahvays, that nothing in this section shall be construed to apply to the office of executor.^" Construction of Act. The words "neglect, or refuse to act,"' as used in this sec- tion, apply only to the case of a neglect or refusal to assume in any way the duty of the office, and not to the neglect or re- fusal to perform by one who has assumed the administration of the estate or the performance of his trust, and then is guilty of misconduct in the neglect of some plain duty. An entire fail- ure to act, without any refusal, or an express refusal on the part of the executor or trustee to assume the office cast upon him by the testator and a vacancy caused by a death after the trust has been assumed, are the cases intended to be provided for by this section.^* i^Brush V. Young, 28 N. J. L., ^^Orphans' Court Act, sec. 135. 237. Terry v. Smith, 42 N. J. Eq., 3 Comp. Stat., 3862. 504. Zabriskie v. Wetmore, 26 i*In re Chittendon, 24 N. J. L. N. J. Eq., 18, and see also "Juris- J., 719. diction of Orphans' Court," p. 297. infra. AprOIXTMEXT OF TRUSTEES. 297 Jurisdiction of Orphans' Court. This section does not confer upon the orphans* court all of the powers of the Court of Chancery over the appointment of trustees, but only those enumerated in the statute. Where an executor, who is also trustee, dies, and an administrator cum testaniento annexo is appointed, if the trust was one reposing- personal confidence and discretion in the trustee, it will not devolve upon the administrator, and the orphans' court may appoint a new trustee. ^^ The true criterion of the jurisdiction of the court is the nature of the trust, and not the person who is to execute it. If the duties of the trustee are identical with or inseparable from the duties of executor, when the offices are united in the same person, it is clear that the orphans' court can have no jurisdic- tion to appoint a new trustee. Thus, where the whole estate is devised to the executor in trust for the payment of debts and legacies, the duties of executor and trustee are identical and inseparable, and the orphans' court has no power to appoiiu a new trustee. Where, however, the office of trustee under the will and that of executor are distinct and separable, the sub- stitution of a new trustee in nowise affects the office of ex- ecutor. Thus, where a testator gives his estate to his ex- ecutor in trust to pay the income thereof to his son for life, with remainder over, the duties of the nominee as trustee are not connected with the settlement of the estate, but are distinct from his duties as executor, and a new trustee may be sub- stituted by the orphans' court. ^" The statute confers upon the orphans' court power to ap- point trustees in certain instances therein prescribed, and this power is limited by the statutory language of the act to cases where a trustee named in a will has neglected or refused to i^Brush V. Young, 28 N. J. L.. 237. For illustrations as to when 22,7. Zabriskie v. Wetmore, 26 a trust will and when it will not N. J. Eq., 18. Lanning v. Sisters devolve upon an administrator of St. Francis, 35 N. J. Eq., 392. cum testamento annexo, see Re- Stoutenburgh v. Moore, 2)7 N. J. porter's Note to Giberson v. Gib- Eq., 63. Affirmed, 38 N. J. Eq., erson, 43 N. J. Eq.. 116-117, and 281. see also "Where .Administrator c. i^Brush V. Young, 28 N. J. E., t. a. is .\ppointed," p. 205. supra. 298 Proisatk Law and Practice. act, or has died before the execution or completion of the trust committed to him. Where, therefore, a testator has appointed a non-resident corporation a trustee under a will, the or- phans' court has no jurisdiction to inquire whether the trus- tee is incapable of acting in this state, or whether it would be permitted to execute its trust outside the jurisdiction of the court of this state, but only to inquire whether the trustee has refused or neglected to act as such. It is upon the existence of the latter condition, as a condition precedent, that it is em- powered to appoint a new trustee.^' In Case o£ Discharge or Removal of Trustee. The act provides that in case any trustee shall be removed or discharged, the court shall appoint some suitable or proper person or persons to act in the place and stead of such trus- tee so removed. ^^ Notice of Application for Appointment of Trustee. When any trustee, heretofore or hereafter appointed by any will shall neglect or refuse to act, or shall die before the execution and completion of the trust committed to him, and any interested person shall intend to apply to the orphans' court of the county where the testator resided at the time of his death, for the appointment of a suitable person or suitable persons to execute such trust, the person intending to make such application, shall give to all persons interested in the ex- ecution of such trust, or to such of them as the court shall by its order direct, when they reside in this state, at least five days' notice in writing of such intended application ; when any of said parties shall reside out of this state, the notice shall be given by personal service, either within or without this state, or by mailing the same to said parties, at their respective post-office addresses, at least thirty days before the day desig- nated in the notice for making such application. If any cestui que trust be a minor, or non compos mentis, notice shall be given to his or her guardian, if any, and if none, to his or her nearest of kin, to any person standing in loco parentis to "Satterthwaite's Case, 60 N. J. i^See Orphans' Court Act, sec. Eq., 347- T51. p. 610. infra. Appointment of Trustees. 299 said minor or non compos, and also to the persons with whom said minor or non compos resides, or as to such of them as the court shall by its order direct.^'' Power of Substituted Trustees. Any trustee appointed or substituted by the orphans' court of any county of this state, or by the court of chancery, in the place of any trustee appointed by a will or other instrument creating or continuing a trust, shall have the same power to sell and convey lands and other property as was given to and vested in the original trustee or trustees named in or appointed by such will or instrument, even in cases where such power may be directed to be exercised at the discretion of such original trustee or trustees, unless such power of sale shall by such will or instrument be expressly prohibited to any sub- stituted trustee.-** The Orphans' Court Act,-^ provides that a trustee appointed by that court shall have all the powers of the trustee for whom he is substituted. The appointment of a trustee by the orphans' court confers upon such trustee the power of sale of lands vested by the will in the original trustee ;-- a trustee appointed by the or- phans' court may maintain an action for money had and re- ceived against a person who has money in his hands which justly belongs to the trust estate, although the money was re- ceived before the appointment of the trustee-'' but when the power conferred upon the trustee appointed by the will is a power coupled with a trust, to be exercised in the discretion and upon the judgment of the trustee, the trustee appointed and substituted under the statute does not acquire the right to exercise such power upon his own discretion or judgment,-^ isQrphans' Court Rule 45. 23Budd v. Hiler. 27 N. J. L., 43. -04 Comp. Stat., p. 5668, sec. 5. -^Weiland v. Townsend, 33 N. ->Orphans' Court Act, sec. 135, J. Eq., 393. Pedrick v. Pedrick. p. 296, supra. 48 N. J. Eq.. 313- Reversed, 50 --Yard v. Larison, 39 N. J. Eq., N. J. Eq., 479. Dillingliatn v. 3^- Martin, 61 N. J. Eq., 276. 300 Probate Law and Practice. but the Court of Chancery may direct such trustee to execute the trust under equitable rules prescribed by it.-^ REMOVAL OF TRUST FUNDS FROM STATE. Jurisdiction of Court to Authorize. In case any trustee appointed and his beneficiary are both residents of another state, and such beneficiary is entitled to any property or interest, real or personal, in which shall be included property, or money or interest in the hands of any trustee, resident in this state, any legacy or distributive share or interest in the hands of any executor or administrator in this state, moneys in the hands of any trustee, executor or ad- ministrator, being the proceeds of the sale of lands under any judicial proceedings, or in pursuance of the provisions of any last will and testament, arising from the sale of any property under any judicial proceedings, or in pursuance of any last will and testament aforesaid, it shall be lawful for the ordinary or the orphans' court of the proper county to make an order that the trustee so appointed in another state, may receive the rents, issues and profits of such real estate, and demand, sue for, collect and receive such legacy, distributive share, moneys or other personal property or interest aforesaid, and remove the same to the place of residence of himself and beneficiary ; and the delivery, transfer or payment of such property* or money or interest, to such trustee so appointed in another state, after the making of such order, shall be a legal discharge and acquittance for the same.^^. Notice of Application. Twenty days' notice of an application for the removal of property under the provisions of this act shall be given to the resident trustee, or the executor or administrator in whose custody such property, moneys or interest shall be, and the ordinary or orphans' court may direct notice of such intended 25Dillingham v. Martin, 6i N. or removal of the trustee, see Re- J. Eq., 276, and cases above cited. porter's Note to Weiland v. Town- For illustrations as to when equity send, 33 N. J. Eq., 393. will direct the performance of a -*^4 Comp. Stat., p. 5669. sec. 7. discretionary trust after the death Removal of Trust Funds from State. 301 application to be given to other persons interested ; provided, that the ordinary or orphans' court may reject such appHcations and refuse such order whenever it shall appear that it is for the interest of the beneficiary and parties in interest that such removal shall not take place ; and no order shall be made in any case where such removal will conflict with the terms or limita- tions by which such beneficiary owns, or is entitled to such property, or the interest of any citizen of this state in such property or interest may be prejudiced.-' Proof of Appointment of Foreign Trustee; Additional Security. Before any such order as mentioned in the last section (for the removal of trust property from the state) shall be made, proof to the satisfaction of the ordinary or orphans' court shall be made by certificate according to the acts of congress, in case the trustee or beneficiary reside in another state, or by attestation under the seal of the court wherein, or officer before whom, the proceedings were had, of the appointment of such trustee, and that he has given adequate security as such trustee in double the amount in value of such property or interest at the place where such trustee and beneficiary reside; and in case the ordinary or orphans' court shall not be satisfied with the sufficiency of such security, additional security to be given in this state may be required, in such form as the ordinary or orphans' court shall direct.-^ APPOINTMENT OF TRUSTEE FOR ESTATE OF ABSENT PERSON. Jurisdiction. Whenever it shall be made known to the Court of Chancery or to the Orphans' Court of the proper county, by a petition verified by the affidavit of the husband, wife, next of kin or other person interested, of any person who has been a resi- dent of this state, or of any other state, territory or foreign country, and who has property situate within this state, and who has absented himself or herself from his or her usual place 2^4 Comp. Stat., p. 5670, sec. 9. -^4 Comp. Stat., p. 5670, sec. 8. 302 Probate Law and Practice. of abode, for the space of one year, and whose whereabouts is- not and has not been known for a period of one year, it shall be lawful for the Chancellor or said Orphans' Court to appoint one or more trustees, who shall take charge of and manage the estate of such person so being absent, and who shall have full power over said estate, with the privilege of applying to said court to commence such proceedings for the conservation, pro- tection or disposal of said estate or any part thereof, as in the judgment of the said court shall be proper, and who shall be under the control and direction of said court.-" Bond and Inventory of Trustee. Said trustee, before taking charge of said estate, shall give bond in twice the amount of the personal property of said estate, and if the same shall be ordered to be sold in twice the value thereof, with sureties to be approved by said court for the faithful discharge of his or her duties, and shall within thirty days after his or her appointment, file an inventory with said court of said estate, and render an account at least once in two years, or oftener if required by said court. ^^ Distribution of Estate. Distribution of said estate may be made under the direction of said court after seven years from the appointment of said trustee or trustees, or sooner if the death of such absent person shall be established by evidence satisfactory to said court ; provided, that upon the return of such person so being absent before the distribution as aforesaid, such trustee or trustees shall render an account and restore to him or her said estate after deducting reasonable expenses of said trust and compensation of said trustees.'^ Conveyances by Trustees Where Consent of Cestuis Re- quired. Where any person has died or shall die leaving a last will and testament, devising lands situate, lying and being in the state of New Jersey to a trustee or trustees for any pur- 29P. L. 1912. p. 565. sec. I. sip i^ ic)i2. p. 565. sec. 3. 3op. L. 1912, p. 565, sec. 2. Corporations as Trustees. 303 pose or purposes, and giving to such trustee or trustees full power to convey any and all of such real estate upon the unanimous consent of all of the children of such testator, and such will has been or shall be duly admitted to probate, and where, after the probate of such will, some of the children of such testator, living at the time of the death of such testator, have died or shall die, and where, at the time of the exercise of such power of sale by such trustee or trustees or any per- son or persons lawfully substituted as such trustee or trus- tees, some of the children of such testator shall be alive, such trustee or trustees, or any person or persons lawfully sub- stituted as such trustee or trustees, shall have full power to convey any and all of such real estate so devised by any tes- tator, and to give good and valid deeds of coivveyance for the same, upon the unanimous consent of all of the children of such testator living at the time of the exercise of such power of sale by such trustee or trustees or any person or persons law- fully substituted as such trustee or trustees. ^^ CORPORATIONS AS TRUSTEES, &C. Corporations to Deposit Securities before Appointment. No corporation entitled by law to execute trusts or to act as assignee, administrator, guardian, receiver or trustee shall be appointed to such office until it shall have created a fund to be specifically set apart for and devoted to specially se- curing its liability in such capacities of trust and confidence, in accordance with the provisions of the act entitled, "An act concerning trust companies (Revision of 1899)", approved March twenty-fourth, one thousand eight hundred and ninety- nine (Laws of 1899, p. 450. 4 Comp. Stat., p. 5658, sec. 9), and shall have deposited with the register of this (prerogative) court securities which shall represent the fund.-''* No Deposit Required if Trust Company Gives Security in Same Manner as Natural Person. Nothing in these rules contained shall require the deposit of any such fund when the trust company appointed gives se- "P. L. 1913, p. 227. ^^Prerogative Court Rule 39. Orphans' Court Rule 41. 21 304 Probate Law and Practice. curity in the manner prescribed by law in such behalf foi natural persons, or in cases where the trust company shall have been appointed as executor or trustee, by any will or deed.^' Affidavit, Statement and Certificate to Accompany Ap- plication for Appointment. Every application for the appointment of such corporation to act as such assignee, administrator, guardian, receiver or trustee shall be accompanied by an affidavit of the president, secretary or trust officer of said corporation setting forth the matters specified in section nine of the act referred to in Rule thirty-nine,^'^ and a copy of the latest published gen- eral statement of the resources and liabilities of the cor- poration, such statement to be in no case of a date more than six months previous to the application ; there shall also be ap- pended to the application a certificate signed by the register of the prerogative court, showing that the special fund required by said section nine of the above mentioned act remains on deposit with him, in approved securities, stating the amount thereof. Such corporation shall present to the ordinary on such applica- tion (but need not file) the certificate of the commissioner of banking and insurance issued under the provisions of section five of the above mentioned act.^*^ Character of Securities to be Deposited. The said securities shall be of the character of securities in which trust funds may, by law^, be invested, and at the time of the deposit thereof, the president or cashier of the com- pany making such deposit shall make oath in writing, which shall be filed with the register of this (prerogative) court, as to the intrinsic value of any property upon which such se- curities shall then be a lien.^^ Mortgages Deposited to be Assigned to Register. In case any securities deposited as aforesaid are bonds se- cured by mortgages upon real estate, of the character in which ^^Prerogative Court Rule 40. ^^Prerogative Court Rule 41. Orphans' Court Rule 42. Orphans' Court Rule 43. 3=aSee p. 303, supra. ^yprerogative Court Rule 42. Corporations as Truste;es. 305 trust funds may by law be invested, said mortgages together with the said bonds, shall be assigned to the register in a man- ner to be approved by the ordinary, but until default by the trust company depositing the same occurs, by reason of which recourse may be had to said fund, said company shall be entitled to the beneficial interest in and income from said bonds and mortgages so assigned, and the register of this (pre- rogative) court may execute a power of attorney in favor of said trust company, in a form to be approved by the ordinarv. authorizing said company to receive and retain for its own use the interest or income arising from said bonds or the mortgages securing the same."^ Register to Receive Deposit of Securities. The register of the (prerogative) court shall receive the deposits of securities made under the requirements of the pre- ceding rules, and shall keep the same in such manner as the ordinary may, from time to time, by order direct.^'' Register to File Affidavits. The register shall file together all affidavits contemplated by rule forty-one of the (prerogative) court, rule forty-three of the orphans' court and rule two hundred and fourteen of the Court of Chancery.^" Bond Required from Corporation. Upon being appointed to any such office as is mentioned in rule thirty-nine, the corporation shall give bond, but with- out surety, similar to the bond that a natural person would be obliged to give if he or she were appointed to such office.'*^ ^^Prerogative Court Rule 43. *i Prerogative Court Rule 46. ^^Prerogative Court Rule 44. Orphans' Court Rule 44. ■•oPrerogative Court Rule 45. CHAPTER XVIII. BONDS OF EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES. Historical. In early times, administration of the estates of decedents was granted to the ordinary, who was not required to give bond: but this right was taken from him by the Statute of ^7 Ed. Ill, which required the ordinary to grant administration to the next of kin of the intestate, but made no provision for security from such administrator. The first enactment re- quiring the administrator to give security was the Statute of 21 Hen. VIII, which provided that the administrator should give bond to the ordinary that he would exhibit an inventory and pay the debts, or, as it was termed, administer the estate of the intestate. This condition of affairs continued until the enact- ment of the Statute of 22 Car. II, which required the adminis- trator to give bond to the ordinary: i. To file an inventory: 2. To well and truly administer ; 3. To account ; 4. To dis- tribute the surplus estate among the next of kin. The first statute in New Jersey on this subject was passed in 1795,^ and was substantially a re-enactment of the Statute of 22 Car. II. This act has remained practically unchanged through successive re-enactments, so that section 46 of the Orphans' Court Act^^ is to all intents and purposes a re-enact- ment of the Statute of 22 Car. II. Bond Required from Surety Company, Where a surety company which has duly qualified to act is appointed as executor, administrator, guardian, trustee or assignee, the corporation shall give bond, but without surety, similar to the bond that a natural person would be obliged to give if he or she were appointed to such office.^'' ^Elmer's Digest, p. 166, sec. 14. 3 Comp. St-it.. 3828, p. 307. infra ^"Orphans' Court Act. sec. 46. ibOrphans' Court Rule 44. ^06 Bunds of Admix istkatoks. Etc. 307 ADMINISTRATION BONDS. Security Required from Administrator. Upon granting administration of the goods and elYects of any person dying intestate, the ordinary, court or surrogate by whom the same shall be granted, shall take of the person to whom such administration shall be committed a sufficient bond, with two or more able sureties to the ordinary of the state, in such penalty as may be reasonable, regard being had to the value of the estate. - Condition of Bond. The statute prescribes that the bond shall be with condi- tion following: The condition of this obligation is such that if the above-bounden A. B., administrator of all and singular the goods, chattels and credits of C. D., deceased, do make, or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowd- edge of the said A. B., or into the hands or possession of any other person or persons for the said A. B., and the same so made do exhibit or cause to be exhibited into the registry of the prerogative court, in the secretary's office of this state, or into the surrogate's office of the county of , at or before the expiration of three calendar months from the date of the above-written obligation, and the same goods, chattels and credits, and all other goods, chattels and credits of the said deceased at the time of death, which at any time after shall come into the hands or possession of said A. B., or into the hands or possession of any other person or persons for the said A. B., do well and truly administer according to law ; and further do make, or cause to be made, a just and true ac- count of administration within twelve calendar months from the date of the above-written obligation; and all the rest and residue of the said goods, chattels and credits which shall be found remaining upon the account of the said administration, the same being first examined and allowed by the judges of the ^Orphans' Court Act, sec. 46. 3 Comp. Stat., 3828. 3o8 Probate Law and Practice. orphans' court of the county or other competent authority, shall deliver and pay unto such person or persons, respectively, as is, are or shall, by law, be entitled to receive the same; and if it shall hereafter appear that any last will and testament was made by the said deceased, and the executor or executors there- in named, or any other person or persons do exhibit the same into the said prerogative court or the surrogate's office of the county of , making request to have it allowed and ap- proved ; if the said A. B. being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) to the said court, then the above obligation to be void and of none effect, or else to remain in full force and virtue.^ Security Required from Husband on Grant of Adminis- tration on Wife's Estate. Sufficient bonds, with two or more able sureties to the ordinary of this state, with like penalty and condition as in other cases of administration, shall be required of all husbands to whom administration shall be granted of the goods, chat- tels and credits of their deceased wives.* Form of Bond. The bond need not conform strictly to the form prescribed by the statute ; a substantial compliance therewith is suf- ficient.^ While the bond should be to the "ordinary," with- out giving his individual name, still if a bond be taken in the in- dividual name of the ordinary of the state, his successors and assigns, those parts of the bond which make it a bond to the ordinary will be held valid, and the individual name and the words successors and assigns will be treated as surplusage.® Amount of Bond. The statute provides that upon the grant of letters of admin- istration a "sufficient bond in such penalty as may be reason- ^Orphans' Court Act, sec. 46. 3 479. Ordinary v. Cooley, 30 N. J. Comp. Stat., 3828. L., 179. Ordinary v. Heishon, 42 *Orphans' Court Act, sec. 48. 3 N. J. L., 15. Comp. Stat., 3829. ^Williamson v. Updike, 14 N. J. 'Ordinary v. Smith, 14 N. J. L., L., 270. Bonds of Administrators, Etc. 309 able, regard being had to the value of the estate," shall be given by the person appointed." As a general rule, a bond in double the amount of the value of the personal estate is required.^ This rule is, however, not inflexible. The object of an admin- istration bond is twofold; on the one hand, to protect the next of kin, and on the other to secure to creditors the payment of their claims.^ A bond in an amount sufficient to accomplish these objects will therefore be sufficient. Thus, where the value of the personal estate is very large, a bond in double the amount is unnecessary ; for example, where the personal estate amounts to $50,000, a bond for $75,000 will be sufficient for all purposes. It has already been seen that the bond is taken to secure the next of kin on the one hand, and creditors on the other. If, therefore, all of the next of kin are siii juris, and waive the requirement of bonds and unite in requesting the surrogate or court to grant letters without requiring any bond, the surro- gate or court, on being satisfied by affidavits or otherwise as to the amount of the debts owing by decedent, will be justified in requiring a bond sufficient to secure the payment of the debts, always making allowance for the possibility of the exist- ence of debts with which the family of intestate are not familiar. The question as to whether decedent at the time of his death was actively engaged in business is important in cases of this character, as under these circumstances, a reduc- tion of the bond would be unwise. In a recent case, in the Essex County Surrogate's Office, the personal estate of dece- dent, who was a retired business man, amounted to $40,000. He had not been engaged in any business for many years, and it was shown by affidavits that his debts would not exceed $500 in amount. The next of kin were all sui juris and all waived bond and requested the appointment of one of their number without bonds; and a bond for $10,000 was considered suf- ficient. "Orphans' Court Act, sec. 46, p. ^Ordinary v. Cooley, 30 N. J. L.. 307, supra. 271-275. Ordinary v. Connolly, 75 ^In re Rogers, 24 N. J. L. J., N. J. Eq., 521. 617. I Wocrner on Administra- tion, 555. 310 Probate Law and Pragticb^. The statute })rovides another method of redueing the amount of an administrator's bond, in a case where the estate is very large, by impounding all, or a portion, of the securities of the estate, and giving bond as to the residue not impounded.'*^ Where There are Assets in Another State. An administrator, by virtue of a grant of administration in this state, the place of the testator's domicile, who has also sued out letters of administration upon the intestate's prop- erty lying in a foreign state is required to file here an in- ventory of such property only as he is authorized to administer here, and to that extent only will he be required to give se- curity.' ' SECURITY REQUIRED FROM ADMINISTRATORS C. T. A., PENDENTE LITE, &c. Statutory Requirements. The statute provides that in case of the grant of letters of administration durante minore crtate, durante absentia, pen- dente lite, cum testamento annexo, and in all other cases of grant of administration, security shall be required as afore- said, by bond to the ordinary, in penalty as aforesaid, with the same condition as is prescribed by the statute in the case of ordinary administration, but adapted to the nature of the respective grants of administration. ^- Amount of Bond of Administrator c. t. a. The same considerations obtain in fixing the amount of the bond of an administrator c. t. a., as in the case of an ordinary administrator.^^ The amount of the personal property only is considered, even though the will contains a power of sale, as any sale made by the administrator with the will annexed must be reported to and confirmed by the orphans' court before it is valid, at which time the court will make such order touch- ing the bond of the administrator c. t. a., as the circumstances of the case require.^* ^°See p. 319. infra. isOrphans' Court Act, sec. 47. iiNormand v. Grognard, 17 N. 3 Comp. Stat., 3829. J. Eq., .425. ^■'*See p. 308, supra. '"•See p. 502, infra. Executors' Bonds. 311 EXECUTORS' BONDS. In General. Neither by the common nor by the ecclesiastical law is an executor required to give security for the performance of his duty. He is the creature and representative of the testator, and not, like an administrator, the creature of the law.^'' In New Jersey the statute provides that in all cases where any person or persons applying for the probate of any will shall reside out of the state of New Jersey, it shall be the duty of the orphans' court or surrogate to whom such application shall be made, before granting letters testamentary thereon, to take from such person or persons a bond with security for the faithful administration of the estate of the testator, in the same manner as is now required by law in the case of adminis- trations with the will annexed ; and in case any bond given under this act shall become forfeited, it may be prosecuted in the same manner that bonds given by administrators may be prosecuted ; provided, that nothing in this act contained shall prevent the granting of letters testamentary on the estate of any deceased person to a non-resident executor or executors, without security, in cases where the will provides that no security shall be required of the person or persons named as the executor or executors therein. ^"^ Amount of Bond. In fixing the amount in which a non-resident executor should give bond, the same rules obtain as in the case of an adminis- trator, except that if the will confers upon the executor the power to sell testator's lands, the value of the lands as well as of the personal property should be taken into consideration. As the executor can convert the lands into personalty at his pleasure, and without notice, they should be regarded as per- sonalty for the purpose of fixing the amount of his bond. i^Holcomb V. Coryell, 12 N. J. leOrphans' Court Act, sec. 51. 3 Eq., 289. Pfefferle v. Herr, 75 N. Comp. Stat., 3829. J. Eq., 219. Affirmed, 77 N. J. Eq., 271. 312 Probate Law and Practice. Power of Court to Require Bond. The statute provides that whenever proof shall be made, to the satisfaction of the orphans' court, that the property in the hands of any executor or trustee under a will is unsafe, inse- cure, or in danger of being wasted, the court, at the instance of any person interested in the estate of the testator, or in such trust estate, may require such executor or trustee to give se- curity to the ordinary of this state by bond with sureties, in such amount as said court may deem proper, conditioned for the faithful performance by such executor or trustee, of his duty under the will of the testator.^' The design of this statute is to protect estates in the hands of executors or trustees under wills against the danger of waste or loss by reason of their misconduct in embezzling, wasting, or misapplying the estate committed to their charge. The statute is remedial, and should be liberally construed. ^^ Practice. The better practice, upon an application to the court to re- quire an executor or trustee to give a bond, is to present the matter to the court by petition, duly verified, setting up all of the facts upon which petitioner relies in support of his applica- tion.^^ Such facts so set up must, of course, include all of those mentioned in the act as grounds for such an applica- tion.2» Upon the presentation of a petition setting up a prima facie showing that, in the language of the act, the property in the hands of the executor or trustee is "unsafe, insecure or in danger of being wasted," the court will allow a rule requiring such executor or trustee to show cause why he should not be required to give security, which rule is served in such manner as the court shall by a provision therein contained direct.^^ ^''Orphans' Court Act, sec. 140. ^oOrphans' Court Act, sec. 140, 3 Comp. Stat., 3866. this page, supra. isPerrine v. Petty, 34 N. J. Eq., ^iQrphans' Court Act, sec. 179. 193. p. 39. supra. i^But see Bird v. Wiggins, 35 N. J. Eq., III. Executors' Bonds. 313 Upon the return of the rule to show cause, the petitioner proceeds to call witnesses in support of the allegations of his petition; and after he has closed his case, the executor or trustee presents whatever evidence he may have in rebuttal to the case established by the petitioner. Circumstances under which Court Will Order Bond. It has already been seen that neither by the common nor by the ecclesiastical law is an executor required to give security for the performance of his duty, he being the creature and rep- resentative of the testator, and not, like an administrator, the creature of the law. A testator has a right to repose con- fidence in whom he will, and if he selects as his representative an irresponsible, insolvent person, to require such executor, in the absence of fraud, or misconduct or breach of trust, to give security, and thereby to remove him from office and defeat the will of the testator, is an exercise of power not vested in the court, and a violation of the rights of the executor. There must be some act or circumstance, other than and distinct from the condition and circumstances of the estate, or of the ex- ecutor at the time of the appointment, which will warrant such interference.^" As has been seen, the orphans' court will not, as a general rule, require an executor to give security, unless it appears that the estate in his hands is insecure, or in danger of being wasted. ^^ But where an executor neglects to record a mort- gage given by himself to his testator, but never recorded by his testator, he will be required to give security;-* and so where an executor or administrator loans money of the estate upon improper or insufiicient security.-^ So where an executor or trustee has neglected to account in the proper court as re- quired by the statute, and, when called on to account, re- fuses and avoids doing so until by the authority of the court 22Holcomb V. Coryell, 12 N. J. Eq., 692. Affirmed, 34 N. J. Eq.. Eq., 289. Pfefferle v. Herr, 75 282. N. J. Eq., 219. Affirmed, "j-j N. -*Bird v. Wiggins, 35 N. J. Eq.. r. Eq., 271. III. '•Carpenter v. Gray, 32 N. J. ^spgrrine v. Petty, 34 N. J. Eq., 193. 314 Probata Law and Practice. he is compelled so to do, and, when the account is furnished, not voluntarily, but by force of law, it appears that the executor or trustee is himself the principal debtor of the estate, and that the estate has little or no security for such indebtedness, the conduct of the executor or trustee is sufficient of itself to justify the court in requiring him to give security.'-'^ So where an executor and trustee had made excessive payments to testator's widow on account of her dower, and had thereby made the estate insecure, it was held that he was properly re- quired to give a bond for the faithful performance of his duty under the will.'' But it is no ground for requiring an ex- ecutor to give security for assets in his hands that he paid a premium in investing certain funds in government bonds, all the interest collected having been paid over to the legatee ; nor that a mortgage belonging to the estate had been assigned by him to a third person in order to facilitate its collection, no bad faith appearing; nor that he sold his farm and the per- sonal property thereon, there being no proof that the assets are insecure in his hands, or in danger of being wasted.-^ Rule in Chancery. As a general rule, security will be required by the Court of Chancery of trustees to whom no moral turpitude is imputable, if they have made a palpable mistake as to their obligations, and have displayed ignorance and negligence or bad faith in the management of the trust fund.-^ So where it appears that there is danger that the principal of a legacy will be wasted or lost, the Court of Chancery will require an executor to give security,''*' or will appoint a receiver,^^ but security cannot be required from an executor, in the absence of fraud, miscon- 26Holcomb V. Coryell, 12 N. J. ^oHolcomb v. Coryell, 12 N. J. Eq., 289-296. Eq., 289. 2-pfefferle v. Herr, 75 N. J. Eq., aoHoward v. Howard, 16 N. J. 219. Affirmed ^^ N. J. Eq., Eq., 486. 271. 31 Price V. Price, 23 N. J. Eq.. 28Carpenter v. Gray, 32 N. J. 428. Bolles v. BoUes. 44 N. J. Eq.. 692. Affirmed, 34 N. J. Eq.. Eq., 385. 282. Guardians' Bonds. 315 duct, or breach of trust, even though he be an insolvent or ir- responsible person. ^- GUARDIANS' BONDS. Security Required from Guardian. The statute provides that every court or other competent au- thority appointing a guardian, shall take bond of him with good sureties and in sufficient sum for the faithful execution of his ofifice."^ Security from Testamentary Guardian, The statute further provides that every guardian appointed by last will and testament, which shall be legally proved and re- corded, shall, before he exercises any authority over the minor or his estate, appear before the orphans' court or surrogate and declare his acceptance of the guardianship, which shall be re- corded, and shall give bond, with such sureties and in such sum as the said court or surrogate may approve of and order, for the faithful execution of his office, unless it is otherwise directed by the testator's will.'* Form of Bond. The form of a guardian's bond is not important. A bond given by a guardian not conforming to the act, will, neverthe- less, be enforced, so far as it is consistent with the policy of the statute. ^^ So a guardian's bond, calling in its premises for three sureties, executed by two of them and left with the county surrogate, they at the time telling the guardian to bring in the third surety, and he promising to do so, will be binding on those executing, although the third surety failed to execute.^'" Where guardianship of several minors is committed to the same person, a separate bond should be given to secure the es- tate of each minor ;'■' but a guardian's bond securing the estate 32Holcomb V. Coryell, 12 N. J. ^sOrdinary v. Heishon, 42 N. J. Kq., 289. L., 15. •'•'Orplians' Court Act, sec. 49. 3 "^Ordinaryv. Thatcher, 41 N. J. Comp. Stat., 3829. L., 403. ^^Orphans' Court Act. sec. 50. ^^Ordinary v. Heishon. 42 N. J 3 Comp. Stat., 3829. L., 15. 3i6 Probate Law and Practice. of two minors, in joint form, and particularizing the duties to be performed by the guardian, was held valid.^® Nature of Bond. The guardianship bond is collateral merely, and does not preclude the remedy against the guardian himself.^^ Amount of Bond. The statute, as has been seen, requires that a guardian give bond "with good sureties and in sufficient sum for the faith- ful execution of his office."*" The amount of the bond is therefore in the discretion of the surrogate or court granting the letters. In the ordinary case, a bond in double the amount of the personal property coming to the hands of the guardian, signed by two sureties, each owning real estate to the amount of the penalty of the bond, is required. Difficulty in fixing the amount of a guardian's bond is sometimes encountered in a case where the estate of the ward consists either wholly or in part of an annual income, whether from real estate or other sources. In such cases, a safe rule to follow is to esti- mate the total amount of income which the guardian will re- ceive during the minority of his ward, deduct therefrom the estimated expenditures for the benefit of the ward, keeping in mind the obligation of any persons standing in loco parentis to the ward to support him, either wholly or in part, and to take a bond in double the amount of the result thus obtained. Guardians' bonds frequently run for long periods of time, and are taken for the protection of those who are unable to help themselves, and who are often without other protectors than the very person giving the bond, who is usually the near- est of kin. Special care should therefore be taken to ascer- tain the sufficiency both of the penalty and of the sureties before accepting bonds of this character. The statute provides a method whereby the amount of a guardian's bond may be reduced, in a case where the personal 380rdinary v. Heislion, 42 N. J. ^^Orphans' Court Act, sec. 49, Lm 15- p. 315, supra. 39Shepherd v. Newkirk, 21 N. J. L., 302. Qualification of Sureties. 317 property coming into his hands is very large, by impounding all or a portion of the securities of the estate, and giving bond as to the residue not so impounded.*^ FEME COVERT EXECUTRIX, ADMINISTRATRIX, &c., MAY BE REQUIRED TO GIVE BONDS. Provisions for Security from Executrix Marrying after Appointment. A married woman may be an executrix, administratrix, guardian or trustee, and her husband may be accepted as a surety on any bond given by her as such ; in case of the mar- riage of any female after her appointment, the orphans' court may, on application of any party in interest, in its discretion, make an order that her power cease and be suspended ; and the said court may, on such notice to her as it may direct, re- voke the letters issued to her and remove her from her said of- fice, unless she shall, within such time as the said court may limit and appoint, give bond to the ordinary, with two or more sufficient sureties, to be approved by the court in such sum as the court may direct, conditioned for the faithful execution of the trust imposed and the true payment of all moneys of the estate which shall have come or shall thereafter come to her hands. ^- NUMBER AND QUALIFICATION OF SURETIES. Number of Sureties. As has been seen, the statute requires the surrogate, upon the grant of letters of administration, to take a bond with two or more able sureties. In the case of the grant of letters of guardianship, the requirement is to take a bond with "good sureties," without naming the number required. ^^ The uniform practice is, however, to require at least two sureties on all bonds. *iSee p. 319, infra. "Orphans' Court Act, sec. 49, ♦^Orphans' Court Act, sec. 142. p. 315, supra. 3 Comp. Stat., 3866. 3i8 Probate Law and Practice. Qualification of Sureties. The question who may be accepted as sureties is left by the statute to the discretion of the surrogate or court making the appointment. It is, however, as has been said, the uniform practice to require each surety to qualify as the owner of real estate within this state above his just debts and liabilities in the full amount of the penalty of the bond. A non-resident of New Jersey, owning real estate within this state, may be ac- cepted as a surety. The statute provides that the husband of a married woman may be accepted as her surety on any bond given by her as executrix, administratrix, guardian or trus- tee." Married Women. The statute provides that no married woman shall become a guarantor, nor shall she be liable or answer for the debt, de- fault or miscarriage of another.*^ Married women are there- fore incompetent to act as sureties on an administration bond. Surety Companies. The statute authorizes any surety company, authorized by law to transact business in this state, to execute the bond of any executor, administrator, guardian or trustee, and further provides that such bond shall be valid, though any statute re- quires that the bond be executed by two sureties.*" Expense o£ Obtaining Surety Bond Chargeable against Estate. Any receiver, assignee, guardian, committee, trustee, ex- ecutor or administrator, required by law or by the order of any court to give bond as such, may include as part of the lawful expense of executing his trust such reasonable sum paid a company authorized under the laws of this state so to do, for becoming his surety on such bond, as may be al- lowed by the court in which he is required to account, not exceeding, however, one per centum per annum on the amount of such bond.*' ■ **Orphans' Court Act, sec. 142. ^^o Comp. Stat., 2852. sec. 46. p. 317, supra. i-4 Comp. Stat., 5051, sec. 2. ^^3 Comp. Stat., 3226, sec. 5. Deposit in Lieu of Bond. 319 VALIDITY OF BOND. In General. A bond may be good in part, and bad in part ; and the court will support the good part and reject the bad part, where the good can be separated from the bad.*® So a bond, calling in its premises for three sureties, executed by two of them, and left with the surrogate pending the execution thereof by the third surety, will be binding upon those executing it, though the third surety failed to execute.*^ PROVISIONS FOR DEPOSIT IN LIEU OF BOND. Securities May Be Impounded. In all cases where a bond or bonds shall or may be required by the ordinary, orphans' court or by a surrogate from an ex- ecutor, administrator, guardian or trustee, if the value of the estate or fund is so great that the ordinary, orphans' court or surrogate deems it inexpedient to require security in the full amount prescribed by law, the said ordinary, orphans' court or surrogate, as the case may be, may direct that any securities for the payment of money belonging to the estate or fund be deposited in such savings bank, savings institution or trust com- pany duly incorporated under the laws of this state, or such national bank having safe deposit boxes for the use of private individuals, as may be designated by the order of the ordinary,^ ^ orphans' court or surrogate. ""^ Bond virith Respect to Portion of Estate Not Secured by Deposit. After such a deposit has been made, the ordinary, orphans' court or surrogate may fix the amount of the bond, with re- spect to the value of the remainder only of the estate or fund.'"' Method of Making and Withdrawing Deposit. Such deposit shall be made in the name of the executor, ad- ministrator, guardian or trustee, and the security or securities *80rdinary v. Smith, 14 N. J. L., sOQrphans' Court Act. sec. 52, 479. • as amended by P. L. 191 5. p. 40- ^"Ordinary v. Thatcher, 41 N. J. '^'Orphans' Court Act, sec. 53. 3 L., 403. Comp. Stat., 3830. 22 ^2C Probate Law and Practice. thus deposited shall not be withdrawn from the custody of such savings bank, savings institution, trust company or national bank, except upon the special order of the ordinary, orphans' court or surrogate, and no executor, administrator, guardian or trustee shall receive or collect the whole or any part of the principal of such securities so deposited without the special order of the ordinary, orphans' court or surrogate, entered in the appropriate book.^^ When Order of Withdrawal of Deposit May be Made. Such an order can be made in favor of the executor, admin- istrator, guardian or trustee only where an additional bond has been -given by him, or upon proof that the estate or fund has been so reduced by payments or otherwise, that the penalty of the bond originally given will be sufficient, in amount, to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund.^^ Duplicate Certificate to be Issued by the Fiduciary Agent. The savings bank, savings institution, trust company or national bank receiving such deposit shall issue a certificate in duplicate, setting forth the amount and nature of securities de- posited, and deliver one certificate to the ordinary, orphans' court or surrogate, and the other to the executor, adminis- trator, guardian or trustee in each case.^* WHEN ADDITIONAL BOND MAY BE REQUIRED. Statutory Provisions. The statute provides that the orphans' court shall have power, where letters of administration or guardianship shall have been granted upon insufficient security, or the sureties on any admin- istrator's or guardian's bond shall be or become in failing or dubious circumstances, or insufficient for the security of the estate, to order and direct such administrator or guardian to =20rphans' Court Act, sec. 54, ^^Orphans' Court Act, sec. 56, as amended by P. L. 191S, p. 40. as amended by P. L. 1915, p. 40. ^^Orphans' Court Act, sec. 55. 3 Comp. Stat., 3830. Liability of Sureties. 321 give such further or other security to the ordinary, by bonds in the usual form, as the said court, after hearing creditors or persons concerned, shall approve. ^'^ WHEN COURT MAY ORDER BOND REDUCED. Statutory Provisions. The statute provides that whenever upon the allowance by the orphans' court of the intermediate account of any executor, administrator, guardian or trustee it appears from said account, to the satisfaction of said court, that the bond given by such executor, administrator, guardian or trustee is in a larger sum than is necessary for the proper protection of the property and assets of said estate, the orphans' court shall have full power and authority to order that the said executor, adminis- trator, guardian or trustee give a new bond in such sum as the court may determine is sufficient for the proper protection of the property and assets of such estate remaining in the hands of such executor, administrator, guardian or trustee. Upon the filing of said bond with conditions and sureties ap- proved by the orphans' court, the said court may order that the sureties upon the original bond be discharged from all liability thereunder from and after the date of such order. All such proceedings shall be commenced by petition verified by the oath of the petitioner and shall be upon such notice as the court may direct.^® NATURE AND EXTENT OF LIABILITY OF SURETIES. In General. Sureties stand bound for the default and fraud of their principal, and have no right to any favor or immunity that would not be accorded to him ; but the bond is collateral merely, and does not preclude the remedy against the prin- cipal.^^ The surety on an administration bond becomes in- debted, so as to bind his lands in case of his decease, as soon ssQrphans' Court .Act, sec. 141. 57Shepherd v. Newkirk, 21 N. 3 Comp. Stat., 3866. J. L., 302. In re Gaston Trust. ^eP. L. 191 1, p. 95. 35 N. J. Eq., 60. Affirmed sub nom Veghte v. Steel, ib., 348. 322 Probate Law and Practice. as the administrator makes default, even though judgment on the bond has not been rendered ;^^ and the omission of wards, for some years after they come of age, to prosecute their guardian for money due them will not discharge the surety.^'' But where a guardian who had made an assign- ment under the statute for the benefit of his creditors was re- moved, and thereupon settled his account in the orphans' court, 2 N. J. Eq., 493. 689. 89In re Webster, 5 N. J. Eq., 89- 'J-In re Honnass, 14 N. J. Eq., 97. In re Green, 8 N. J. Eq., 550- 493- 554. »3in re Honnass, 14 N. J. Eq., 90In re Webster, 5 N. J. Eq., 89- 493- 97. S. C, 4 N. J. Eq., 558. Or- -'^In re Webster, 5 N. J. Eq., 89- phans' Court Act, sec. 187, p. 326, 96. Lee's Case, 43 N. J. Eq., supra. 172-175. As to what constitutes ^iDickerson v. Robinson, 6 N. J, a breach of a bond, see "Nature L., 195. In re Honnass, 14 N. and Extent of Liability," p. 321, J. Eq., 493. In re Northampton supra. 328 Probate Law and Practice. Security for Costs. On granting the order for prosecution, the Ordinary may require a bond to be given to secure the payment of costs.''^ Where Order to be Filed. The order for prosecution should be filed in the Prerogative Court, out of which it issues, and not in the court in which action is brought.®^ Validity of Order. An order to prosecute an administrator's bond made by the Ordinary will be taken in all collateral proceedings to be en- tirely conclusive."' So the validity of the order cannot be in- quired into by the court in which the action is brought upon the bond.^^ When Order Will Be Set Aside. The Prerogative Court will, in a summary manner, and upon a mere motion, inquire into the validity of an order previously made by the Ordinary for the prosecution of an administrator's bondf" but the court will not set aside an order otherwise regular, merely because it was not founded upon a peti- tion^ or because the petition was not verified,- nor because the Ordinary did not require a bond of indemnity against costs.' And where the petition states that the administrator had not paid persons entitled thereto the balance of a fund in his hands, the order will not be set aside on the ground that no decree of distribution has been made by the orphans' court, nor be- 95Dickerson v. Miller, 13 N. J. ^^In re Webster, 4 N. J. Eq., L., 3. In re Webster, 5 N. J. Eq., 558. 89-97. iln re Webster, 4 N. J. Eq., 558. 96Dickerson v. Miller, 13 N. J. S. C, 5 N. J. Eq., 89. L., 3. -In re Green, 8 N. J. Eq., 550. ^^Ordinary v. Poulson, 43 N. J. Hn re Webster, 5 N. J. Eq., 89. L.. 33- In re Green, 8 N. J. Eq., 550. 98In re Webster, 4 N. J. Eq., 558. Suit on Bond. 329 cause the distributees did not tender a refunding bond ;* but it must appear that the order was made at the request of a party aggrieved.^ SUIT ON BOND. Parties Plaintiff. Suit on an administration bond should be brought in the name of "The Ordinary of the State of New Jersey" as plain- tiff. "^ It is not error, however, to insert the name of the per- son who is Ordinary as the plaintiff, before the words "The Ordinary, etc." ; the name is mere surplusage, if correctly given.' Discontinuance of Suit. In case any bond required by law to be given by executors or administrators has been or may be caused by the ordinary to be prosecuted in any court of record, the surety on such bond may before judgment apply to the ordinary by petition to have such suit discontinued, and the said ordinary shall thereupon appoint a time and place to hear said application, and direct what notice, if any, be given to the creditors of said deceased and other persons aggrieved by the forfeiture of said bond, of such hearing.® When Ordinary May Order Suit Discontinued. If on the hearing of said application it shall appear that all the damages sustained by the forfeiture of such bond have been paid, so far as the said surety shall have been able to ascertain, the ordinary may, if he considers it advisable, direct that the said suit be discontinued, upon the payment of the taxed costs of such suit.^ The Ordinary may, at any stage of the proceedings,. for good cause shown, stay a suit on an administrator's bond which was *In re Green. 8 N. J. Eq., 550. ^Ordinary v. Fowler, 22 N, J. L.. Hn re Webster. 4 N. J. Eq., 48. 558. ^P. L. 1901, p. 183, sec. I. 3 "Williamson v. Updike, 14 N. J. Comp. Stat., 3883, sec. 191a. L., 270. Ordinary v. Fowler, 22 op. L. 1901, p. 183, sec. 2; 3 N. J. L., 48. Comp. Stat., 3883, sec. 191b. 330 Probate Law and Practice. begun under his own previous order ;^*' but he will not stay the prosecution of the bond on an allegation by the adminis- trator and surety that they "were advised and believed" that there was nothing due to the creditor who obtained the order for prosecution.^^ Remedy of Creditor Aggrieved by Such Discontinuance. In case the claim of any creditor or of any person aggrieved by the forfeiture of such bond shall remain unsatisfied after the discontinuance of said suit, such party may make applica- tion to the ordinary to re-prosecute the said bond, in the same manner as if suit had not Ijeen instituted on the same.^- Amount of Judgment. In a suit on an administration bond, the judgment recovered must be for the penalty of the bond, and a court of law cannot assess damages upon it ; these are assessed and distributed by the Ordinary.^^ The only way in which the defendant can ob- tain relief against the payment of the penalty is by applying to the Ordinary for a stay of execution ;i* but the Ordinary will not, except in case of mal-administration and consequent loss of assets, order the full amount of the penalty of the bond to be brought in by the bondsmen, pending the assessment of damages by himselP^ Assessment of Damages. After judgment has been obtained upon the bond, application should be made to the Ordinary, by petition, to assess the dam- ages sustained by breach of the bond. Upon such an applica- tion, the Ordinary may hear the matter in person, or refer the same to a master for investigation and report. Excep- ^°Lee's Case, 43 N. J. Eq., 175. calow. 36 N. J. L., 15. Lee's Case. i^In re Northampton County 43 N. J.' Eq., 172-175. Savings Bank, 32 N. J. Eq., 689. i*Ordinary v. Snook, 10 N. J. i2p. L. 1901, p. 183, sec. 3. 3 L., 65. Comp. Stat., 3883, sec. 191c. inordinary v. Poulson, 43 N. J. i^Dickerson v. Robinson, 6 N. J. L., 33. Lee's Case, 43 N. J. Eq., L., 195-203. Ordinary v. Snook, 172-175. 10 N. J. L., 65. Ordinary v. Bar- Suit ox Bond. 351 tions-will lie to tlie master's report, as in references made bv the Court of Chancery.^^ In assessing damages, on a judgment on a sureties' bond, the Ordinary will order the settlement of the administrator's ac- count in the orphans' court. ^^ Measure of Damages. The surety of an administrator is required to bear any in- jurious consequences arising from loss to the estate through the administrator's default or fraud, and has no right to any favor or immunity that would not be accorded to the adminis- trator himself. So the damages assessable upon a judgment for a penalty contained in an administrator's bond should in- clude not only an equivalent for assets lost to the estate, but also costs incurred and reasonable counsel fees to the proctor who took proceedings for the removal of a derelict adminis- trator and the attorney who prosecuted the suit at law to re- cover the penalty of the bond.^® Damages cannot be assessed in excess of the* penalty of the bond ;^^ but where it appears that the condition of the bond has been broken, and that the sum really due thereon, or the damage actually sustained by such breach, exceeds the penalty of the bond, the plaintiff may recover the penalty as a debt, and damages for its deten- tion in the shape of interest thereon from the time the penalty ought to have been paid, but not exceeding in the whole the sum really due for the damage actually sustained.'" Defences to Application to Assess Damages. Upon an application to assess damages upon a judgment against sureties, the only question to be determined is the amount to be raised,-^ and no defenses against the liability on the bond can be set up ; thus, sureties cannot object that the ^•Dean's Case, 3S X. J. Eq., 201, ^^Ordinary v. Connolly, 75 N. J. and .see "Nature and Extent of Eq., 521. Liability of Sureties," p. 321, supra. ^^Wilson's Case, 38 N. J. F,(i.. I'^Ordinary v. Snook, 10 N. J. 205. L., 65. Lee's Case. 43 N. J. Eq., -"Gloucester v. Eschbach, 54 N. 172-175. .L L., 150. '-'Ciivcn's Case, 34 N. J. Eq., 191. 332 Probate Law and Practice. master assessed damages under one of the conditions from which they claimed that they were exonerated by the action of the new guardian, nor can they claim an allowance for taxes on the ward's lands paid by the guardian. -- An application to have the amount due one of the next of kin satisfied from the judgment on the administration bond cannot be successfully resisted by proving that a part of the assets which made up the balance found to be in the hands of the administrator consisted of a debt due from the adminis- trator to the estate which had never been realized to the estate because of the continued insolvency of the administrator ; the proper course of the surety in such case being to make applica- tion to the court in which the decree was made, or to pro- ceed by bill in chancery.-^ So upon application to assess dam- ages upon a judgment against sureties because of the failure of the administrator to apply to the payment of intestate's debts the proceeds of lands sold under an order of the orphans' court, there can be no deduction in the administrator's favor because of his failure to exhaust the personal Estate of the in- testate in payment of debts before applying the proceeds of the realty thereto.-^ And so where a ward, whose estate was small, lived with his father, who was his guardian, the father during his lifetime never making any charge against the ward for his maintenance, and the father having become insolvent and failed to account to his son for the assets of his estate, suit was brought on his bond and judgment recovered for the amount of the penalty and the sureties insisted that the sup- port of the ward during minority should be allowed in esti- mating damages, it was held that as the father made no charges for maintenance and never intended to make any, there was no ground for such allowance.-^ "Dean's Case, 38 N. J. Eq., 24Given's Case, 34 N. J. Eq., 201. 191. 230rdinary v. Kershaw, 14 N. J. 25\\,'aning's Case, 35 N. J. Eq , Eq., 527. 105. Relief of Sureties. 333 RELIEF OF SURETIES. In Case of Waste, &c. If the surety on any bond given by an executor, adminis- trator, guardian or trustee for the execution of his office, >hall beheve that such executor, administrator, guardian or trustee is wasting or mismanaging the estate, whereby the said surety may become hable to loss or damage, the orphans' court, upon apphcation of such surety and upon sufficient reason therefor, may order such executor, administrator, guardian or trustee to render an account of his or her administration or guardianship to such surety, and if it shall appear that such executor, administrator, guardian or trustee has embezzled, wasted, misapplied or mismanaged the estate, the said court shall direct the said executor, administrator, guardian or trus- tee to give separate security to his or her surety for the true payment of the balance remaining in his or her hands to cred- itors, representatives of the deceased, or the ward of such guardian or persons entitled to the same.''' In the case of trustees, the act also gives to a surety further relief by revoking the trusteeship and by authorizing the new trustee to bring suit against the old trustee.-^ Jurisdiction of Orphans' Court. The orphans' court has jurisdiction, upon the application of the surety of an habitual drunkard's guardian, to inquire into the solvency of his co-sureties, and also into the guardian's management of the estate. ^^ Relief of Sureties from Further Liability. When either or all of the sureties of any executor, adminis- trator, guardian or trustee shall desire to be released from re- sponsibility on account of the future acts or defaults of such executor, administrator, guardian or trustee, such surety or sureties may make application to the orphans' court of the county in which the letters testamentary or of administration, 2«0rphans' Court Act, sec. 143. 28i3ickerson v. Dickenson, 31 N. 3 Comp. Stat., 3867. J- Eq., 652. 2^4 Comp. Stat., 5669, sec. 6. 334 Probate Law and Practice. or of guardianship, were granted, or appointment made, for relief ; and the said court shall thereupon direct to be issued a citation to such executor, administrator, guardian or trustee, requiring him to appear before said court, at a time and place to be therein specified, to state and settle his account of the estate that has come into his hands, and of the claims pre- sented to him against the same, and to give new sureties, in the usual form, for the discharge of his duties ; and if such ex- ecutor, administrator, guardian or trustee shall appear and give new sureties to the satisfaction of said court, the court may thereupon make order that the surety or sureties, who ap- plied for relief in the premises, shall not be liable on their bond for any subsequent act, default or misconduct of such executor, administrator, guardian or trustee.-^ Right of Sureties to Relief. The right of sureties to be relieved from responsibility for the future acts or defaults of executors is absolute, and on a proper application such relief must be granted ; but where the sureties do not appear on the day set for the hearing, their application may be treated as abandoned and dismissed. ^° Sureties who have taken advantage of this statute are not. however, discharged from liability for the acts, defaults or misconduct of their administrator prior to their discharge. So where a guardian had wasted the estate of his ward before the giving of new sureties pursuant to the applications of the old ones for their discharge, the original sureties were held liable notwithstanding the demand for the wasted funds was not made until the new sureties had been given. ^^ Discharge of Sureties after Administration Completed. At any tirne after the expiration of three months from the filing of any final decree of distribution made after the pass- ing by any orphans' court or other competent court of this s^Orphans' Court Act. sec. 144. soAllen v. Sanders. 34 N. J. Eq.. 3 Comp. Stat.. 3867. See also, 4 203. Comp. Stat.. 5051, sec. I. si^o^Q^.^^'g q^^^ ^e, N. J. Eq.. 108. Relief oe Sureties. 335 state of the final account of any administrator, executor, as- signee for the benefit of creditors, trustee under any will, or guardian of any minor, the court which passed such final ac- count shall, upon application on behalf of any person interested, upon such notice to the other interested persons as the court may prescribe, and upon proof being made to the satisfac- tion of said court that the entire trust estate has been dis- tributed according to law, and that no appeal from such orders of distribution is pending, make an order discharging the sure- ties or bondsmen of such administrator, executor, assignee, trustee or guardian, as the case may be, from any and every liability by reason of their having become such sureties ; from and after the making of such order all liability of every such surety named in such order, and his, her or their heirs, ex- ecutors and administrators, under or by virtue of his, her or their undertaking as such surety, shall cease, terminate and be at an end, but the personal liability of such administrator, ex- ecutor, assignee, trustee or guardian, as the case may be, shall nevertheless be and remain as if no such order had ever been made.^- Proceedings by Surety to Ascertain Liability. In case any bond given by executors or administrators, in pursuance of the act to which this is a supplement, has or shall become forfeited, and has been or may be caused by the ordi- nary to be prosecuted to judgment, in any court of record, and it shall be made to appear to the ordinary, by petition filed by any surety, against whom judgment has been or shall have been rendered upon such bond, that the damages sustained by the non-performance of the condition of such bond, together with the costs of suit and execution fees thereon, have been fully satisfied so far as such surety shall have been able to ascertain such damages, the ordinary, upon application of such surety, may make an order directing such surety to give public notice to the creditors of the decedent and any persons ag- grieved by the forfeiture of such bond, to bring in their debts. 320rphans' Court Act, sec. 145. Comp. Stat., 5052, sec. 3 and 4- 3 Comp. Stat., 3867. See also, 4 23 336 Probate Law and Practice. demands and claims against the estate of the decedent, under oath, within three months from the date of such order, by ad- vertising such notice for six weeks successively, once in each week, in one or more of the newspapers of this state, as may be directed in said order, and any further notice, in case the ordinary shall judge the same necessary, and such notice shall be advertised within twenty days after the date of such order. ^^ Presentation of Claims to Surety. When any order to bring in debts and claims shall be made, in pursuance of the preceding section, all claims and demands of the creditors of the deceased, and of all persons aggrieved by the forfeiture of such bond, shall be presented in writing, specifying the amount claimed and the particulars of the claim, and shall be verified under oath, or the bringing in of the same shall be of no effect.^* Exceptions to Claims. The surety or sureties may except to any claim, debt or demand, and thereupon the same shall be tried in such manner as the ordinary may direct, and the ordinary may, if the same be not proved on such trial to his satisfaction, disallow and reject the same.^^ Satisfaction of Judgment against Surety. After the expiration of the time in such order limited, the ordinary, upon proof, to his satisfaction, that such notice has been advertised as directed, and that no claims or demands have been presented, or that all claims which have been pre- sented and allowed, have been fully paid and satisfied by such surety, or otherwise, may order satisfaction of such judgment to he entered, pursuant to the provisions of the act entitled "An act concerning judgments," (Revision), approved March twenty-seventh, one thousand eight hundred and seventy-four.^^ 330rphans' Court Act, sec. 188. ssQrphans' Court Act, sec. 190. 3 Comp. Stat., 3882. 3 Comp. Stat., 3883. 3<0rphans' Court Act, sec. 189. ^eOrphans' Court Act, sec. 191. 3 Comp. Stat., 3883. 3 Comp. Stat., 3883. CHAPTER XIX ASSETS. In General. All of the goods and chattels, rights and credits, moneys and effects, actions and commodities, which were of the dece- dent, all rights of action or possession that are his own at the "time of his death, pass upon his death to his executor or ad- ministrator. The next of kin of decedent do not become their owners, but acquire only that qualified equitable right to dis- tribution of what shall remain after payment of the just debts, funeral charges and expenses of settling his estate which is con- ferred upon them by the will or statute of distributions, as the case may be. It is a general rule of law and equity that an executor has absolute power of disposal over the whole of his testator's personal effects, including such things as are given by way of specific legacies. It is his duty to get in the whole of his tes- tator's personal estate, as well those things which are specifi- cally given as other parts of the estate ; but he should preserve and keep such things as are specifically given so that they may be delivered up to the legatees in kind, unless their conversion into money for the payment of his testator's debts is absolutely necessary. The power of an executor to dispose of things given by way of specific legacies was at one time questioned ; but modern adjudications have placed it beyond dispute. So rigorous is the rule requiring an executor to take posses- sion of the whole of his testator's personal property and make an account of it, so that it may be applied in due course of administration, that in a case where a testator had directed that certain sealed parcels should be delivered by his executor unopened to the persons to whom they were directed, it was held that the executor could not safely obey the direction of his testator, for if he sliould be called to make an inventory, he 337 338 Probate Law and Practice. could not make it on oath, without knowing what the parcels contained ; and if he should make delivery of the parcels, he would hy the delivery assent to them as legacies, and then if there should not be sufBcient assets to pay debts, he would be guilty of a devastavit.^ So where at the time of testator's death securities belonging to him, which were given by the will to his wife, were in a compartment of a trust company's vault, the compartment having been taken in the name of testator and wife, and she refused to give the executor the key, and the trust company refused to surrender the securities, it was held that a bill by the executor for discovery and re-, lief would lie.- PERSONAL ASSETS. Choses in Action. All choses in action belonging to a testator at the time of his death pass on his death to his executor, even though they are specifically bequeathed f and a promissory note taken in the name of the intestate should not be omitted from the inventory upon the claim of the wife that it is hers, being in payment of a sale or a gift to her from her husband;* but the notes of a debtor, who is non-resident and insolvent, may be omitted from both the inventory and account with per- fect propriety, and no inference unfavorable to the executor should be drawn from such omission.' The proceeds of a bond of which decedent was a joint obligee belong to the sur- viving co-obligees and the personal representatives of the de- ceased.*' ^Hayes v. Hayes, 45 N. J. Eq., J. Eq., 461. Affirmed, 47 X. J. 461. Affirmed, 47 N. J. Eq., 567. Eq., 567. Buchanan v. Buchanan, 75 N. J. ^Dii^g y. Stevenson, 17 N. J. Eq.. Eq.. 274. 407. ^Schrafft V. Woltcrs, 61 N. J. ^Black v. Whitall, 9 N. J. Eq , Eq.. 467. 572. ^Miller v. Henderson, 10 N. J. ^Stevens v. Bowers, 16 N. J. I.., Eq.. 320. Hayes v. Hayes, 45 N. 16. Assets. 339 Legacies and Distributive Shares. The vested right of a legatee is, upon his death, transmitted to his personal representatives. The next of kin are not the personal representatives, and cannot, as such, come into court representing the ancestor;" but where the legacy is to "A," or his "representatives," those will take who have the right to represent the primary legatee as next of kin under the statute of distributions, and not his executor or administrator.^ Debts Due from Legatees or Devisees. A legatee indebted to his testator must pay his debt or his legacy may be applied in discharge of the same f and an as- signee of a legatee or distributee takes the legacy or dis- tributive share subject to the equity which existed against it in the hands of the assignor. ^° But a debt owing by a devisee to his testator is not a charge upon the lands devised to him by the latter, in the absence of language in the will making such debt a charge;" and the principle of equitable retainer does not apply to a fund arising from the sale of real estate which descended to the debtor as one of the heirs at law of the testator, which realty has been converted into personalty by accident, or because the will could not be carried into effect in any other way than by the sale of the land.^- W'here an executor holds the notes of" his testator's legatee, although at law they cannot be set-off against interest due such legatee, yet a court of equity will allow them to be used in payment of the interest during his life; but where a legacy is left to A for life, with remainder over to his children, a debt due from A to the testator cannot be set-off against the prin- 'Shaver v. Shaver, i N. J. Eq., Brokaw v. Hudson, 2y N. J. Eq., 437. Cohen v. Moss, 29 Atl. Rep., 135. Denise v. Denise, 37 N. J. 194- Eq., 163. *Brokaw v. Hudson, 27 N. J. '°Smith v. Kearney, 2 Barb. Cli.. Eq., 135. Huston v. Reed, 32 N. 533. J. Eq., 591-597- "La Foy v. La Foy, 43 N. J. "Snyder v. Warbasse, 11 N. J. Eq., 206. Eq., 463. Voorhees v. Voorhees, i-Smith v. Kearney, 2 Barb. Ch., 18 N. J. Eq., 223. Youmans v. 533. Youmans, 26 N. J. Eq., 149. 340 Probatu Law and Practice. cipal of the trust fund, but the whole must be invested for the benefit of the tenants in remainder.^^ When Legacy to Creditor Will be Construed to be in Pay- ment. A legacy or devise given by a debtor to his creditor will, in the absence of any statement to that eflfect in the will, be pre- sumed to have been given in payment of the debt, if the legacy is as great as or greater than the debt ; but no such presumption will be made when the debt is contracted subsequent to the date of the will, or where the testator by his will directs that his debts and legacies shall be paid.^* This rule is, however, re- garded with great disfavor, and courts almost universally man- ifest a strong disinclination to enforce it ; consequently, very slight circumstances .are considered sufficient to take a case out of its operation. Thus, where a testator directs that his debts shall be paid, or charges them upon his real estate, the inference is that a bequest to a creditor is meant to be, as it appears, a gift, and that it is not to operate as payment. The rule rests entirely upon presumption. It attributes to a testator who gives a legacy to his creditors an intention which he has never expressed or intimated, and so cannot be applied to a case where there is nothing to sustain the presumption on which the rule rests. ^^ So the gift of goods and chattels of uncer- tain value will not be regarded as having been intended to satisfy the debt, nor will a devise of land be presumed to have been made in discharge of a hond secured by a mortgage on the lands devised.^'' So where a testator gave one thousand dollars absolutely, and the interest on eight thousand dollars during her lifetime, to a housekeeper, who had occupied that position in his family for twenty years, and she presented to ^^Voorhees v. Voorhees, i8 N. Affirmed, 45 N. J. Eq., 367. Deich- J. Eq., 223, and see "Suits for man v. Arndt, 49 N. J. Eq., 106. Legacies — Defenses," p. 723- infra. Adams v. Adams, 55 N. J. Eq., i^Van Riper v. Van Riper, 2 N. 42. J. Eq., I. Petrie v. Voorhees, 18 i^Heisler v. Sharp, 44 N. J. Eq., N. J. Eq., 285. Rogers v. Hand, 167. Affirmed, 45 N. J. Eq., 367. 39 N. J. Eq., 270. Rusting v. isDeichman v. Arndt, 49 N. J. Rusting. 42 N. J. Eq., 594-601. Eq., 106. Heisler v. Sharp. 44 N. J. Eq.. 167. Assets. 341 the executors a claim for three thousand dollars and interest, for services to the testator, it was held that the testamentary gifts to her were not in satisfaction of her claim for services.^' Advancements. An advancement forms no part of the estate of decedent ; it cannot be resorted to for the payment of debts, nor can the child advanced be compelled to refund for any purpose con- nected with the settlement of the estate. It follows, there- fore, that an advancement should not be inventoried.^* Debts Due from Executor. The statute provides that the appointment of a debtor as executor or executrix shall not, unless otherwise expressed in the said will, be construed so as to discharge such executor or executrix from the payment of the debt, but the said debt shall be considered assets in his or her hands, to be accounted for in the same manner as any other part of the personal estate.^^ A debt due by an executor to the testator is so far assets as to come within the jurisdiction of the orphans' court. -'^ So where an executor or administrator owes the estate, and is solvent and able to pay, the amount of the debt wall be con- sidered as so much money in his hands; but if it is shown that he has been and is unable to pay, and has not paid, he w-ill not be charged with the debt as cash. The proof of his inability to pay must, however, be complete and satisfactory."^ But where an executor indebted to the estate shows that he has not been able to pay the principal, but does not show that he is unable to pay the interest, he will be charged with the in- terest ;-- and where it is shown that a debt existed from ac- countant to deceased, the burden is upon the accountant to "Rogers v. Hand, 39 N. J. Eq., 2oWood v. Tallman. i N. J. L.. 270. 177- Davison v. Davison, 17 N. isBlack V. Whitall, 9 N. J. Eq., J. L.. 169-179. 572-586. Metcalfe v. Colles, 43 N. ^'Ordinary v. Kershaw. 14 N. J. J. Eq., 148-152. As to what con- Eq., 527. Terhiine v. Oldis. 44 N. stitutes an advancement, see "Dis- J. Eq., 146. tribution — Advancements and Set- 22Tgj.j,y,,g y Oldis. 44 N. J. Eq., tlements," p. 690- infra. 146. ^^2 Comp. Stat., p. 2261, sec. 8. 342 Probate Law and Practice. prove that the debt lias been paid, even where the bill or note evidencing such debt cannot be found among the papers of the deceased.-" An executor who was liable to the testator for rent of land at the time of the latter 's death cannot, upon the settlement of his accounts, claim that the liability for rent accrued six years before the proceeding to compel the account ; upon the accept- ance of the executorship, it was his duty to collect all debts due the estate, as well from himself as from others, and his posi- tion in relation thereto is that of a trustee.-* Proceeds of Insurance Policies. The proceeds of a life insurance policy taken out by decedent upon his own life, and expressed to be payable to assured or to his estate, belong to his estate as assets. Where, however, the policy is payable to another, the proceeds are not assets, but are payable directly to the beneficiary.-^ In the latter case, the interest of the beneficiary in the policy is a chose in action ; and if the beneficiary dies before the assured, the executor or administrator of the deceased beneficiary will be entitled to the proceeds of the policy upon the death of the assured.-^ Increase and Accretions. Increase among stock, wool clipped, and the net proceeds of the sale of produce from a farm after the death of the de- cedent, go to the executor.-^ Crops and Products of Land. Growing crops on lands devised go to the devisee f^ where, however, the land is not devised, they go to the executor.-^ But a tenant of farm land, whether for a term certain or uncertain, 'sClark v. Hornbeck, 17 N. J. Eq., 594. In re Grattan's Estate, Eq., 430. McGill V. O'Connell, 33 78 N. J. Eq., 225. N. J. Eq., 256. 27Merchant's Case, 39 N. J. Eq., -*Haines v. Haines, 15 Atl. Rep., 506. Affirmed, 41 N. J. Eq., 349. 839. 28Budd V. Hiler, 27 N. J. L., 43- ^sSchouler on Executors, sec. ^oWestbrook v. Eager, 16 N. J. 202, 211. L., 81-85. Budd V. Hiler, 27 N. J 26Brown v. Murray, 54 N. J. L., 43. Assets. 343 is entitled to the grain which he has sown, but which was not ripe when his term expired.^" This rule does not, however, apply to spring crops, where the tenancy expires at the usual termination of the agricultural year.''' The proceeds- of the sale of building stone taken by executors from quarries on testator's land, opened and worked by him, are part of the income from the lands, and are subject to the same rules as to ownership as other rents and profits of lands. ^- A widow whose dower has not been assigned, and who re- mains on the homestead farm of her husband, is entitled to crops grown thereon after her husband's death."" Mortgages. Before foreclosure, a mortgage is considered, in equity, as a chattel interest, and goes to the executor or administrator of the mortgagee.^"* Leases of Decedent. The residue of the term of an unexpired lease for years is a chattel, and goes to the executor or administrator, and not to the heirs, as do also a privilege to renew and an un- exercised option to purchase contained in the lease. ^^ 30Van Doren v. Everitt, 5 N. J. J. Eq.. 14. Smith v. Trenton Del- L., 539. Debow V. Colfax, 10 N. aware Falls Co., 4 N. J. Eq.. 505. J. L.. 128. Howell V. Schenck, 24 Woodruff v. Mutschler. 34 N. J. N. J. L., 89. Corle v. Monkhouse, Eq., 33, and see Reporter's Note 47 N. J. Eq., 73. Reeves v. Han- to Woodruff v. Mutschler. 34 N. nan, 65 N. J. L., 249. J. Eq.. 33-34. Grant v. Chambers. 31 Howell V. Schenck, 24 N. J. 7 N. J. Eq., 223. Miller v. Hen- Iv. 89. derson, 10 N. J. Eq., 320. Mont- 32Mulford V. Mulford. 42 N. J. gomery vi Bruere, 4 N. J. L.. 260. Eq., 68. Gaines v. Green Pond Osborne v. Tunis, 25 N. J. L., 633. Iron Mining Co.. 33 N. J. Eq., 603. As to disposition of mortgaged s^Merchant's Case, 39 N. J. Eq., lands purchased on foreclosure. 506. Affirmed. 41 N. J. Eq., 349. see "Lands Purchased by Exccu- s^Terhune v. Bray, 16 N. J. L., tor, &c., at Foreclosure Sale," p. 53- Osborne v. Tunis, 25 N. J. L., 424. infra. 633. Greenwood v. Law. 55 N. J. 36\fcCormick v. Stephany, 57 N. L., 168-176. Copper V. Wells, i N. J. Eq., 257. J. Eq., 10. Kinna v. Smith, 3 N. 344 Probate Law and Practice. Separate Property of Wife. It is provided by statute that the widow of a decedent shall be entitled to demand and receive from his executors or ad- ministrators all such goods and chattels, choses in action, or other personal property which at or immediately before the coverture between the deceased and his said widow belonged to her, or which, during coverture, came to her by bequest, gift or inheritance, and which at the time of the death of the de- ceased remained in his possession ; provided, that this act should not be construed to affect the claims of creditors whose debts had been contracted previous to the time the act took effect.^*' So where a sum stood to the credit of testator's widow on the books of a firm of which testator was a member, such sum was held to be no part of testator's estate;'' but a verbal direction by testator during his last illness that after his death his widow should have certain personal property, then unfinished and not paid for, will not authorize the executor after the testator's death to deliver the property to the widow. If he makes such delivery, he will be charged with the value thereof.'^ Wife's Paraphernalia. At common law, the husband is bound to maintain the wife, and to provide her with suitable clothing appropriate to their degree and his own circumstances and social position. As a corollary to this obligation, the common law recognized that articles of clothing and personal ornaments appropriate for the wife, which are purchased with the husband's money, or upon his credit, are his property, notwithstanding the fact that they are selected and purchased by the wife, or are intended for her personal and exclusive use. The wife's clothing and ornaments are called her paraphernalia ; and the common law rule, that the ownership thereof during the life of the hus- band is in him, was not abrogated in this state by the Mar- 3«2 Comp. Stat., 2266, sec. 24. s^In re Flaacke's Estate, 64 Atl See also, 3 Comp. Stat., 3223, sec. Rep.. 1020. I, et seq. ssRoberts v. Wills, 20 N. J. I... 591. Assets. 345 ried Woman's Act, except in cases where the wife herself pur- chased the paraphernaha witli her own separate money or earnings.^^ The common law rule, as above stated, remained in full force in this state until the enactment of the statute of 1915,*'^ whereby it is provided that the paraphernalia of a married woman, being the suitable ornaments and wearing apparel of a married woman which have come to her through her husband during coverture, now possessed by her and which she may hereafter obtain, shall be her sole and separate property as though she were a single woman. Damages Recovered under Death Act. The fund recovered under the Death Act, providing for the recovery of damages in cases where the death of a person is caused by the wrongful act of another, is no part of the estate of the deceased ; and the administrator receiving it, whether the husband of the deceased or a stranger, is a mere trustee for its distribution to the next of kin in the method pointed out by the statute.*^ Pensions. A pension is not a part of the assets of the pensioner's estate; and if it is paid to his executor or administrator, the latter only holds it in trust for the widow and children.*- Joint Bank Accounts. The general rule is well settled that where a deposited fund is the property of A, the mere issuing by a bank, at the di- rection of A, of a pass book to A or B, either to draw, or in a similar manner, will not constitute a present gift to B of the fund evidenced by the bank book, and that the balance remain- ing on deposit at A's death is part of the assets of his estate. The question whether the intention of the depositor is to make a gift of the fund, or merely to make B his agent for con- 39Farrow v. Farrow, 72 N. J. ■''Gottlieli v. N. Jersey Street Eq., 421. Railway Co., 72 N. J. L., 480. ♦op. L. 1915, p. 27. ■•-In re Van Horn. 5 N. J. L. J., 372. 346 Probate Law and Practice. venience in drawing the money, is to be determined by the cir- cumstances of the case, and the conduct and declarations of the depositor.*^ In order to legaHze such a gift, there must be not only donative intention, but also in conjunction there- with a complete stripping of the donor of all dominion or control over the thing given. This is the crucial test.** So where an account is opened and money deposited by a father in the joint names of himself and his child in a savings bank whose by-laws provide for the issuing of a pass book to each depositor and require its production when the money is drawn, if it clearly appears that such deposit is merely for the con- venience of the parent in drawing money, and not with the intention of making a gift to the child in case of its surviving the parent, a subsequent change of intention and a determina- tion to make a gift to the child must be proven by clear and satisfactory evidence ; merely permitting the account to remain in the joint names and loose declarations indicating a gift, are not sufftcient.*^ So where testatrix a short time before her death was in possession of a bank book showing a balance due to her, and had her daughter's name entered therein, so that the account appeared to be payable either to her or the daughter, but the book remained in testatrix's possession until the day of her death, when she asked her daughter for the satchel containing it, and after taking it handed it back to the daughter, saying that the bank book was in there, and the daughter put it down again and did not take it out of the satchel until a week later, it was held that the transaction "Schick V. Grote, 42 N. J. Eq., N. J. Eq., 685. Nicklas v. Parker, 352. Skillman v. Wiegand, 54 N. 71 N. J. Eq., ^^^. Taylor v. Cori- J. Eq., 198. Taylor v. Coriell, 66 ell, 66 N. J. Eq., 262. Cook v. N. J. Eq., 262. Parker v. Cop- Lum, 55 N. J. L., 2,Tl- Gordon v. land. 70 N. J. Eq., 685. Schippers Toler, 83 N. J. Eq., 25. McCul- V. Kemphes, ^2 N. J. Eq., 948. lough v. Forrest, 92 Atl. Rep., 595. Crane v. Brewer, 73 N. J. Eq., ^sskillman v. Wiegand, 54 N. J. 558. Gordon v. Toler, 83 N. J. Eq., 198. Schick v. Grote, 42 N. Eq., 25. McCullough v. Forrest, J. Eq., 352. Crane v. Brewer, T2> 92 Atl. Rep., 595. N. J. Eq., 558. Schippers v. Kem- ** Stevenson v. Earl, 65 N. J. phes, 72 N. J. Eq., 948. Eq., 721. Parker v. Copland, 70 Assets. 347 was not a gift causa mortis, and that the deposit was a part of the estate of the testatrix.^'' Testamentary Disposition of Bank Deposit. The general rule is laid down that where a depositor opens an account in a savings bank in the name of himself and an- other, the survivor to take, that the disposition thus made of the moneys remaining to the depositor's credit at his death is testamentary in character, and invalid because not made in the manner prescribed by the statute of wills. ^' In the case of Stevenson v. Barl*^ a deposit was made in the name of the depositor, with direction to pay to his wife, in the event of his death, all deposits which should then be standing to his credit. In delivering the opinion of the Court of Errors and Appeals, Chief Justice Gummere used this language: "The ex- press intention of the deceased was only to bestow upon his wife so much of his deposit as should remain undrawn by him at the time of his death. Such a gift, it seems to us, is purely testamentary in its character. If it is not, then it is a per- fectly easy thing for a person to retain the absolute control and dominion over his money and personal securities during his life and transfer that dominion to another at his death, with total disregard of the requirements contained in the statute of wills, by the simple device of depositing such moneys and securities under an agreement with the depositary that he shall have the right to use them, or deal with them as he pleases dur- ing his life, and that at his death so much of them as may re- main shall be delivered to such person as is named in the agreement, who shall then become the owner thereof, and then deliver the agreement to the beneficiary, with a statement of the same purport as that made by the deceased to his wife when he gave the pass book to her. To hold that such a meth- od of disposing of property by the owner at his death is valid *Hn re Beliring's Case, 80 N. J. N. J. Eq., 635-640. Gordon v. Eq., 165. Toler, 83 N. J. Eq., 25. <7Stevenson v. Earl, 65 N. J. ""^as N. J. Eq., 721. Eq., 721. ScliHchcr v. Keeler, 67 348 Probate Law and Practice. would be to practically repeal the statute of wills in its opera- tion upon personal property, so far as its mandatory provisions are concerned." So where a depositor in a bank executed, in the presence of witnesses, an instrument reciting, "this is to certify that in case of my death any money in the bank at the time of my de- cease standing in my name shall be the sole property" of a per- son named, it was held to be a testamentary disposition of the deposit remaining at the testator's death, and insufficient to en- title the person named to the money remaining.*^ But the doc- trine that an attempt by a grantor to make disposition of his estate after his death, without complying with the requirements of the statute of wills, is void, has no application to a case where the grantor has by his conveyance divested himself of his property in his lifetime ; it applies only to the disposition in his lifetime of property of which he retains the title and use, but which he intends, at his death, shall pass to the donee. ^^ In the case of Hoboken Bank, &c. v. Schzvoon,^^ Vice-Chan- cellor Pitney sought to uphold a deposit in joint names, sur- vivor to take, on two theories; first, that the joint estate or interest is thereby created with an express right of survivorship, which operates naturally and legally upon whatever of the fund remains unused at the death of the donor, and secondly, on the ground of a complete trust. This case, however, was decided before the case of Stcz'oison v. Barl.^~ Deposits in Trust. A deposit in a bank in the name of a decedent as "trustee." "surrogate," "county clerk," or the like, may be drawn by the personal representative of such decedent. The appendage to the name of the depositor is held to, be merely descriptio per- sonae, and does not imply that the money that he deposited was held in trust ; and even though the addendum implied a trust it would not defeat the right of the personal representative of the depositor to withdraw the deposit ; the trust which inhered *9White V. Grossman, 64 Atl. 5152 N. J. Eq., 503. Rep., 168. 5265 N J £q^ 721 soRobeson v. Duncan, 74 N. J. Eq., 745. Assets. 349 in the depositor, passes upon his death to his personal repre- sentative, who would be bound to administer all the assets of the deceased as trustee of whatever kind, and to administer the trust with which those assets are charged.^^ So where a dece- dent has during his lifetime made a deposit in a savings bank- in his own name in trust for another who was a mere friend, over which deposit decedent exercises complete control during his lifetime, this is insufficient to establish a gift of the de- posit inter z'ivos, or to create a trust entitling the alleged bene- ficiary to the deposit as against intestate's administrator. The right of the person named as cestui que trust to have the fund on deposit must rest upon one of two theories ; either that it was a gift ijiter viz'os by the depositor to him, or that it was a valid trust enforceable by him. In either event, the intention must be clearly proven, and such intention must be shown to have been carried out by the donor or settlor f* and so where the trust was for the benefit of a nephew of the depositor.*^ Foreign Assets. Where letters of administration are granted in ditifereni jurisdictions, the administrator in this state is only accountable for the property within this state, which alone must be included in his inventory. °° Proceedings to Obtain Possession of Foreign Assets. Where administration has been granted in the place of the domicile of the intestate, and ancillary administration has been granted elsewhere for the purpose of collecting debts, if the fund in the hands of the foreign administrator is needed for the purpose of due administration in the place of the domicile, the mode of reaching it would be to require its transmission or distribution after all claims against the foreign administration have been ascertained and settled.^' 53Scudder v. Trenton Savings s^Banta v. Moore, 15 N. J. Eq., Fund Society, 58 N. J. Eq., 154. 97. Normand v. Grognard, 17 N. s^Nicklas v. Parker, 69 N. J. J. Eq., 425. Eq., 743. Affirmed, 71 N. J. Eq., ^^Normand v. Grognard, 17 N. 777- J- Eq., 425- ssSmith V. Speer, 34 N. J. Eq., 336. 350. Probate Law and Practice. REAL PROPERTY AND INTERESTS THEREIN. In General. Real property, unlike personal, at the death of its owner vests in his heirs at law or devisees. It is not in a primary- sense assets for the payment of debts, and the executor or ad- ministrator has no inherent power over it. The statute, how- ever, permits the lands of a decedent, when necessary, to be sold to pay his debts under order of the orphans' court f^ and when so sold, the proceeds of such sale received by the executor or administrator will be considered assets.^® When Will Directs Lands to be Sold. When a will directs land to be sold absolutely and positively, without any time fixed for the sale, it is considered as con- verted into money from the death of the testator ; but for this the direction must be imperative. ^"^ If it is optional with the executor whether or not to sell, or if he has only a naked au- thority to sell, without any direction, then the land descends to the heirs and retains its character as realty until it is ac- tually sold f^ nor will a fraudulent sale by executors to one of themselves operate as a conversion.®- ''*See "Sale of Lands for Pay- ^iSnowhill v. Snowhill, 2^ N. J. ment of Debts," p. 470, infra. L., 447. "Probasco v. Creveling, 25 s^Haines v. Price, 20 N. J. L., N. J. L.. 449. Moores v. Moores. 480. 41 N. J. L., 440-445. Herbert v. eoScudder v. Vanarsdale, 13 N. Tuthill, i N. J. Eq.. 141. Gest v. J. Eq., 109. Wurts v. Page, 19 N. Flock, 2 N. J. Eq.. 108. Fluke v. J. Eq., 365-375. Cook V. Cook, 20 Fluke, 16 N. J. Eq., 478. Cook v. N. J. Eq., 375. Smith v. First Cook, 20 N. J. Eq., 375. Romaine Church, 26 N. J. Eq., 132. Welsh v. Hendrickson, 24 N. J. Eq., V. Crater, 32 N. J. Eq., 177. Af- 231. Hill v. Smith, 32 N. J. Eq.. firmed, 33 N. J. Eq., 362. Dutton 473. Baldwin v. Vreeland, 43 N. V. Pugh, 45 N. J. Eq., 426. Af- J. Eq., 446-449. Todd v. Wort- firmed sub 110)11 Jones v. Jones, 46 man, 45 N. J. Eq., 723. Morse v. N. J. Eq., 554. Roy V. Monroe, 47 Hackensack Savings Bank, 47 N. N. J. Eq., 356. Crane v. Bolles, J. Eq., 279. Bonnell v. Bonnell, 49 N. J. Eq., 373- 47 N. J. Eq., 540. 62Romaine v. Hendrickson, 24 N. J. Eq., 231. Real Property as Assets. 351 If the directions of the will as to proceeds require a sale, it is equivalent to a positive direction to sell, and the land is deemed personal property from the death of the testator f^ but where testator's will provided that after the payment of all debts the residue of his real and personal estate should be gathered into one general fund and divided into six equal parts, one of which he gave to each of his children, it was held that an implied power of sale of the realty was not given to the executors.''* If a testator directs lands to be sold and converted into money to pay his debts, the proceeds become a fund which is liable for his debts f^ but where the conversion of the land into money is ordered in the will for a specific purpose, such as to pay a legacy, the creditors cannot claim the money as per- sonal estate f^ and if any of the purposes for which land was directed sold fail, so that the money does not pass under the will, it will in equity be considered land, and given to the heir.^^ Where a will ordered executors to sell real estate in B, and use the proceeds to pay a certain debt, and devised to another any surplus remaining after the payment of such debt, and on an application to the orphans' court for an order to sell lands on a deficiency of personal property to pay debts, that court re- fused the application on the ground that the surplus from the sale of the real property in B was personal estate, and must be applied to the payment of the debts of the estate, the pre- rogative court, in reversing this decision of the orphans' court, held that the proceeds of the sale of the real estate in B could «3Lindley v. O'Reilly, 50 N. J. e^Smalley v. Smalley, 54 N. J. L., 637. Vanness v. Jacobus, 17 Eq., 591, and see "Implied Power N. J. Eq., 153. Wurts v. Page, 19 . of Sale," p. 431, infra. N. J. Eq., 365-375. Cook v. Cook, ssWtnants v. Terhune, 15 N. J. 20 N. J. Eq., 375-377. Belcher v. Eq., 185. See Brearley v. Brear- Belcher, 38 N. J. Eq.. 126. Roy v. ley, 9 N. J. Eq.. 21. Monroe. 47 N. J. Eq.. 356-359. ^^winants v. Terhune, 15 N. J. Cruikshank v. Parker. 51 N. J. Eq., 185. Eq., 21. Reversed. 52 N. J. Eq.. e^Cook v. Cook. 20 N. J. Eq.. 310. Moore v. Robbins, 53 N. J. 375- Roy v. Monroe. 47 N. J. Eq.. Eq., 137-139. Parker v. Seeley, 56 356. Moore v. Robbins. 53 N. J. N. J. Eq.. no. Eq., I37- 24 3|? Probate Law and Practice. Qtil-y be regarded as personalty for the specific purposes desig- nated in the will, and that an order should be made to sell lands to pay the general debts. ^^ Lands Purchased by Executor, &c., at Foreclosure Sdle. .Where executors or administrators, purchase lands cov- ered by a mortgage forming part of the assets in their hands, upon a foreclosure of such mortgage, the lands so conveyed to them are assets in their hands and may be sold and conveyed by them without any order of the court, and they shall be ac- countable for and pay over the proceeds of such sales as other estate moneys in their hands. *^'' Where an executor, after the death of a beneficiary, and in order to save the expense of a foreclosure, took a con- veyance of premises covered by a mortgage belonging to the estate, such lands will be considered personalty as to the de- ceased beneficiary, but where lands were acquired under fore- closure, being bought in to protect the estate, before such bene- ficiary's death, they will, as to such beneficiary, be treated as realty ; the test being whether the property was personalty or realty ^t the time of death. '° Lands Purchased by Trustee. In case any trustee has heretofore or shall hereafter be- come the purchaser of any land, tenements or hereditaments, at a sale upon the foreclosure of any mortgage held by such trustee, such lands, tenements or hereditaments shall be assets of the trust estate in his hands, and may be sold and conveyed by him without order of the court, and he shall receive, he ac- countable for and pay over the proceeds of such sale the same as the other assets of the trust estate in his hands. ^^ Proceeds of Sale of Lands. • «Where there is a conversion of realty by any court of com- petent jurisdiction, the proceeds retain the character of real estate for the purposes 'of devolution and transmission... So 1 «'8Winahts v. iTethunfe, -iiS N. J. '^Barclay v. Cooper, 42 N. J. Eq:, 185. ■ Eq., 516. •' «9P. L. 1898, p. 42. i-Cotnp. 7ip, L, igoo, p. 384. ;4:Comp. Stat., p. 2264. sec. 17, p. 424, infra. Stat., 5671, sec. 13. Real Property as Assets. 353 where lands of an infant are sold ;'- so with the surplus pro- ceeds of lands of a decedent sold by order of the orphans' court for the payment of debts ;'■' so where lands are sold in the exercise of the right of eminent domain \'^ and so with the proceeds of the sale of lands under partition proceedings.'"^^ The rule is that such proceeds retain their character as real estate until they vest in some person who is not an infant or a lunatic, and who has capacity to change the nature of the estate, and who, by accepting it as money, or by some act recog- nizing it as personal estate, gives it the character of per- sonalty."" So where lands of a non-resident monomaniac were sold under partition proceedings, and her share of the proceeds paid into court, and she was for four years confined in an insane asylum, but thereafter resided at her own home in Pennsylvania for the period of two years, and was never declared a lunatic by virtue of any commission, and it was proved that she was, except on one subject, perfectly sane, and that she sought to get the money and was indignant when it was kept away from her by having been paid into court, it was held that the fund, including the accrued interest, was per- sonalty, and payable to her administrator." In considering the question whether the proceeds of the sale of lands of a decedent will be considered realty or per- sonalty, the test is whether the property was realty or per- sonalty at the time of his death. So when testator gave his executors a general power of sale, and devised all of the residue of his estate to one who died intestate, and the personal prop- "-Wetherill v. Hough, 52 N. J. '•"•Oberly v. Lerch, 18 N. J. Eq., Eq., 683. The case of Snowhill v. 346. Affirmed, ih.. 575. McCarthy Snowhill, 3 N. J. Eq., 20. contra, v. McCarthy, 57 N. J. Eq., 587- was overruled by the court of 589. errors and appeals in an unreport- ^"Qberly v. Lerch, 18 N. J. Eq.. ed decision. See vS. C, 2, N. J. 346. Affirmed, ib., 575. Smith v. Eq., 30-34- Bayright. 34 N. J. Eq., 424. Ja- ^^Oberly v. Lerch, 18 N. J. Eq., cobus v. Jacobus, 36 N. J. Eq., 346. Affirmed, ib., 575. Cook v. 248. Affirmed, ib., 317. Wether- Cook, 20 N. J. Eq., 375- Fidler ill v. Hough, 52 N. J. Eq., 683. V. Higgins, 21 N. J. Eq., 138. '^Smith v. Bayright, 34 N. J. '■•Wetherill v. Hough, 52 N. J. Kq., 424. Eq., 683. 354 Probate Law and Practice. erty of testator having been found insufficient to pay his debts, the realty was sold by the executor under his power of sale, after the death of the residuary legatee, the surplus proceeds of such sale will be considered realty, and will pass to the heirs of the residuary legatee and not to his personal representa- tives.^® So where one having an interest in the proceeds of lands sold under partition proceedings during his lifetime, dies, such interest is personal estate, and not realty. '*' And so, where after sale of land, payment of part of the price, and plac- ing of the deed in escrow, pending the happening of a certain event, before which the vendor died, the vendor's heirs made a deed to the purchaser, and delivered it, together with the deed in escrow, and the purchase money was paid to the vendor's administrator, the latter did not hold it as part of the estate, but as trustee for the heirs. ^^ Interest on Proceeds of Sale of Lands. The interest accruing prior to the death of the owner of the proceeds of lands sold by order of court, and which are treated as realty, is personal property.®^ Estate per Autre Vie. Although an estate per autre vie vests in the administrator of the deceased tenant, yet he takes it in trust for the next of kin after payment of debts, and they may be fairly presumed to hold as next of kin. by his appointment, until the contrary is shown.^- Contracts for Sale of Real Property. Where decedent has entered into a contract for the sale of lands, which equity would enforce at the suit of the vendor against an unwilling purchaser, the lands will be regarded in equity as personalty. The cases in which the court has re- 78Cook V. Cook, 20 N. J. Eq.. 25. See, also, "Contracts for Sale 375. Barclay v. Cooper, 42 N. J. of Real Property," this note, in- Eq., 516. fra. 79Jacobus V. Jacobus, 37 N. J. siQberly v. Lerch, 18 N. J. Eq.. Eq., 17. Affirmed, sub nom. Cox 346. Affirmed, ib., 575. V. Roome, 38 N. J. Eq., 259. saWatson v. Kelty, 16 N. J. L.. sf^Teneick v. Flagg, 29 N. J. L., 517-1525. Real Property as Assets. 355 fused to decree that a contract for sale works an equitable conversion are those in which the contract was such as equity would not enforce ;*^ and an agreement between two partners, that at the end of three months after the death of either, a valuation of all their firm assets, including real estate, should be made, and that the survivor should have one year thereafter in which to take and pay the value of such share to the legal representatives of decedent, constitutes an equitable conversion of the realty.®* Rents and Profits. Rents of real estate of decedent accruing before his death do not vest in the heir, but pass to the personal representative.^' Whoever is entitled to the beneficial interest of the land, from the death of the testator, is entitled to the rents and profi-ts. Rents and profits of a decedent's estate accruing after his death do not go to his personal representatives, but vest in the heirs and devisees f*^ and a devise by the testator of "all the rest and residue of my estate, real, personal and mixed," will pass rents accruing after his death.®" Rents accruing pend- ing a suit in chancery, collected by a receiver appointed in that suit, are assets to be applied to the payment of debts.®® When executors have only a naked power of sale, the legal title de- scends to the heir until such power is exercised by the ex- ecutor, and the heir is entitled to the rents and profits while 83King V. Ruckman, 21 N. J. Eq., ^cAHen v. Van Houten, 19 N. J. 599. Haughwout V. Murphy, 22 L., 47. Whitehead v. Gibbons, 10 N. J. Eq., 531. Miller v. Miller, N. J. Eq., 230. Current v. Cur- 25 N. J. Eq., 354, and cases cited rent, 11 N. J. Eq., 186. Lyon v. on p. 365. Case reversed, 27 N. J. Church of the Redeemer, 41 N. J. Eq., 514. Keep v. Miller, 42 N. Eq., 389. Brokaw v. Brokaw, 41 J. Eq., 100. Coles V. Fecney, 52 N. J. Eq., 304. N. J. Eq., 493. s^Whitehead v. Gibbons, 10 N. "Maddock v. Astbury, 32 N. J. J. Eq., 230. Eq., 181. ss^oddington v. Bispham, 36 N. 850berly v. Lerch, 18 N. J. Eq., J. Eq., 574. 346. Affirmed, ib., 575. 356 Probate Law and Practice. such title is so vested in him p"^ but where the will imperatively required executors to sell realty after a short time, and during that time to control the property, pay taxes, insurance, &c., and made no other disposition of the property, it was held that the fee went to the executors. ^° s»Moores v. Moores, 41 N. J. J. Eq., 478. Hill v. Smith, 32 L., 440-445. Herbert v. Tuthill, i N. J. Eq., 141. Todd v. Wortman. 45 N. J. Eq., 723. See also Snow- hill V. Snowhill. 22, N. J. L., 447- Probasco v. Creveling, 25 N. J. L., 449-452. Gest V. Flock. 2 N. J. Eq., 108. Fluke v. Fluke, 16 N. N. J. Eq., 473. Morse v. Hacken- sack Savings Bank, 47 N. J. Eq., 279. Bonnell v. Bonnell, 47 N. J. Eq.. 540. soCrane v. Bolles. 49 ^^ J- Eq., ■v'. .'.6f. CHAPTER XX PROCEEDINGS FOR DISCOVERY. Against Executor, &c. Whenever application shall be made to the orphans' court of the county in which letters testamentary, of administration or of guardianship, were issued, by petition by or in behalf of any person interested in the estate in the hands of any ex- ecutor, administrator, guardian or trustee, verified by affidavit, alleging that such executor, administrator, guardian or trus- tee has wasted, embezzled or misapplied the estate entrusted to him, the, said court, by an order, may compel discovery to be made of the condition of the estate, by the production of books, papers, securities and documents relating to the estate, or the examination of such executor, administrator, guardian or trustee and witnesses, and may take such proceedings for the protection of such estate, by order or decree, as may be taken in like cases in the court of chancery, and compel obedi- ence to such order or decree by the same process and in the same manner as orders or decrees of the court of chancery are enforced.^ Jurisdiction of Orphans' Court. This section is remedial, and is therefore to be liberally con- strued. Its object is to protect estates against the misconduct of the trustees thereof in embezzling, wasting, or misapplying them, by compelling such trustees, when such conduct has been established, to make restitution. Where an executor or trus- tee under a will applies to his own use the money of the estate, or the fund entrusted to him for investment, giving as security for its repayment only an insufficient pledge of his own property, it is no stretch of construction to hold that he ;CI .T .7. ■ . : 'Orphans' Court Act, sec. 139. 3 Comp. Stat.. 3865. : .! 357 358 Probate Law and Practice. has been guilty of misapplication within the meaning of this section, and that there is ample power of protection. What- ever the Court of Chancery might do in such case, the orphans' court may do. Chancery may require the faulty fiduciary to account for the money and bring it into court, and the or- phans' court has like power.- This section does not, however, confer upon the orphans' court all of the powers which the Court of Chancery has over cases of administration, guardian- ship or trust, and confers no jurisdiction to make a decree against any person not an executor, administrator, guardian or trustee, and already subject to the jurisdiction of the court.* It does, however, confer upon the orphans' court as ample jurisdiction over executors, administrators, guardians and trus- tees as the Court of Chancery possesses.* Proceedings by Executor, &c. for Discovery of Assets. Whenever application shall be made to the orphans' court of the county in which letters testamentary, of administration, or of guardianship were issued, by petition by any executor, administrator or guardian, alleging that he believes that any person has in his or her possession personal property of the estate of the testator, intestate or ward of such executor, administrator or guardian, or alleging that he believes that any person has knowledge of the existence or whereabouts of any personal property of the estate of such testator, intestate or ward, the court may, by order, require such person to appear before it and make discovery as to his possession of, or knowledge of the whereabouts or existence of any personal property of such testator, intestate or ward by the produc- tion of books, papers or securities relating to such estate, or the examination of such person and other witnesses, and may take such proceedings for the recovery of any assets of the said estate so discovered by order or decree, as may be taken in like cases in the court of chancery, and may compel obedience to such order or decree by the same process and in the same ^Perrine v. Petty, 34 N. J. Eq., ^Perrine v. Petty, 34 N. J. Eq., 193- 193-195. ^Hunt V. Mayberry, 29 N. J. h., 403-406. Proceedings for Discovery. 359 manner as orders or decrees of the court of chancery are en- forced.^ Practice. The method of proceeding to obtain discovery is to present to the orphans' court a verified petition, fully setting up all of the facts supporting the petitioner's application. It is not, for example, sufficient to simply allege that petitioner verily be- lieves that the executor has wasted or misapplied the estate en- trusted to him, or that a certain person has in his possession personal property of the estate of the decedent or ward of pe- titioner. The facts upon which such belief is founded must be recited. The petition should also show that petitioner has such an interest in the estate, as executor, administrator or guardian, legatee, next of kin or otherwise, as entitles him to call upon the executor or other person to make discovery. Upon the presentation of the petition, if the facts therein stated make out a prima facie case, the court will grant a rule requiring such executor or person complained of to show cause before the court, on a day therein named, why he should not make discovery as prayed, and, if he is unable to show such cause, an order directing him to appear and make discovery will be allowed. sp. L. 1909, p. 284. 3 Comp. Stat., p. 3866, sec. 139a. :r:>ox.H. CHAPTER XXI. INVENTORIES. Inventories Must be Specific. The statute provides that no inventory shall be received or admitted to be proved which is not full and specific in its de- tails.^ The inventory presented to the surrogate by an executor should contain a specific enumeration of the goods, chattels and credits of the testator. A paper containing items such as "Cash, bonds and notes" and "Household goods and kitchen furniture," is not, strictly speaking, an inventory, and may properly be rejected as such by the surrogate.- The practice of filing with the surrogate general inventories, instead of those which are specific in their details, is strongly disapproved. The fact that the executor or administrator retains in his own cus- tody a more specific inventory does not answer the design of the law ; the parties in interest are entitled to the information as well as the executor.^ BY EXECUTORS AND ADMINISTRATORS. Inventory and Appraisement by Executor or Adminis- trator. The statute provides that every executor and administrator shall make a true and perfect inventory of the goods and chattels, rights and credits and effects of the deceased, and cause a just appraisement of the same to be made by two dis- creet and impartial persons, which inventory shall be filed with the surrogate within three months after grant of letters testamentary or of administration, unless the orphans' court, for good cause shown, shall allow further time therefor.* ^Orphans' Court Act, sec. 57. 3 sp^j-sgi y Pursel, 14 N. J. Eq., Comp. Stat., 3830. 514. ^Vanmeter v. Jones, 3 N. J. Eq., ^Orphans' Court Act, sec. 58. 3 520. Comp. 3tat., 3830. 360 Inventories. 361 Appointment of Appraisers. The appraisers b}^ whom the appraisement of the goods, chattels, rights, credits and effects of any testator or intestate shall be made, shall be chosen by the executor or adminis- trator subject to the approval of the surrogate, unless in cases where it shall be necessary to set-off goods and chattels for the benefit of the family of the deceased.^ Method of Proving Inventory. The inventory of every executor, or administrator, shall be proved by the oath of the executor, or administrator, that the same is just and true, and by oath of the appraisers, or one of them, that the goods and chattels, rights, credits and effects in said inventory specified were appraised at their just and true respective values, according to the best of their, or his, (as the case may be), judgment; and if one only of the ap- praisers be sworn thereto, it shall be added that the other ap- praiser was present at the same time and consented to the said valuation and appraisement ; which oaths shall be taken before the surrogate, deputy-surrogate, or a master in chan- cery,*' and the same shall be endorsed on the said inventory which shall be filed with the surrogate ; and in case goods and chattels, or property, of the deceased, shall have been set-off for the benefit of the family, the executor, or administrator, shall also verify by his oath the list of property selected for the use of the family, and file the same with the inventory.^ ^Orphans' Court Act, sec. 59. 3 provisions of the Orphans' Court Comp. Stat., 3831. For appoint- Act to, upon or in connection with ment of appraisers where it is de- any inventory, may be taken be- sired to set oflf exemption for fore any person qualified to ad- family of decedent, see "Allow- minister oaths in the state of New ance to Family of Decedent," p. Jersey." This act further provides 366, infra, and "Appraisers Must that any and all such oaths there- Be Appointed by Surrogate." p. tofore taken before 'any person 368, infra. qualified at the time of such tak- ''By a supplement enacted in ing to administer oaths in the state 1915, it is provided that "hereafter of New Jersey, are thereby vali- the oath or oaths of any execu- dated. P. L. 1915, p. 350. tors, administrator or appraiser ^Orphans' Court Act, see. 62. 3 required to be taken under the Comp. Stat., 383^4. U; ,.t»iJ<4 .»i»'»,. 1 36? Probate Law and Practice. Property to be Inventoried. The inventory must contain a full description of all the chat- tels, real and personal, in possession and in action, of which decedent died possessed.^ Proceedings in Case of Neglect to File Inventory. The statute provides that if any executor or administrator shall fail to file such inventory with the surrogate within the time aforesaid, the surrogate shall report such neglect to the orphans' court, and, if the said court so direct, shall cite him to render such inventory ; and if he continue in default, the orphans' court shall revoke the letters testamentary or of ad- ministration, and grant letters to some other person.'' It is, however, provided by the Act of 1911,^" that the surrogate shall not be required, except upon the written request of some person interested in the estate, to report to the orphans' court the failure of any executor or administrator to file an inventory within the time limited by law. Excuse for Not Filing Inventory. Where testatrix gave all her furniture and clothing to her sister, who was co-executrix with complainant, and the only other personal property left by testatrix was a debt of $400, secured by notes and deeds by way of mortgage and notes for small sums against several beneficiaries which were not col- lected, but were deducted from their legacies, it was held that the failure of the executors to file an inventory was excusable, and that in proceedings for an accounting they would not be penalized therefor.^^ When Unnecessary to File Inventory. The statute provides that it shall not be necessary for any executor or administrator who is entitled to all the personal estate of his testator or intestate, after payment of debts and 82 Williams on Executors, 846. '<*?. L. 191 1, p. 734- As to what constitutes assets, see ^^Mulford v. Mulford, 53 Atl. "Assets," p. 337, supra. Rep., 79. 'Orphans' Court Act, sec. 58. 3 Comp. Stat., 3830. Inventories. 363 legacies, to file any inventory, but any person interested in the estate may apply to the orphans' court,' on notice to the ex- ecutor or administrator, for an order requiring him to file an inventory.^- It is further provided that where an exemplified copy of the record of probate of the will of a non-resident has been admitted to probate in this state, and letters testamentary, or of administration with such will annexed, issued thereon, such executor or administrator c. t. a., is not required to file an inventory, unless the ordinary or orphans' court so order.^^ Penalty for Failure to File Inventory. The act provides that if, after having been cited to file an inventory, the executor or administrator fails or neglects so to do, the orphans' court may remove him and grant letters to some other person ;^^ and an executor or administrator so in default is liable to attachment for contempt. ^^ Method of Objecting to Inventories. The statute confers upon the orphans' court general juris- diction to inquire into the fairness of inventories,'" and the fairness of an inventory may be attacked by filing exceptions thereto. ^^ The general rule is, however, laid down that a probate court ought not to reject an inventory, or order it mod- ified, because it contains property the title to which is disputed ; for the adjudication of ti^le belongs to common law tribunals, and the probate court cannot conclude the question.'^ This question was considered in the case of In re estate of James McSpirit,^^ in which the orphans' court had stricken from an inventory bonds and mortgages to the, testator appearing therein, on the ground that they were not in fact testator's property. The Prerogative Court, on appeal, found from the ^^Orphans' Court Act. sec. 120. '"Orphans' Court Act, sec. 2. 3 3 Comp. Stat, 3855. Comp. Stat., 3813- i^Orphans' Court Act. sec. 23. ^'Dilts v. Stevenson, 17 N. J. 3 Comp. Stat., 3820. Eq.. 407. Picket v. Alpaugh, 42 '••Orphans' Court Act, sees. 58 N. J. Eq., 630. and 149. 3 Comp. Stat., 3831. 3 "'Schouler on Executors, (3(J Comp. Stat., 3868. edition), sec. 236. '•'"Orphans' Court Act, sec. 183. ^''73 N. J. Eq.> 613. 3 Comp. Stat., 3880. s 364 Probate liAW: .and. Practice. evidence that the bonds and mortgages in question were in fact the property of the testator, but called attention to the fact that the question of the jurisdiction of the orphans' court to deal with the matter had not been raised either in the court below or in the Prerogative Court, and cautioned the bar that this decision must not be construed to indicate the court's view that the orphan's court, under its jurisdiction to pass upon the fairness of an inventory, may determine the title to choses in action which the executors have found in the testator's posses- sion and placed in the inventory, and stated that a claim to such jurisdiction is unprecedented. But, granting that the inventory cannot be impeached, this only affects proceedings relating to the inventory itself ; and it may be showai on the accounting of the executor or administrator that assets were omitted which ought to have been accounted for, and that the assets yielded, or should have yielded, more than they were appraised at ; and so vice versa, on the accounting the inventory may be shown to have included what should have been omitted, or to have appraised specific things at more than they could fairly bi*ing.2o There can be no question that upon the settlement of the account of an executor or administrator, the fairness of the inventory may be attacked by exceptions. Accountant is re- quired to charge himself with the amount of the inventory filed by him,-^ which is therefore incorporated into the account, and is consequently subject to exceptions in the same manner as other items of the account; and upon such exceptions the orphans' court has jurisdiction to determine what are assets, as between the executor or administrator and those interested in the estate in his hands. -^ GUARDIANS' INVENTORIES. Inventory by Guardians. Every testamentary guardian, guardian in socage, or other guardian, shall, within three months after his acceptance of or 20Schouler v. Executors, (3d 14 N. J. Eq.. 496. Tichenor v. Edition), sec. 236. Montgomery Tichenor, 45 N. J. Eq., 303. Hunt V. Dunning, 2 Bradf. Sum, 220. v. Smith. 58 N. J. Eq., 25. 2iVanpelt v. Veghte, 14 N. J. -^Budd v. Hiler, 27 N. J. L., 43. L., 207-210. Cooley V. Van Syckle, Inventories. 6^D appointment to his office, deliver to the clerk of the orphans' court an inventory, upon oath, of all the estate, real and per- sonal, which he shall have received or taken possession of.-^ It is to be noted that the statute does not require that guard- ians' inventories be proved by the oath of appraisers; nor, in- deed, do appraisers appear necessary. Penalty for Neglect to File Inventory-Proceedings. If any guardian fail to deliver to the surrogate an inventory of the estate of the ward in the time and manner required by law, such surrogate shall report such neglect to the orphans' court, and if the said court so direct, shall cite such guardian to deliver such inventory at the ensuing term of the orphans' court, and the costs of such citation and of the proceedings thereon shall be paid by such guardian out of his own private estate; and if he fail to deliver such inventory, according t(j such citation, the court shall revoke the letters of guardian- ship, and remove him from office, and appoint some suitable person in his place, who shall have all the powers of the per- son so removed ; and the person so removed shall not be en- titled to any commissions or compensation for his past serv- ices.-* A guardian who fails to file an inventory, after having been cited so to do, is liable to attachment for contempt.-^ The Act of 191 1, however, provides that the surrogate shall not be required, except upon the written request of some person interested in the estate, to report to the orphans' court the failure of any guardian to file an inventory within the time prescribed by law.-*^ 230rphans' Court Act, sec. 63. ^sQrphans' Court Act, sec. 183. 3 Comp. Stat., 3832. 3 Comp. Stat., 3880. ^*Orphans' Court Act, sec. 64. -*''P. L. 191 1. P- 734- 3 Comp. Stat., 3832. CHAPTER XXII. ALLOWANCE TO FAMILY OF DECEDENT. Statutory Provisions. The wearing apparel of any person who shall die, leaving a family residing in this state, and goods and chattels, money and effects of the estate of such deceased to the value of two hundred dollars, shall be reserved to and for the use of the family, against all creditors, and before any distribution or other disposition thereof.^ Who Deemed to Have Left a Family. Every person residing in this state at the time of his death, dying testate or intestate, and leaving a widow or a child or children who shall reside in his family at his death, him sur- viving, shall be deemed and taken to have left a family entitled to the benefits of the last preceding section ; but nothing in that section contained shall be permitted to conflict with the provisions of any last will.- Nature and Purpose. The provisions of these sections of the statute are the es- tablishment of a pure bounty of the law for the preservation of the immediate family of a decedent, presumably dependent upon him, from the distress o^^ extreme poverty at his death. It has, for its objects, defined individuals, whom it intends to assist, or relieve, personally. It does not purpose to augment the estate of those individuals for the benefit of others, who may be entire strangers to the decedent. In many cases, the bounty is accorded at the expense of creditors, who suffer from the insolvency of their debtor. It is apparent, from its scheme and the detriment it may be to creditors, that while the courts ^Orphans' Court Act, sec. 60. ^Orphans' Court Act, sec. 61. 3 3 Comp. Stat., p. 3831. Comp. Stat., p. 3831. 366 Allowance to Decedent's Family. 367 should construe the statute with sufficient liberality to accom- plish its charitable intent, they should not be too ready, in the absence of a clear manifestation in the law itself of a pur- pose to the contrary, to give it an interpretation which will tend to facilitate injustice to creditors for the benefit of others than the objects of the bounty. So where a testator in his will disposed of his entire estate, and bequeathed and devised the entire residue thereof, after the payment of debts and legacies, to his children, but made no provision for his wife, who died six days after him, and whose executors claimed the two hun- dred dollar exemption provided by the statute, it was held that the will left nothing undisposed of from which the bounty could be paid, and that the bounty was lost, the word, "con- flict," as used in this section of the act, meaning that the will shall be supreme, where complete execution of its provisions does not admit, expressly or impliedly, the bestowal of the bounty.^ So where testator gave one-half of the income of his estate to his wiie for life, and the other half to his son until he became thirty years old, followed by a gift to his wife and son, during the years above limited, of the use and oc- cupancy of his mansion house, furniture, &c., the widow is not entitled to the two hundred dollar exemption, because such reservation would conflict with the will.* Proceedings to Set Off Exemption for Family. When it is desired to set off goods and chattels for the benefit of the family of the deceased, it is the duty of the ex- ecutor or administrator of such deceased to apply to the sur- rogate of the county where such deceased resided at the time of his death, and the said surrogate shall thereupon appoint two discreet and judicious persons of said county, not interested in the estate of said deceased, and not of kin to his widow or children, who shall, before they enter upon the duties of their appointment, be severally sworn before the surrogate, or any person lawfully authorized to administer an oath, faithfully, honestl}- and impartially to appraise such property, according 3Carey v. Monroe, 54 N. J. Eq., *Mulford v. Mulford, 42 N. J. 632. Mulford V. Mulford, 42 N. Eq., 68. J. Eq.. 68-73. 25 368 Probate I^w and Practice; to the true and intrinsic value thereof, without reference to what the same might be supposed to bring at a sale by vendue ; and said appraisers, being so appointed and sworn* shall make an inventory and appraisement, in manner aforesaid, of the goods and chattels, moneys and effects, whereof such deceased died possessed ; which inventory and appraisement shall in- clude all the property required to be inventoried and appraised by the executors or administrators of any deceased person ; and the widow of the deceased, or his executor or adminis- trator, may select from such inventory, goods and chattels, money or effects, to the value of two hundred dollars, and an- nex to said inventory a list thereof ; and the goods and chattels, money or effects, so selected, shall thereupon become the property of said family and remain for their use.^ Appraisers Must be Appointed by Surrogate. It will be noted that the statute provides that where pro- ceedings are to be taken to set off the statutory exemption for a decedent's family, the inventory must be made by appraisers appointed by the surrogate, not selected by the executor or ad- ministrator, and who must be sworn before entering upon the performance of their duties to execute their office in pursuance of the requirements of the act.® List of Property Selected to be Verified by Oath. The statute requires the executor or administrator to verify by his oath the list of property selected for the use of the family of the deceased, and to file the same with the in- ventory.'' Necessity for Making Selection. Unless property to the amount of two hundred dollars is ac- tually appropriated for the widow and family of a deceased debtor pursuant to the provisions of the statute, that sum can- n<6t be retained by the executor on a settlement of his ac- cdUnt.P .'fiilni. ^Orphans* Court Act, sec. 60. 3 ^Orphans' Court Act, sec. 62. 3 Cojpp. Stat., p. 3831. Comp. Stat., p. 3832. "Dilts V. Stevenson. 17 N. J. Eq., ^Cooley v. Vansyckle, ,14 N- T 407- Eq., 49^- ;,, Allowance to Decedent's Family. 369 When Family of Decedent Takes Title. The family of a decedent does not take title to the reservation which is contemplated in this section of the Orphans' Court Act until selection has been made as the statute requires." ^Carey v. Monroe, 54 N. J. Eq., 632. CHAPTER XXIII. CUSTODY AND MANAGEMENT OF ESTATE. DUTIES AND LIABILITIES OF PERSONAL REPRE- SENTATIVE. In General. An executor may do anything within the scope of his pow- ers, without risk of personal Hability for his acts, provided he exercises the care and judgment of a man of ordinary prudence and sagacity ; and so long as he acts in good faith and with ordinary prudence, his acts cannot be successfully assailed.^ The court is prompt to protect an executor or administrator against loss resulting from an honest mistake, but will not re- lieve him from loss resulting from measures adopted solely with a view to his own interest.- So where securities which came to the hands of executors were honestly appropriated by them in the proper discharge of their duties and it afterward trans- pires that such securities were not the property of deceased, the executors will be protected from loss.^ So in respect to claims of his intestate upon third persons, an administrator is only responsible for the exercise of such diligence and prudence as men of discretion would employ in their own afifairs ; if cir- cumstances require him to employ a legal adviser, and he makes the selection in good faith and with reasonable prudence, he will not be responsible for errors or mistakes of counsel so em- ployed.* So an executor or administrator may compromise a iVoorhees v. Stoothoflf, ii N. J. Eq., 537. In re N. J. Trust, &c.. L., 145- Kirby v. Coles, 15 N. J. Co.. -jz N. J. Eq., 628. L., 441. Vanderpool v. Daven- ^Cooi^y ^ Vansyckle, 14 N. J. port, 3 N. J. Eq., 120. Hamburgh Eq., 496. Mfg. Co. V. Edsall, 12 N. J. Eq.. ^Mulford v. Mulford, 40 N. J. 392. Heisler v. Sharp, 44 N. J. Eq., 163. Eq., 167. Affirmed, 45 N. J. Eq., *In re Sharp's Estate, 61 N. J. 367. Corle V. Monk-house, 50 N. J. Fq.. 601. .370 Duties and Liabilities of Executors, Etc. 371 law suit ; he may buy the peace of the estate he represents, and extinguish even doubtful claims against it^ provided he acts discreetly and in good faith. ^ It is a general principle that a trustee has no power to change the character of the trust fund. If he assumes the power of converting real estate into personal, or personal into real, he acts at his peril, and will be held personally accountable for any loss which may ensue, and will not be permitted to compel the beneficiary to accept the property after the conversion, or to impose upon him any loss which may result from such con- version of the trust fund; and if the loss has been sustained by reason of the trustee exceeding his authority by an unau- thorized and illegal disposition of the trust funds in his hands, he is liable for the loss. If the change in the character of the funds be deemed necessary, or for the interest of the benefi- ciary, it should be made only with the permission and by the sanction of the court. This rule applies not only to executors, administrators, guardians of infants and lunatics, and other trustees specially constituted by law, but to all bare trustees having charge of the property of others and not especially in- vested with peculiar or extraordinary powers.® Where an executor or administrator appears to have acted honestly and in good faith, he who would impeach his conduct has the burden of showing fraud, mistake, or acts without au- thority or contrary to law." Liability of Administrator in Case a Will is Found. All lawful acts done bona fide, by any administrator, before notice of a will, and all purchases made of such administrator bona fide, before such notice, shall remain good, and shall not be impeached or altered by any executor or executors, on such will afterwards appearing; provided, akvays, that when at any time after such will shall appear, the executor or executors shall have the same remedy against such administrator or ad- ^Meeker v. Vanderveer, 15 N. 802. Smith v. Robinson, 83 N. J, J. L., 392. Rogers v. Hand, 39 N. Eq., 384. J. Eq., 270. Manns v. A. E. San- 'Meeker v. Vanderveer, 15 N. ford Co., 82 N. J. L., 124. J. L., 392. Rogers v. Hand, 39 N, ®Quick V. Fisher, 9 N. J. Eq., J. Eq., 270. 3/2 Probate Law and Practice. niinistrators for the goods and chattels, rights and credits, re- maining unadministered, as he, she, or they might have had before the making of this act.® CONTINUING DECEDENT'S BUSINESS. General Rule. An executor or administrator who continues the business of his decedent, either as a sole trader or in a partnership, with the testator's assets, though he does it as executor, and not for his individual benefit, will be personally liable for debts contracted in the business; and this, although he does so in compliance with directions in the testator's will, or in con- formity with articles of partnership, to which the testator is a party, providing that on the death of a partner his executor or personal representative should be admitted to the firm.^ Liability for Debts. Although executors empowered by testator to carry on his business are, as has been seen, personally liable for the debts contracted thereby, they have a right in equity to indemnify themselves for the payment of such debts from the property lawfully embarked in the trade. '^ Only the fund employed in the business is answerable to the subsequent creditors, unless the testator by clear and unambiguous language designates or authorizes any other portion of his estate to be embarked in such trade, in which case creditors may also resort to the fund so appropriated.^^ Where executors carrying on a business imder a will, without authority used the proceeds of the busi- ness to improve the lands of testator not subject to the risks of trade, and which under the will went to remaindermen, this will not justify the court in charging the estate of these remain- ^2 Comp. Stat., p. 2258, sec. i. T. L., 398. Laible v. Ferry, 32 N. ^Wild V. Davenport. 48 N. J. L., J. Eq., 791. 129. Doolittle V. Willet, 57 N. ^^Laible v. Ferry. 32 N. J. Eq., J. L., 398, Laible v. Ferry, 32 N. 791. Ballantine v. Frelinghuysen, J. Eq., 791. 38 N. J. Eq., 266. Paul v. Wilson, loWild V. Davenport, 48 N. J. 79 N. J. Eq., 204. L., 129. Doolittle V. Wilkt, 57 N. Duties and Liabilities of Executors, Etc. ^j^ dermen with the trade debts ;^- but debts contracted by the tes- tator himself in the conduct of the business are payable out of the general assets of the estate/^ , Partnership. A provision in articles of partnership that on the death of a partner his executor, or personal representative, or some other person, shall be entitled to the place of such deceased partner in the firm, with the capital of the deceased in the firm's business, or some part of it, is binding upon the surviv- ing partner to admit the executor, personal representative or nominee of the deceased partner, but does not bind the latter to come in ; he has an option to come in or not, and a reason- able time within which to elect. An executor coming in under such a provision in partnership articles comes in as a partner, with all the rights and liabilities of a partner, and consequently, as said above, becomes personally liable for debts contracted in the business.^* On the other hand, a stipulation in part- nership articles, that upon the death of a partner his capital shall remain in the business until the expiration of the pre- scribed term of the partnership, is binding as well upon the estate of the deceased as upon the surviving partner. Under such circumstances the control of the business is with the sur- viving partner, and the executor cannot withdraw the capital of the deceased partner. ^^ Liability of Executors. In continuing decedent's business without authority, an ex- ecutor assumes the risk of loss therein from any cause, includ- ing payment for his services or additional expense in settling his accounts. ^"^ Legatees cannot be required to pay him com pensation for services in conducting the business, or expenses in settling its accounts, including counsel fees incurred by liti- i2Laible v. Ferry, 32 N. J. Eq., i^Wild v. Davenport, 48 N. J. 59I-. L., 129. Braddock v. Hinchman, laPaul V. Wilson, 79 N. J. Eq., 78 N. J. Eq.. 270. :;.,' i- ;' 204. i«Gilligan v. Daly, 79 N. J. Eql, '*Wild V. Davenport, 48 N. J. 36. ; i^. ' ; ,!vl L., 129. '<■''' •■h' ■ HficTlA .<)o5 374 Probate Law and Practice. gation necessary in settling the accounts, from property other than that coming to his hands.^^ So where a business continued without authority by an executor after testator's death, though mortgaged, had a substantial value when taken over by him, but was afterwards sold by him for a nominal price, the ex- ecutor is chargeable for any further claim on the mortgage debt, if the purchaser did not assume it/** As a rule, the beneficiaries may either charge an executor continuing decedent's business without authority with the value of the estate and interest, or, at their option, with the net profit realized, they being entitled to an accounting of profits to de- termine which they shall elect. In estimating the net profits of a business continued by an executor without authority, in order to charge him therewith, only profits resulting from the employment of testator's estate should be considered, making allowance for the business skill and credit of the executor in conducting the business.^'' So administrators are chargeable with the net profits of a milk route owned by their decedent, during the time the business continued to be carried on after the taking out of letters, down to the sale of the personal property of the estate.-'^ CONTRACTS OF EXECUTORS, &c. Liability of Executor. An executor or administrator cannot bind his decedent's estate by contract or negotiable instrument; and if he signs such an instrument, even though he describes himself therein as executor or administrator, and the same is entered into by him for the benefit of the estate he represents, he will be per- sonally liable thereon.-^ A person, therefore, who advances money to an executor or administrator, acquires no right either i^Gilligan V. Daly, 79 N. J. Eq., ^iDo^little v. Willett, 57 N. J. 36.- L., 398. Hellier v. Lord, 55 N. J ^sGilligan v. Daly, 79 N. J. Eq., L., 367. DeConcillio v. Brown- 36. rigg, SI N. J. Eq., 532. Laible v. isGilligan v. Daly, 79 N. J. Eq., Ferry, 32 N. J. Eq., 791. WiW v 36. Davenport, 48 N. J. L., 129. -^Merchant's Case, 39 N. J. Eq., 506. Affirmed. 41 N. J. Eq.. 349. Duties and Liabilities of Executors, Etc. 375 at law or in equity, as against the estate. His equity only arises in case the money advanced has, in fact, been applied to the payment of debts for which the estate was justly and legally bound. In such cases, the creditor of the administrator will be permitted to take the latter's place, and will be subrogated to his rights, but precedent, as well as sound policy, require that it should be shown by the clearest evidence that the estate has been benefited, or, in other words, that the money has been applied to the payment of debts.-- So where a guardian gave a personal order for goods for his wards, expecting, to the knowledge of the seller, to pay for them from funds in his hands as guardian, such fact will not relieve him of personal liability therefor.-^ EMPLOYMENT OF AGENTS, &c. In General, An executor may employ and pay from the estate such as- sistants as are necessary in transacting the business of the estate.-* So where an administrator employed a society to obtain money from intestate's debtor in Germany, and received one-half of the proceeds, the balance being remitted to intestate's father, he was entitled to credits for money paid the society for obtaining the money and for sums expended in taking the pro- ceedings necessary to compel the father to pay over the money irregularly remitted to him.--^ So, where executors were in- vested with a power to sell a factory belonging to decedent's estate, they had authority to pay the expenses of the superin- tendence of the factory until they were able to make the sale.-'' So, executors will be allowed the reasonable charges paid by them to an agent employed in the management of the estate, if the circumstances rendered the employment of such agent beneficial to the estate, and this whether the employment of an 22DeConcilHo v. Brownrigg, 51 24pari^er v. Johnson, yj N: J. N. J. Eq., 532-535- First National Eq., 366. Bank v. Thompson, 61 N. J. Eq., -sprey's Case, T}, N. J. Eq;, 346. ^°°- -'^Howard v. Francis, 30 N. J. 23Gallagher v. McBride, 66 N. J. Eq., 444. L., 360. 376 Probate Law and Practice. agent is authorized by will or not f but executors cannot em- ploy one of their own number as a clerk and allow him a salary,-* and they will not be allowed for money paid to assist- ants for such work as they in contemplation of law are bound to perform themselves.-^ Detective's Services. A claim for services rendered by a detective employed by the counsel of the principal legatee, such services being valuable in establisl^ing the will, may be allowed.^" Broker's Commissions. Where executors empowered to sell real estate of the tes- tator employ real estate agents to procure purchasers of real estate, the commissions paid to such agents may be allowed.^^ The court will, however, take into consideration commissions so paid for services by others, in fixing the compensation of ac- countant.^^ Accountant's Services. It is the duty of executors and administrators to keep ac- counts, and to render an account of their trusteeship at the times required by law ; their commissions compensate them for this work, and they will not be allowed for the expenses of an accountant.^^ -'McWhorter v. Benson, Hopk. — For Services in Performing Ch., 28. Van Derheyden v. Van Representative's Duties," p. 408, Derheyden, 2 Paige Ch., 287. Will- infra, cox V. Smith. 26 Barb., 316, 330. ^''Lewis's Case, 35 N. J. Eq., 99. -^Lent V. Howard, 89 N. Y. 169, •''iBrown v. Brown, 72 N. J. 179. Eq., 667. In re Wiley, 65 Atl. Rep., 29Wolfe's Case, 34 N. J. Eq., 212. Dey v. Codman, 39 N. J. Eq., 223-227. Kingsland v. Scudder, 258. Babbitt v. Fidelity Trust 36 N. J. Eq., 284-286. Personette Co., 72 N. J. Eq., 745. V. Johnson, 40 N. J. Eq., 173- ssgabbitt v. Fidelity Trust Co., 180. Hurlbut V. Hutton, 44 N. J. 72 N. J. Eq., 745. Eq., 302. Pyatt v. Pyatt, 44 N. J. ^sWoIfe's Case, 34 N. J. Eq., Eq., 491-495. Reversed, 46 N. J. 223. Pyatt v. Pyatt, 44 N. J. Eq.. Eq., 285. And see "Counsel Fees 491. Reversed, 46 N. J. Eq., 285.. . Investments. z17 Expenses of Safe-Keeping of Securities. The expenses incident to the safe-keeping of the securities of the estate are compensated for by the commissions allowed the administrator, and he will not be allowed in his account for moneys expended by him for that purpose.^* INVESTMENTS. By Executors or Administrators. The general duties of an executor or administrator are to collect the effects of decedent, to pay the claims against his estate, and to distribute the residue to those entitled thereto. It is therefore apparent that it is no part of his duty to invest funds belonging to the estate."^ It sometimes happens, however, that duties are imposed upon executors by will, in addition to those above enumerated, the performance of which requires them to invest the funds of the estate. In such case, however, even though they are called executors throughout the will, they are in fact acting as trustees, even if otherwise intended by the testator, as it is impossible to alter in any respect the sub- stantial qualities and attributes of the office which was in fact created by the will. No matter what the designation in the will may be, the character of the ofifice — executor or trustee^will be determined by the character of the estate confided to and the powers to be exercised by the representative of the de- ceased.'^ DUTY TO INVEST. In General. Executors, administrators, guardians or trustees, required to retain money in their hands shall put it at interest, or apply to the orphans' court for an order so to do ; and in case they shall not be able to find proper investment therefor, they shall report the fact to the court within sixty days after they shall have received it, or after they shall be required to retain it 3Tucker v. Tucker, 33 N. J. Eq., as amended by P. L. 1907, p. 3^3- 235. Affirmed, 34 N. J. Eq., 292. 3 Comp. Stat., p. 3864, sec. 137. Williams v. Williams, 35 N. J. Eq.. '»P. L. 1913, p. 447. See also 2 100. Comp. Stat., p. 2272. sec. 37. 380 Probate Law and Practice. not Hmit the court as to secuniits f^ yet, to afford complete indemnity to the executors against the hazard of responsibiUty for loss, investments must be made in the securities designated by the statute.*- Executor, &c., May Continue Testator's Investments. Whenever any testator shall have made, in his lifetime, any investment of money in municipal bonds or on bond secured by mortgage, or in the bonds or stock-shares of any corpora- tion, and the same bonds, mortgages or stock-shares shall come or shall have come into the hands of the executor of or trustee under the will of such testator or of the administrator with the will annexed, to be administered, and such executor, administrator or trustee may, in the exercise of good faith and reasonable discretion, have continued such investment, or may hereafter continue the same, he shall not be accountable for any loss by reason of such continuance.^^ If the trustee is doubtful as to the propriety of continuing to hold any of the invest- ments of his testator, he may make application to the orphans' court for directions as to his duty in the premises.^* The act also provides that it shall not apply where the deed of trust or the last will and testament of any testator, or any court having jurisdiction of the matter, specially directs in what manner the trust funds shall be invested.*^ This enactment has been held to be retroactive and to apply to investments made before the passage thereof.*^ Application of Statute. Executors and trustees, who, in the exercise of good faith and reasonable discretion, continue to hold stocks and bonds bequeathed by the testator, will be protected from any loss by '♦^Tucker v: Tucker. 33 N. J. ^^See "Power of Orphans' Court Eq., 235. Affirmed, 34 N. J. Eq., to Order Continuance of Testa- ?92. : tor's Investments," p. 390, infra. *2pufford V. Smith, 46 N. J. Eq., ^^p l 1899, p. 236, sec. 3. 2 216. , Brewster v. Demarest* 48 N. Comp. Stat., p. 2271, sec. 36. J. Eq., 559. *« Parker v. Glover, 42 N. J. Eq.. <3P. L. 1899, p. 36", sec. I. 2 559. Comp. Stat., p. 2271, sec. 34. Investments. 381 the statute.*' So where testator made an investment in stock, and the executor continued such investment, and such stock subsequently depreciated in value by reason of loss by fire, the executor was held not chargeable with the loss ;*® but the fact that securities coming to the hands of a trustee from the estate of his testator have steadily depreciated in value from the tak- ing of the trust until such depreciation amounted to nine-tenths of such value, makes a prima facie case against the trustee for lack of good faith or failure to exercise reasonable discretion, and calls for an explanation by him of his action in holding the securities through such depreciation. The mere fact that there was a shrinkage in the securities would not have given rise to any inference of lack of good faith, or of failure to exercise reasonable discretion on the part of the trustee ; it is the ex- traordinary shrinkage of those securities, taking place under the eyes of the trustee, not sudden in their decline, but gradual, until some of them had lost ninety per cent, of their value, and that they were still held by the trustee, when he might have disposed of them to the great advantage of the estate, which calls for an explanation.**^ LIABILITY OF EXECUTORS, ETC., IN CASE OF LOSS. In General. In assuming his duties, where not controlled by statutes, rules of court or provisions in the will, an executor or other trustee is not bound to extraordinary care, nor is he an in- surer against loss under all circumstances. If he is careful, faithful and discreet, the duty imposed on him by law will be discharged;^'' but it is a well settled rule that if executors, ad- ministrators, guardians or trustees loan money upon their own *7Brown v. Brown, 72 N. J. Eq.. «Beam v. Paterson Safe De- 667. posit & Trust Company, 81 N. J. <*Coddington v. Stone, 36 N. J. Eq., 195. Eq., 361 ; see also Parker V. Glov- s^Monroe v. Osborne, 43 N'. J. er, 42 N. J. Eq., 559- Eq., 248. Beam v. Paterson Safe Deposit, &c., Co., 83 N. J. Eq., 628. •i- ,]-■• . ■^'. ..i ; .1 .1, M bt>. .ilur.u: 382 Probate Law and Practice. responsibility upon securities other than those mentioned in the act, they are liable in case of loss.^^ The fact that in making an investment upon security other than one of those designated in the act the trustee acted in good faith will not protect him. So where an executrix and trustee, in good faith, loaned money of the estate with some of her own on the borrower's promissory note, secured by a policy of insurance on his life, and he failed to pay the subse- quent premiums, and she afterward surrendered the policy for a paid-up one of one-fourth the amount of the original, the borrower being insolvent, it was held that she was personally liable to the estate for the full amount of the loss.^- The fact that an improper investment made by an executor is stated in his accounts in the orphans' covirt will not exoner- ate him f^ but where an executor, acting in good faith and under the advice of counsel, retained a trust fund after it was payable to one entitled to it by the will, and, in good faith, in- vested it, after a time when it should have been paid over, in a mortgage on property, then worth three times the amount of the loan, but which later so depreciated in value that the execu- tor was obliged to buy it under foreclosure, in order to pro- tect the fund, it was held that he was guilty of no breach of trust, and that he should be allowed to turn over the land in lieu of the fund.^* When Liability Limited by Will. The liability imposed upon and accepted by a trustee may be limited by the terms of the instrument creating the trust. If there is such a clause of limitation, the rule for measuring the trustee's liability is to be sought in that clause, properly con- strued. In construing such a clause, the meaning to be at- tributed to it should be consistent with the purpose and object 5iVreeland v. Vreeland, 16 N. J. 52Sherman v. Lanier, 39 N. J. Eq., 512. Perrine v. Petty, 34 N. Eq., 249. J. Eq., 193. Sherman v. Lanier, ^spgrrine v. Petty, 34 N. J. Eq.. 39 N. J. Eq., 249. Craven's Case, 193. 43 N. J. Eq., 416. Duflford v. 5*Perrine v. Vreeland, 33 N. J. Smith, 46 N. J. Eq., 216. Brew- Eq.. 102. Affirmed, ib., 596. Por- ster V. Demarest, 48 N. J. Eq., 559. ter v. Woodruff, 36 N. J. Eq., 174. Investments. 383 of the trust, and a strict rule of construction should be applied as against the claims of restriction; but if. when so construed, a limitation on the liability of the trustee was clearly intended, the trustee is entitled to the benefit of it. So a clause which exempts from all liability, except for wilful and intentional breaches of trust, will not exonerate the trustee from all breaches of trust except such as the trustee commits with a view to his personal advantage. It is obvious that such a con- struction adds terms to the clause not contained therein, and inconsistent with its plain purpose. It is a breach of trust for the trustee to speculate with trust funds for his own account, but it is no less a breach of trust to make unauthorized in- vestments, or to take speculative risks, though for the benefit of the fund and not of the trustee. To do so knowingly is a wilful and intentional breach of trust. So it is a wilful and inten- tional breach of trust, within the meaning of such a clause, to knowingly do any act hazarding trust funds in violation of a duty imposed on the trustee ; and he will not be protected by such an indemnity clause.^^ Second Mortgages. An executor should not, as a general rule, invest in second mortgages. If he does, he takes the risk of being personally answerable, in case loss ensues. He is not, however, liable simply because he has made such an investment, if no loss has been sustained, and in the absence of evidence that any will be sustained. ^"^ The mere taking of a second mortgage is not a breach of trust. There are cases where the taking of such mortgages might be judicious, and under some circumstances it is possible an investment therein might be proper ; but to jus- tify the investment of the funds of an estate in such securities, there should exist peculiar circumstances which nianifostlv justify such a departure from a safe rule.'" "Tuttle V. Gilmore, 36 N. J. Tuttlc, 32 N. J. Eq., 611. Rt- liq., 617. Babbitt v. Fidelity Trust versed, 36 N. J. Eq., 617. Mon- Co., 72 N. J. Eq., 745. roe v. Osborne, 43 N. J. Eq., 248. sePorter v. Woodruff, 36 N. J. s^Tuttle v. Gilmore, 36 N. J. Eq., Eq., 174, 186. Sherman v. Lanier, 617-623. Sherman v. Lanier, 39 39 N. J. Eq.. 249, 255. Gilmore v. N. J. Eq., 249. 26 384.;, Probate Law and Practice. Each case must, however, stand on its own circumstances, but the general rule, applicable to all cases, is, as has been seen, that a trustee must use the same care, skill, diligence and prudence in the management of the tfust, and his dealings with the trust property, that a man of ordinary care, skill and prudence would use in his own transactions and with his own property under like circumstances/'® Thus, the act prescribing the character of securities to be taken by executors and trus- tees in loaning money intrusted to them has been held not to apply to a mortgage taken by an executor to secure a part of the purchase money on a sale of lands as directed or authorized by testator's will/^ So where testator ordered that his farm should be sold to the best advantage and highest bidder, one- third of the purchase money being secured by bond and mort- gage, with the interest payable to his wife for life, and referred to this money "as secured on the farm for her benefit," and charged it with the payment of her debts and funeral expenses, and gave the balance to his children, it was held that the will did not require a first mortgage lien on the amount of the third of the purchase money but that if the executors were able to procure a more advantageous sale for the farm by taking a second mortgage for the one-third of the purchase money, they were justified in so doing.'^*' The true test in considering the sufficiency of a security in which a trust fund is invested is the price which the property would bring at a forced sale."^ Personal Security. A trustee is not permitted to loan money of the estate upon the personal security of the borrower. Such loans are at the risk of the trustee, who is personally answerable if .the se- ssTuttle V. Gilmore. 32 N. J. Eq.. «oCumberland Trust Co. v. Pad- 611. Reversed, 36 N. J. Eq., 617. gett, 70 N. J. Eq., 349- See also, Monroe v. Osborne, 43 N. J. Eq., Woodruff v. Lounsberry, '40 N. J. 248. Eq., 545- ssCumberland Trust Co. v. Pad- "iPerrme v. Petty, 34 N. J. Eq., gett, 70 N. J. Eq., 349- I93- Investme^nts. 385 curity prove defective and loss ensues.^- So where an ex- ecutor, without authority, lends a fund to his co-executor on inadequate security, he will be held liable for the amount of the principal and compound interest f'-^ and so where he per- mits his co-executor to borrow funds of the estate,"^ or to bor- row them for his firm."''' It is otherwise, however, where such loan is without his knowledge or consent.""^ Corporate Stocks and Bonds. A trustee has no authority to invest any part of the estate in bank stock, without authority from the court, and he is liable for any losses by reason of such investments."' Municipal Bonds. A trustee who invests funds of the estate in municipal bonds, other than those authorized by \a.\v, will be liable for any loss w'hich the estate may suffer by reason of such investment.*^* Mortgages on Lands in Other States. The general rule is that investments beyond the jurisdic- tion of the court will not be sustained, unless in rare and ex- ceptional cases, and under very unusual and peculiar cir- cumstances. This rule should, however, not be made arbitrary and inflexible, and so rigid as to admit of no possible excep- tions, for it is merely an outgrowth or consequence of the *^-Gray v. Fox, i N. J. Eq., 259. •"•"Wilmerding v. McKesi^on, 10,^ Vreeland v. Vreeland, 16 N. J. N. Y., 329. Matter of Cocks, 1 Eq., 512. Perrine v. Petty, 34 N. Connoly, 347, 9 N. Y. Sup.. 462, J. Eq., 193. Sherman v. Lanier. and see "Liability of Co-Execu- 39 N. J. Eq., 249. Craven's Case, tors for Acts of Each Other." p. 43 N. J. Eq., 416. Dufford v. 416, infra. Smith, 46 N. J. Eq., 216. Brew- -fi'Tucker v. Tucker, 33 N. J. ster V. Demarest, 48 N. J. Eq.. l^q., 235. Affirmed. 34 N. J. Eq., 559. 292. Woodruff V. T FOR INTEREST ON FUNDS OF ESTATE. In Case of Failure to Invest. Executors, administrators, guardians or trustees required to retain money in their hands shall put it out at interest, or apply to the orphans' court for an order so to do ; and in case they shall not be able to find proper investment therefor, they shall report the fact to the court within sixty days after they shall have received it, or after they shall be required to retain it or to invest it ; and in case of their neglect so to do. they shall be accountable for the interest thereon.^ Where an executor negligently sufifers trust moneys in his hands to lie idle, he will be charged with interest ;- and where it is the duty of executors to invest a legacy with a view to accumulation, their neglect of such duty makes them charge- able with interest at the legal rate." So where the will au- thorizes the executor to invest as soon after the testator's death 9«Tuttle's Case, 49 N. J. Eq., Eq., 71. McKnight v. Walsh, 21 259. Hagan v. Piatt, 48 N. J. Eq., N. J. Eq., 136. Affirmed, 24 N. 206. J. Eq., 498. Frost v. Denman, 41 99Hagan v. Piatt. 48 N. J. Eq., N. J. Eq., 47. Hetfield v. Debaud, 206. 54 N. J. Eq., 371. Fluck v. Lake, 1 Orphans' Court Rule 25. See 54 N. J. Eq., 638. Male v. Wil- also Orphans' Court Act, sec. 136, liams, 48 N. J. Eq., ZZ- p. 389, supra. ^po^yler v. Colt, 25 N. J. Eq.. -Voorhees v. Stoothoff, 11 N. J. 202. Affirmed, sub nom., Salis- L., 145. King V. Berry, 3 N. J. bury v. Colt, 2^ N. J. Eq., 492. Eq., 261. Frey v. Frey, 17 N. J. Liability of Executor, Etc.. for Ixterest. 393 as seems for the best interest of the estate, it is his duty to make temporary investments until the trust can be executed, and if he fail to do so, he will be chargeable with interest ;* and the omission of executors to invest a legacy as intended by the testator will not be excused by the fact that it was for the in- terest of the residuary legatees that the legacy should not be separated from the estate so long as it could be avoided."' An executor will not, however, ordinarily be chargeable with interest on moneys in his hands uninvested for and during the year allowed him in which to settle the estate." The propriety of charging a trustee with interest depends upon other facts than the mere circumstance of having money of his cestui que trust.' As a general rule, where the exact line of duty is not clear, and the accountant acts in good faith and under the advice of counsel, and does not attempt to make any profit himself, interest should not be charged against him.^ So an executor or trustee who faithfully discharges his trust and exercises prudent care, just activity, reasonable skill, and proper diligence, should be charged only with the intere'st he has made f and so where an executor entered into an agree- ment with the beneficiaries under a will that he would not charge commissions, and that no interest should be charged on balances in his hands, and the administrator of a deceased beneficiary assented to this arrangement, the executor will not be charged with interest on the share of such deceased benefi- ciary. ^° In Case of Failure to Account for Receipts. The rule is settled that an executor or administrator will be charged with interest on all sums received, or which should have been received by him, for rents, interest, etc., and not ac- *Holcombe v. Holcombe, 11 N. 316. Birkliolm v. Wardell, 42 N. J. Eq., 281. S. C. ib.. 476. J. Eq.. 2,37. ^Fowler v. Colt, 25 N. J. Eq., ^King v. Berry, 3 N. J. Eq., 202. Aflfirmed, sub nom., Salisbury 261. V. Colt, 27 N. J. Eq., 492. '•'Voorhecs v. Stoothoff. ir N. J. "Wyckoff V. O'Xeil, 72 N. J. L., 145. Eq., 880. "'Barclay v. Cooper, 42 N. J. ^Johnson v. Eicke, 12 N. J. L., Eq.. 516. 394 Probate Law and Practice. counted for, from the time when each sum is received or should have been received by him." So where a testator bequeathed a certain sum for the support of his daughter, and directed the trustee to keep the money invested and pay her the in- terest and so much of the principal as might be needed for her support, and the trustee bought a house with the money and accounted only for the rents derived therefrom, which were less than the fund would have produced if invested at legal interest, it was held that he must account for the dif- ference between the rents received by him and the legal in- terest on the corpus of the trust fund.^- So where an execu- tor converted dividend-paying stock into money, and with it paid off a mortgage on lands in which he had an interest as heir, and credit for this payment was disallowed, he was held chargeable with interest at the legal rate on that amount from the date of the payment, including the time during which liti- gation on exceptions to his accoimt continued;'"^ and so where an executor occupied premises of his testator for which he agreed to pay rent at a fixed sum, but failed to do so, as he had the use of the money with which he should have paid rent, he will be obliged to pay interest on the rent reserved from the end of each month during his tenancy. ^^ In order to justify charging accountants with interest, it is not necessary that the court should find that interest had ac- tually been received by the executors; it is sufficient if it is satisfied that they had used or made a profit on funds in their hands, or that they actually put the money out at interest, or that they might or ought to have received interest. ^^ i^Voorhees v. Stoothoff, ii N. ^-Williams v. Williams, 35 N. J. J. L., 145. Lathrop V. Smalley's Eq., 100. Executors, 23 N. J. Eq., 192. Blau- "Mount v. Van Ness, 35 N. J. velt V. Ackerman, 23 N. J. Eq., Eq., 113. 495. Affirmed, 25 N. J. Eq., 570. i*Tichenor v. Tichenor, 43 N. Smith V. Gummere, 39 N. J. Eq., J. Eq., 163. Affirmed. 45 N. J. 27. Dissenger's Case, 39 N. J. Eq., 303. Eq., 227. Tichenor v. Tichenor, 43 '^Mathis v. Mathis, 18 N. J. L.. N. J. Eq., 163. Affirmed, 45 N. J. 59. Eq., 303. Liability of Executor, Etc., for Interest. 395 Assets Reserved for Purposes of Administration. Where accountant kept on hand larger amounts than the necessities of the estate required, he should pay interest upon the excess, after deducting enough to pay the yearly expenses.^* Delay in Settlement of Estate. The balance of assets remaining in the hands of executors, after payment of debts, should be paid to those interested, or put out at interest for their benefit. If the funds are used by the executor, he is required not only to pay interest, but to ac- count for all the profits he may have made. If no profit has been made, but the money has been suffered to lie idle, he will be charged with simple interest for his negligence. So an executor will not be exempted from the payment of interest simply on the ground that the legatees were at a distance, and might call for their money when it was not in hand ;^' but, as a general rule, where an executor is liable to be called upon at any time for the payment of a legacy and there are no direc- tions in the will to invest it, he is not chargeable with interest thereon, unless it is made to appear that he used the money in trade, or has mingled it with his own funds. ^^ So where an executor held a legacy for seven years, he was held liable for interest only in the event of his having used the fund or made a profit from it ;^^ and an inquiry may be conducted in the Pre- rogative Court to ascertain whether accountant has made such use of it.-° So where an executor's final accounting was de- layed by litigation, and he derived no benefit from the reten- tion of the money held for the payment of a legacy subse- quently declared invalid, he is not chargeable with interest for failure to invest such money pending final settlement of his account.-^ So in Dorcmus's Case," where at the time of an i^Frost V. Denman, 41 N. J. Eq., Hartson v. Elden, 58 N. J. Eq., 47' 478. i^King V. Berry, 3 N. J. Eq., 261. isClarke v. Canfield, iS N. J. Frey v. Frcy, 17 N. J. Eq., 71. Eq., 119- 123. "Frey v. Frey. 17 N. J. Eq., sojn re Mott. 26 N. J. Eq.. 71. Corles' Case, 6t N. J. Eq.. 509. 409. Lake v. Park, 19 N. J. L., -'In re Corle, 61 N. J. Eq., 409. 108. In re Mott. 26 N. J. Eq., 509. --32 N. J. Eq., 234. 396 Probate Law and Practice. order of distribution a distributee was absent, and was pre- sumed to be dead, and the administrator retained the share ready for payment for ten years, and then deposited it in a savings bank,' where for a time it drew interest, and afterwards withdrew it and apphed it to his own use, after which the dis- tributee appeared, it was held that the administrator was chargeable with interest at the rate allowed by the savings bank during the time the money was deposited therein, and with interest at the highest legal rate from the time he drew the money from the bank.^^ The proper course to pursue, where an executor finds that considerable delay will ensue before legacies will be paid, is to submit the question whether the moneys held by him shall be invested to the orphans' court ; otherwise he will be accountable for interest thereon.-* Improper Use of Funds. The fundamental principle in regard to a trustee, whether executor, administrator or guardian, is, as has been seen, that he shall derive to himself no gain, benefit, or advantage by the use of the trust funds. Whatever profit may be made, or may accrue, shall belong to and become parcel of the estate.-'' If funds in the hands of an executor are mingled with his own, or used by him, he will be required to account for all of the profits he may have made therefrom ; if no profits have been made, but the money has been suffered to lie idle, he will be charged with interest for his negligence.'-" So where an executor, to whom lands are devised for a certain time, does not apply until after his estate expires fbr an order to sell lands to pay debts, and in the meantime enjoys the estate and takes the rents and 23See also Windmuller V. Spirits J. Eq.. 261. Hamburgh Mfg. Co. Distributing Co., 83 N. J. Eq., 6. v. Edsall, 12 N. J. Eq., 392- Mc- 24Hetfield v. Debaud, 54 N. J. Knight v. Walsh, 24 N. J. Eq..' 408. Eq., 371. Fluck V. Lake, 54 N. J. Doremus's Case, 33 N. J. Eq., 234. Eq., 638-643, and see Orphans' Aldridge v. McClelland, 36 N. J. ■Court Act, sec. 136, p. —, supra. Eq., 288. Affirmed, 38 N. J. Eq:, 25Voorhees v. Stoothoff, ii N. 279. Deegan v. Capner, 44 N. J. J. L., 145. Eq., 339. Hetfield v. Debaud, 54 2«State V. Mayhew, 9 N. J. L., N. J. Eq., 371. Jeffrey v. Towar. 70. Voorhees v. Stoothoff, 11 N. 54 Atl. Rep., 817. J. L., 145. King V. Berry, 3 N. Liability of Executor, Etc., for Interest. t,k)j profits, he must account for the value of the estate so en- joyed.-' Rate of Interest. Under ordinary circumstances, a personal representative is liable for simple interest at the legal rate; and when an ac- count extending over a number of years was ordered, and the rate of interest has been changed by law during that time, the interest payable on the accounting must conform to such fluc- tuations ;=* and an administrator is not entitled to a diminu- tion in the legal rate of interest upon funds retained in his hands uninvested, on the ground that it would have been dif- ficult, in his neighborhood, to invest small sums except at less than the legal rate.-^ When Interest Commences to Run. When a sum is directed to be invested for the benefit of a child of the testator, it must be invested at the end of a year from his death, and the child is entitled to the interest to accrue from the end of the year.^" In Frey v. Fre\-'^ an ad- ministrator was allowed six months from settlement of his ac- counts in which to make investments, and was charged with interest from that time. Computation of Interest. In computing the interest, commissions (where allowed) should be deducted before interest is charged upon the balance against the accountant.-*- Interest continues to run until the fund is actually paid.^^ Compound Interest. On the subject of exaction of compound interest fron^ ex- ecutors and trustees, there is not, and indeed cannot well l)e, "Bray v. Neil!, 21 N. J. Eq.. saPrey v. Frey, 17 N. J. Eq., 71. 343- ^"Halsted v. Meeker, 18 N. J. 28In re Samuel Marcy, 24 N. J. Eq., 136. Eq., 451. Wilson v. Cobb, 31 N. ^"^ly N. J. Eq., 71. J. Eq., 91. Dorcmus's Case, :sz N. 32Mathis v. Mathis, 18 JM. J. L.. J. Eq., 234. Gilmore v. Tuttle, 34 59. ^- J- Eq- 45- 33jackson v. Jackson, 3 N. J. Eq., 96-113. 398 Probate Law and Practice. any uniform rule, which would justly apply to all cases. When a trust to invest has been grossly and wilfully neglected, where the funds have been used by the trustees in their own busi- ness, or profits made of which they give no account, interest is compounded as a measure of damages for undisclosed profits, and in place of them. For mere neglect to invest, simple in- terest only is imposed ;^* but a guardian will be charged with interest, computed with annual rests, on the amount received by him as guardian and neither invested nor used for the ward."^ So when executors have failed for several years, against testator's intention, to separate a legacy from the estate and invest it, it is such a violation of trust as justifies charging them with compound interest.'^" So where a trustee had a large estate invested in lands, stocks, business, &c., and the trust' funds were in his hands as a loan before the creation of the trust, and the trust moneys cannot be traced to ascertain the profits made, or the form of investment, he will be charged with compound interest on the trust fund in his hands, with annual rests. ^' Where an executor loaned a fund to his co-executor with- out adequate security, he was held liable for the principal and compound interest.^^ So where a guardian fails to render an account, he will be charged interest on the sums found to be due, with annual rests f^ and a trustee who uses the trust fund, having retained the interest, must pay interest upon such interest from the day it becomes due.*'^ So where a trus- tee mingled trust funds with his own, he was held chargeable with interest to be ascertained by striking monthly balances.*^ So where a guardian received pension money quarterly for 3*McKnight v. Walsh, 24 N. J. ^TjvicKnight v. Walsh, 24 N. J. Eq., 498-510. Voorhees v. Stoot- Eq., 498. hoff, II N. J. L., 145. Windmul- sspgrrine v. Petty, 34 N. J. Eq., ler V. Spirits Distributing Co., 83 193. N. J. Eq., 6. 39Eiston ^ Carpenter, 3 Atl. ^^Smith V. Ciummere, 39 N. J. Rep., 357. I^q-, 27. ♦"Lathrop v. Smalley, 23 N. J. '•^Salisbury v. Colt, 27 N. J. Eq.. Eq., 192. 492. *^Van Doren v. Van Doren, 45 N. J. Eq., 580. Liability of Executor, Etc., for Interest. 399 nine years on account of his ward, and never filed any account from the time of his appointment, fifteen years before, until cited, it was held that, although there was lio evidence that he had used the money, he would be required to pay interest on the pension money with annual rests.*- The true rule in computing interest, where partial payments are made, is that where such payments exceed the interest due, the surplus is to be deducted from the principal on which to compute interest; but where the payments do not equal the interest due, no deduction is made, and interest is cast on the principal until the pavments exceed the amount of the in- terest.*^ WASTE OR CONVERSION BY EXECUTOR OF DECEASED EXECUTOR. Statutory Provisions. Every executor or administrator of any person or persons, who, as executor, either of right, or in his or her own wrong, or as administrator hath wasted or converted, or hereafter shall waste or convert any goods, chattels, estate or assets of any person deceased, to his or her own use, shall be liable and chargeable, in the same manner as hi« or her testator or in- testate would have been, if living.** INDIVIDUAL INTEREST IN TRANSACTIONS. In General. The rule is inflexible that an executor will not be permitted to make any profit, gain or advantage to himself out of the trust estate in his hands ;*' and if a trustee invests money in an unauthorized security, and makes profits, the ccstuis que trust- ^^Dissenger's Case, 39 N. J. Eq., Hq., 392. Blauvelt v. Ackerman. 227. 20 N. J. Eq., 141. Wyckoflf v. "Stark V. Hunton, 3 N. J. Eq., Wyckoff, 44 N. J. Eq., 56. Lou- 300. denslager v. Woodbury Heights **2 Comp. Stat., p. 2261, sec. 6. Land Co., 58 N.. J. Eq., 556. Elli- *''Trenton Banking Co. v. cott v. Chamberlin, 38 N. J. Eq.. Woodruff, 2 N. J. Eq., 117. Ham- 604. burg Mfg. Co. V. Edsall, 12 N. J. 27 400 Probatr Law and Practice. ent, are entitled to the profits thus made.*" So if a trustee use trust funds for the purchase of property, it is a violation of his duty as trustee, and the profits of such purchase must enure to the benefit of the cestui que trust, while any loss must fall exclusively upon the trustee;*' but where a trustee bought goods of firms in which he was interested, and it appeared that the goods were sold at the usual prices, the interest of the trus- tee in the firms was held to be no valid objection to their pur- chase.*** The mere fact that a trustee receives a bonus for lending trust funds does not of itself show bad faith ; but he must charge himself with the bonus so received.*^ LOSS OR DEPRECIATION OF ASSETS. In General. As has before been said, an executor, administrator, guard- ian or trustee, in assuming his duties under ordinary cir- cumstances, where he is not controlled by statutes or rules of court, is not bound to extraordinary care, nor is he an in- surer against loss under all circumstances ; but if he is careful, faithful and discreet, the duty imposed on him by law will be discharged."'" Reasonable care and proper diligence are ex- pected. Watchfulness ought ever to be part of the fulfillment of the trust. When these qualities have been exercised, he will not be held responsible for losses which prudent man- agement could not foresee or avoid, nor will he be charged with gains which the like conduct on his part has not realized. ^^ So an executor is not chargeable \vith loss sustained by the estate on accoinit of the depreciation in value of the assets of the estate, without negligence or misconduct on his part,^" as where ^'^Shearman v. Cameron, 76 N. •'^Monroe v. Osborne, 43 N. J. J. Eq., 426. Reversed. 78 N. J. Eq.. 248. Eq., 532. ''iVoorhees v. Stoothoff, 11 N. *''Deegan v. Capner, 44 N. J. J. L.. 145. Eq., 339. ''-In re Barcalow, 29 N. J. Eq.. *8Brinkerhofif v. Banta. 26 N. J. 282. Reversed, 36 N. J. Eq., 611. Eq^ 157. Wanzer v. Eldridge, 33 N. J. Eq., ■•^Sherman v. Lanier, 39 N. J. 511. Dey v. Codman, 39 N. J. Eq., Eq., 249. 258. Loss OR Deprfxiation of Assets. 401 live-stock died from disease. ''=* So where an executor Was re- strained by the Court of Chancery from disposing of certain stocks, he was held entitled to an allowance for the deprecia- tion of the stocks pending the injunction f* and where testator gave the use of all of his property, real and personal, to his widow, and a portion of the personal property was consumed, the executor was allowed for the property necessarily con- sumed in its use upon the premises.^'' So where a portion of an estate bequeathed in trust for certain beneficiaries included a certain judgment debt, and the executors knew, as a matter of fact, that the testatrix had received payment of the debt which formed the basis of the judgment, they were not charge- able with failure to institute proceedings to collect the judg- ment.^^ Next of kin or legatees may be estopped by their conduct from charging an executor or administrator with misapplying the assets of the estate ; but to work such an estoppel, it must appear that the person against whom it is sought to be enforced had such knowledge that he was charged with a duty of in- quiry in respect thereto. Knowledge, or duty to inquire whereby knowledge would have been acquired, is essential to an estoppel of this character. Where both parties have equal opportunities of knowledge, and both act in ignorance of the real state of the case, such an estoppel will not arise.''" So where an administrator of a deceased wife claimed that de- cedent told him during her lifetime to distribute certain stock among her children, and he did so, it was held that unless the husband of intestate, who was her distributee, had knowledge of these facts, and stood by without protest and permitted such distribution by the administrator, the latter would be sur- charged with the amount of the .stock so distributed.''* =3Crane v. VanDuyne, 9 N. J. ■'^'''Mulford v. Mullord, 53 Atl. Eq., 259. Rep., 79. 5*Greiner v. Greiner, 35 N. J. ^TBayley's Case. 67 N. J. Eq.. Eq., 134- 566-569. Smith v. Robinson, 83 X. ^^Crane v. Van Duyne, 9 N. J. J. Eq., 384. Eq., 259. i^sBayley's Case, 67 N. J. Eq., 566. 402 Probate Law and Practice. Loss Through Misconduct. An executor or administrator will be charged with all losses accruing through misconduct or fraud. ^'^ So where in selling their testator's real estate an executor allowed the widow, who was one of the executors, to fix arbitrarily and retain out of the purchase money the amount claimed by her as the value of her dower, such amount being in excess of the amount to which she was entitled, they were held accountable for the difiference."" Loss from Sale of Stocks. An executor who holds stock which he does not need to con- vert into money to enable him to execute his trust will be jus- tified in selling it only when he acts in so doing upon an honest and well-founded apprehension, predicated upon the exercise of reasonable care and caution, that to hold it longer would en- danger or prejudice the estate.*^^ So where in the exercise of reasonable care and caution an executor sold stock after it had depreciated in value, he was held not liable though tbe market value of the stock afterwards increased f- and where executors have power under the will to change investments of personal estate in such manner as may be thought most ad- vantageous for the estate, they are authorized to dispose of an unproductive and constantly depreciating stock at less than par, though the testator expressed a wish that the stock should not be sold for less than par, unless thought necessary.*'^ •>9Fisher v. Quick, 8 N. J. Eq., «iFluck v. Lake, 54 N. J. Eq.. 674. Affirmed, ib., 778. S. C, 9 638. N. J. Eq., 802. Blackwell v. Black- G2Green's Case, 2,7 N. J. Eq.. well, 29 N. J. Eq., 576. Affirmed, 254, and see Reporter's Note to 31 N. J. Eq., 796. Schweitzer v. Green's Case, 2)7 N. J. Eq., 254- Bonn, 55 N. J. Eq., 107. 255. '■•oBlackwell v. Blackwell, 29 N. csstephens v. Milnor, 24 N. J. J. Eq., 576. Affirmed, 31 N. J. Eq., 358. Eq., 796. Loss OR DKi'RKCIATiON OF ASSETS. 403 Losses Through Negligence. An executor or administrator is chargeable with all losses which occur in consequence of his negligence ;"* as where he, without examination, or inquiry, pays a claim against the estate where nothing is due,"^ or where the loss of a legacy was directly attributable to his want of business judgment, if not his culpable negligence,"" or where a guardian neglected to keep the house of his ward in repair, and rents were thereby lost."' So an executor cannot discharge himself by showing a loss of funds by reason of his faihire to record a mortgage given to secure a bond payable to the estate ;"® but a trustee cannot be called on to account for the profits of a business in which the fund was originally lawfully invested, merely because he neglected to withdraw it from that business.'''' An executor holding a bond and mortgage of one who makes an assignment for the benefit of his creditors, and whose estate pays a dividend, is in laches in not presenting his claim to the assignee, and will be liable for the loss incurred if a deficiency results from the foreclosure of the mortgage ;''^ so where an executor kept a large amount of money belonging to the estate in his house for over a year, and it was stolen, he will be held accountable. '^^ And so if an administrator employs an agent who is notoriously incompetent, he will be held liable for any loss arising thereby. '- Where an assignment of a distributive share was void be- cause the assignor was an idiot, it will not protect adminis- trators that they acted in good faith in paying over the share ^'^Stark V. Hunton, 3 N. J. Eq., ^^Smith v. Gummere, 39 N. J. 300. Holcombe v. Holcombe, 11 N. Eq., 27. J. Eq., 281 ; Cooley v. Vansyckle. •'^'Lindsley v. Dodd, 53 N. J. 14 N. J. Eq., 496. Vreeland v. Eq., 69. Reversed 57 N. J. Eq., Vreeland, 16 N. J. Eq., 512. 334. Fisher v. Skillman, 18 N. J. Eq., '-••McKnight v. Walsh, 23 N. J. 229. Lindsley v. Dodd, 53 N. J. Eq., 136. Affirmed 24 N. J. Eq., Eq., 69. Reversed 57 N. J. Eq., 49S. 334. '"Wil-son V. Staats, 33 N. J. Eq., c^Stark V. Hunton, 3 N. J. Eq., 524. 300. '^^Cornwell v. Deck, 8 Hun., 122. ♦'^Stoothofif V. Reed, 32 N. J. "^Wakeman v. Hazleton, 3 Barb. Eq., 213. Ch., 148. 404 pROBAT]' Law and Practice. to such assignee;'" and where personal property is directed to be sold, and no provision is made for maintaining or keep- ing the family in the family mansion, executors have no right to leave the furniture in the possession and use of such of testator's children as stay in the mansion.'* In cases of manifest error, it will not excuse an executor that he acted on the advice of counsel ; but in doubtful cases it is a circumstance entitled to great weight in his f avor.'^ Sale of Personal Property. Where an executor or administrator sells personal property of the estate which he represents, at an improper time, or with- out conforming to the conditions of his powers, he will be held responsible for the highest value the property can be shown to have had."'' So he will be held liable where he sells goods on credit without judicial sanction, and a loss is sus- tained ;'" but where an executor made such an adjustment of the affairs of an estate that he realized for the estate more than otherwise would have been realized, and in making such ad- justment took two notes which he was unable to collect, he was held not liable for the loss by reason of the failure to collect such notes.'* WTiere an executrix by collusion with the auctioneer bought part of the personal property for less than it would have brought if fairly sold, it was held that she must account for the difference between the price paid by her for the property auctioned and the inventoried value thereof.^® "^Dorsheimer v. Rorback, 23 N. N. J. Eq., 229, 239. Melick v. J. Eq., 46. Affirmed 25 N. J. Eq., Voorhees, 24 N. J, Eq., 305. Af- 516. firmed 25 N. J. Eq., 523. '^Graydon v. Graydon. 23 N. J. "'Vreeland v. Vreeland. 16 N. Eq., 229. Reversed 25 N. J. Eq.. J. Eq,, 512. 361. ^sQfgen V. Groocock, 35 N. J. ■^King V. Berry, 3 N. J. Eq., Eq., 474. 261 ; see also "Loss and Depre- • -'Blackwell v. Blackwell, 29 N. elation of Assets, p. 400, supra. J. Eq., 5/6. Affirmed 31 N. T. '^Huston V. Cassidy, 14 N. J. Eq., 796. Eq., 320. Fisher v. Skillman, 18 Loss OR Depreciation of Assets. 405 Loss Through Failure of Bank. Where an executor places funds belonging- to the estate in a bank to the credit of the estate when the bank is in good standing, but the bank fails before the funds are withdrawn, he will not be held liable for their loss.®" Failure to Collect Claims. It is the duty of executors to collect and secure promissory notes and all other debts not properly secured. If these are permitted to remain unsecured, and are afterwards lost, it constitutes negligence on the part of the executors, and they must be charged with the loss.^^ So an administrator will be charged with the loss of a debt due the estate, although the debtor turns out to be insolvent, when the debt is inventoried as good, and the administrator in his first settlement eighteen months after the death of the intestate charges himself with it and suffers three years to elapse without attempting to collect it, although during a part of the time the debtor was engaged in business and appeared to be possessed of some property. ^^ If executors in their discretion are satisfied that there is nothing due the estate upon a claim included in the inventory and appraisement, they will not be charged with the amount, unless it be made to appear that the amount was really due.^^ So where it appears that an executor had not kept any account of his trust, or of moneys collected, and had inventoried several notes as bills receivable of his testator's estate, and on his death only part of them were found in his possession, it was held that he should not be charged with the amount of the missing notes. ^* On the other hand, where securities which came into execu- tors' hands as assets of their testator's estate, but which in fact belonged to another estate, have been appropriated by them in ^"Jacobus V. JacoI)us, yj N. J. ^-Cooley v. Vansyckle, 14 N. J. Eq., 17. Affirmed sub nom. Cox Eq., 496. V. Roome, 38 N. J. Eq., 259; and ssstark v. Hunton, 3 N. J. Eq., see Reporter's Note to Jacobus v. 300. Jacobus, 37 N. J. Eq., 17. at p. 18. 8*Hunt v. Smith. 58 N. J. Eq., siRolcombe v. Holcombe, 11 N. 25. J. Eq., 281. Reversed ib., 476. Stark V. Hunton, 3 N. J. Eq., 300. 4o6 Probate Law and Practice. the proper discharge of their duties, without notice, they wiU be protected.^^ So executors are not chargeable with the amount of a mortgage which was satisfied during their testa- tor's hfetime, but cancelled of record by them after his death f^ but an executor who voluntarily surrenders to a mortgagor a mortgage belonging to his decedent's estate is liable therefor if the debt thereby secured is lost to the estate.^^ COUNSEL FEES AND COSTS. In General. • A fiduciary charged with the management of property, whether as executor or otherwise, has a right to employ counsel when any difficulty arises, or when necessary or proper to pro- tect the estate, or to enable him to properly manage it; and the reasonable charges for such services will be allowed out of the estate.*® Reasonable counsel fees are never refused, when the settlement of the estate requires the aid of counsel ; but there must be a necessity, and the fee allowed must be based upon real and not fancied services.®'' So where the valid- ity of a codicil to testator's will, which materially altered the estate the widow would take under the will, was the subject of litigation, and the estate was not interested to resist an application by the widow in another state for an extension of the time within which she might elect whether to accept a devise under the will in lieu of dower in lands located in such state, the executor will not be allowed attorney's fees in resisting the application.'-**' When an order of court has directed the amount of counsel fees to be allowed to a guardian in a litigation, such guardian cannot charge against her ward's estate, in a subsequent ac- 8?Mulford V. Mulford, 40 N. J. man. 39 N. J. Eq., 258. Pyatt v. ^- ^63. Pyatt, 44 N. j. Eq., 491- Reversed «6Dey V. Codman, 39 N. J. Eq., 46 N. J. Eq., 285. In re Dreier's ^58- Estate. 92 Atl. Rep., 51. s^Fisher v. Skillman, 18 N. J. s^Wyckoff v. O'Neil, 71 N. J. Eq.. 229-239. Eq.. 729. S. C. 72 N. T. Eq., 880. ssLiddel V. McVickar. 11 N. J. ^Hn re Flaacke's Estate, 64 Atl. L., 44- King V. Berry. 3 N. J. Rep., 1020, affirmed 72 N! J. Eq., Eq., 261. Kingsland v. Scudder, 944. 36 N. J. Eq.. 284. Dey v. Cod- Counsel Fees and Costs. 407 counting, the amount paid by her to her counsel in that liti- gation in excess of the amount fixed by the court f^ and where the court has passed upon counsel fees on an intermediate accounting, its judgment will be conclusive on the final account- ing.^- Application of Rule. Where suits at law were threatened against an executor, growing out of certain assignment proceedings in which the testator as assignee had continued the business in another state, without judicial authority, and had advanced considerable of his own money in the furtherance of such business, it was held to be the executor's duty to employ counsel to restrict such liability to the lowest point, for which services the executor was entitled to an allowance of counsel fees.^"* So where administrators act in good faith and with ordinary prudence and discretion in selling their intestate's chattels after an as yet unproved and apparently unfounded claim therefore has been made, they will be allowed out of the estate the costs and reasonable counsel fees of a trial afterwards brought at law by the claimant, wherein he recovered a judgment for the value of chattels so claimed.®* So if an executor hesitates to pay a legacy from honest doubts as to his liability, or at the request of the residuary legatees, the costs of a suit to determine the question will be allowed from the residue of the estate, upon the passing of his final account. ^^ Where an executor gave notice to the widow of an appli- cation to the orphans' court to assign her dower in her hus- band's land, in order to force her to an election between the devise and dower, and thereafter the widow and daughter brought ejectment, claiming under the will, and attacking the codicil thereto, thereby compelling the executor to justify the codicil, the executor was held to be justified in pursuing his proceeding to a lawful conclusion, and was allowed the amount ^'Allen's Case. 40 N. J. Eq.. 181. ''^Polhemus v. Middleton. 37 N. ''^Dey V. Codman, 39 N. J. Eq., J. Eq., 240. 258. 3-'Keeler v. Keeler, 18 N. J.. Eq., »8In re Wiley, 65 Atl. Rep., 212. 267. 40^ Probate Law and Practice. of counsel fees paid by him f^ and so if an executor in good faith defends an action at law, he will be allowed the costs and counsel fees of such action.^' For Services in Performing Representative's Duties. The rule regulating the allowance of commissions is that such allowance on the principal or income of an estate must be made directly by the orphans' court to the executor or trustee, who out of such allowance must compensate agents, whether at- torneys or others, for performing the representative's duties. In addition, there are to be allowed expenses actually — that is to say, legitimately — incurred in the management of the estate, and in making collections ; and, obviously, such expenses are those only which are necessarily incurred, and a claim for their allowance should be scrutinized by the court.**^ An execu- tor will not be allowed for such work, although done by counsel, as he, in contemplation of law, is bound to do himself; in other words, if he chooses to employ others to do his work, he must pay them himself. So if he engages counsel or an accountant to make up his account, present it, and appear on the return day, the cost of the same will be disallowed.^^ So an executor is not entitled to an allowance for the services of counsel in making up his inventory ■,^ and the duty of examining the contents of testator's saiFe, private drawers and boxes, and assorting and arranging the papers of the deceased, is the proper work of the executor, and if he chooses to employ an attorney to perform that service, he is personally responsible for it.- ^«In re Flaacke's Estate, 64 Atl. Eq., 302. Pyatt v. Pyatt. 44 N. J. Rep., 1020. Affirmed 72 N. J. Eq.. Eq., 491^95- Reversed '46 N. J. 944- Eq-. 285. In r^ Wiley, 65 Atl. »7PoIhemus v. Middleton, 37 N. Rep., 212. In re Dreier's Case, 92 J. Eq., 240. Atl. Rep., 51. 98Lyon V. Bird, 79 N. J. Eq., at Hn re Ramsey's Estate, 66 Atl. P- ^57- Rep. 410. Wolfe's Case, 34 N. J. "Wolfe's Case. 34 N. J. Eq.. Eq.. 223. Pyatt v. Pyatt. 44 N. T 223-227. Kingsland v. Scudder. Eq., 491-495- Reversed 46 N. T. 36 N. J. Eq., 284-286. Personette Eq., 285. V. Johnson, 40 N. J. Eq., 173- ^n re Wiley, 6s Atl.* Rep., 212, 180. Hurlbut V. Hutton, 44 N. J. 214. Counsel Fees and Costs. 409 Amount of Allowance. Where the services of counsel are required, some discretion must be allowed the accountant as to the amount of compen- sation; but the mere fact that an accountant has paid fees to an attorney will not of itself be a warrant for their allowance, especially where it is obvious that there could be no occasion for such attorney's services.^ If executors, without prudent scrutiny, pay extravagant bills for legal services, they will not be allowed, upon their accounting, more than such sum as would have reasonably compensated for the services.* Ac- countant must see to it that the charges are not excessive, and must always remember that he cannot deal with a trust fund as if it were his own. The dissipation of an estate would soon follow if the executor had an unrestricted right to employ the most expensive counsel, and pay the most liberal charges f and the power of the court to make an allowance for counsel fees should never be exercised in such a manner as to make counsel a legatee.^ The mere fact that the parties in interest agreed upon the compensation to be allowed counsel will not of itself justify the court in making the allowance. The court should not make an allowance unless it appears that it is proper — that is, that the services were rendered to the executor, and were necessary for the protection or management of the estate.^ Where Executor is an Attorney. The whole trend of opinion in this state seems to be against permitting an executor to receive extra compensation for serv- ices performed for the estate, whether such services be strictly within the scope of the duties of the executor or outside of it.' ^Holcombe v. Holcombe, 13 N. ^Wyckoff v. O'Neil, 71 N. J. J. Eq., 415. Eq.. 729- S. C, 72 N. J. Eq.. 88q. *Hurlbut v. Hutton, 44 N. J. ^Kingsland v. Scudder, 36 N. J. Eq., 302. Eq., 284. Hurlbut v. Hutton, 44 ^Kingsland v. Scudder, 36 N. J. N. J. Eq., 302. Eq., 284. In re Flaacke's Estate, ^Wilkinson v. Abbott, 30 Atl. 64 Atl. Rep., 1020, at p. 1023. Af- Rep., 1098-1100. firmed 72 N. J. Eq., 944. Hurlbut V. Hutton, 44 N. J. Eq., 302. i4Jtp Probate Law and Practice. It follows, therefore, that an executor, administrator, ■guard- ian, pr trustee, who is an attorney, cannot recover or receive ail allowance for professional services rendered the estate; but the rule does not apply when such costs are not payable out of th?. trust fund, and when their payment wall not diminish the estate. ** Counsel fees may, however, be paid to one who has renounced as executor and never qualified/" When Allowance Refused. Where the litigation has been caused by the negligence, mis- conduct or maladministration of the personal representative, he will not be allowed the costs thereof out of the estate. Thus, where the litigation was caused by the misconduct of the execu- tor in omitting to file an inventory and account for moneys which were due the estate, no costs will be allowed him out of the estate. ^^ So an executor who makes use of moneys belong- ing to the estate for his own purposes, and keeps meager and inaccurate accounts, thereby involving the estate in expensive litigation, will not be allowed counsel fees in such litigation out of the estate.^- So where an executor made no efifort to open an assessment of collateral inheritance taxes in another state until the time for appealing therefrom had elapsed, when he made such application in order to discharge himself from liability, the estate was held not chargeable with his attorney's fees in that behalf. ^^ So if executors unnecessarily take an appeal from a decree against them, they may be charged with the costs of the appeal ;" and the general rule may be stated "Ordinary v. Connolly, 75 N. J. i"Campbell v. Mackie. i Dem. Eq., 521, and see Pollard v. Bark- 185. ley, fi7 Ind., 40. Clark v. Knox, "Post v. Stevens. 13 N. J. Eq.. 70 Ala., 607. Teague v. Corbitt, 293. 57 Ala., 529. Binsse v. Paige, i ^^pjuck v. Lake, 54 N. J. Eq., Abb. App. Dec, 138. Cook v. 638. Gilmore, 133 111., 139. Lent v. ^Hn re Flaacke's Estate, 64 Atl. Howard, 89 N. Y., 169. Campbell Rep., 1020. Affirmed 72 N. J. Eq.. V. Purdy, 5 Redf., 434. Clinch v. 944. Eckford, 8 Paige, 412. Collier v. i^Beatty v. Trustees. 39 N. J. Munn, 41 N. Y.. 143. Estate of Eq., 452. Rerversed 41 N. J. Eq.. Munn, Tuck., 136. 563. Counsel Fees and Costs. 411 to be, that where an administrator so conducts an estate as to justify disallowing any claim by him for commissions, it is improper to allow him counsel fees.^^ FUND CHARGEABLE WITH ADMINISTRATION EXPENSES. In General. Where the will contains no directions as to expenses of ad- ministration, specific legacies and bequests of specific sums are not charged with them, but are paid in full, and the expenses of administration are taken from the residue, or such assets as are not disposed of. A testator can by his will charge such legacy with its proportion of commissions and expenses of administration ; but for that his direction must be clear and explicit.^" 35Frey's Case, 7Z N. J. Eq., 346. i«Fo\vler v. Colt. 12 N. J. Eq.. 44- CHAPTER XXIV. CO-EXECUTORS AND CO-ADMINISTRATORS— THEIR POWER AND AUTHORITY. In General. Co-executors, administrators and trustees are regarded in law as one person ; acts done by one of several executors which relate to the delivery, gift, sale or release of the tes- tator's personalty are deemed the acts of all, and bind the estate accordingly.^ So one of several executors may sell per- sonal property of the estate;- and where one of two executors sells assets, the co-executor is not entitled to the possession of the proceeeds of such sale retained in the hands of his co- executor, except in cases of fraud, insolvency, etc. f and where one of two executors loaned moneys of the estate on a bond and mortgage, reserving usury thereon and appropriating it to his own .use, it was held, on foreclosure by the executor on behalf of the estate, that such usury could be set up as a de- fense.^ But where a will clothed the trustees with authority, in their discretion, to bestow upon a legatee during his life such portion or portions of the trust property as they might deem proper, and it was expressly declared that such gift was of bounty merely, and in nowise matter of right in making such gifts the concurrence of both of the trustees was held to be necessary."' ^Mutual Life Ins. Co. v. •'■Fennimore v. Feniiimore, 3 N. Sturges, 33 N. J. Eq., 328. J. Eq., 292. -Hertell v. Bogert, 9 Paige (N. ^O'Ncil v. Cleveland, 30 N. J. Y.), 52. Sutherland v. Brush, 7 Eq., 273. Johns. Ch. (N. Y.), 17. -Crane v. Hearn, 26 N. J. Eq.. 378. 412 Co-Executors, Etc. 413 Actions by Co-Executors, &c. In actions by co-executors or administrators all must join in the suit.® Where One Executor Renounces, or Neglects to Prove Will. The executor or executors who qualify may maintain an action at law without joining any executor who has renounced or failed to qualify.'^ Actions Against Co-Executors. In actions against several executors or administrators all executors or administrators representing the testator or in- testate shall be considered as one person and such of the executors or administrators as the sherifif shall return ser\'ed shall answer to the plaintiff; and in case judgment shall pass for the plaintiff he shall have his judgment and execution against all the executors of administrators named in the writ, to be made of the goods and chattels of the deceased.® Indorsement of Notes. One of several executors or administrators may assign a note made payable to the testator ;'•* but one of two co-ex- ecutors cannot indorse a negotiable promissory note made to both in their character of executors,"' and one of several ex- ecutors has no power to charge either the estate or his co- executor by indorsing a note in the name of the estate, even though it be given in renewal of one indorsed by the testator in his lifetime. ^^ ''Dickerson v. Robinson, 6 N. J. \.). 34. Sanders v. Blain, 29 Ky., L., 195. Ryerson v. Ryerson, 4 N. 446. J. L., 364. In re Coursen's Will, "'Smith v. Whiting, 9 Mass., 4 N. J. Eq., 408. 334 ; but see Bogert v. Hertell, 4 ^3 Comp. Stat., p. 4058, sec. 25. Hill (N. Y.), 492, contra. 83 Comp. Stat., p. 4058, sec. 24. ^iBailey v. Spofiford, 14 Hun. sDwight V. Newell, 15 111., 333. (N. Y.), 86. Wheeler v. Wheeler, 9 Cow. (N. 414 Probate Law and Practice. Removing Bar of Statute of Limitations. The power of a single executor or administrator to remove the bar of the statute of Hmitations by a new promise has been seriously questioned, and in some states denied; but the rule has been established in this state that such power exists, and such new promise made by one of several executors or administrators binds the estate and does not make the repre- sentatives personally liable.^" Sale of Real Estate. Where executors are authorized by will to sell and convey real estate, it requires their joint action to carry out the in- tention and direction of the testator. It is the discretion of all his executors upon which a testator relies when he au- thorizes them to sell his real estate, and if one of them re- fuses to act, the others cannot sell.^" So if a power of sale is given to three executors by name, and the testator by codicil revokes the appointment of one and appoints a fourth, the original two and the third appointed by the codicil must ex- ecute the power. ^^ Where Co-Executor Fails to Qualify, Dies, Resigns, or Is Removed. It is provided by statute that where one of several executors fails to qualify, dies, is discharged or removed, or predeceases the testator, the trusts in the said will thereupon vest in the other executors in said will named and in the survivor of them unless otherwise expressed in the will, and that it is lawful for such acting or surviving executor or executors to execute any power of sale conferred by said will. This subject will be found more fully treated elsewhere. ^^ i-Shreve v. Joyce, 36 N. J. L., J. Eq., 281. s. c, ib.. 476. Shelton 44. Everitt V. Williams, 45 N. J. v. Homer, 5 Met. (Mass.), 462. L., 140. First National Bank of i*Pratt v. Rice, 7 Cush. (Mass.) Freehold v. Thompson, 61 N. J. 209. Eq., 188. i"'See "Surviving Executor May i^Holcombe v. Holcombe, 11 N. Execute Power," p. 436, infra. Co-Executors, Etc. 415 Estate in and Conveyance of Lands Purchased by Co-Ex- ecutors at Foreclosure Sale. The statute provides that where executors or administrators purchase lands covered by any mortgage forming a part of the assets in their hands, at a sale upon the foreclosure of such mortgage, they will be vested by such conveyance with an estate in joint tenancy, and the said lands will be assets in their hands for the payment of debts and may be sold by them without any order of court; and where any such ex- ecutor or administrator dies or is removed, the survivors may convey the same. The full text of this statute will be found elsewhere. ^"^ Investment^. Where a will authorizes executors to invest in good pro- ductive real estate at their discretion, no investments can be made without the consent of all of several joint executors.^' Postponement, Release and Satisfaction of Mortgages. One of two executors may consent to the postponement of the lien of a mortgage held by their testator.^- or may release a mortgage.''* So one of two executors may execute a valid satisfaction piece of a mortgage belonging to the estate, -'' and this though it be payable to the co-executors.-' Assignment of Mortgages. One of two executors may assign a mortgage belonging to their testator's estate," even if made to both of them as part of the purchase price of land sold by them under a tes- tamentary power. -^ i«See "Lands Purchased by Ex- ="Stuyvesant v. Hall, 2 Barb, ecutor, &c., at Foreclosure Sale," Ch. (N. Y.), 151. Fesmire v. p. 424, infra. Shannon, 143 Pa. St.. 201. ^■^Holcombe v. Holcombe, 11 N. -^People v. Miner, 2>7 Barb. (N. J. Eq., 281. S. C, ib., 476. Crane Y.), 466. Fesmire v. Shannon. V. Hearn, 26 N. J. Eq., 378-382. 143 Pa. St., 201. i^Mutual Life Ins. Co. v. Stur- 22Q.'. J. 70 N. J. Eq., 562. 444 Probate Law and Practice. to perform.*^ So the statute does not give to a substituted administrator a grant of power to sell lands which are the subject of an express devise to the executor as trustee.^^ An administrator with the will annexed has power to make sale of lands of the testator, when by his will testator has con- ferred upon his executors, by implication, a power of sale.** Power of Ancillary Administrator c. t. a. The statute^^ authorizes the probate of a foreign will in this state in the county wherein the testator died seized of real estate, upon the production of an exemplified copy of the record of foreign probate, and authorizes the surrogate to grant letters testamentary, or of adminstration with said will annexed. Such administrator with the will annexed has not, however, power to exercise a power of sale conferred by the will upon the executor, while the executors are acting as such in the jurisdiction of testator's domicile. At common law, a testamentary power of sale to an executor was treated as a personal trust; with the death, resignation, or removal of the executor, the power died, and an administrator c. t. a. could not, in consequence, exercise it. This, as has been seen, has been changed by our statute. The power now passes to an administrator with the will annexed, except in cases spe- cifically referred to in the statute ; but this statute clearly has reference to the survival of the power of sale where the executorship has become vacant, and an administrator with the will annexed has been appointed as the successor in of- fice of the person, or persons, named in the will, and does not relate to an ancillary administrator c. t. a. in this state, where the executor named in the will of a non-resident is acting as such in the state of the testator's domicile. It follows, there- fore, that a power of sale given to foreign executors named in a non-resident's will cannot be exercised by an ancillary ad- ministrator with the will annexed appointed by the surro- gate of the county of this state in which the realty is situate, s-Casselman v. McCooley, TJ, N. ^^Ker v. Banta. 71 N. J. Eq.. J. Eq., 253. 49. 83Hegeman v. Roome, 70 N. J. ssQrphans' Court Act, sec. 23. Eq., 562. See p. 211, supra. Real Property. 443 where the executors are acting as such in the jurisdiction of testator's domicile.®" In the case of In re Carter's Estate," the Court of Errors and Appeals held that the sole right to exer- cise a power of sale contained in the will of a non-resident, after the death of the executor therein named resided in the general administrator c. t. a. appointed in the foreign jurisdic- tiqn on the death of the executor, and that an administrator appointed by the courts of this state has not such power. Power of Executor or Administrator c. t. a. of Foreign Will Recorded in This State. The Orphans' Court Act,'* provides that if upon the filing of the record of probate of a will admitted to probate in an- other state, or in a foreign country, it appears that the will was executed in accordance with the laws of this state, the filing of such record shall have the same effect as if the will had been admitted to probate, and letters testamentary, or of administration with the will annexed thereon, had been issued in this state, and that such executor or administrator may ex- ercise a power of sale contained in such will, in the same man- ner as if the wdll had been admitted to probate in this state — that is, an executor, without recourse to any court for au- thority ; an administrator c. t. a. subject to the approval of the orphans' court of the county wdierein the lands are situate. In Case Will Directs Sale Without Naming an Executor. Whenever any wall hath heretofore been duly made and executed, or shall hereafter be duly made and executed, au- thorizing or directing any lands, tenements, hereditaments or real estate, mentioned therein, to be sold, and no executor or executors hath or have been or shall be named in said will and letters of administration with the will annexed have been or shall be granted thereon, any deed or conveyance heretofore made and delivered, or which may hereafter be made and de- livered, by such administrator or administrators with the will annexed, or the survivors or survivor of them, for said lands, tenements, hereditaments or real estate, pursuant to any power 8«Smith V. Abbott, 79 N. T. Hq., 8-88 Atl. Rep., 1084. '^7- ^''Sec. 24, p. 213, supra. 446 Probate Law and Practice. or direction in the said will, shall be as good, valid and effec- tual as if the same were made and delivered by any executor or executors who might have been, or might be named in said will.«« CONFIRMATION OF SALE. Confirmation of Sale Required. No sale of lands hereafter made by an administrator or ad- ministrators with the will annexed, or by an administrator or administrators dc bonis non with the will annexed, shall be valid until the terms thereof shall have been submitted to the orphans' court of the county in which the lands proposed to be sold lie or shall lie, and approved by said court.'"' Petition for Confirmation. The Orphans' Court rules require that application for the confirmation of sales by administrators with the will annexed shall DC by petition, which shall state the names and addresses of all parties in interest, and shall have annexed thereto af- fidavits of at least two persons familiar with the value of property in the neighborhood where the lands so sold are lo- cated, giving the fair market value of the lands and premises so sold.^^ Notice of Intention to Report Sale for Confirmation. Notice of the intention of any administrator with the will annexed for the confirmation of a sale of lands made by him shall, unless the court shall otherwise direct, be given to all persons in interest. Five days' notice of such application shall be given to all persons in interest who are residents of the state of New Jersey, and not less than five, nor more than sixty, days' notice, as the court may by order direct, to all per- sons in interest who shall reside without the state of New Jersey, which last mentioned notice may be sent by mail, with the postage thereon prepaid. ^- S92 Comp. Stat., 2262, sec. 12. '^Orphans' Court Rule 35. p. ='02 Comp. Stat., 2263, sec. 14. 764, infra. siQrphans' Court Rules 33 and 34, p. 763. infra. Real Property. 447 Jurisdiction of Orphans' Court. Upon an application by an administrator cum testamento an- Jiexo for the approval of a sale of testator's lands, the orphans* court has no jurisdiction to consider or adjudicate upon a claim that the lands descended to testator's heirs-at-law, or were spe- cifically devised by the will, and were not within the power of sale conferred by the will; but such administrator must establish, by proof, his right to act as administrator cum testa- mento annexo in this state, in order to give jurisdiction to the orphans' court. ^^ Security Required from Administrator c. t. a. It shall be the duty of the court, upon any application by an administrator or administrators with the will annexed, or the survivors or survivor of them, or by substituted adminis- trator or administrators with the will annexed, or the sur- vivors or survivor of them, for an order confirming the terms of any sale made or to be made by him or them under any power of sale contained in such will, before confirming such sale, in their discretion, to require such administrator or ad- ministrators with the will annexed, and such administrator or substituted administrators with the will annexed, to give such additional security, by bond to the ordinary, as said court shall deem advisable, having regard to the value of the rea:l estate ordered, directed or authorized to be sold in said will, for the proper distribution of the proceeds of the sale'of such real estate.^* Proof of Value of Lands. Before confirming a sale made by an administrator c. t. a., the court should be satisfied that the sale is advantageous to the estate, and that a fair price has been obtained. It is therefore necessary to offer evidence of the value of the premises in question. This may be either by oral evidence of persons familiar with the value of the property, or, as is the usujil "3In re Devinc. 62 N. J. Kq., West Jersey Title Co., 71 N. J. 703. Ocean View, &c., Co. v. L., 600-604. ' '• "*2 Comp. Stat., 2263, .sec. 14. t 30 448 Probate Law and Practice. practice, by annexing to the petition the affidavits of at least. two real estate agents familiar with the values of property in the neighborhood of the premises in question, as to the value of the same. When the fair value of land may be afifected by adverse claims of title, there should be sufficient proof of the nature and extent of such claims to enable the orphans' court to determine whether the sale has been made at a fair price. ^'' Purchaser not Required to Look to Application of Pur- chase Money. In case of any sale of lands by an administrator with the will annexed, or by an administrator de bonis non with the will annexed, ordered, directed or authorized, in such will. whether the proceeds of such sale be, by the terms of such will, impressed with a s]jecial trust or not. the purchaser of the lands so sold shall not be required to look to the application of the purchase money."" The receipt or acknowledgment in writing, whether by deed or otherwise, heretofore given, or which may hereafter be given, by any executors or executor, administrators or admin- istrator with the will annexed, trustees or trustee, for any money heretofore paid, or that may hereafter be paid to, and re- ceived by, them or him. by reason, or in the exercise of execu- tion, of any trust or power, shall be full and sufficient discharge for the money therein expressed to be received, and shall effectually exonerate the person who has heretofore paid, or may hereafter pay, such money, and his or her legal representa- tives, from seeing to the application thereof, or from being answerable for any loss or misapplication thereof, unless the contrary shall be expressly declared by the instrument creating such trust or power."^ While, as a general rule, a purchaser from an administrator c. t. a. or trustee is not bound to see to the application of the purchase money, he may nevertheless be held responsible for the misapplication of the same, by evidence showing that at ^'•In re Devine, 62 N. J. Eq., »«2 Comp. Stat., 2264. sec. 15. 703, and see Orphans' Court Rule ^'P. L. 1884, p. 20. 2 Comp. 34. p. 763. infra. Stat., 2267, sec. 25. Real Property. 449 the time of the purchase he knew that the trustee contem- plated a breach of trust, and intended to misappropriate the money, or was by the very act applying it to his own private purpose.®* CONVEYANCES BY FEME COVERT EXECUTRIX OR AD- MINISTRATRIX C. T. A. Conveyance of Lands by Married Executrix. In case any married woman is a trustee under or executrix of any last will of any ])ers<)n, or shall hereafter be appointed such trustee or executrix, cither sole or in conjunction with another, or has been or shall hereafter be appointed by any court of competent authority administratrix with the will an- nexed of any testator, it shall and may be lawful for such married woman to sign. seal, execute, acknowledge and de- liver, without the joining of her husband therein, in the same manner as if she were a feme sole, any and all deeds conveying the lands of such testator in conformity with the powers given in such will, and such deed shall vest in the purchaser thereof as good and valid a title to the lands so conveyed, as if such trustee, executrix or administratrix with llic will annexed were unmarried.''^ Lands Purchased by Married Executrix at Foreclosure Sale. Where any administratrix or executrix is a married wcjmaii and has heretofore or hereafter shall become the purchaser of lands, tenements (jr hereditaments covered bv any mort- gage forming a part of the assets of the estate in her hands at a sale upon a foreclosure of any such mortgage, the lands, tene- ments or hereditaments so conveyed shall be assets in the hands of such administratrix or executrix, and may be sold and conveyed by her without any order of court and without her husband joining with her in the execution of the conveyance iherefor, and such conveyance shall vest in the purchaser or ])nrchasers the title to such lands, tenements or hereditaments »8Foster v. Dey. 27 N. J. Kq.. ""p. T.. 1901, p. 141. 2 Comp. 599- Stat., p. 2273. sec. 41. 450 Probate Law and Practice. as fully to all intents and purposes as if said administratrix or executrix were sole and unmarried, and she shall be account- able for and pay over the proceeds of such sale as other moneys belonging to such estate in her hands. ^''^ RIGHT OF EXECUTOR, &c., TO PURCHASE AT HIS OWN SALE. General Rule. The rule is inflexible that a sale made by an executor or any other person acting in a fiduciary capacity, to himself, or for his benefit, directly or indirectly, will be set aside at the in- stance of the party prejudiced, though the sale be at public auction, in good faith and for a fair price, and the trustee shall have gained no advantage therefrom.^ This rule is one of pub- lic policy. The trustee is not prevented from bidding for property which he himself sells, on the ground simply of a supposition ofactual fraud, but because the law has established, as an inflexible rule applicable to every emergency, that he shall not place himself in a situation in which he will be tempted to take advantage of his cestui que trust. An execu- 10"?. L. 1901, p. 359. 2 Comp. on p. 230. Staats v. Bergen, 17 N. Stat., p. 2266, sec. 23. J. Eq., 297. Affirmed, ib., 554. • 'Arrowsmith v. Van Harlingen, Von Hurter v. Spengeman, 17 -N. 1 N. J. L., 26. Winans v. Brook- J. Eq., 185. Blauvelt v. Acker- field, 5 N. J. L., 847. Den v. man, 20 N. J. Eq., 141, and cases Wright, 7 N. J. L., 175. Den v. cited on p. 146. Smith v. Drake. McKnight, 11 N. J. L., 385. Ob- ' 23 N. J. Eq., 302. Wright v. ert V. Hammel, 18 N. J. L., 73..: Smith, 23 N. J. Eq., 106. Carson Runyon v. Newark India Rubber v. Marshall, 37 N. J. Eq., 213, and Co., 24 N. J. L.. 467. Shepherd v. cases cited on p. 215. Affirmed. Hedden, 29 N. J. L., 334-337- 38 N. J. Eq., 250. Bechtold v. Trenton Banking Co. v. Woodruff, Read, 49 N. J. Eq., iii, and cases 2 N. J. Eq., 117. Williamson v. cited on p. 123. Reversed, 54 N. J. Johnson, 5 N. J. Eq., 537. Obert Eq., 407. Scott v. Gamble, 9 N. J. v...Q.bert, 10 N. J. Eq., 98. Af- Eq., 218. Mulford v. Bowen, 9 N. firmed, 12 N. J. Eq., 423. Culver J. Eq., 797. Romaine v. Hendrick- V. Culver, 11 N. J. Eq., 215. Hoi- son, 27 N. J. Eq., 162. Affirmed, combe V. Holcombe, 11 N. J. Eq., 28 N. J. Eq., 275. Creveling v. 281. Wortman v. Skinner, 12 N. Fritts, 34 N. J. Eq., 134. Swift v. J. Eq., 358. Huston v. Cassedy, Craighead, 75 N. J. Eq., 102. Af- 13 N. J. Eq., 228, and cases cited firmed, 75 Atl. Rep., 975. Real Property. 451 tor, administrator, guardian or trustee, must therefore submit to this regulation; and if he does any act in violation of it. no matter how pure his intentions may be, such act is voidable at the instance of the person whom he represents. At these sales, the trustee is forbidden to purchase, because his interest as such purchaser is opposed to the interest of his cestui que trust, and he therefore acts under a bias in his OAvn favor ; nor does this rule rest to any considerable extent upon the fact that in a particular line of cases the trustee has peculiar opportunities for the practice of fraudulent acts with regard to the property in his charge. The rule, to be efficacious, must be general ; the law implies, that in all cases of trusts such op- portunities may exist; and consequently the prohibition is universal. So jealous is the law on this point, that a trustee may not put himself in a position in which to be honest must be a strain upon him.- The law is most strict in denying trustees any profit to be derived from any kind of traffic in the property of the trust estate.^ Thus an executor authorized to purchase real estate for investment under a direction of the will of his testator can- not sell his own land to himself as executor for such a pur- pose.* So where an executor or administrator ordered to sell lands for debts colludes with the purchaser, whereby the land is sold for less than its true value, the sale is voidable ;' and where one intermarried with the widow, who was the executrix of her late husband, and who had proved and then taken upon herself the execution of the will, it was held that by his mar- riage he assumed all the responsibilities which devolved upon his wife as executrix, and that he could not become the pur- chaser of lands sold by his wife as executrix." So where a trustee, being in possession of land belonging to the trust estate under a lease made by himself and his co-trustee, and good against the cestuis que trustent only because made in the ordinary course of business and for a full rental, pursuant to -Staats V. Bergen, 17 N. J. Eq., ''Runyon v. Newark India Rul)- 554-558. ber Co., 24 N. J. L., 467. 3Hill V. Hill, 79 N. J. Eq., 521. "Scott v. Gamble, 9 N. J. Eq., *Holcombe v. Holcombe, 11 N. 218. J. Eq., 281. Reversed, ib., 476. 452 Pkobativ Law and Practice. a course of practice to which they had impHedly assented, found a purchaser for the property at a price materially above the fair market value, and thereupon consented to the sale, including- a surrender of his leasehold, it was held that the trustee was entitled only to compensation for what he had lost by the surrender, to be computed according to the qiiantnm valehat, and must concede the whole of the special profit to the estate of which he was trustee." Where an executor, who is also a trustee under a will, and whose primary duty is to prevent, if possible, the foreclosure of a mortgage affecting a ])art of the trust estate, induces a foreclosure thereof, and in- directly becomes the purchaser of the mortgaged property at the foreclosure sale, such transaction is voidable at the in- stance of the beneficiaries under the will, and in equity he will be regarded as occupying the same position as though he had merely purchased the mortgage and will be held liable to account to the beneficiaries ; independently of the question of the extent to which such executor and trustee may have in- duced the foreclosure in his own behalf, he occupies a position which renders it impossible for him to become a purchaser of the property at the sale and thereby hold the title adversely to the devisees named in the will, and even though it may be found that such transaction has been without thought of wrong, and beneficial to the cestui que trust, public policy re- quires that the transaction be held to be voidable at the instance of the latter for the defined policy of the law arises from the necessity of removing temptations for self gain from all per- "sons having trust duties to perform.*' If, however, a trustee advertises and prepares for the sale with proper care and diligence and in good faith, without en- tertaining the least intention of becoming a purchaser, and. in case of a sale at auction, does not in fact directly or indirectl\ bid for the property, and it is struck off in good faith to an- other person, there is a complete absence of any of those ele- ments of danger to the cestui que trust which underlie the re- 'Hill V. Hill, 79 N. J. Eq., 521. ^Van Alstyne v. Brown, 77 N. J. Eq., 455- • Real Property. 453 strictive rule under consideration ;"' and any agreement made, however soon after the land is struck oil, by the administrator with the purchaser for the sale of the land to the former, is within neither the letter, the spirit nor the meaning of the rule ; the rule has then had its operation upon the sale, and the land is again instantly free for all the world to purchase.^'' But the fact that a purchaser at an administrator's sale was a man of no means, and that on the same day the administrator conveyed the property to him he re-conveyed it to the adminis- trator, is sufficient proof, in the absence of any explanation of the transaction, that the purchase was made for the benefit of the administrator.^^ Where Executor Purchases at Official Sale. The rule that an executor may not purchase at his own sale applies as well w^ien the sale is made by a sheriff or master, as when it is made by the trustee himself, and, in the latter case, as well when the sale is made by the trustee under his own authority, as when made under a judicial order or decree; and a trustee is not relieved from his incapacity to become a pur- chaser by the mere fact that the legal estate of the property purchased is not in him.^- Relief Afforded Cestui Que Trust. A sale of lands to himself by an executor or other trustee is. as has been seen, voidable at the instance of the cestui que trust, or heir at law. The expression used by the court in Wright v. IVright,^'' that a sale by an administrator to himself for his own benefit is void, is too strong ; it is voidable, not void, and may be voided by cestnis que trusteut and their heirs ; but strangers cannot impeach or question it, neither can one '•Scott V. Gamble, 9 N. J. Eq., 292, 300. Creveling v. Fritts. Eq., 218. Mulford v. Bowen, 9 N. 34 N. J. Eq., 134. Wortman v. J. Eq., 797-798. Staats v. Bergen. Skinner, 12 N. J. Eq., 358-371- 17 N. J. Eq., 554-558. Bassett v. ^'Obert v. Obert, 10 N. J. Eq., Schoemaker, 46 N. J. Eq., 538, and 98. Affirmed, 12 N. J. Eq., 423. cases cited. Wortman v. Skinner, '-Staats v. Bergen, 17 N. J. Eq., 12 N. J. Eq., 358. Voorhees v. 297. Marr v. Marr, 73 N. J. Eq., Bailey, 59 N. J. Eq., 292. 643. '"Voorhees v. Bailey, 59 N. J. '^7 N. J. I,., 175. 454 Probate Law and Practice. of the executors, who was a party to the deed, repudiate such deed, nor can any person claiming under such executor.^* In the case of Burnett v. Eaton,''^ where an executor purchased at his own sale, the court ordered a re-sale, with a provision that if the premises brought less than the executor bid, the sale to him would be confirmed; and where it is necessary that trust lands be sold, and the trustee is in a situation that induces him to give more than any other purchaser would give, the court may authorize a sale by him at a full fair price, to be ap- proved by the court, to himself or to someone for his benefit ;^*' but if the cestui que trust is an infant, then the court, when the question is directly or incidentally presented, will deal with the conveyance as it shall consider best and most ad- vantageous to the infant.^' The measure of damages which a cestui que trust is entitled to recover against his trustee as compensation for a breach of trust is, at the option of the cestui que trust, either the amount he has actually lost by the breach, or the amount, if anything, which the trustee has gained thereby ;^^ and where, on the ground of an abuse of trust, an administrator is called upon to account for the value of property improperly sold by him, any doubts as to its true value should be resolved in favor of the cestuis que trustent. The trustee should not be permitted, by raising doubts by the production of conflicting opinions as to the value of the property, to derive an advantage from his impropeF dealings with the trust estate, but should rather be compelled to account upon the basis of estimates made by intelligent and reliable witnesses on the part of the cestuis que trustent}^ ^■*Runyon v. Newark India Rub- i*^Colgate v. Colgate, 23 N. J. ber Co., 24 N. J. L., 467-475. Shep- Eq., 372. herd v. Hedden, 29 N. J. L., 334- ^"Holcombe v. Holcombe, 11 N. 338. Obert V. Obert, 10 N. J. Eq., J. Eq., 281. Reversed, ib., 476. 98. Affirmed, 12 N. J. Eq., 423- i^Proprietors of Eastern New 427. Swift V. Craighead, 75 N. J. Jersey v. Force, 72 N. J. Eq., 56- Eq., 102. Affirmed, 75 Atl. Rep., 127. 975. Marr v. Marr, 73 N. J. Eq., ^^fjuston v. Cassidy, 14 N. J. 643. Eq., 320-322. 1529 N. J. Eq., 466. Real Property. 455 Effect of Laches. It is a general rule that a court of equity will refuse relief on account of the laches, or unreasonable delay of those con- cerned ;-•' but in the application of the doctrine of laches, where rights of ccstiiis que trustent are involved, and the trustee is charged with fraud, the latitude extended in favor of the cestnis que trustent is very much more liberal than in other cases where the same defense is relied upon.-' Ratification of Sale by Cestui Que Trust, Although a sale by a trustee to himself, either directly or in- directly, is voidable at the instance of the cestui que trust, it may become binding against him by ratification, either express or implied.-- It is manifest that the right of the cestui que trust to avoid the contract should not be without limitation. While some courts have held such dealings to be contrary to public policy, and voidable at the instance of the cestui que trust, the better and prevailing view appears to be that such dealings are presumed to be invalid, but will be sup- ported if the trustee can show that the cestui que trust acted voluntarily and with entire freedom from any influence arising by reason of the trust relationship, and with intelligence and full knowledge of all the circumstances.-'* Thus, wdiere it ap- pears that the complainant received the purchase money and deliberately ratified the sale with a full knowledge of the facts which would avoid it, it is a bar to any relief which equity might otherwise have afforded.-* So where an administrator sells lands of his intestate under an order of the orphans' court, and himself becomes the purchaser, and pays money on account of the purchase and makes improvements on the land, if afterward an ejectment is brought by the heirs-at-law -"Obert V. Obert, 12 N. J. Eq., 11 N. J. Eq., 281. Reversed, ib., 423. Smith V. Drake, 23 N. J. Eq., 476. 302. -•■'Swift V. Craighead, 75 N. J. -'Bcchtold V. Read, 49 N. J. Eq., Eq., 102. Affirmed, 75 Atl. Rep., III. 975- 22Hance v. McKnight, 11 N. J. 24Scott v. Gamble, 9 N. J. Eq., L., 385. Holcombe v. Holcombe, 218. Voorhees v. Bailey, 59 N. J. E.q., 292. 456 Pkobatic Law and Practice. of the intestate, the administrator may, under some circum- stances, maintain his bill and enjoin the proceedings at law, and have the equities of the parties settled in the Court of Cliancerv ; but if the administrator has purchased under any circumstances which imply moral turpitude, a court of equity will not aid him. Relief is granted only on the ground that the administrator in purchasing acted in good faith, and for the benefit of the trust.-^ Where Authorized by Will. Where a testator by his will directs that if either of his ex- ecutors at public sale purchase any part of his real estate, the other executor shall execute a deed conveying the land so pur- chased, either of the executors has a right to purchase.-" Executor or Administrator May Purchase Decedent's Lands Sold to Satisfy Execution. An administrator, being a trustee merely of the personal fund, is not disqualified thereby from bidding for the landed estate, he not being the person entrusted to sell it.-' So an ex- ecutor may purchase property belonging to his testator, and sold by the sheriff by virtue of an execution for the satisfac- tion of encumbrances subsisting upon the land before the tes- tator acquired title.-** So where a number of lots were con- veyed to three executors in satisfaction of a debt due to the testator, and one of the executors held a mortgage on some of the lots, which he afterwards foreclosed, buying in the lots at a fair price, it was held that he did not hold the title as trustee for the estate of his testator;-^ but executors charged with the sale of lands to pay debts, who purchase such lands at a sheriff's sale under execution against testator, will be de- creed to hold such lands by a continuing trust, or will be held to account for the proceeds of such of the same as have been re-sold to bona fide purchasers.^" -"Mulford V. Minch, ii N. J. -^Earl v. Halsey, 14 N. J. Eq.. Eq., 16. 332. -♦Tennimore v. Fennimore, 3 N. -^Lippincott v. Bechtold, 54 N, J. Eq., 292. J. Eq., 407. ■-■Den V. HiUman, 7 N. J. L., -"Marshall v. Carson, 38 N. J. 180. Johns V. Norris, 22 N. J. Eq., 250. Bechtold v. Read. 49 Eq.. 102. Reversed, 27 N. J. Eq., N. T. Eq.. iii. 485. CHAPTER XXVI. LIABILITY OF LANDS FOR PAYMENT OF DEBTS. General Rule. In the absence of any contrary provisions in the will, lands are not assets in the hands of executors or administrator^, for the payment of debts; but when sold for the payment of debts under a decree of the orjjhans' court, the money received by the executor or achiiinistrator from their sale is considered assets.^ The cases of Den t. Joiiesr and Wright v. Hartshorne^ were decided under the provisions of the statute of 1747,* which provided that the real estate of a decedent should be charge- able with his debts, and which made such lands chattels, for the satisfaction of debts in like manner as personal estates were This statute was repealed in 1799.'' When Lands Charged with Debts by Will. Nothing is the personal estate of the testator that was not so at his death. If a testator directs lands to be sold and con- verted into money to pay his debts, the proceeds become a fund which is liable for the debts of the testator, not because it is personal property, but because it is so appropriated, not by law, but by the will of the testator. Where therefore, an ex- ecutor was ordered by a will to sell real estate to pay specific debts, and after such payment the balance was to be given to a daughter-in-law, the proceeds of the sale after the pay- ment of such debts was held not to be personal property ap- plicable to the payment of debts of the estate loefore a resort could be had to the realty." 'Haines v. Price, 20 N. J. L., •'AUinson, p. 129. 480. "'Patterson, p. 369. -I N. J. L., 131-133. "Winants v. Terhune, 15 N. J. 3Cited in Lockyer v. DeHart, 6 Eq.. 185. N. J. L., 450-457. 457 458 Probate Law and Practice. As a general rule, a direction by the testator that all his debts shall be paid will serve to charge such debts on the realty ;' but where the direction is that the executors shall pay the debts, such effect will not be produced.^ Where, however, the testator directs his executors to pay his debts from the real or personal estate, the debts will be charged upon the lands;^ but even though the debts be charged upon lands, the personalty remains the primary fund for such payment.^" .; Under a general power to sell lands to pay debts, executors have no power to sell lands specifically devised, for the pay- ment of debts due from the devisees to the testator, and which he directs to be taken from their respective shares, but which are not collectible for want of property, except by the sale of such lands ;^^ but under a general gift of a residuary estate to children in equal shares, with a direction that debts due from certain children be taken from their shares, and a limitation of the shares of the sons to them and their wives for life, with remainder to their children in fee, the entire interests of the sons' shares — the remainder, as well as the life-estate — are sub- ject to the payment of the debts due from the sons respec- tively. ^- Statutory Provisions. The statute provides that the lands, tenements, heredita- ments and real estate of any person who shall die seized thereof, or entitled to the same, as well as any share or shares, or part or parts of a share of propriety of undivided rights or warrant to locate lands in this state, shall be and remain liable for the payment of his or her debts, for one year after his or her decease, and may be sold by virtue of an order of the orphans' court of the county where such lands, tenements, hereditaments and real estate shall lie, or in case of any ^McKinley v. Coe, 66 N. J. Eq., loSuydam v. Voorhees, 58 N. 70. J. Eq., 157- ^Shreve v. Shreve. 17 N. J. Eq., i^Youmans v. Youmans, 26 N. 487. Suydam v. Voorhees, 58 N. J. Eq., 149. J. Eq., 157. i^Youmans v. Youmans, 26 N. ^Morse v. Hackensack Savings J. Eq., 149. Bank, 47 N. J. Eq., 279. Liability of Lands for Debts. 459 share or shares, or part or parts of a share of propriety of un- divided rights, or warrant to locate lands, by an order of the orphans' court of the county where such decedent last resided, if obtained within the said period of time, any alienation, or en- cumbrance, made or attempted to be made, by his or her heir or heirs, devisee or devisees to the contrary notwithstanding ; provided, ahvays. that nothing herein contained shall affect any right of dower in the said lands, tenements and real es- tate.'^ Lien Conferred by Statute. This statute subjecting the lands of a decedent to his debts imposes such debts as a legal burden upon the lands of which the decedent shall die seized ; consequently, when lands are attempted to be conveyed in fraud of creditors, as the statute of frauds makes such conveyance absolutely void, and the debtor, therefore, in contemplation of law dies seized of such lands, a creditor has his claim fastened upon them, and such lien will give him the footing to file a bill in chancery to set aside such fraudulent conveyance.^* So it has been held that the expiration of one year from the death of decedent does not increase the estate of the heir or devisee, and that the Court of Chancery, upon the application of a creditor, may, after the expiration of such year, enjoin the heir or devisee from selling the land, to the prejudice of the lien of the creditor conferred by the statute, until the orphans' court has been aflforded an opportunity to enforce his lien by a sale of the land to pay debts.^^" Although the liability to debts is by the statute in terms limited to one year, still it has always been held that until a bona fide sale has been made by the heir or devisee, the lien continues.'" '" '''- ^ i^Orphans' Court Act, sec. 81. i^Parret v. Van Winkle, cited in 3 Comp. Stat., 3838. Warwick v. Hunt, ri N. J. L., i*Haston v. Castner, 31 N. J. at p. 9. Warwick v. Hunt, 11 N. I'",q., 697. Adoue v. Spencer, 62 J. L., i. Hasten v. Castner, 31 N. N. J. Eq., 782. Simpson v. Bock- J. Eq., 697-699. Westerv^jt v. ius, 77 N. J. Eq., 339. Voorhis, 42 N. J. Eq., 179-180. Af- i^Incandescent Liglit & C. Co. firmed, 43 N. J. Eq., 642. Salaun v. Stevenson, 83 N. J. Eq., 482. v. Hartshornc, 52 N. J. Eq., 739, at p. 743- 460. Probate Law and Practice. Lands Devised in Lieu of Dower Liable. Lands devised to a widow in lieu of dower, if accepted by her, are liable to their proportion of the debts of the testator.^' LIABILITY OF PROCEEDS OF SALE OF LANDS FOR PAYMENT OF DEBTS. Surplus on Foreclosure of Mortgage. The surplus money arising from the sale of mortgaged prem- ises, in cases where the mortgagor, or person owning the mort- gaged premises, shall be deceased at the time of the sale, may. if in the opinion of the chancellor the same shall be expedient or necessary for the proper administration of the estate, be paid to the administrator or executor of said deceased, to be ad- ministered in the same manner as money arising from the sale of real estate made by administrators or executors ; provided, said administrator or executor shall enter into bond as now required by law, upon their application for the sale of real estate.^* In order to induce the Court of Chancery to order surplus money arising upon sale of mortgaged premises to be paid to the personal representative of the owner of the equity of re- demption, it is not necessary that each of the claims presented to such personal representative should be finally proved and passed upon in that court; it is sufficient if the court shall be satisfied that it is expedient or necessary, for the proper administration of the estate, that such payment be made; and, / notwithstanding such payment, the personal representative or other person interested in the estate is at liberty to contest any of the claims reported by him to the court.'" Proceeds of Partition Sale. When it appears that the personal estate has been exhausted, and that there is a fund in the Court of Chancery, the proceeds of the sale of real estate under proceedings for the partition i^Bray v. Neill, 21 N. J. Eq., J. Eq.. 739. For practice on ap- 343- plication for surplus proceeds of '*i Comp. vStat., 433, sec. 63. sale, see Kocher's Chancery Prac- ''Salaun v. Hartshorne, 52 N. tice. p. 57, et seq. Liability of Lands kok Debts. 461. of lands, an executor may apply for an order for so much of the said moneys as may be necessary to pay the balance of tiie debts due from the estate of which he is executor.-" Upon such an application, no distinction is made between the proceeds of the sale of personalty in such proceedings and the sale of realty, and therefore a waiver of the statute of limitations by the administrator in an action on a claim applies to the entire proceeds and not merely to the proceeds from the i)ersonaltv.'-" Where land of intestate was sold in partition proceedings by the heirs more than a year after the ancestor's death, and the administrator made application that the proceeds be devoted to payment of debts, it was held that a creditor of an heir who issued attachment after the decree of sale, but before the sale, attained priority over creditors of the estate, as the decree transferred the attachment to the proceeds. -- Proceeds of Sale Under Condemnation Proceedings. Where lands of deceased have been sold by condemnation proceedings, the proceeds in the hands of the citv trea.surer may, after the personalty is exhausted, be applied to the pay- ment of debts.-' ACTION BY CREDITOR AGAINST HEIR OR DEVISEE. Statutory Provisions. All and every creditor or creditors, whether by simple con- tract or specialty, and whether the heirs are mentioned therein or not, shall and may, by virtue of this act, have and maintain his. her and their action and actions against the heir and heirs-at-law of any debtor who hath already died, or shall hereafter die intestate, seized of any messuages, lands, tene- ments or hereditaments, and against the heir and heirs-at-law, and devisee and dc\isees of such debtor, in case such debtor zoHattersley v. Bissett, 52 N. J. see "Debts Barred I)y Limitation." Hn., 6<;3. For practice on ap- p, 526, infra. I>lication for proceeds of sale, see ^apirgt National Bank v. Kocher's Clianccry Practice, p. Thompson, 61 N. J. Eq., 188. 57- et seq. -"'Manory v. Craige, 15 N. J. ^^ First National Bank v. F.q., -jt,. Thompson, 61 N. J. F,q., 188, and 462 Probate Law and Practice. made any last will and testament; and such heir and heirs and devisees shall be liable and chargeable for a false plea by him, her or them pleaded in the same manner as any heir should have been for any false plea, by him pleaded, in any action of debt upon specialty, or for not confessing the lands or tenements to him descended ; and moreover, all such cred^ itors shall be preferred as in actions against executors and ad- ministrators.-* Devisees Liable in Same Manner as Heirs. All and every devisee and devisees made liable by this act. shall be liable and chargeable in the same manner as the heir and heirs-at-law by force of this act notwithstanding the lands, tenements and hereditaments, to him, her or them de- vised shall be aliened before the action brought, and shall be liable to like judgments and executions as the heir and heirs- at-law.-^ Heir Liable Though He Alien Land Descended. In all cases, where any heir or heirs-at-law is, are or shall be liable to pay the debt of his, her or their ancestor, in regard of .any lands, tenements or hereditaments, descending lo him. her or them, and shall sell, alien or make over the same, before any action brought, or process sued out against him. her or them, such heir and heirs-at-law shall be answerable for such debt; to the value of the said lands, tenements or heredita- ments, so by him, her or them ^old, aliened or made over ; in which cases, all creditors shall be preferred, as in actions against such heir or heirs, to the value of the said lands, tene- ecution shall be taken out upon any judgment so obtained, against such heir, or heirs, to the value of -the said lands, tene- ments or hereditaments, as if the same were his, her or their own proper debt, but the lands, tenements and hereditaments. which were bona fide aliened before the action brought, shall not be liable to such execution."" -*3 Comp. Stat., 2739, sec. ..I. -^2 Comp. Stat., p. 2740, ^ec. 2. -^2 Comp. Stat., p. 2742. sec. 4. Liability of Lands for Debts. 463 What Constitutes an Alienation. A judgment against an heir or devisee upon his individual debt, and levy of an execution issued thereon upon lands de- scended or devised, prior to the commencement of an action against the heir or devisee upon a debt of the ancestor or tes- tator, is not an alienation within the meaning of the act;"' and a devise of land by one who holds as devisee of one who died indebted is not such a transfer of the title as will divest the statutory lien of the creditors of the first devisor ;-^ but it has been held that a bona fide mortgage given by a devisee upon lands devised to him, and executed before suit brotight against such devisee upon the debt of the testator, is an aliena- tion pro tanto of the lands, and will take precedence over. a judgment recovered against the devisee upon the debt of the testator, notwithstanding the reversal by the Court of Errors and Appeals of the judgment of the Supreme Court, reported in Den v. Jaques.-^ '■■ - Title of Bona Fide Purchaser. ""^ noitoA riarfW The heir and devisee are responsible after alienation of the estate as if they still held it, but bona fide purchasers hold the lands discharged from such lien ;^° and the fact that the alienee knew that the land had belonged to the decedent, and that the decedent left debts unpaid, would not of itself be evidence of his bad faith. ^^ Necessity for Presentation of Claims. An action at law may be brought against heirs and devisees under the statute, although the claim be not presented to the -'Muldoon V. Moore, 55 N. J. J. L., 259. Affirmed, in part and L., 410. reversed in part, Hal. Dig., 634. 2*Salaun v. Hartshorne, 52 N. See also McMahon v. Schoon- J. Eq., 739, and see Ransom v. maker, 51 N. J. Eq., 95, at p. 97. Brinkerhoff, 56 N. J. Eq., 149. ^'Den v. Jaques, 10 N. J. L., -^10 N. J. L., 259. McMahon v. 259. Affirmed, in part and re- Schoonmaker, 51 N. J. Eq., 95. versed in part, sec Hal. Dig., .634. ^''Skillman v. Van Pelt, i N. J. See also, McMahon v. Schoon- Eq., 511. Den v. Jaques, 10 N. maker, 51 N. J. Eq.. 95. at p. 97. 3^ 464. Probate Law and Practice. executor or administrator, and there is sufficient personal prop- erty to pay the debts.^- Effect of Presentation of Claim. The creditor of a decedent is not barred or estopped of his action against heirs or devisees, under the above act, because the creditor before the commencement of the action has pre- sented a duly verified claim of his debt to the executor or ad- ministrator, which claim has been accepted by the latter as cor- rect.^^ When Action Will Lie. An action of covenant will lie against heirs or devisees for the breach of a covenant against encumbrances contained in a conveyance of the ancestor or devisor.^* So if the endorser of a promissory note dies before its maturity, his heirs or devisees may be sued under the statute upon the contract of endorse- ment.^"' When Action Will Not Lie. An action will not lie against the heirs of a deceased devisee to recover debts or obligations incurred by the devisor. The right of action given by the statute is not given for the pur- pose of creating and enforcing a lien upon the lands devised ; ' it is not the land, but the devisee who is made liable for the in- debtedness. That liability is purely personal, and survives, if at all, not against the heirs, but against the executors and administrators of a deceased devisee. ^'^ It is otherwise, how- ever, as to the liability of the heir of a deceased heir of a de- ceased obligor upon the bond of his ancestor ; this result arises from the fact that in this case the heir is not only the heir of his immediate ancestor, but also of the deceased obligor. 3-Stone V. Todd, 49 N. J. L., "•*N. J. Insurance Co. v. Meeker, 274. Dodson V. Taylor, 53 N. J. 37 N. J. L., 282. L., 200. Lime & Cement Mfg. Co. sopo^jsoj^ y Taylor. 53 N. J. L., V. Harrington, 62 N. J. L., 632, at 200. p. 634. 36Congar v. Brady. 62 N. J. L., ^^Newark Lime & Cement Mfg. 641. Co. V. Harrington. 62 N. J. L., 632. Liability of Lands for Debts. 465 and so is just as much bound, both by the very terms of the specialty and by the words of the statute, as is he upon whom the lands first descended.^' Jurisdiction of Chancery. The liability of the heirs under this statute is purely leijal, and cannot be enforced by a Ijill in equity;^* but where a judgment was recovered at law against an executor for his testator's tort, and there was a deficiency of j^ersonal assets, it was held that a bill in equity would lie against the heirs and devisees to subject real estate descended and devised to the judgment.''" Parties. In an action against the surviving heirs of a deceased obligor upon a bond of their ancestor, the heirs of a deceased heir having lands by descent should be joined in the action ; if they are not, the non-joinder may be pleaded in abatement.*'^ Pleadings — Complaint. In a complaint under this statute, it is not necessary to aver that the personal estate is insufficient to pay the debts of the decedent.*^ Answer. \\"here any action shall be brought against any heir or heirs, such heir or heirs may plead riens per descent at the time of the original writ brought, or the Ijill filed against him, her or them ; and the plaintift' in such action may reply, that such heir or heirs had lands, tenements or hereditaments from his. her or their ancestor before the original writ brought, or l)ill filed; and if on issue joined thereupon, it be found for thr 3"St. Mary's Church v. Wallace, soHouston v. Levy, 44 N. J. Eq., 10 N. J. L., 311. 6. This case was. however, crit- ^sMutual Insurance Co. v. Hop- icized in Dodd v. Lindsley. 57 N. l)er, 43 N. J. Eq.. .387. Affirmed, J. Eq., 334, at p. 337. 44 N. J. Kq.. 604. Edwards v. ^"St. Mary's Churcli v. Wallace, McClave, 35 X. J. Eq.. 151. Af- 10 N. J. L., 311. firmed, ib., 822. Pratt v. Boody. -"Dodson v. Taylor, 53 N. J. I,., 55 N. J. Eq., 175. 200. 466 Probatk Law and Practice. plaintiff, ^the jury shall inquire of the value of the lands, tene- ments or 'hereditaments so descended, upon which judgment shall be given, and execution awarded as aforesaid ; but if judgment be given against such heir or heirs, by confession of the action, without confessing the assets descended, or upon demurrer, or nihil dicit, it shall be for the debts and damages, without arty writ to inquire of the lands, tenements and here- ditaments so descended.*- ■ ; In an action, under the statute, a defendant confesses assets by devise, if by his answer he neither admits nor denies them f-^ and an averment in an answer that defendant had aliened his ancestor's estate before action brought is material and travers- able, and a failure on the part of the plaintiffs to reply thereto is an admission of a bona fide alienation.** Defenses. It is no defense to an action against heirs or devisees that the executors have made diligent but unsuccessful eff'orts and attempts to make sale of the lands of which the ancestor or devisor died seized in order to make payment of the debts of the decedent.*^ Judgment — In General. The plaintiff", in an action, under this statute, in the absence of any alienation of the lands by the heirs or devisees is en- titled to a special judgment against such heirs and devisees for the amount of the indebtedness, to be levied on the lands of which the ancestor or devisor dies seized, without regard to the value of such lands.**^ Form of Judgment. In an action against heirs and devisees, a creditor of a de- ceased debtor may recover, either, (i) (if defendant pleads properly), a special judgment, requiring the debt to be made *'2 Comp. Stat, p. 2741, sec. 3. ^^Newark Lime & Cement Co. *3Meyers v. Weger, 62 N. J. L.. v. Harrington, 62 N. J. L., 632. 432. *6Ne^vark Lime & Cement Co. \ •**Brinkerhoff v. Ransom, 57 N. Harrington, 62 N. J. L., 632. J. Eq., 312. Liability of Lands for Debts. 467 only out of lands descended or devised, and which have not been botm fide ahened before the commencement of the action ; or (2) (if defendant fails to plead, or pleads falsely or ini- properiy), a general judgment, as if for the debts of defendant ; or (3) (if it is made to appear, in the manner prescribed, that such lands have been aliened before action brought), a like general judgment, but only for the value of the lands.*' Effect of Judgment. A judgment against a residuary devisee, as such, for a debt of his devisor, establishes the debt as a just debt of the tes- tator.*^ ;fei;909K Improvements by Heir on Lands Aliened. In a suit on a bond against the heir-at-law, who has aliened descended lands before suit brought, the recovery will be only for the value of the lands in the condition in which they were at the time of the descent cast.*" The improvements put upon the land by the heir will not enter into the valuation of such land, nor will the heir be called on for the rents and profits ; nor on his side can he claim repairs, taxes, etc.""' CREDITOR MAY FILE BILL TO IMPEACH CONVEYANCE BY DECEDENT IN FRAUD OF CREDITORS. In General. Debts being liens, by force of the statute, on the lands of a decedent, a creditor at large, whose claim has been admitted by the executor, has a standing to file a creditor's bill to set aside conveyances alleged to have been made by the deceased in fraud of creditors-^' and the administrator is not a nec- *'Muldoon V. Moore. 55 N. J. hofif, 56 N. J. Eq., 149. Reversed, I- 410. 57 N. J. Eq., 312. ^^Morris v. Dorsey, 77 N. J. •'■Haston v. Castner. 31 N. J. Eq., 460. Affirmed, 80 N. J. Eq.. Eq., 697. Ramsay v. VooVhees. 38 555- N. J. Eq.. 282. Jones v. Daven- ^spredericks v. Isenman, 41 N. port, 44 N. J. Eq.. 33- Rutherford J- L-. 212. V. Alyea. 53 N. J. Eq.. 580. ^^opredencks v. Isenman, 41 N. Reversed, 54 N. J. Eq., 411. Simp- J. L., 212. Ransom v. Brinker- son v. Bockius, 77 N. J. Eq., 339. -468 Pkobati: Law axu Pkactick. essary party to such suit ;"'- and a simple contract creditor may maintain an action in equity to invalidate a conveyance made by a debtor in fraud of his rights, notwithstanding he is at- tempting, by legal process, to collect his debt of another per- son, who is liable for it.''" So a creditor of a decedent, by judg- ment recovered against him in another state, the existence of which is admitted by the personal representative, is entitled to maintain a suit in the Court of Chancery to reach equitable as- sets, viz : moneys given by the debtor to his wife and chil- dren in fraud of the judgment creditor.'* Presentation of Claim Necessary. A creditor at large of a deceased person who has not pre- sented his claim to the personal representative, under the statute, cannot maintain a bill in equity to set aside as fraud- ulent a conveyance of decedent's lands. ^'■' Personal Estate Must be First Exhausted. A creditor of a deceased person cannot maintain a bill to set aside as fraudulent a conveyance of the decedent's lands, when the bill shows that the personal property of the deceased is ample to pay his debts i'^'"' but a judgment creditor of a de- cedent, who filed exceptions to the administratrix's account in the orphans' court, need not, on the ground that he has not exhausted his remedy at law, wait until those exceptions are disposed of there, before filing a bill in chancery to have such judgment declared a lien on lands conveyed away by decedent. if such account, as presented, shows that all the assets amount to less than the judgment.'^'" 5-Munn V. Marsh, 38 N. J. Eq., v. Alyea, 53 N. J. Eq., 580. and .410. Affirmed, 40 N. J. Eq.. 343. distinguishing Merchants and •^•3Jones V. Davenport, 44 N. J. Miners Transportation Co. v. Bor- Eq- 33. land. 53 N. J. Eq.. 282. 5*Merchains & Aliners Trans- >''«Rutherford v. Alyea, 54 N. portation Co. v. Borland, 53 N. J. J. Eq., 411. Eq., 282. sTposjgj. ^. Knowies. 42 N. J. ^"Rutherford v. Alyea, 54 N. J. Eq., 226. Eq., 411. Reversing, Rutherford LiABiLiTv OF Lands for Debts. 469 Creditors Right May be Lost by Laches. The right of a creditor of a decedent to compel an executor, who is also a devisee, to execute a power of sale of land con- tained in the will for the purpose of paying testator's debts, may be lost by delay in enforcing it as against a judgment creditor of the executor and devisee who sells the lands to satisfy his debts ;■''•* but where a debtor died thirteen days after a judgment had been obtained against him on his bond, it was held that it was not laches for the creditor to wait until after his administratrix had filed her account in the orphans' court before filing her bill to have such judgment declared a lien upon lands conveyed by decedent in fraud of creditors.''' JUDGMENT CREDITOR OF DISTRIBUTEE MAY REACH PROCEEDS OF SALE OF LANDS IN PARTITION. Statutory Provisions. In all suits in partition heretofore or hereafter begun, in anv of the courts of this state, wherein a sale of the lands sought to be partitioned is or shall be made, and any judgment or judgments are or shall be obtained against any of the dis- tributees, their executors, administrators or legal representa- tives, at any time })rior to the distribution of the proceeds of any such sale, such judgment creditor or creditors may. upon petition filed in such cause, have an order, and such court is hereby authorized to make the same, directing the payment of such judgment or judgments out of the proceeds of the sale of such share or shares against which the same would be a lien had such share or shares been owned bv such debtor or debtors in severalty.''" 5«Hackensack Savings Bank v. ^op j^ jggg p gjg^ gg^. ^i. 3 Morse, 46 N. J. Eq., 161. Comp. Stat., p. 3907, sec. 31. See s^Foster v. Knowles, 42 N. J. also i Comp. Stat., p. 446, sec. 93. F.q., 226. . -Hi CHAPTER XXVII SALE OF LANDS FOR PAYMENT OF DEBTS. Petition by Executor or Administrator. When any executor or administrator shall discover or be- lieve that the personal estate of his testator or intestate is insufficient to pay his debts, it shall be his duty to exhibit, under oath, a true account of the personal estate and debts, as far as he can discover the same, to the orphan's court of the county in which the will of said testator was proved, or letters of administration were granted, requesting its aid in the premises by petition, which petition shall set forth the description of all land of which the said testator or intestate died seized, where the same is situate, its character, condition and value as near as may be.^ Necessity for Petition. It seems that while the orphans" court has general jurisdic- tion of the sale of lands of decedents to pay their debts, it can exercise that jurisdiction in a particular case only upon an application in writing being made by a personal representative of the decedent, and statutory notice given to the heirs-at-law or devisees ; that an order of sale not based upon such acqui- sition of jurisdiction would be void, and that a purchaser of real estate under such order of sale is bound to observe whether or not there has been such an application ; but he is not bound to take notice of any indications of fraud apparent upon the face of the application.- So where an administrator, on an application to the orphans' court for an order to sell lands :o pay debts, exhibited to said court only an account of the debts, and the said court on the same day made an order for the sale of lands, and the administrator made sale and made ' ^Orphans' Court Act, sec. 82. 3 ^l^^sq^ ^ Acton, 57 N. J. Eq., Comp. Stat., 3840. 107. 470 Sale of Lands for Payment of Debts. 47.1 report of the sale to the said court, and on exceptions to the report of sale the court confirmed the sale and ordered that a deed be given, it was held, on appeal, that the proceedings were irregular.^ Petition by Co-Executors. When there are two or more executors, both or all should join in a petition to the court for an order to sell their testator's lands to pay his debts, or if both or all, do not join, the record should show why the executor or executors not applying do not join in the application;* but one of two executors may apply for moneys in the hands of the Court of Chancery, to pay undisputed claims, when any sufficient reason appears for not joining the other.^ Form of Petition. All applications to the orphans' court for the sale of lands are required to be verified by the oath or affirmation of the party making the same.*' The fact that the administrator's petition sets forth that the estate is insufficient to pay the just debts and expenses, and that the same language is used in the order, while the statute empowers the court to decree a sale of lands where the personal estate is not sufficient to pay debts, will not render void the subsequent proceedings.^ Petition by Judgment Creditor. When any creditor shall ha\e obtained judgment against an executor or administrator, and the execution issued on the same shall remain unsatisfied in whole or in part, for want of personal estate to be levied on and sold, and there is real estate, the creditor,, or his legal representative (if the executor or administrator, being thereto required, shall neglect or refuse ■'McDonald v. Hutton, 8 N. J. "Orphans' Court Rule 13. p. 763, ^^■< 473- infra. ^Personette v. Johnson, 40 N. J. ^O'Hanlin v. Van Kleeck. 20 N. Eq., 173- Hutchinson v. New- J. L.. 31-50. Affirmed, 21 N J bold, 45 N. J. Eq., 698. [^., 582. '^Hattersley v. Bissett, 52 N. J. t Eq., 693. 47-' 1'kobate Law and Practice. to take proceedings to obtain a sale thereof according to law, for the space of one month after being so required) may apply to the orphans' court of the proper county to order such sale to be made ; and the said court, upon due notice given to said executor or administrator of such application, shall examine the circumstances of the case, and if it appears that the said debt or any part thereof is unpaid, and the personal estate deficient as aforesaid, and no sufficient cause being shown to the contrary, the said court shall make such order to show , cause in the name of such executor or administrator and such further proceedings shall be had as are prescribed in relation to the sale of real estate where the personal estate is insufficient to pay debts.* The relief intended by this section, though it may originate in the application of a single creditor, is not intended for'him, alone, but for all the creditors ; the sale is to be made for the benefit, not merely of the applicant, but of all. The order to show cause, like the order made at the instance of an executor or administrator, should be why so much should not be sold as will be suificient to pay, not singly the amount due the appli- cant, but the debts of the deceased, or the residue thereof un- satisfied by the personal estate ; and the final order for sale should have the like scope and extent." Notice of Application. The notice to an executor or administrator of an applica- tion, by a creditor, requiring him to take proceedings to sell lands to pay debts, shall be served on such executor or adminis- trator at least five days before the day therein named for making the said application ; and the orphans' court may, by citation or other process, require the executor or adminis- trator to appear before it and testify as to the amount of the personal estate and debts of the deceased. ^*^ Account Must be Specific. Upon an application for sale of lands for debts, the account required by the statute must be a full statement of all the ''Orphans' Court Act, sec. 97. 3 ^Taylor v. Hanford, 11 N. J. L.. Comp. Stat., 3847. • 341-345. '"Orphans' Court Rule 32. Salic of Lands tor Payment of Debts. 473 ])ersonal estate which the decedent left at his death, whether administered or unadministered, collected or not collected, even if part has been destroyed, by fire, or loss, w'ithout the default of the executor. An account of the jiersonal estate of the intestate, on application to an orphans' court for sale of lands to pay debts, which refers only to an inventory filed in another state, is not a compliance with the statute, unless a copy of the inventory is annexed. ^^ Debts Inserted Not Taken Out of Statute of Limitations. The insertion of a debt barred by the statute of limitations, in a representation of debts made by an administrator to the orphans' court for the purpose of procuring an order tO' sell lands to pay debts, is not such an acknowledgment as takes such debt out of the statute, or as estops the administrator from setting up the bar of the statute against it. The adjudication in such case is made only between the j^ersonal representative and the heirs and devisees, the only finding being that it is necessary to resort to the realty to pay debts. ^- Account Must be Under Oath. The account of the personal estate and the account of debts must be rendered under oath.^" ORDER TO SHOW CAUSE. Court to Make Order. Upon the presentation of the petition and account, the court shall thereupon make an order requiring all persons interested in such lands, tenements, hereditaments and real estate, to appear before it at a certain day and place, in the said order to be named, not less than two months after the day of making such order, to show cause why so much of the said lands, tenements, hereditaments and real estate of the said testator or intestate should not be sold as will be sufficient I'Bray v. Ncill, 21 N. J. Kq., 517, 3 Comp. Stat., 3842, sec. 83a, 343- !'• 477. infra. i2Everitt V. Williams, 45 N. J. '^Qbert v. Ilamniel. 18 N. J. L., T... 140. But sec P. L. 1910, p. 73, at p. 77- 474 Probate Law and Practice. to pay his debts, or the residue thereof, as the case may requive.^* Return Day of Order. If the day to show cause is less than two months from the date of the rule, even by one day, the order to sell is erroneous, and must be set aside on appeal ; and as this rule is the pro- ceeding by which jurisdiction is acquired, this defect appear- ing on the record would avoid the proceedings collaterally.'^ If, however, the rule to show cause is on its return day con- tinued by the court to a later date, in order that it may be served on the other parties, the later date becomes its return day.'^ Publication of Order to Show Cause. iThe statute provides that the order to show cause shall be signed by the surrogate, and shall be immediately thereafter set up at three of the most public places in said county for six weeks successively, and be published at least once in each week for the same time in one or more of the newspapers of this state, as the said court may direct. '" It is not necessary that the publication should be made in the six weeks next pre- ceding the return day of the rule.^^ If, on the return day of a rule to show cause in the orphans' court, proctors appear on behalf of all the parties interested, and admit due and legal service of the rulQ, that is sufficient evidence of its proper service. '** BOND BY HEIR-AT-LAW FOR PAYMENT OF DEBTS. Heir-at-Law May Give Bond. When any order to show cause why lands and real estate should not be sold for the payment of debts shall be obtained, the heirs or devisees of the intestate or testator, or any of them, may appear before the said court at the time fixed for '^Orphans' Court Act, sec. 82. 1 "Orphans' Court Act, sec. 82. 3 3 Comp. Stat., 3840. Comp. Stat., 3840. i-'^Bray v. Neill, 21 N. J. Kq., isRobison v. Funnan, 47 N. J. 343- Eq., 307. i^Robison v. Furman, 47 N. J. i^Robison v. Furman, 47 N. J. Eq., 307. Eq., 307. Sale of Lands for Payment of Debts. 475 hearing, and enter into bond to the executor or administrator in such sum and with such sureties as the court shall approve, conditioned for the payment to the said executor or adminis- trator of so much money as may be required to pay the residue of the debts of the testator or intestate and the just expenses and allowances for the settlement of the estate which shall remain after the personal estate shall be applied thereto, and to indemnify and save harmless the said executor or adminis- trator, from any damages or costs which he may individually be lawfully subjected to by reason of the delay ; and thereuipon the hearing of the said rule to show cause and all proceedings thereunder shall stand adjourned until the amount of such deficiency shall be ascertained ; and if such heir or devisee on demand made of such heir or devisee or of his sureties on the said bond, shall refuse or neglect to pay to the executor, or administrator the monies required to pay the residue of the debts, expenses and allowances as aforesaid, the said orphans' court shall order the said bond to be prosecuted in any court of competent jurisdiction, or proceed to make such order for the sale of the lands and real estate whereof the testator or intestate died seized, as might have been made if the said bond had not been given.-" Practice on Prosecution of Bond. Where the heirs of an intestate, or the heirs or devisees of a testator, shall have given bond to the executor or adminis- trator, with the approval of the court, upon the return of the rule to show cause for the sale of lands for the payment of debts, the court shall, before making any order for the prosecu- tion of the bond or for the sale of the lands, require proof of the service of a notice upon such heirs or devisees and their sureties, if they be still living and resident in this state, or, if dead, on their executors or administrators, if any they have in this state, of the intended ap])lication for such order.-' Judgment in Suit on Bond — Disposition of Proceeds, In any suit U])on an}- bond which shall be given under t.he last preceding section, if judgment shall be recovered by the ^''Orphans' Court Act, sec. 89. ^lOrphans' Court Rule 31.' .? Cnmp. St;it.. 3H44. '■ ' 476 Probate Law and Practice. plaintiff, such judgment shall be for the penalty of the bond, together with costs of suit, and the sheriff or other officer to whom the execution thereon shall be issued, shall make the amount thereof out of the property of the defendants as in other cases, and shall pay the same into the orphans' court having jurisdiction over the accounts of such executor or administrator, and the said court shall apply the same, or so much thereof as may be needed, towards the payment of the residue of the debts, expenses and allowances aforesaid, which shall remain unpaid after the personal estate in the hands of the executor or administrator has been applied thereto, and the costs and damages of the executor or administrator, indi- vidually sustained as aforesaid ; and the surplus, if any, shall be repaid to the defendants from whom such judgment was collected. ^- HEARING. Proceedings at Hearing. The said orphans' court shall at the time and place mentioned in said order, or at such other time and place as they may then appoint, hear and examine the allegations and proofs of the said executor or administrator and other persons interested ; and if, on full examination, the said court shall find that the personal estate of the said testator or intestate is not sufiicient to pay his debts, the said court may order the executor or administrator to se,ll the whole, if necessary, of the lands, tenements, hereditaments and real estate of the said testator or intestate, for the payment of his debts, or so much thereof as will be sufficient for that ])urpose : and when a part only of the said lands, tenements, hereditaments and real estate is sufficient, such order shall specify the part to be sold ; and no more of the said lands, tenements, hereditaments and real estate shall be sold than may be necessary to pay the residue of the said debts after the executor or administrator shall have applied the personal estate, or such part thereof as may have come to his hands, towards the payment thereof ; provided '^Orphans' Court Act, sec. 90. 3, Comp. Stat., 3844. Sale of Lands for Payment of Debts. 477 always, that where any houses and lots and lands are so circum- stanced that a part thereof cannot be sold without manifest prejudice to the heirs or devisees, the said court may, in its discretion, order the whole or a greater part than is necessary to pay such debts to be sold ; if the land lies in more than one county, the court in such order or decree sh^ll further direct the executor or administrator to apply to the orphans' court of any other count}- wherein land of such testator or intestate is situate for an order to sell said land or parcels thereof lying in such other county, which order shall specify the particular lots to be sold and the county wherein they sev- erally lie.-'* Testimony Taken. Upon the return of a rule to show cause why lands should not be sold for the payment of debts, the statute provides that the court shall "hear and determine the allegations and proofs of the executor or administrator and other persons inter- ested ;" and the practice is to take oral testimony in open court to prove all of the allegations contained in the petition and account. Usually the testimony of the executor or adminis- trator is sufficient, but this should be supplemented by the testimony of other persons, when necessary. Court May Determine Validity of Claims. Upon application being made to the prerogative court, or any orphans' court, for an order to sell lands for the payment of debts of any decedent, the court shall have jurisdiction to consider and determine the validity of any claim or debt in- cluded by the applicant in the schedule or statement of the debts of any such decedent : and the determination and decree of said court shall be conclusive in such proceeding for sale of lands, but not otherwise; pro\i(led, objection in writing is filed by the executor or administrator of the deceased or by any person interested in said lands to the validity of any such claim or debt and the claimant has had ten days' notice of the filing of such objection; and provided further, if any -^Orphans' Court Act, sec. 83. 3 Comp. Stat.. 3841. 478 Probate Law and Practick. claim or debt be disallowed in such proceeding and a judg- ment be thereafter obtained thereon in any court of competent jurisdiction, the same shall thereafter be duly allowed and received.-^ Prior to the enactment of this statute, it was held that the orphans' court had no power, except in cases of insolvent estates of decedents, to settle disputed claims against the estate, to determine who are creditors and who are not, or to adjust the amount due to- such as are.^^ Claim Disputed by Co-Executor. The orphans' court has no power to allow one executor the amount of a debt which he insists is due him from the testator's estate, or of a fee which he claims to have paid counsel for advice in regard to the estate, if his co-executor dispute their payment.'^® Court May Not Try Title to Lands. The orphans' court cannot try title to lands, under proceed- ings for sale thereof for payment of debts, ^^ and neither an order for sale, nor a sale under it, will destroy or disturb previous conveyances legally made ;-^ but while the court may not pass upon the question of title as between a decedent and a person claiming against him, yet it may ascertain of what real estate the decedent died seized, so fa*r as necessary to enable it to indicate in the order what the administrator is ordered to sell.-^ '*P. L. 1910, p. 517. 3 Comp. ^f'Middleton v. Aliddleton, 35 N. Stat., 3842, sec. 83a. J. Eq., 115. See also "Actions 25Miller v. Pettit, 16 N. J. L., between Co-Executors," p. 421, in- 421. Vreeland v. Vreeland, 16 N. fra. J. Eq., 512. Smith v. Smith, 27 27Li(](jei y McVickar, 11 N. J. N. J. Eq., 445. Middleton v. Mid- L., 44. Swackhamer v. Kline, 25 dleton, 35 N. J. Eq., 115. Part- N. J. Eq., 503. ridge v. Partridge, 46 N. J. Eq., -*Liddel v. McVickar, 11 N. 434. Affirmed, 47 N. J. Eq., 601. J. L., 44. In re Pitcher, 61 N. J. Eq.," 614. -^Rohison v. Furman, 47 N. J. Doll V. Cash, 61 N. J. Eq., 108. Eq., 307. Godfrey's Case, 72 N. J. Eq.. 351. Sai.k of Lands for I'avment of Debts. 479 Adjournment of Hearing. Though section 83 of the Orphans' Court Act,^° provides that at the time and place mentioned for the hearing of the rule, or at such other time and place as the court may then appoint, it shall hear and adjudicate upon the matter, it cannot be reasonably insisted that it was the intention of the legislature to confine the power of postponement to a' single adjourn- ment, according to the literal terms of the act. The intention was to provide that at the time tixed in the rule, or at such time thereafter as should be fixed by adjournment, whether one or more, the hearing should take place ; but an order for adjournment may, on due notice, be revoked, and the hearing brought on.^^ When a rule to show cause is on its return day continued by the court to a later date, in order that it may be served on other parties, the latter date becomes its return day.'- JURISDICTION OF CHANCERY. Jurisdiction to Order Sale of Lands for Payment of Debts. It has been held that a creditor with an established claim against an estate may come into a court of equity against an executor for discovery, or distribution of assets, and that be may have a bill against heirs and devisees to subject real estate decended and devised, there being a deficiency of personal assets, to the payment of decedent's debts f^ but this doctrine was criticized in Dodd v. L'mdsley.^* Where a bill sought to subject real estate, which decedent's will ordered to be con- verted into money by the executors and distributed to legatees, to the payment of its proper proportion of the complainant's claim, and also alleged that the executors were intent on pre- venting recovery by complainants, it was held that it is fully established that such a suit is within the jurisdiction of the Court of Chancery, even though complainant's claim may not 5°Page 476. supra. •''••Houston v. Levy, 44 N. J. Kq.. ^'Parker v. Reynolds, 32 N. J. 6. '^-q- 290. ■■■'■.7 N. T. F.q.. 334, at p. ^T^y. 32Robison \-. Furman. 47 N. J. i-q.. 307. 32 4801 Pkouate Law and Practice. be establislied at law ;"^ but a creditor ;who bas failed t^pffe'sbnt his.daim to the executors within the time limited biy the orphans' court cannot apply to the Court of Chancery to have cert^jijti bequests and devises subjected to his claim, it; appear- ing ip his bill that on final settlement there was a large residue left in the hands of the executors ;^** and on a bill in. equity brought against the administrator and the heir-at-law, for the sole benefit of a single creditor of the estate, whpge claim has not been admitted by the administrator, nor established against him by judgment or decree, the court has no j)ower to render a decree against the heirs charging the debt on the lands, or directing the sale thereof for its payment."' PROCEEDINGS WHERE LANDS LIE IN DIFFERENT COUNTIES. Proceedings in Case Lands Lie in Two Counties. A sale and conveyance made under an order of the orphans' court of the county in which letters of administration were grai^ted, and confirmed by said court, will not pass title to the intestate's lands situate in another county. The proceedings provided for in the statute must be strictly complied with.^* Statutory Provisions. The proper practice, where lands lie in two counties, is to include in the petition, order to show cause, and order for sale, all of the lands of decedent, irrespective as to the county in which they may lie ; and the statute provides that the orphans' coiirt of any county of this state, upon the production of a certified copy of such an order, directing the sale of lands lying therein, shall order the sale and conveyance of said lands and real jiroperty in pursuance of the original order."'' 3''Dodson V. Sevars. 52 N. J. ^spjopkins v. Meir, 19 Atl. Rep.. Eq., 611. Affirmed. 53 N. J. Eq., 264. See Orphans' Court Act. sees. 347- 84. 86, and 92. 3 Comp. Stat., pp. aepodson v. Sevars. 53 N. J. Eq.. 384^'. 3843. and 3S45. tliis p^ge and 347. 1). 481. infra. s^Edwards v. McClave. 55 N. J. '"Orphans' Court Act, sec! 84; Hq., 151. 3 Comp. Stat.. 3842. Sale of Lands for Payment of Debts. 48^1 Further Proceedings in Case Lands Lie in Two Counties.. - When sale of any land has been made in pursuance of sec- tion eighty-four,*" an authenticated copy of the report of sale, and the order confirming such sale, shall be recorded and filed in the office of the surrogate of the county where the will was pro\ed or administration was granted, and the executor or administrator shall account for the proceeds of said sale or sales to the orphans' court making the original order.*' Proceedings Where Lands Lie in More Than One County and are Contiguous. Wlien any executor or administrator has been ordered to- make sale of lands for payment of debts, and the lands to be sold are contiguous and situate in more than one county, and are so situated that, in the judgment of such executor or administrator, the same should be sold together and in one parcel or in several parcels, some, or all, of which may com- prise as one parcel contiguous lands situate in more than one county, such executor or administrator may, in the exercise of his discretion, make sale of such lands as one parcel, or in several parcels, some or all of which may comprise as one parcel contiguous lands situate in more than one county ; and after such sale or sales report the same to the orphans' courts of the respective counties in which said lands lie for approval and confirmation ; and, if the sale be approved, the same shall be confirmed, and the said administrator or administrators, executor or executors, and the survivor or survivors of them, shall execute and deliver conveyances to the purchaser or jjurchasers for the lands so sold, upon compliance with the conditions of sale.*- Form of Application. Where application for the sale of lands to pay debts shall be made to the orphans' court of any county other than the county in which letters of administrator or prol)ate of the will shall have been granted, the executor or administrator ■•"Page 480, supra. •'-Ori)hans' Court Act. sec. 92"; *' Orphans' Court Act, sec. 86; 3 Comp. Stat., 3845. 3 Comp. Stat., 3843. 482 Probate Law and Practice. making such application shall present to the said orphans' court a certified copy of the will and of the letters testamentary issued thereon, or of the letters of administration, as the case may require, and also a certified copy of the inventory of the personal estate of the testator or intestate ; which copy of letters testamentary and will and inventory, or of letters of administration and inventory, shall be filed by the surrogate of the county in which such application is made. ^" WHEN LANDS WILL BE ORDERED SOLD. Personalty Must First be Exhausted. ''-»"af5f Before an orphans' court may make an order for the sale of lands of a. testator to pay debts which his personal estate is insufficient to pay, the executor who seeks the order must have applied all the personal estate to their payment, including specific legacies. It is true that the rule is that for debts of ■a. testator remaining undischarged, after the application of his estate not specifically given, in the absence of lands not specific- ally devised specific legacies and lands specifically devised must contribute ratably."** Lands will not be ordered sold to pay debts, where it appears that sufficient personalty came to the hands of the executors to enable them to make such payment; and the personalty will not be exonerated from this primary liability merely because the testator has evinced a purpose to charge his debts upon his real estate, unless he has clearly indicated an intention to discharge his personalty therefrom ;*^ but to obtain an order for ^ale, it is not necessary that all the personal estate should be collected and applied in payment of debts, but only that it, should be ascertained by the court upon examination that the personal estate is insufficient, and that so much thereof as has come to the hands of the executor or administrator has been applied.*" ^"■Orphans' Court Rule 30. <''Ford v. West'ervelt, 55 N. J. **Thomas v. Thomas, 17 N. J. Eq., 485; and see "Assets from Eq., 356. Langsiroth v. Golding, Which Debts Are to Be Paid," 41 N. J. Eq., 49. Wiggins v. Wig- p. 545. infra. gins, 65 N. J. Eq., 417, and see ^^gtate v. Conover, 9 N. J. L., ■"Lands Devised," page 486, infra. ,^,18-342. Stiers v. Stiers, 20 N. J. L.. 52. Sale of Lands for Payment of Debts. 483 The jurisdiction of the orphans' court to order a sale of lands to pay debts does not invest that court with power to determine and enforce the equities of contribution between the devisees and legatees of a specific bequest. By the statute, lands are to be sold only for debts remaining undischarged after the application of the personal estate. If a specific legacy is thereby exhausted, the legatee may doubtless enforce his equity to require the devisees to aid in repairing his loss by making payment of their proper contribution thereto.^' Where Estate is Insolvent. In Godfrey's Casc*^, it was held that, when an application is made to an orphans' court for an order directing an adminis- trator to sell lands of his intestate for the payment of debts, and upon the return of the rule to show cause thereon it appears that the personal and real estate of intestate are and are known to the administrator to be insufficient to satisfy the debts claimed, the orphans' court should decline to make the order of sale, because the application should have been made under the section of the act relating to insolvent estates. The de- cision of this case was based upon the well settled rule that, except in the case of an insolvent estate, the heir at law is powerless to contest any claim reported by the administrator, except by giving a bond with security under the provisions "Chiswell V. Morris, 14 N. J. Langlilin, 22 N. J. Eq.. 505. l-'.q.. lOI. Sale of Lands for Pay.ment of Debts. 495 children can have no claim to any portion of the proceeds of the sale.'*^ ' ■ • Where lands subject to curtesy are sold free of such curtfifsy, the interest on the proceeds will belong to the tenant by cui^tesy during life.''* Investment of Proceeds. Where a portion of the money arising from the sale of lands in which the widow has a right of dower is put out by com- missioners on bond, the bond should be taken in the name of the commissioners, and not of the widow f-' but when the money arises from a sale made by an officer of the Court of Chancery the mortgage is made to the Chancellor.''^' Proceedings Where Executor or Administrator Has Died After Order for Sale Made. Where the orphans' court of any county of this state has made or shall make an order for the sale of lands for the pay- ment of debts and tlie executor or administrator to whom such order is directed, or in whose name the application may be pending, has died, shall die or be removed before such sale is made, the said court shall have power upon the application of the substituted administrator or administrators, and upon giving bond in the manner and form prescribed by law, to direct the substituted administrator or administrators to make sale of said land at public or private sale in the same manner as if the rule to show cause and other prior proceedings had been in his or their names. ^' Proceedings When Executor or Administrator. Dies After Confirmation of Sale and Before Deed Delivered. Where any sole or surviving executor or administrator, who hath heretofore sold, or may hereafter sell any lands or real estate for the payment of debts of his testator or intestate, by ■•-Mulford V. Hiers, 13 N. J. N. J. L., 60. Sliotwell v. Dalrym- Eq., 13. McLaughlin v. McLaugh- pie, 49 N. J. L., 530-536. lin. 22 N. J. Eq., 505. ""Sholwell v. Dalrymple, 49 N. ^^Jacques v. Ennis. 25 N. J. Eq., J. L., 530-536. 402. !'"!'. I,. 1904, p. 93. 3 Comp. "^In re Elizaljeili Stevenson, 10 Stat., p. 3848. sec. 98a. 33 496 Probate Law and Practice. virtue of an order of any orphans' court, shall have died or may hereafter die, after such sale has been confirmed by said court, and before the delivery of the deed or deeds for the said lands or real estate, to the purchaser or purchasers, and said lands or real estate, have not been heretofore resold, the said court at any term shall, on the application of any one interested in the sale of said real estate, by rule of court, direct the administrator or administrators de bonis non of such testator or intestate or the survivor or survivors of them, to execute good and sufficient conveyances in the law to said purchaser or purchasers, for the tracts or tract of land or real estate so sold ; and it shall be the duty of the said court, before grant- ing such rule, to take of such administrator or administrators de bonis non, a bond, with sufficient sureties, the same in et^ect as is required to be given by any executor or administrator who may be ordered to sell land, or real estate."^ Proceedings in Case of Death of Purchaser After Sale. When any purchaser of real estate at any commissioners', executors', administrators' or guardians' sale shall die, after such sale has been made and the conditions thereof subscribed and agreed to, but before the same has been confirmed by the court, or after such sale has been confirmed and before the deed for such real estate has been delivered, or having been delivered has been lost or mislaid and is not of record in the office of the county clerk or register of the county in which such real estate is situated, it shall and may be lawful for such com- missioners, executors, administrators or guardians (such sale being confirmed by the court) to execute and deli\er to the heirs or devisees or assigns of the purchaser or present owner of said real estate a deed for the real estate so sold, subject to any conditions, restrictions or reservations contained in the order of the court, if any there be, directing the making of such deed, which deed, when delivered to the heirs of a purchaser dying intestate, or to the devisee or devisees of a purchaser leaving a will, who by said will would be entitled thereto, or to such person or persons as may be entitled thereto because of the absolute conveyance of said real estate l^y said purchaser "*4 Comp. Stat., p. 4680, sec. 17. Sale of Lands for Payment of Debts. 497 by a good and sufficient deed recorded in tlie office of the clerk or register of the county in which said real estate is situated, shall have the same force and effect as if made, executed and delivered to the purchaser when living, provided the said heirs or devisees shall perform the conditions of sale subscribed and agreed to by the purchaser ; provided, hoivever, that no deed so made shall be to the prejudice of any rights in, privileges to, liens or encumbrances upon or affecting said real estate or any part thereof, if any there be, at or before the time of delivery of such deed ; further provided, that where such commissioners, executors, administrators or guardians shall have died subse- quently to the sale of real estate in virtue of an order of the court and said sale shall have been approved of by the court, and the purchase price paid by the purchaser and deed ordered by the court to be executed to the purchaser, the said court may, upon the application and satisfactory proofs of any person or persons interested in said real estate, appoint an adminis- trator, substitutionary or otherwise, to make, execute and deliver the deed as aforesaid ; and it shall be the duty of the said court before granting such order to take of such adminis- trator a bond, with sufficient sureties, with condition or con- ditions as may be agreeable to the court.^** Proceedings When Purchaser Refuses to Comply With Conditions of Sale. When any purchaser of real estate at any commissioners,' executors', administrators' or guardians' sale shall, after such sale has been made, and the conditions thereof subscribed and agreed to, and the same has l^een confirmed by the court, or after such sale has been confirmed and before the deed for such sale of real estate has ])een delivered to the purchaser, refuse or neglect to comply with any of the conditions of such sale, including the receiving of the deed and the payment of all the consideration money, it shall be lawful for any such com- missioners, executors, administrators or guardians, to apply to the court making the order of sale, or making the order of confirmation of sale, as the case may be, by petition, and the 8°4 Comp. Stat., p. 4683, sec. 21, as amenrlcfl by P. I.. 1915, p. 151. 498 Probate Law and Practice. said court is hereby authorized to set aside such contirmation of sale or sales, and further order such commissioners, executors, administrators or guardians, as the case may be, to make re-sale of the said real estate ; provided, nevertheless, that such order or orders of re-sale shall not in any way relieve the' first pur- chaser from liability to make good and pay any deficiency or reduction of price, and interest, cost and expenses incurred in or resulting from making a re-sale of such real estate imder this act.^ » Validity of Order.. In making orders, for the sale of lands of decedents for the payment of debts, the orphans' court exercises a jurisdiction which, though limited, is not special. Its orders and decrees upon all subjects within the scope of its jurisdiction are entitled to every presumption in favor of their regularity that the judgments of the Supreme Court are entitled to. and infirmities in the proceedings of the orphans' court are not available in a collateral proceeding.- The court will be presumed to have passed upon all those matters the existence of which was neces- sary in order to authorize the making of such order.^ If there be irregularities or infirmities in the proceeding by which the court exercises its jurisdiction, the order of sale may be set aside in a direct proceeding for review : but the conveyances made by the executor in pursuance of the order of sale cannot be called in question or set aside in a collateral proceeding.^ Where, however, a proceeding instituted in behalf of decedent's widow for sale of his real estate for the ])ayment of debts is founded upon false claims, fraudulently made for the purpose of procuring the sale of such lands, a sale made thereunder to one purchasing with notice of the fraud is. as between the heir M Comp. Stat., p. 4685, sec. 27. •"•Clark v. Costcllo, 59 N. J. L.. -Hohokus V. Erie Railroad Co., 234. As to validity of decree of 65 N. J. L., 353. Van Kleek v. orphans' court in general, see O'Hanlon, 21 N. J. L., 582. Run- "Validity of Decree." p. 48. supra, yon V. Newark India Rubber Co., *Hohokus v. Erie Railroad Co., 24 N. J. L., 467. Clark V. Cos- 65 N. J. L.. 353. tello, 59 N. J. L., 234. Sale of Lands for Payment of Debts. 4'^j at law and the purchaser, void; but not so as agahist a bona fide purchaser, without notice." While the orphans' court has general jurisdiction of the sale of lands of decedents to pay their debts, it can exercise that jurisdiction in a particular case only upon application in writing made by a personal representative of the decedent, and statu- tory notice given to the heirs at law, or devisees ; and an order of sale not based upon such acquisition of jurisdiction would be void. A purchaser of real estate under such order of sale is bound to observe whether or not there has been such an appli- cation, but he is not bound to take notice of any indications of fraud apparent upon the face of the application.'' So if the day to show cause is one day less than two months from the date of the rule, even by one day, the order to sell is erroneous, and must be set aside on appeal ; and as this rule is the proceeding by which jurisdiction is acquired, this defect appearing on the record would avoid the proceeding collaterally.' Court May Make Second Order. The court may make a second order for sale of real estate when the part directed to be sold by the first order proves insufficient for the payment of the debts. ^ Time Limit Within Which Order May Be Made. No time is limited by the statute within which an order for sale is to be made. A discretion is confided to the orphans' court, and each case must in some measure depend upon its own circumstances." Effect of Order. The order to sell lands to pay debts is not such an adjudi- cation in favor of a creditor whose debt is included therein as prevents the administrator's setting up the statute of limitations in an action against him for the debt.'" •"•Lawson V. Acton, 57 N. J. sLiddel v. McVickar, 11 N. J. Eq., 107. L., 44. «Lawson V. .Acton. 57 N. J. Hq., -'Liddel v. McN'ickar. 11 N. J. '07. L.. 44. 'Bray v. Neill, 21 N. J. Eq., '"Everitt v. Williams, 45 N. J. 343- ' ■ L., 140. 5op Probate; Law and Practice. SALE OF LANDS FREE FROM MORTGAGE. When Court May Order. Whenever any mortgagee or holder of an\ mortgage upon, the real estate of any testator or intestate shall file a claim upon the debt secured by said mortgage with the executor or administrator of said testator or intestate, and it shall appear to the orphans" court to be necessary to sell the lands and premises encumbered by said mortgage, for the payment of the debts of said testator or intestate, the said court shall have power to order the said lands and premises sold free and clear of the encumbrance of said mortgage; provided, the said court shall, at the time of making the order to sell, also order that the moneys arising from such sale be first applied to the pay- ment of the said mortgage debt, and the balance, after paying the same, to be assets in the hands of said executor or adminis- trator.^^ Form of Order For Sale. A general order to sell lands of the intestate encumbered by mortgages, for which claims have been filed with the adminis- trator, is insufficient to authorize a sale free from the mortgage ; but where mortgagees had filed their claims with the adminis- trator, and a general order for the sale of lands was made, and the purchasers either had no knowledge of the mortgages, or understood that the sale was free from them, and the price realized from the land was adequate, regarding the property as unencumbered, and the proceeds were first applied to the pay- ment of the mortgages, it was held that the order of sale should be amended nunc pro tunc so as to authorize a sale free from encumbrances. ^- Payment of Mortgage in Case Proceeds of Sale Are Insuffi- cient to Pay Mortgage Debts. Where the proceeds of said sale shall be insufficient to pay the said mortgage debt in full, the said mortgagee or holder of the mortgage shall be entitled to be paid out of the other assets "Orphans' Court Act, sec. 87. ^aVoorhees' Case. 57 N. J. Eq., ,3 Comp. Stat., 3843. 291. Sale of Lands for Payment of Debts. 501 in the hands of said executor or administrator tlie balance onl\- of his claim /to rata with the other creditors/^ Proceedings Where Court Does Not Make Order Con- cerning Payment of Mortgage Debt. Whenever any mortgagee or holder of any mortgage upon the real estate of any testator or intestate has heretofore filed a claim upon the debt secured by said mortgage with the exe- cutor or administrator of said testator or intestate, and the orphans' court has heretofore ordered the lands and premises covered by said mortgage to be sold free and clear of the en- cumbrance of said mortgage without at the same time ordering that the moneys arising from such sale should be first applied to the payment of the said mortgage debt, and the said lands and premises have actually been heretofore sold under said order, then and in any such case it shall be lawful for the said orphans' court, at any time before the distribution of the pro- ceeds of said sale, to make an order that the money received from such sale shall be first applied to the payment of the said mortgage debt, and the balance, after paying the same, to be assets in the hands of said executor or administrator, pro- vided the holder of the mortgage, upon receiving payment of such mortgage debt in pursuance of such sale, shall forthwith procure the said mortgage to be cancelled of record.'* APPEAL FROM ORDER FOR SALE OF LANDS. Who May Appeal. Only those aggrieved by an order for sale of lands have the right to appeal from such order, a party aggrieved being one whose pecuniary interest is directly affected by the decree, or whose right of property may be established or divested there- by. ^'^ A party having no interest in or claim upon the estate in lands ordered to be sold for the payment of debts, but setting up a claim thereto by title paramount, is not entitled to appeal from the order of sale. So a person claiming that he and not ^'Orphans' Court Act, sec. 88. 3 '•'•Swackhamer v. Kline, 25 N. J. Comp. Stat.. 3843- Eq- 503- '♦P. L. 1900, p. 305. 3 Comp. Stat., p. 3843, sec. 88a. 502 " tPROBATiE LyAW AND PRACTICE. the intestate was the owner of lands ordered sold by the or- phans' court for payment of debts upon the appHcation of an administrator is not a party in interest, and is not entitled to appeal from such order.' The conveyance which the adminis- trator is authorized to make in pursuance of the sale authorized by the orphans' court will pass only the estate, if any, the intestate had in the property at the time of his death, if the order was made within a year therefrom, or, if it was not obtained within that time, then the estate, if any, which his heirs had in it when the order was made; no right or title of the claimant can therefore be affected in any degree by the salCj and he is not "interested in the lands, tenements, heredita- ments and real estate of which the intestate died seized."^" Since the pecuniary interest of a devisee is affected by a dis- advantageous sale of the property by an administrator, ap- proved b}' the orphans' court, he is aggrieved l)y the order of sale, and therefore the Prerogative Court has jurisdiction to review the same ;^^ but general creditors of an estate are not aggrieved, and have no right to appeal.^** SECURITY REQUIRED OF EXECUTOR OR ADMINIS- TRATOR ORDERED TO SELL LANDS. Executor or Administrator to Give Bond. When any orphans' court in this state shall order any execu- tor or administrator to sell any lands, tenements, heredita- ments or real estate of any testator or intestate, the said court shall take of the executor or administrator applying for such an order a bond, with two or more sufffcient sureties to the ordinarj^-of the state and his successors, in a penalty double the aniovmt of the estimated value of the lands, tenements, hereditaments, or real estate ordered to be sold, with condition in form and manner following:^" ^«SWackhamer v. Kline, 25 N. ^^Parker v. Reynolds, 32 N. J. J. Eq., 503. Eq., 290. '^In re Devine, 62 N. J. Eq., ^^Orphans' Court Act, sec. 91. 703. 3 Comp. Stat., 3844. Sale of Lands for Payment of Debts. 503 Condition of Bond. The statute prescribes that a bond given by an executor or administrator ordered to sell lands for the payment of debts shall contain the following condition : The condition of this obligation is such that if the above- bounden A. B., executor of the last will and testament of C. D., deceased (or administrator of all and singular of the goods, chattels and credits of C. D., deceased, as the case may be), shall well and truly administer the moneys arising from the sales of any lands, tenements or real estate of the said C. D.. directed by the order of the orphans' court of the county of M. to be sold according to law ; and further do make or cause to be made, a just and true account of his administration, with- in twelve months from the date of the above obligation, and the surplus of money which shall be found remaining upon the account of such sale or sales, (the same being first ex- amined and allowed by the orphans' court of the county, or other competent authority), shall distribute and pay unto such person or persons respectively, as is, are, or shall be by law entitled to receive the same, then the above obligation to be void and of none efifect, otherwise to be and remain in full force and virtue ; and no further bond shall be required by the orphans' court of any other county in which land is situate.^" Necessity For Bond. An executor or administrator ordered to sell lands of his decedent is required to give bond, even though he has already given security as such executor or administrator in a sum sufficient to cover the proceeds of the sale. The bond given on the grant of administration, or of letters testamentary, is only for the faithful administration of the personal estate of decedent, and the sureties thereon cannot be held for failure to administer the proceeds of the sale of his real estate.-' Breaches. When by the conditions of the bond the executor or ad- ministrator is required to render a just and true account con- 20Orphans' Court Act, sec. gi. -'Camden Mutual Life Insur- 3 Comp. Stat., 3844. ancc Assn. v. Jones, 23 N. J. F.q., 171. 504 Probate Law and Practice. ceining the sale, an assignment of a breach of such condition that he had not rendered a just and true account of his adminis- tration of the moneys arising from the sale is bad on de- murrer.-- Sureties are not liable for the proceeds of the sale of lands other than those mentioned in the order of the orphans' court.-^ Executor or Administrator Refusing to Give Security May Be Removed. Where the orphans' court has made an order for sale undet the provisions of this act, either on the application of the executor or administrator, or of a creditor or creditors, if the executor or administrator shall, at the term mentioned in the said order, neglect or refuse to give bond with sureties, as aforesaid, the said court shall forthwith revoke the letters testamentary or letters of administration of such executor or administrator, and thereupon the surrogate shall grant letters (^f administration or letters testamentary with the will annexed, to such person or persons having right thereto, as will give bond in manner and form aforesaid ; and the order for the sale of lands shall be made in the name of such administrator so appointed, who shall be empowered to proceed with such sale as if the rule to show cause and other prior proceedings had been in his name.-* JURISDICTION OF CHANCERY TO RESTRAIN SALE. In General. A court of equity may restrain an executor from prosecuting proceedings to sell lands for the payment of claims he knows to be fictitious, or without merit. "^ So where the heir is an infant, and it is doubtful whether some of the debts to pay which the lands are about to be sold, are really debts of the decedent, chancery will restrain the sale ;-*' but chancery will --Ordinary v. Cooley, 30 N. J. --'First Baptist Church v. Syms, L., 179. 51 N. J. Eq.. 363. Reversed, 52 23Given's Case. 34 N. J. Eq., N. J. Eq.. 545. 191. -''Doll V. Cash, 61 N. J. Eq., -♦Orphans' Court Act, sec. 98. 108. 3 Comp. Stat., 3848. Sale of Lands for Payment of Debts. 505 not restrain a sale on the ground that the description of the lands to be sold in the advertisements of sale is uncertain.-^ JURISDICTION OF CHANCERY TO ENFORCE SALE. CONTRACT FOR SALE. In General. The Court of Chancery- will not decree specific performatice of an agreement to sell lands made by an administrator under an order of sale of the orphans' court, if the sale has not been confirmed by the court ordering it to be made, as a decree for specific performance in such case would be inefficient and un- enforceable ; but where an administrator has obtained an order from the orphans' court to sell the lands of his decedent for the payment of debts, and the proceedings for sale were regular and the sale has been confirmed by the orphans' court, the administrator's contract to sell the lands may be specifically enforced by the Court of Chancery.-^ SALE OF LANDS PURSUANT TO ORDER. Nature of Sale. A sale of lands to pay decedent's debts, made under an order of the orphans' court, is a judicial sale, and all of the rules concerning judicial sales apply.-'' Lands May Be Sold at Public or Private Sale. Where any sale of lands, tenements, hereditaments or real estate shall be ordered by the orphans' court of any county of this state, the officer or officers, person or persons authorized, or directed, by said court to make such sale, may, unless other- wise provided in the order of sale, make sale of such lands, tenements, hereditaments or real estate, at public or private sale, in his, her or their discretion, and on such terms as such officer or officers, person or persons may deem to be most advantageous to the parties concerned therein ; provided, how- ever, that no sale of lands, tenements, hereditaments or real =7Parker v. Allen, 4 At!. Rep., -sPodesta v. Binns. 69 N. J. Eq.. 300. 387. -^Campbell v. Hough, 72, N. J. F.q., 601. 5o6 Probate Law and Practice. estate, so made at private sale shall be valid until such sale shall have been confirmed by the court upon a report of the terms thereof and proof before the court by affidavit or otherwise that the price obtained at such private sale was a fair price, and that said sale not injurious to the interests of the parties con- cerned therein.^" Advertisement of Sale. In all cases whatsoever where any sheritt, coroner, master in chancery, executor, administrator, guardian, commissioners, auditors or other officers or persons, is now or hereafter shall be authorized or required by any public statute, or the direc- tion of any court of competent jurisdiction in this state, to make sale of any lands, tenements or hereditaments or real estate, such officer or officers, person or persons, unless. special- ly .directed by law, shall give notice by public advertisement signed by himself, herself or themselves, and set up at five or more public places in the county, one whereof shall be in the township, ward or city where such real estate is situate, of the time and place of such sale at least three weeks next before the time so appointed, and shall also cause tlie same to be published four times in two newspapers to be designated by such officer or officers, person or persons, printed and published in the county in which the lands are situate, of which one shall be either a newspaper printed and published at the county seat of said county or a newspaper printed and pub- lislied in the municipality in sai^ county having the largest population by the last preceding federal or state census, at least once a week, during four consecutive calendar weeks, the last publication to be not more than seven days prior to the time appointed for selling the same ; and at the time and place so appointed, between the hours of twelve and five in the afternoon, such officer or officers, person or persons, shall sell the same at public vendue to the highest bidder.^^ Publication of Advertisement. The time of sale mentioned in the foregoing act relative to the sale of lands is referable to a day, that is, the day of sale. 304 Comp. Stat, p. 4686, sec. 31. sip ^ 1912, p. 131. Sale of Lands for Pav.mf.nt of Debts. 507 Therefore it is as though the act read, that the last pablication of the' notice of sale is to be not more than seven days prior to the day appointed for selling;' and the last advertisement nuist be made in two newspapers published and circulated not later than the calendar day next preceding the day appointed for selling the same: and a sate made on the day of theUast publication 6i the notice is invalid, and will be set aside, if that publication is to be relied upon as one of the advertisements required by law.^- Where the time appointed for an administrator's sale was the tenth day of February, and the last insertion of the notice of sale m one of the newspapers selected for its publication was on the second day of February, it was held that the sale was illegal because of the non-compliance with the requirement of the statute providing that the notice shall be published four weeks successively once a week next preceding the time ap- pointed for the sale.'" _, Publication of Advertisement in German New^spaper. Hereafter one of the newspapers required to be designated bv the act to which this is a supplement, for the publication of advertisements of sales and of adjournments thereof may be printed and published in the German language : or the officer having charge of any sale of real estate, may, in addition to the publication required by the act to which this is a further supple- ment, select a newspaper printed in the German language, circulating in the neighborhood of the property to be sold, whenever the sale, in his opinion, will be promoted by the publication of the advertisement thereof in said newspaper.^* Notice of an administrator's sale by virtue of an order of an orphans" court, for the payment of debts, published in a German newspaper, must be in the English language.""^ Adjournment of Sales. Executors and administrators selling lands under any order of the orphans' court may adjourn the sale from time to time not exceeding two month*^ in the whole.''' •'■^Trenton Trust. &c.. Co. v. ■•<4 Com]). Stat., p. 4672, soc. 2a. Fitzgihhiii. &c., Co.. 81 N. J. Eq.. i. ^.-.Tappan v. Dayton. 51 N! J. '••'■•Tappan v. Dayton. 51 N. T. F.q., 260. Kq.. 260. ■'"4 Comp. Stat., p. 4673. sec. 4. 5o8 Probate Law and Practice. Jtxecutors and administrators selling lands under any order of the orphans' court may adjourn the sale from time to time at his and their discretion unless the court making said order therein, or by some subsequent order, limit the time within which such sale shall be made, in which case sale shall be made within the time so fixed and limited or within such further time to which the same may be extended by other order of said court. ^^ When Publication of Adjournment Necessary. If any sale of lands made under the directions of this act be adjourned for more than one week, notice of such adjourn- ment, which need only consist of a statement of the parties to the cause and the time and place of such adjournment, shall be published once within one week after the date of such ad- journment in the same two newspapers in which the original notice of sale was published, for the publication of which notice of adjournment not more than five dollars shall be allowed in any case as against the defendant in execution, and in publishing any adjournment it shall not be necessary to con- tinue the publication of the original advertisement of sale.^* Sale Heretofore Made Not Invalidated by Adjournment. No sale of lands heretofore made by executors or adminis- trators under any order of the orphans' court shall be invali- dated by reason of such sale having been adjourned for a time or times exceeding two months in the whole, but that the purchaser or purchasers of any lands at su.ch sale who has paid or shall pay the price thereof, and has received or shall receive a deed therefor, such sale having been duly reported to and confirmed by the court directing the making thereof, shall have as good and complete a title thereto as if said sale had been adjourned from time to time not exceeding two months in the whole. ''^ '•''4 Comp. Stat., p. 4673, sec. 4a. ^^4 Comp. Stat.. 4673. sec. 4b. (P. L. 1894, p. 137.) (P. L. 1894. p. 137.) •'»«P. L. 1906, p. 130. 4 Comp. Stat., p. 4674, sec. 6. Sale of Lands for Paymknt of Debts. 509 An executor or administrator, ordered by the orphans' court to sell lands to pay decedent's debts, may adjourn the sale, after it has been properly advertised, by attorney or agent.*" Effect of Sale on Dower Right and Right of Curtesy. A wife's dower right is not affected by the sale,*' nor is a right of curtesy;*- and where a widow as administratrix of her husband sells and conveys his land for the payment of his debts, under a decree of the or])hans' court, she is not thereby estopped from claiming her dower therein, although it is not reserved or excepted in her deed to the purchaser at such sale.*^ REPORT AND CONFIRMATION OF SALE. Court to Confirm Sale. The executor or executors, administrator or administrators, and the survivor or survivors of them, who may be ordered to sell any lands, hereditaments or real estate of anv testator or intestate, shall, after making such sale, report the same to the orphans' court of the county in which the land lies, and if the said court shall approve of such sale, it shall confirm the same as valid and effectual in law, and shall by rule of court direct said administrator or administrators, executor or execu- tors, and the survivor or survivors of them, to execute good and sufificient conveyances in the law. to the purchaser or purchasers, for the tract or tracts of land or real estate so sold.** Report of Sale to be Verified. Rejjorts of sales of land to the orphans' court shall be veri- fied by the oath or affirmation of the party making the same.*' *f'Hicks V. Willis. 41 N. J. Eq.. "Sip v. Lawback. 17 X. J. I... 515- 442. ♦'Palmer v. Casperson, 17 N. J. •^♦Orphans' Court Act, .sec. 85. Kq., 204-206. But see P. L. 191 5- 3 Comp. Stat., 3842. p. 61, sec. 7, p. 490, supra. *''Orphans' Court Rule ^3, sec ♦^Jacques v. Ennis, 25 N. J. Eq., p. 763, infra. 402. 510 Probate Law and Practice. Form of Report. Reports of sales and petitions for the confirmation of sales bv substitutionary administrators with the will annexed or administrators with the will annexed, shall state the names and addresses of all parties in interest and shall have annexed thereto affidavits of at least two persons familiar with the value of property in the neighborhood where the lands so sold are located, giving the fair market value of the lands and premises so sold/^ Notice of Intention to Report Sale For Confirmation. Notice of the intention of any executor, administrator, guardian or trustee to make report of any sale to the orphans' court, or of any application by a substitutionary administrator with the will annexed or an administrator with the will an- nexed for the confirmation of a sale of lands made by him shall, unless the court shall otherwise direct, be given to all persons in interest. Five days" notice of such application shall be given to all persons in interest who are residents of the State of New Jersey, and not less than five nor more than sixty days' notice, as the court may by order direct, to all such persons in interest who shall reside without the State of New Jersey, which last mentioned notice may be sent by mail with the postage thereon prepaid.*' Confirmation of Sale. A\'here a sale is conducted by an officer pursuant to an order of the court, mere inadequacy in the price bid, at a fair and regularly conducted sale, will not justify refusal to confirm the sale, even though other persons after such sale ofl^er to bid 21 per cent, more for the property.*^ The practice of the English court of chancery in refusing to confirm sales upon an offer to bid more for the property, without an allegation of fraud or surprise, was early repudiated in this state.*'^ There •^"Orphans' Court Rule 34. Chancery Practice, p. 627, for a ^'Orphans' Court Rule 35. full discussion of this subject. ^''Morrisse v. Inglis, 46 N. J. Eq., ^"Seaman v. Riggins. 2 N. J. 306. Bethlehem Iron Co. v. Phil- Eq.. 214. Conover v. Walling, 15 adelphia & Seashore R. R., 49 N. N. J. Eq., 173. Cline v. Prall, 2; J. Eq., 356, and see Kocher's N. J. Eq., 415. Sale of Lands for Pav.mext of Debts. 511 is a uniform current of decisions that official sales will not be refused confirmation, or set aside, on mere representation that more may be obtained for the property. The court will not interfere on account of mere inadequacy of price, unless the price is so grossly inadequate that the court can infer fraud therefrom, or where great injustice will be done by confirm- ing the sale.^" A court should, however, withhold confirmation and order a re-sale, if the bid reported is far below the esti- mated value, and the property was not offered for sale in a manner which, in view of all the known circumstances, seemed likely to bring the best price. If the sale is so managed as to discourage bidders and to result in a considerable sacrifice, that circumstance would justify the court in refusing to con- firm the sale, even though the purchaser had nothing to do with such mismanagement ; the court must regard the interest of those parties whose property it undertakes to sell, as well as the expectations of those who propose to buy."^ If a sale be refused confirmation on the ground of inade- quacy of price alone, the applicants for a resale will l)e required to give some security or assurance that at such re-sale a higher price will be bid for the property.^- Effect of Irregularity in Publication of Notice of Sale. All sales of land made by virtue of any order, judgment or decree of any court of record of this state shall be confirmed by the court, notwithstanding any defect or irregularity in the publication of the advertisement of such sale; provided, that the officer making such sale shall certify, under oath, that such sale was otherwise regular, and that the property was sold for a fair price, in tlie judgment of such officer; and provided further, that the court shall be satisfied ])y affidavit that the ■■"'"Morrisse v. Inglis, 46 N. J. "'iRyan v. Wilson, 64 N. J. Eq., F.q., 306. Bethlehem Iron Co. v. 797-806. Bliss v. N. Y. Life Ins. Philadelphia & Seashore R. R. Co.. 51 N. J. Eq., 630, and see Co.. 49 N. J. Eq., 356. Bliss v. N. Kocher's Chancery Practice, p. Y. Life Insurance Co., 51 N. J. 627, for a full discussion of this Eq., 630, and see Kocher's Chan- suhjoct. eery Practice, p. 629, for a full '-Porch v. Agnew, 66 N. J. Eq., discussion of this subject. 232. Afifirmcd, 67 N. J. Eq., ']2'^. Strong V. Smith. 68 N. J. Eq., 650. 34 512 Probate Law and Practice. defect or irregularity in the publication was not injurious to the parties in interest.^^ This act is not a mere validating act. applicable to past sales only, but, in providing that "all sales" made by order of any court "shall be confirmed," nothwithstanding any irregularity in the publication of the notice of sale, when the officer making the sale certifies, under oath, that the sale was otherwise regu- lar and for a fair price, applies to future sales." Where, however, it appears that the property was sold for less than its fair value, it cannot be said that a defect in the publication of the advertisement, consisting in failure to publish in two newspapers, as required by law, was not injurious to a second mortgagee.^^ The burden of proving that the price was fair, where the advertisement is defective, is on the officer or pur- chaser alleging it.^*' Practice. When the law requires that a report of a sale should be made to a court, that it may look into the circumstances, and either confirm it or set it aside, and the sale is not to be available until approved by the court, and the conveyance is to be made under the direction of the court, the proper practice is un- questionably that the true purchaser should be made known, either to the officer ( that he may report the facts to the court ) , or to the court itself, before the conveyance is ordered. ^^ Administrators who sell land by virtue of an order in pursuance of our statutes, having no interest, execute a naked power under a special authority, which must be strictly pursued. ^^ Validity of Sale. An administrator's sale reported to and confirmed by the orphans' court according to the requirements of the statute cannot be set aside or inquired into collaterally, except, like ■'"P. L. 1891, p. 24. ^'Den V. Lambert, 13 N. J. L., •''^Polhemus v. Priscilla, 54 Atl. 182. Rep., 141. "'SDen v. Lambert, 13 N. J. L., ^sPolhemus v. Princilla, 61 Atl. 182. Den v. Philhower, 24 N. J. Rep., 263. L., 796. Wortman v. Skinner, 12 •'■'^Polhemus v. Princilla, 61 Atl. N. J. Eq., 358. Rep., 263, Sale of Lands for Payment of Debts. 513 other judgments, for fraud in obtaining it f' the Court of Chancery has, in the exercise of its general jurisdiction, power to set aside sales made by order of the orphans' court, where fraud in obtaining the order is shown/'" After confirmation by the orphans' court, the Court of Chancery will, as has beei> said above, enforce a contract of an administrator to sell the lands of his intestate, provided the proceedings for sale were regular."^ Where no account of the personal estate was exhibited, and no order made directing persons interested in the lands to show cause why they should not be sold, the order to sell lands, the sale thereunder, and an order confirming the sale, were errone- ous, and must be set aside. '^- After a decree for sale of lands has been executed, the orphans' court has no power to set aside the decree.^^ Duty of Purchaser. A purchaser of real estate under an order of the orphans' court is bound to observe whether all the proceedings to obtain such order have been regular ; but he is not bound to take notice of any indication of fraud apparent upon the face of the application."'* Evidential Value of Order Confirming Sale. When any sale of lands shall hereafter be made by order of an orphans' court, and the sale shall have been confirmed by the court of the county in whicli the lands are situate, the order confirming the sale, or a certified co[)y thereof, shall l)e •"'^Runyon v. Newark India Rub- L., 82. Reversed. 21 N. J. L., 614. ber Co., 24 N. J. L., 467. As to validity of decrees of or- ^^'Howell V. Sebring, 14 N. J. phans' court in general, see "Va- Eq., 84. lidity of Decree,'' p. 48, supra. "'Campbell v. Hough, ys N. J. That the order confirming sale is Eq., 601. As to jurisdiction of conclusive evidence of the fulfill- chancery to set aside decrees of ment of the statutory requirc- orphans' court in general, see ments, see section 93 of the Or- "\'alidity of Decree," p. 48, supra. phans' Court Act, 3 Comp. Stat., ''^McDonald v. Hutton, 8 N. J. 3845, this page, intra. Eq., 473. "^Lawson v. .\cton, 57 N. J. ®'Crombie v. Engle, 19 N. J. Eq., 107. 514 Probate Law and Practice. conclusive evidence in all courts, and for all purposes, of the validity of the proceedings for sale and of the fulfillment of all statutory requirements; such order of confirmation may be set aside or reversed by appropriate proceedings for that purpose ; but no such reversal shall be of any force or avail against any bona fide purchaser, and the said purchaser, his heirs and assigns, after delivery of the deed to him, shall hold the lands so purchased, notwithstanding such reversal, and notwithstanding any defects in the proceedings for sale.*^^ Appeal From Order Setting Aside Sale. If the court without good cause refuses to confirm a sale, a bidder thereat is a party aggrieved, and is entitled to an appeal to the Prerogative Court.'''"' DEED OF CONVEYANCE. Recitals in Deed. The deeds or conveyances made by such executor or ad- ministrator for an\' lands or real estate sold by virtue of any order of the orphans' court, shall set forth that the sale of said lands or real estate was made by the said executor or administrator by virtue of an order of the orphans' court of the county in which the sale shall be authorized, and the date of such order and the term of the orphans' court in which the same was granted, and the date of the order of confirma- tion." The authority to execute the deed and to convey the title depends, not upon the recitals of tli^ deed, but upon the order of th.e court authorizing the sale and the confirmation of the sale by the court. The provisions of this act prescribing what shall be recited in a deed made for lands sold by order of the orphans' court are merely directory : they relate to the form of the deed, and do not afl^ect the substance. If the grantee '■■'Orphans' Court Act, sec. 93. peals, see "Appeals." p. 80, supra 3 Comp. Stat., 3845. •''■Orphans' Court Act, sec. 94. '''^Conover v. Walling. 15 N. 3 Comp. Stat.. 3845. J. Eq., 167. For practice on ap- Sale of Lands for Pavmext of Debts. 515 objects to the deed because it is not in proper form, he should make his objection at the time the deed is tendered.*^® Covenants of Title Invalid. The orphans' court act pro\ idos what estate shall vest in the purchaser of lands at a sale made by the representative of a decedent's estate for the payment of debts. The power of such representative is as has been said above, a naked one, and must be strictly pursued ; and such representative has no power to bind the estate of decedent by co\enants of title.'"''' Estate Conveyed by Deed. The statute provides that deeds of conveyance, duly executed in conformity with the statute, shall vest in the purchaser or purchasers all the estate that the testator or intestate was seized of at the time of his or her death, if the order to show cause be obtained within one year thereafter; and if the said order be not obtained within that time, then the said conveyance shall vest in the purchaser or purchasers all the estate that the heirs or devisees of the testator or intestate were seized of at the time of the making of the said order of the orphans' court ; and any deed or conveyance made in pursuance of the order of the court confirming such sale shall be good and valid and re- ceived in evidence as such in any court in this state, notwith- standing the omission of the recital in the said deed of the orders of such orphans' court authorizing such sale, and con- firming the same, and notwithstanding any variance between the recital in said deed of the said orders and the record thcre- of.'° Estate Conveyed by Sale Within One Year of Decedent's Death. Since the enactment of this section on December 12, 1825,"' a sale under an order of the orphans' court obtained within one year after the death of the testator or intestate, will vest "sStryker v. Vandirbilt, 27 N. ""Orphans' Court Act, sec. 94. J- L., 68. 3 C'omp. Stat., 3845. "oCampbfll V. Hnuyh, 73 N. J. "> F.lincr'.s Digest, p. 493. Eq., 601. 5i6 * Probate Law and Practice. in the purchaser such an estate as the testator or intestate died seized of or entitled to notwithstanding any ahenation or encumbrance made, or attempted to be made, by the heir or devisee. ^- Estate Conveyed by Sale More than One Year After De- cedent's Death. Since a conveyance of land sold under an order of the or- phans' court, not made until a year from the decedent's death, to pay debts of an intestate, will pass only the estate of which the intestate's heirs or devisees were seized when the order was made,'" all conveyances made or encumbrances created by the devisee or heir will be unaffected by the sale.'* So a judg- ment against such heir or devisee is unaffected by the sale ;'^ and so where lands were sold under partition proceedings more than one year after decedent's death, and a creditor of an heir issued an attachment after the decree for sale, but before the sale obtained a priority over other creditors in the proceeds of such sale, which were paid to the executor for the payment of debts, the decree for sale transferred the attachment lien to the proceeds.'" Dower Right of Widow Not Affected. A conveyance by an administrator by virtue of an order of the orphans' court vests in the purchaser only the estate of which the husband was seized at the time of his death. It follows, therefore, that such a sale cannot aft'ect the widow's right of dower, if any she have/' Execution of Deed. Where two administrators sell land under an order of the orphan's court, and only one of them executes the deed, equity •■-Warwick v. Hunt, ii N. J. L., Eq., 511. Bockover v. Ayres, 22 ^- N. J. Eq., 13. "Warwick v. Hunt, 11 N. J. ''Bockover v. Ayres, 22 N. J. L., I. Bockover v. Ayres, 22 N. Eq., 13. J. Eq., 13. Morgan v. Morgan, ""First National Bank v. 71 N. J. Eq., 606. Thompson, 61 N. J. Eq., 188. ^*Skillman v. Van Pelt, i N. J. "Palmer v. Casperson, 17 N. J. Eq., 204. Sale of Lands for Pavmext of Debts. 517 will enjoin the heirs from prosecuting an ejectment to recover back the land upon the ground of such irregularity."* DISPOSITION OF PROCEEDS OF SALE. Assets for Payment of Debts. The moneys arising from such sale of the lands, tenements, hereditaments and real estate of such testator or intestate, shall be received by the executor or administrator, and be con- sidered as assets in his hands for the payment of debts. '° Disposition of Surplus. The surplus money arising from such sale, remaining after the payment of debts and just expenses (the personal estate in the hands of the executor or administrator being first applied thereto), if any, shall be distributed among the heirs or devisees according to the law of the descents in the former, and the will of the testator in the latter case ; and the orphans' court in which the executor or administrator is required to accovmt after such executor or administrator shall have legal- ly accounted for and touching the sale or sales of the said lands, tenements, hereditaments and real estate, of the person so deceased, shall order a distribution of the surplus, after debts and just expenses of every sort first allowed and de- ducted, among the heirs or devisees to whom the lands, tene- ments, hereditaments and real estate so sold, descended or were devised, according to the law of descents in the former, and the will of the testator in the latter case, and the persons entitled to such distribution shall have their remedy at law, in case of non-payment, for the recovery of the same, against the executor or administrator so accounting, saving to every one, if aggrieved, his, her or their right of appeal.'"' Surplus Proceeds Considered Real Estate. The surplus of the proceeds of lands of a decedent sold by order of the orphans' court for the payment of del)ts above the "^Wortman v. Skinner. 12 N. "^Orphans' Court Act. sec. 95. J. Eq., 358. 3 Comp. Stat., 3846. ^"Orphans' Court Act, ?cc. 95. 3 Comp. Stat., 3846. 5i8 Probate Law and Practice. amount needed for the payment of debts, retains the char- acter of real estate, and upon the death of the person entitled thereto will pass by succession as real estate. ^^ The proceeds of the sale retain their character of real estate for the purpose of succession until they vest in some person, not an infant or lunatic, who has capacity to change the nature of the estate, and who, by accepting it as money, or by some act recognizing it as personal estate, gives it the character of personalty. ®- So where a bill was filed by an executor for the direction of the court as to the disposition of the surplus proceeds of the sale of real estate over debts and legacies claimed by the adminis- trator of an insolvent devisee, who died before the sale, it was held that the administrator, not having obtained an order of the orphans' court to sell the land of such devisee, was not entitled to receive that part of the surplus, because it was vested in the heirs of such devisee.®" Where lands are sold more than one year after the death of decedent, a judgment creditor has no right to any part or share of the surplus money in the executor's hands after the payment of debts, since his judgment is not affected by the sale.®* Interest on Proceeds Considered Personalty. The income from lands and the interest on the proceeds of the sale of lands are personal estate, and will, upon the death of an infant to whom they belong, be transmitted as such, while the lands and the proceeds of their sale pass as real estate.®^ Payment of Judgments Against Heirs or Devisees From Surplus Proceeds. Whenever, on the application of any executor or execu- tors, administrator or administrators, lands have been or ^-'Oberly v. Lerch, i8 N. J. Eq., ssCook v. Cook, 20 N. J. Eq., 346. Affirmed, ib., 575. Cook v. 375. Cook, 20 N. J. Eq., 375- "•'Bockover v. Ayres, 22 N. J. 8-Oberly v. Lerch, 18 N. J. Eq., Eq.. 13. 346. Affirmed, ib., 575. Fidler v. s-'Oberly v. Lerch, 18 N. J. Eq., Higgins, 21 N. J. Eq., 138. Weth- 346. Affirmed, ib., 575. erill V. Hough, 52 N. J. Eq., 683. Sale of Lands for Payment of Debts. 519 shall be sold by the order of a court for the payment of the debts of any decedent, and there shall remain a sur- plus from such sale in the hands of such executor or execu- tors, administrator or administrators, after the payment of the debts of such decedent, to be distributed among the heirs of such decedent or to the devisee under any will, and any judgment or judgments are or shall he obtained against any of such heirs-at-law or devisees or distributees under any will, entitled to such surplus or any part thereof, at any time prior to the distribution of such surplus, such judgment creditor or creditors may, upon petition filed in the court ordering such sale in such cause, have an order, and such court is hereby authorized to make the same, directing the payment of such judgment or judgments out of the proceeds of the sale of such share or shares against which the same would be a lien, had such share or shares been owned in severalty by such judgment debtor or debtors, and in the same order of priority as if sold under execution.-'' The remedies given by the above section can be enforced at law only after the estate of decedent has been settled before the orphans' court. Ordinary, or ' the Court of Chancery.-' HEIRS OR DEVISEES MAY COMPEL CONTRIBUTION. In General. The heir or de\isee, whose lands, tenements, hereditaments and real estate, descended or devised to him, have been sold for the payment of the debt of his intestate or testator may compel all others claiming or holding under such intestate or testator to contribute in proportion to their respective interest, so as to equalize the burden or loss."^*^ ^•'Orphans' Court Act, sec. 96. ^^Orphans' Court Act, sec. 95. 3 3 Comp. Stat., 3847. Comp. Stat., .3846. '■'Emson v. Allen, 62 N. J. L., 491. CHAPTER XXVIII. DISBURSEMENTS. PAYMENT OF DEBTS. In General. As the legal representative of the estate, an executor or admmistrator is authorized to pay all just claims against it; and while he acts within the line of his duty, and in good faith, every fair presumption is to be made in his favor. He is, however, but a trustee for others, and may not sacrifice their rights with impunity. If he pays gfoundless or illegal claims upon the estate, he must bear the loss. If he pays disputed claims, especially after being warned, he acts at his peril. Good faith and regard for the interests of the estate must characterize all his actions.^ So an executor may pay any 1/ claim against the estate which he is satisfied is just, without requiring a statement of the items, or that it be sworn to ;- and where trustees offered evidence that expenditures for repairs to the trust property for which they claimed credit in their report were necessary, that the work was actually done, and that the price was according to the regular course of trade, it is presumed that the price paid was reasonable, and evidence of its reasonableness need not -be produced \-^ but, on the other hand, the mere fact that a creditor swears that his claim is correct will not justify an executor in paying it, if he has reason to believe that the claim is an unjust one." So an executor who pays debts with which the estate in his hands is not chargeable will not be allowed for such debts in his account.'* ^Egerton v. Egerton, 17 N. J. ^Egerton v. Egerton, 17 N. J. Eq., 419-423- Eq., 419. ^Kinnan v. Wight, 39 N. J. Eq., ^Aldridge v. McClelland, 36 N. ' 501. J. Eq.. 288. Affirmed, 38 N. J. -aln re Dreier's Estate, 92 Atl. Eq.. 279. Rep., SI. 520 Disbursements. 521 Payments to Foreign Executor or Administrator Before Letters Granted in This State Valid. Any payment by any resident or citizen of this state to any executor or administrator appointed* by letters obtained in another state or territory of the United States or District of Columbia. "of or on account of any debt due to his or her testa- tor or intestate, made before letters testamentary or of adminis- tration sliall be actually granted in this state, shall be as valid and effectual as if made to an executor or administrator duly appointed in this state ; and such foreign executor or adminis- trator may, before any letters shall be actually granted in this state, release and discharge any lands or other security from any mortgage, judgment or other lien or en.cumbrance which was held by his or her testator or intestate, as fully and to the same eft'ect as if he or she had been duly appointed in this state. -^ Necessity for Allowance of Claim by Executor. To justify the orphans' court in allowing a claim, it must appear that the executor or administrator assented to or recog- nized it as a debt due from the estate. *■' So the orphans' court has no powder to allow one executor the amount of a debt which he insists is due him from testator's estate, if his co-executor disputes its payment." CLAIMS FOR SERVICES RENDERED TO DECEDENT. In General. A claim for services rendered to decedent in liis lifetime may be allowed against his estate, whether such services were rendered upon an express promise for a fixed payment, or merely as meritorious or needful, without any express promise, but with the expectation of reasonaljle compensation therefor;* but an executor is not justified in paying a claim against the '•'2 Comp. Stat., p. 2265, sec. 19. tween Co-Executors" p. 4^1, ^Vreeland v. Vreeland, 16 N. supra. J. Eq.. 512. Middleton v. Middle- «i8 CYC, 409. Disbrow v. Dur- ton, 35 N. J. Eq., 115. and, 54 N. J. L.. 343. Frean v. ^Middleton v. Middleton. 35 N. Hudson. 93 Atl. Rep., 582. T. Eq.. 115: and see "Actions be- 522 Probate Law and Practice. estate for services rendered in the lifetime of his testator, where services rendered by the parties were mutnally bene- ficial, and it is apparent that no pecuniary remuneration was expected or intended.'' 'Where, however, persons were induced to support the testatrix durin.g several years by her fraudulent pretense that she was destitute, when in fact she had a consider- able estate in bank, they will be entitled to be recompensed out of the estate for the support so furnished her. ^" The burden is upon the claimant to establish the fact that the services were not rendered gratuitously.^^ By Persons in Family Relation. Ordinarily, where services are rendered voluntarily, and accepted, the law will imply a promise upon the part of the recipient to pay for them ; but where the services are rendered by members of a family living as one household, there will be no such implication from their mere rendition and accept- ance. In order to recover for such services, the claimant must affirmatively show either that an express contract for the re- muneration existed, or that the circumstances under which the services were rendered were such as to show a reasonable and proper expectation that there would be compensation/- The reason for this exception to the ordinary rule is that the house- hold and family relationship is presumed to abound in recipro- cal acts of kindness and good-will which tend to the mutual comfort and convenience of the members of the family, and which are gratuitously performed ; and where that relation- ship appears, the ordinary implication of a promise to pay for services does not arise, because thfe presumption which supports such implication is nullified by the presumption that between members of a household such services are gratuitously ren- dered. Proof both of the services. and of the family relation leaves the case in equipoise, from which the claimant must remove it or fail.^^ So when a daughter, after becoming of "Egerton v. Egerton, 17 N. J. ^-Disbrow v. Durand, 54 N. J. Eq- 419- L., 343- logggers V. Anderson, 63 N. J. i^Digi^row v. Durand, 54 N. J Eq., 264. L., 343. "Frean v. Hudson, 93 Atl. Rep., 582. Disbursements. 523 age, cojuinues to reside in her father's family, supported by him and performing useful services in return, the law will not. except under special circumstances, imply a promise on the part of the father to pay for such services ; if she demand compensation, it is incumbent on her to show affirmativelv that compensation was to be made, and that it was so understood by both parties, or that the services were performed under such circumstances that the expectation of compensation there- for was reasonable and proper.^* Although the law presumes that the relation of parent and child continues to exist, in the absence of any arrangement to the contrary, when the child continues to render services to the parent after arriving at full age, yet that presumption ceases when it is shown that compensation w^as to be made, and that it was so understood by both parties, or that the services were performed under such circumstances that the expectation of compensation was reasonable or proper. ^^ So where a daughter and her mother, who was very old and infirm, lived together, it was held that the former might recover compensation from the estate of the latter for services which were indispensable, on the ground that the whole question is one of intention, and that here was a case, not of an emancipated daughter supported by her mother and rendering services to the household, but of the rendering by the daughter to an old and helpless mother of necessary services, which, if not rendered by her. must have been obtained from a stranger for compensation. ^^^ So a son is entitled to compensation from the estate of his father, for services rendered by the son after he became of age. under an oral agreement that such services should be paid for after his father's death. ^" The great majority of cases in which this exception to the ordinary rule has been applied have been between children and their ])arents. or the representatives of the parents' estate, ^^Ridgvvay v. English, 22 N. J. '''DeCamp v. Wilson. 31 N. I-., 400. Prickett v. Prickett. 20 J. Eq., 656. X. J. Eq., 47.^. Smith v. Sniitli. 30 ' "Updike v. Ten Brorck. t,2 N. N. J. Eq.. 564. [. L.. 105. ^•''Updike V. Ten Broeck. 32 N. T T... 105. 524 Probate Law and Practice. and that fact appears to have led some of our courts to speak of it as restricted to cases where a relationship by blood exists ; but it is not perceived how the reason of the exception is to be limited by mere propinquity of kindred. The rule rests upon the idea of the mutual dependence of those who are members of one immediate family ; and such a family may exist though composed of remote relations, or even of persons between whom there is no tie of blood. ^® Thus, in Updike v. Titus,^'-* Chancellor Green expressed his opinion that it contem- plates "children, parents, grand-parents, brothers, step-children and other relations" and in Horner v. JVebster,-'^ Justice Depue approvingly referred to the exception as applicable in all cases where the parties stand to each other in the relation of support on one side and service on the other. Agreement to Compensate by Will. Where a person renders services to another, relying solely upon his generosity, and expecting to be compensated by a legacy, he cannot, when disappointed in his expectation, recover the value of his services;-^ but if there be an express promise to pay or such services by a legacy, recovery may be had. In such case, the agreement to give the legacy was but the method adopted of paying an existing and admitted obligation to compensate for the services; and if testator failed to pay in the manner indicated, the person performing such services is entitled to recover as a creditor.-- So where a son advanced money for the support of his mother during her life, under an agreement that he should be repaid at her death out of her estate, it was held that his claim to be so repaid was valid; and in a case where the son procured the money so advanced from his wife, agreeing that she should have his claim against ^^Disbrow v. Durand, 54 N. J. J. L.. 274. Johnson v. Hubbell. t., 343- to N. J. Eq.. 332. '9i3 N. J. Eq., 151. "Stone v. Todd. 40 N. J. L., 2033N J i^ 387-411. 274. Gay V. Mooney. 67 N. J. L.. ^'Grandin v. Reading, 10 N. J. .7. Duvale v. Duvale, 54 N. J. Eq., 370. Smith v. Smith, 28 N. Eq., 581. For a full consideration J. L., 208. S'one V. Todd, 49 N. jf this subject, see 11 L. R. N. S., 873. Disbursements. 525 his mother as security therefor, she was liekl to l^e entitled to recover."^ The burden is upon the claimant to prove that the services were not rendered gratuitously.-* CLAIMS OF SURVIVING HUSBAND OR WIDOW FOR MONEYS LOANED DECEDENT. Claim of Widow for Moneys Loaned Decedent. A widow mav recover from her husband's estate moneys which she loaned him during his lifetime from her separate estate, as well as such part of her separate estate as he has received otherwise than as a gift ; but such recovery can only l)e had in equity.-^ An action at law may, however, be main- tained on the promise of an executor to pay' moneys advanced by a wife to her husband, though no action would He for the original debt.-^ Where decedent's widow is executrix, she may retain the amount of her advances. -" Where it is shown that property of the wife has come into the hands of the husband, the burden is upon his representative to show that he has appropriated it according to her direction, or that she gave it to him.-^ Where, however, a husband receives income from his wife's separate estate, which he spends with her knowledge and without objection, she cannot recover such money from his estate.-" vSo where the wife's -"Titus V. Hoagland, 39 N. J. 44 N. J. Eq., 64. Affirmed, 45 N. £q., 294. J. Eq., 369. Cole v. Lee, 45 N. -^Frean v. Hudson, 93 Atl. J. Eq., 779-785. Rep., 582. -'-Rusling v. Rusling, 47 N. J. -^Horner v. Webster, 33 N. J. L., i. L., 387. Rusling V. Rusling, 47 N. -^Personette v. Personette, 35 J. L., I. Vreeland v. Vreeland, N. J. Eq., 472. i6 N. J. Eq., 512. Harrall's Case, -*Horner v. Webster, 33 N. J. 31 N. J. Eq., loi. Tresch v. Wirtz, L., 387. Vreeland v. Vreeland, 16 J4 N. J. Eq.. 124. Affirmed, 36 N. J. Eq., 512. Black v. Black, 30 N. J. Eq., 356. Greiner v. Grein- N. J. Eq., 215. Reversed, 31 N. er, 35 N. J. Eq., 134. Personette J. Eq., 798. Jones v. Davenport, V. Personette, 35 N. J. Eq., 472. 44 N. J. Eq., 33-47- Wood v. Drost V. Corle, 41 N. J. Eq., 45. Chetwood, 44 N. J. Eq., 64-68. Rusling V. Rusling, 42 N. J. Eq., -"Horner v. Webster, 33 N. J. 594. Jones V. Davenport, 44 N. L., 387-406. Jones v. Davenport, J. Eq., 33. Wood V. Chetwood, 44 N. J. Eq., 33. 526 Probate Law and Practice. money is eNpended with her knowledge for her husband's benefit, it will, in the absence of an agreement to pay, be regarded as a gift.^-' The statute of limitations does not run against a claim by a wife against her husband."^ Claim of Husband for Moneys Advanced to Deceased Wife. An agreement by a married woman, owning a separate estate, with her husband to re-imburse him from such estate for moneys loaned to her, or paid by him for the benefit of her estate, on the faith of such agreement, and at her request, will be enforced in equity against her separate estate. ^- DEBTS BARRED BY LIMITATION. General Rule. i_y An executor or administrator may pay a debt which is just, though it be barred by the statute of limitations f^ and where an action is brought against him on a claim so barred he is not bound to plead the statute."-' But a book account of the executor against the testator was properly rejected when the bulk of it was barred by the statute of limitations in the life- time of the testator, and every presumption was against the justice of any part of the claim. ■^•' Debts Due to Personal Representative. Wlien a personal representative has a claim against the estate which he is administering, it is impossible for him to enforce the claim by action at law or in equity. In such case, it is well settled, he may exercise the right of retainer for the satisfaction of his claim, if the claim be honest. If the in- debtedness was originally honest, it is not rendered dishonest ■■•"Black V. Black, 30 N. J. Eq., ssp^jj-sel v. Pursel, 14 N. J. Eq., 215. Reversed, 31 N. J. Eq., 514. Heisler v. Sharp, 44 N. J. 798. Young V. Young, 45 N. J. Eq., 167-172. Eq., 27-37. •34Pm.sel v. Pursel, 14 N. J. Eq., siYeomans v. Petty. 40 N. J. 514. Boynton v. Sandford, 28 Eq., 495. Alpaugh v. Wilson, 52 N. J. Eq.. 184-186. Affirmed, ib.. N. J. Eq., 424. Affirmed, ib., 589. 592. 32Healey v. Healey. 48 N. J. Sof^j^sel v. Pursel. 14 N. J. Eq., Eq., 239. 5I4_ Disbursements. 527 by the running of the statute of limitations for the prescribed period. As such a representative might with impunity decHne to interpose the bar vi the statute against an honest debt due to another creditor, he may exercise the right of retainer to satisfy his own claim of that character; and the orphans' court cannot disallow such a claim solely on the ground that the statute of limitations has run against it.^*^* Representative May Waive Bar. An executor or administrator may, by a new promise, remove ^--^ the bar of the statute of limitations.'" An acknowledgment t)y an executor of the existence of a debt due from the estate of his testator will bar the operation of the statute, provided such acknowledgment be in writing ;^~^ and a promise by one of several executors or administrators is sutificient to remove the Ijar of the statute. ^^ A promise removing the bar of the statute may be proved against executors in the same way as in other cases.^° So letters written to the holder of a note by the personal repre- sentative of a deceased maker, before the statute had run against the note, referring to the money owing to the holder by the writer as personal representative, and requesting the holder to w^ait for a time, and containing expressions which might be construed to be promises to pay the note, are admissible to prove a written acknowledgment of the debt, so as to avoid the statutory bar existing at the commencement of the suit ;" but the mere fact that an executor includes debts not yet barred by the statute of limitations in representations made to the orphans' court for the purpose of procuring an order to sell lands to pay debts, is not such an acknowledgment as takes •■«Wheedon v. Nichols, 72 N. J. 263. Whecdon v. Nichols, 72 N. Eq., 366. J. Eq., 366. ^^Shreve v. Joyce, 36 N. J. L., soghreve v. Joyce, 36 N. J. L., 44. Everitt v. Williams, 45 N. J. 44. I-., 140, at p. 143. Sahar v. Saltan, '"Shrcve v. Joyce, 36 N. J. L., 6 N. J. L., 405- 44. -*Hewes v. Hurff, 69 N. J. L., ^'Hewcs v. Hurff, 69 N. J. L., 263. 35 528 Probate Law and Practice. such debt out of the statute, or as estops the administrator from setting up the bar of the statute against it.*- Death of Debtor Suspends Statute of Limitations. Where a person, against whom a cause of action has accured, dies before the action is barred by the statute of Hmitations, the running of the statute is suspended for the six months next succeeding the, death of such person.*^ Prior to the enactment of this statute, it had been held that section 65 of the Orphans' Court Act", did not suspend the operation of the statute of hmitations.*^ Where Personalty Insufficient to Pay Debts, Where a debt is barred by the statute at the time of testa- tor's death, and the debt must be satisfied out of the real estate, no acknowledgment of the executor or administrator, will bind the lands in the hands of a devisee.**^ It is otherwise, however, where the claim is not barred by the statute at the time of testator's death ;*^ and so where lands of decedent were sold under partition proceedings more than one year after his death, and the proceeds of such sale were paid to the executor upon his application, alleging that the same were necessary for the payment of debts of the estate, it was held that the executor might pay a debt barred after the death of the decedent by the statute of limitations, from the proceeds of such sale.*® PREFERRED DEBTS. In General. The order of priority to be observed in the payment of debts, at common law, may be shortly stated as follows : ist. Funeral charges and expenses of administration, etc. 2d. Debts of record. 3d. Debts by specialty. 4th. Simple contract debts. ^-'Everitt V. Williams, 45 N. J. ^^Stark v. Hunton, 3 N. J. Eq., L., 140. 300. *33 Comp. Stat., 3167, sec. 9. *'Stark v. Hunton, 3 N. J. Eq., ■**Page 539. infra. 300. •*"DeKay v. Darrah, 14 N. J. L., ^^First Na.ional Bank v. 288. Thompson, 61 N. J. Eq., 188. Disbursements. 529 In Xew Jersey, we have no distinction of degrees in the pay- ment of dehts. aside from the preferences given by the statute^'', which provides that judgments entered of record against the decedent in his Hfetime, funeral charges and expenses, and the physician's bill during the last sickness, shall have prefei^- ence and be first paid out of the personal and real estate of the testator or intestate. ^° Judgments. An executor is justified in paying a judgment, irrespective of the character of the claim upon which it is founded, unless fraud in obtaining the judgment can be shown. ^' What Judgments Preferred. Judgments, to be preferred, must be actually entered of record during the lifetime of the defendant;^- and so when a rule to limit creditors has been taken, and upon a subsequent application the estate has been declared insolvent, a judgment obtained between the time of taking such rule and making such application will not be entitled to be paid in preference to other debts.^" Decree in Equity. A decree in equity is a judgment, and as such stands in equal rank with a judgment at law in the distribution of assets of an insolvent estate.^* Priorities Between Judgments. If the estate be insufficient to ]^ay all judgments, distribution is to be made pro rata:'-' The court will not interfere to pre- ■•"Haines v. Price, 20 N. J. L., Reporter's Note to Second Xa- 480-483. Second National Bank tional Bank v. Blauvclt, 44 N. J. V. Blauvelt, 44 N. J. Eq., 173, at Eq., 173. p. 177- ' ■"'■^Ryan v. Von Arx, 46 N. J. ^"Orphans' Couri Act, sec. 66. L., S31. 3 Comp. Stat., 3833. •'■'* Second National Bank v. ■■'Pursel V. Pursel, 14 N. J. Eq., Blauvclt, 44 N. J. Ec]., 173 and Re- 514. Smith V. Smith, 30 N. J. Eq., porter's Note to \h. 564-568. •'■■■"Second National Bank v. ■•-Wood v. Hopkins. 2 N. J. L., I'.Ianvelt, 44 N. J. Eq., 17- 263. .Affirmed, ili.. 693, and see 530 Probate Law and Practice. vent the payment of money raised by an execution upon a judgment against an executor of an insolvent estate, if no proceedings have been taken in the orphans' court to declare the estate insolvent; until such proceedings are had, judg- rrient and execution creditors are entitled to be paid out of the estate according to their legal priority.^** Funeral Expenses. An executor is bound to provide for his testator a decent and appropriate burial. Not only do the usages and necessities of society require this at his hands, but it is a requirement of the law also. The estate in the hands of the executor or ad- ministrator is bound by law for the payment of the expense of the decent interment of the decedent ; and an executor or administrator, if he have sufficient assets, is liable upon an implied promise to another person, who, as an act of duty or necessity, has provided for the interment, if the funeral was conducted in a manner suitable to the rank in life of the decedent, and the charge is fair and reasonable.^' In case of the death of a married woman, the duty to bury her and to discharge the expenses of so doing devolves upon her husband, if he survives her ; his liability for the expense of the interment does not arise by virtue of any interest he may have in the wife's property, but from the personal advantage it is to himself to have his wife and lawful children properly maintained during life and suitably buried at death. But common decency and humanity are regarded by the authorities as authorizing the speedy burial of a decedent by any proper person, unobstructed by hesitation in measuring the responsi- bilities of the husband and the representative of the wife's estate; and it has been held that where a married woman dies leaving an insolvent husband surviving her, a proper third person who has borne the necessary expense of her suitable burial may recover from her estate.^'"* So an executor is justi- ^'■Dibble v. Woodhull, 24 N. J. Eq., 299. Gould v. Moulahan, 53 L., 618; and see Reporter's Note N. J. Eq., 341. Pierson v. Gar- to Second National Bank v. Blau- rison. 91 Atl. Rep.. 829. velt, 44 N. J. Eq.. 173. s^Gould v. Moulahan. 53 N. J. 5'Sullivan v. Horner, 41 N. J. Eq.. 341. Disbursements. 531 tied in paying the funeral expenses of an indigent sister of the testator for whose use for life the income, and, if necessary, the principal of one-half of his residuary estate had been given. In such case the funeral expenses are necessities f^ and the rule has been extended to the wife and children of decedent, when all perished with him in the same accident.''" But if the funeral expenses are paid Ijy a mere volunteer, who does not take an assignment of the undertaker's claim, he will not be .entitled to be subrogated to the rights of the undertaker.''' Priority of Funeral Expenses. By our statute, funeral expenses are among the preferred claims. Though grouped in the statute with other claims, also preferred, they are entitled to preference over those claims, as they were at common law. The statute does not take away the absolute preference which the common law accorded. The reason for such absolute preference still exists in full force"-, and the dictates of humanity, no less than the decency of en- lightened society, demand that this rule be extended to the reasonable funeral expenses of the wife and child of the decedent, where they are all deprived of life by the same fatal stroke and are buried with one and the same funeral, even though decedent's estate be insolvent f^ and funeral expenses are preferred to a debt due to the United States government.®'* Amount. In the case of an insolvent estate, the expense of the funeral must not only be reasonable, but should only be such as is necessary for a funeral conducted in a plain manner, and with- out the superfluous accessories which would be allowable in case the estate were solvent. The rule, as against a creditor, is that no more shall be allowed for a funeral than is necessary ; and in considering what is necessary, legard must be had to the •''■'Wilson V. Staats, 33 N. J. N. J. Eq.. 341. Pierson v. Gar- Eq., 524. rison, 91 Atl. Rep.. 829. '■'^'Sullivan v. Horner, 4\ N. J. '''Sullivan v. Horner, 41 N. J. Eq., 299. Eq., 299. «'Fay V. Fay, 43 N. J. Eq., 438. •'♦U. S. v. Eggleston, 4 Sawy.. "-Sullivan v. Horner, 41 N. J. 199. Eq., 299. Gould V. Moulahan, 53 532 Probate Law and Practice. degree and condition in life of the decedent/'^ When the decedent dies away from home, it is reasonable that his body should be brought home for interment, and to the expense of transportation may reasonably be added that of a person to accompany the body for the purpose of superintending the transportation.'^'^ Tombstone. Where the estate is solvent, an executor or administrator may purchase a tombstone reasonable in price with reference to the means of the estate ; such outlay comes properly within the item of funeral expenses.*^* Burial Plot. An executor will be allowed the reasonable cost of a ceme- tery lot which he purchased for the burial of decedent and in which decedent was buried, although the title thereto was taken in his own name.*^'-' Mourning Apparel. Alourning apparel actually used at the funeral and suitable to the condition in life of deceased will be considered as part of the funeral expenses. '° Physician's Bill. Where a legatee was entitled to the income of a certain amount for her life, with a limitation over to A. and a direction to executors to accumulate, upx)n the death of the life tenant it was held that first the physician's bill and then the funeral expenses must be taken from the unexpended part of such income and accumulation before its payment to A. ;"^ but med- ical services rendered to the familv of an intestate after his ''■''Sullivan v. Horner, 41 N. J. J. Eq., 337. Prey's Case, -jt, N. Eq., 299. J. Eq., 346. 6«Sullivan v. Horner, 41 N. J. ""Campfield v. Ely, 13 N. J. L.. Eq., 299-303. 150; and see Reporter's Note to s^Griggs V. Veglite. 47 N. J. Wilson v. Staats. 33 N. J. Eq., Eq., 179. Prey's Case. 73 N. J. 524. Eq., 346. "ipowler v. Colt. 22 N. T. Eq., 69Birkholm v. Wardell, 42 N. 44. Disbursements. 533 death, upon the promise of the administrator, do not consti- tute a lien upon the assets of the estate in the hands of a substi- tuted administrator. '- Debts Due to State and to the United States. Debts due to the state are not preferred, though otherwise as regards debts due to the United States ;'^ but funeral ex- penses are preferred to a debt due to the United States.'^ Debts Due to Municipal Corporations. Xo preference can be claimed for a municipal corporation over other creditors.'^ Claims of Executor or Administrator for Advances to Estate. An executor who pays a debt of his testator out of his own funds will be subrogated to the rights of the creditor;''' and so an executor who pays the debts and fimeral expenses of his testator, for the discharge of which there is no personal estate, is entitled in equity to be re-imbursed out of the real estate."' So where the orphans' court ordered that money which had been advanced by an executrix to pay a preferred claim against an insolvent estate should be repaid to her out of the assets, it was held no error.'* Where one of two executors qualifies and proceeds alone with the administration of the estate, and dies after he has ''^Johnston v. Morrow, 28 N. J. ""Woolley v. Pemlierton, 41 X. Eq., 327. J. Eq., 394. Chamberlin v. ^Ic- '3Evans v. Walsh, 41 N. J. L., Dowell, 42 X. J. Eq., 628. Ha'm- 281-282. Board of Chosen Free- mond v. Cronkright, 47 X. J. Eq., holders v. State Bank of New 447. DeConcillio v. Brownrigg, Brunswick, 29 N. J. Eq., 268. Af- 51 X. J. Eq., 532. Suydam v. firmed, 30 N. J. Eq., 311. Voorhees, 58 N. J. Eq., 157. Speer ^•*U. S. V. Eggleston. 4 Sawy., v. Whitfield, 10 N. J. Eq., 107 ; 199. See also "Claims for Advances ^■''Evans V. Walsh, 41 X. J. L., Made to Estate by Deceased Ex- 281-282. Freeholders of Middle- ecutor," p. 570, infra. sex V. State Bank of Xew Bruns- ''Clayton v. Somers. 27 N. J. wick, 29 X. J. Eq., 268. Affirmed. Eq., 230. 30 N. J. Eq., 31 1. "^Chamberlin v. McDowell. 42 X. J. Eq., 628. 534 Probate Law and Practice. expended in such administration more moneys than he has realized from the assets of the estate, and then the co-executor quaUfies and continues the administration, it is the duty of the co-executor, after paying the expenses of the administration, to re-imburse the representatives of the deceased co-executor for his legitimate expenditures in excess of his receipts from the assets of the estate ; the balance due to the deceased executor is not a debt of the testator which may be barred by decree under section 67 of the Orphans' Court Act, but a part of the expense of the settlement of the estate.''' So where a debtor of an estate advanced money to the executor to pay pressing claims against the estate, the executor is justified in repaying this sum, so advanced, to the debtor, the money so paid having been advanced to aid the executor, with the understanding that it should be returned, and having no connection with the indebtedness to the testator.®'' So if an administrator borrows money from a bank, which was one of the creditors of the estate, under an agreement to use such borrowed funds to pay other creditors, who were pressing, and such creditors were so paid, upon its transpiring that the estate was insolvent, the bank was held entitled to be subrogated to the rights of such creditors as were paid by the administrator from the funds borrowed from it to the extent to which the adminis- trator himself would liave been entitled to recover for moneys advanced for such payments.*^ But where an administrator of an insolvent estate, who was also an heir, paid claims which were charges on the realty, he being unauthorized to pay such claims, the presumption is that the payment was not as ad- ministrator, but as heir; and therefore creditors who had loaned him money under an agreement that it was to be em- ployed in paying claims against the estate were not entitled as against other creditors to be subrogated to the rights of those whose claims were so discharged, though such right might have existed as against the heirs, the intestate not having been bound personally to pay such claims. ®- '9Dunn V. Campbell, 47 N. J. sipirst National Bank v. Eq., 4- Thompson, 61 N. J. Eq., 188. seWoofsey's Case. 67 N. J. Eq., s^pirst National Bank v. 574- Reversed, 68 N. J. Eq., 763. Thompson, 61 N. J. Eq., 188. Disbursements. 535 Partnership Debts. Where one of two members of a partnership dies, the indi- vidual assets of the deceased member must be first apphed in discharge of his individual debts ; if there is more than sufficient to pay them, and the partnership assets are not suffici- ent to pay the partnership debts, the surplus assets of the deceased member may be applied to the payment of the partner- ship debts ;*" but this principle does not apply to creditors who have secured their debts by judgment and execution liens.*** Expenses of Administration. The expenses of administration are preferred debts. ®^ Conflict of Laws. ' Where decedent is domiciled in one country, and leaves personal property in another, and the laws of the two countries relating to the priority of payment of claims against decedent's estate differ, the rule is that the law of the country in v\-hich the assets are located will prevail.'^^ Power of Executor to Prefer Creditors. An administrator, having in his inventory and first settle- ment of accounts treated as a part of the estate of the intestate a sum of money which he knew was in the hands of his intestate as a commissioner for the sale of property, but which he there- after paid to the persons entitled thereto will not be permitted, when the estate proves insolvent, to treat such money as a separate trust fund, and to be sul)rogated to the rights of the person to whom the money was properly ])aid. Having treated the fund frcjm the beginning as a part of the estate, it does not lie in his mouth, after ])aying the claim, and in order to jiro- 8"Davis V. Howell, 33 N. J. Eq., "''Haines v. Price, 20 N. J. L., 7J. Affirmed. 34 N. J. F.q., 292. 480-484. Dunn v. Campbell, 47 N. Greene v. Butterworth, 45 N. J. J. Eq., 4. 2 Williams on Execu- Eq., 738. tors, 850. ''^Wisham v. Lippincott, 9 N. J. *^''Varniim v. Camp, 13 N. J. L., Eq., 353. Howell v. Tecl, 29 N. ;^26. Traveler's Insurance Com- J. F.q., 490. pany v. Grant, 54 N. J. Eq.. 208. ^36 Probate Law and Practice. tect himself from loss by reason of the insolvency of the estate, now to insist that the fund was never a part of that estate.^' Preferred Cairns Must be Presented. A creditor holding a preferred claim against an insolvent estate must present it under oath within the time limited by the order of the court, or be barred.*^ DISPUTED CLAIMS. In General, An executor or administrator of an estate is in a sense a trustee for all the parties interested in the estate ; and it is his duty to protect these persons against every demand made against the estate which is not legally, enforceable. ^° It is therefore his duty to dispute any claim presented to him which in his opinion is not a valid claim against the estate which he represents. Method of Disputing Claims — By Person in Interest. If an executor or administrator allows and pays a claim, any party in interest, as a distributee or legatee, may contest it by filing exceptions to his account.'"' By Personal Representative. The statute provides that if any executor or administrator to whom any claim is presented dispute the same, or any part thereof, and gives notice in writing to the creditor, claimant, his attorney or agent, that said claim, or any part thereof, is jj disputed, such creditor shall bring suit therefor in three months from the time of giving such notice ; and in any suit not com- menced within said time, a decree barring creditor will bar any recovery of the account or part so disputed, as if said debt or claim had not been presented within the time so limited by said court. ''^ «'Cooley V. Vansyckle. 14 N. ^oKing v. Rockhill, 41 N. J. Eq., J. Eq., 496. 273, and see "Exceptions to Ac- sspogg's Case, 37 N. J. Eq., 238. count,'' p. 660. infra. s^Winchell v. Sanger, Ti Conn., ^^ Orphans' Court Act, sec. 71. 399, 47 Atl. Rep., 706. 3 Comp. Stat., 3835. ^^ Disbursements. 537 The provisions of this section are not limited in their appH- cation to claims presented after the entry of a rule to limit creditors ; and where a creditor presents his claim, and notice that the claim is disputed is served upon him by the executor, he must bring suit within the statutory limitation, or be barred under the provisions of this section, even though no rule to limit creditors had been taken at the time of his presenting the claim, provided the decree barring creditors is entered while the suit is still pending/-'- Statute includes Suits in Equity. The purpose of this section of the Orphans' Court Act is to effect a speedy settlement of estates. The reciuirement that "suit" shall be commenced within three months from the time the claim is disputed contains no suggestion that an action at law alone is contemplated. The term "suit," though frequently used to include an action in a court of law, as well as in a court of equity, is more appropriately applied to the latter. The well recognized spirit and purpose of the provisions of the statue under consideration also idicate that the intention of its f ramers was to require a creditor to litigate a claim for the recovery of an alleged indebtedness of deceased within the time specified, without limitation as to the court in which his claim of indebtedness should be appropriately asserted. With such legal legislative purpose in view, no reason suggests itself why the statutory requirements should not be held to include suits in equity as well as actions at law.''" Rejection of Claims Must be Unequivocal. Statutes pro\iding short limitations for actions on rejected claims, and for barring creditors on claims not duly presented, / are generally, if not universallv, construed to l^e penal in char- acter, and cannot be invoked on behalf of the personal repre- sentative to bar suit on a claim, where his action toward the 92Simons v. Forster, TZ N. J. L., "■"•Mathi?; v. Stevenson. 75 N. J. 338. Affirmed, suh iioni. Gargia Eq., 68. V. Foster, 77 N. J. L.. 802. :;38 Pkobatk Law and Practice. creditor in relation to the rejection or presentation of the claim has been ambiguous or equivocal.'-*"' Effect of Notice. A notice that a claim presented is disputed, given under this section is not a waiver of the defense of the statute of limi- tations as to such claim. ''^ Disputed Claim on Bond and Mortgage. If under an order to limit creditors a verified claim on the bond of a deceased obligor be presented to his legal repre- sentatives, and they serve notice disputing the same, a suit may be brought on the bond, without first foreclosing an accom- panying mortgage, notwithstanding the statutory requirement that in all cases where a bond and mortgage shall be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage, and, after sale, to proceed on the bond for the deficiency."" Such a suit is not a proceeding to collect, but only to ascertain the debt. In such a case, the statute stays only execution."' Where a claim upon a bond ■ secured by a mortgage was presented to the personal repre- sentatives of deceased, who gave notice that the claim was dis- puted and that they rec^uired suit to be brought thereon within three months and no suit was brought within that time and a decree barring creditors was entered, but within the three months a bill was filed to foreclose the mortgage, and the mort- gaged premises sold under a decree entered in that suit, from which sale a deficiency resulted, and within six months from such sale an action was brought to recover such deficiency, it was held that as the holder of the bond might have brought his action at law thereon against the executor, notwithstanding the statute"^ the mortgagee could not maintain a suit against the estate for such deficiency."" ''^Seymour v. Goodwin, 68 N. J. 983 Comp. Stat., p. 3420, sec. 47. F.q.. 189, at p. 197. Affirmed, 69 "^Ware v. Weatherby's Execu- N. J. Eq., 833. tors, 45 Atl. Rep., 914. See also "•'■Everitt v. Williams, 45 N. J. "Claim Secured by Mortgage," p. T,., 140-145. 564, infra, and "Claim for De- ^"3 Comp. Stat., p. 3420, sec. 47. ficiency on Foreclosure of Mort- ''"Weatherby v. Sparks, 63 N. gage," p. 568. infra. J- L., 445- DiSBURSEMEXTS. * 539 No Action to be Brought Against Executor, &c., for Six Months. To enable executors or administrators to examin.e into the condition of the estate and ascertain the amount and vahie thereof, and the debts to be paid out of the same, no action, either at law or in equity, except for funeral expenses, shall / be brought or maintained against executors or administrators ^ — ^ of the estate of any decedent, within six months after probate shall have been granted to such executor or executors in case of a will, or letters of administration shall have been granted to such administrator or administrators in case of intestacv. or with a will annexed, as the case may be, unless by special leave of the court wherein such action is intended to be brought: provided, no execution shall issue on any such judg- ment within the six months aforesaid/ Statute Does Not Apply to Foreclosure Suit. The plain design of the act is to afiford the executor or ad- ministrator an opportunity to see whether the estate committed to his administration is sufficient to pay the debts of the decedent in full or not, and, if it is not, to enable him to insti- tute such proceedings as shall secure an equal distribution of the estate among the creditors, and prevent one or more of them from acquiring by suit a preference over the others. Hence it seems plain that as a suit to foreclose a mortgage of the decedent to which an executor or administrator is made a party defendant, but in w^iich no relief is sought against either the personal representative or the estate, is not designed to charge or attack the estate committed to his administration, and as no judgment can be i^ronounced or decree made in such suit which will attack the estate, such suit is not within the reason or the policy of the statute. - Waiver of Statute. If the executor or administrator permits a suit commenced before the expiration of the six months to proceed to final de- ' Orphans' Court Act, sec. 65. 3 Eq., 166. United vSecurity Life Comp. Stat., 3832. Insurance Co. v. Vandegrift, 51 ^Ayres v. Shepherd, 64 K. J. N. J. Eq., 400. 540 Probate Law and Practice. cree, the court is bound to assume, in the absence of proof of accident or inadvertence, that he intended to waive the defense given by the statute.^ Jurisdiction of Orphans' Court. The orphans' court has no authority, except in the case of an insolvent estate,* or upon an appHcation for the sale of lands to pay debts,-' to try disputed claims and to determine who are and who are not creditors of decedent's estate; but by a disputed claim here is meant a claim which is disputed by the executor and administrator, and not a claim which the legatee or next of kin may deem unfounded. Claim Disputed by One of Several Accountants. The orphans' court has no power to allow one executor the amount of a debt which he insists is due him from tlie tes- tator's estate, or of a fee which he claims to have paid counsel for advice in regard to the estate, if his co-executor dispute their payment." Power of Executor to Compromise Claim against Estate. An executor may compromise a law suit, he may buy the I J peace of the estate he represents, and extinguish doubtful claims against it, provided he acts discreetly and in good faith;" and this even where the devisees or legatees object to such compromise, and notify the executor to contest the claim. ^ Power of Executor to Submit Claims Against Estate to Arbitration. An executor or administrator may submit claims against the estate to the award of arbitrators, and will be bound by "Boynton v. Sandford, 28 N. J. "Meeker v. Vanderveer, 15 N. Eq., 184. Afifirmed, ib., 592. J. L., 392. Rogers v. Hand, 39 N. *See "Jurisdiction of Court J. Eq., 270. Heisler v. Sharp, 44 over Disputed Claims,"' p. 594, N. J. Eq., 167-172. Manns v. infra. Sanford Co., 82 N. J. L., 124. •■^P. L. 1910, p. 517, 3 Comp. ^Rogers v. Hand, 39 N. J. Eq., Stat., 3842, sec. 83a, p. 477, supra. 270. For additional cases on this ^Middleton v. Middleton, 35 N. subject, see Reporter's Note to J. Eq., 115. See also "Actions be- Rogers v. Hand, 39 N. J. Eq., tween Co-E-xecutors," p. 421, 270-271. supra. Disbursements. :;4i the award and may enforce payment against the other party; but those interested in the estate will not be bound by the award. So if an administrator submit a controversy to arbi- tration, and the estate thereby suffers loss, it binds him. and amounts to a devastavit by him to the extent of the loss ; but until the award is shown to be erroneous, it is prima fade evidence of the validity of the claim." Where an adminis- trator in his representative capacity enters into a submis- sion of arbitration, and binds himself and his heirs to per- form the award, he cannot avail himself thereafter of a plea of want of assets, but is bound to perform the award whether he has assets or not; but this rule cannot prevail over the clear intention of the parties as found upon the face of the submission.'" The Court of Chancery will restrain a trustee from submitting to arbitration a question in which the cestui que trust alone is interested, without the latter's consent. '^ ADVANCES TO PAY DEBTS. By Executors or Administrators. An executor or administrator who pays the debts of his decedent is entitled to an allowance therefor in his account ;'' such executor or administrator is entitled to be re-imbursed out of the real estate/' and if the estate prove to be insolvent, he will be subrogated to all of the rights of the creditors for the payment of v/hose claims he advanced the money.'* So where an executor or administrator makes advances to the estate of decedent in excess of assets received by him, and then dies, the claim of his administrator for such advances is not one which can be barred by a decree barring creditors, since ^Crum V. Moore, 14 N. J. Eq., X. J. Eq.. 188. Suydam v. Vnnr- 436. hees, 58 N. J. Eq., 157. lOMcKecn v. Oliphant, 18 N. J. '■''Clayton v. Somers, 27 X. J L- 442. Eq.. 230. and see "Debts Due to "Crum V. Moore, 14 X. J. Eq., Accountant for .Advances to Es- 436. tate." p. 484. supra. First Xation- ' -Clayton v. Somers, 27 N. J. al Rank v. Thompson. 6r N. J. Eq., 230. Chamherlin v. Ale- Eq., 188. Dowell. 42 X. J. Eq.. 628. Dunn i-'See "Preferred Debts— Claims V. Campbell, 47 X. J. Eq., 4. First of Executors, &c. for Advances." Xational Hank v. Thompson, 6t p. 533, supra. 542 Probate Law and Practice. an executor who pays a debt of his testator with his own funds will be subrogated to the right of the creditor ji'^ but an administrator who advances money to pay claims against the estate is entitled to re-imbursement only as to such claims as were rightfully paid.^** Interest on Advances by Accountant. A charge of interest by an executor or administrator will be viewed with caution, and the circumstances alleged to sus- tain it will be examined with scrupulous care ; but circum- stances may exist which will not only justify but commend an advance of money by the administrator, and entitle him to an allowance of interest/' Advances by Third Persons. Persons dealing with representatives of deceased persons are presumed in law to be fully apprised of the extent of their authority to act in behalf of the estate which they represent, and to know that they have no authority as such to make new contracts which will bind the estate in their charge ; such, for example, as contracts for the loan of money, even upon the pretense that it is needed for the payment of debts. Third persons, therefore, who have made advances to an executor or administrator to enable him to pay the debts of the estate which he represents must ordinarily look to such representative personally for re-imbursement. Yet if the personal repre- sentative would be entitled to re-imbursement from the estate for his payment, and he is insolvent, equity will subrogate the persons so advancing to the rights of the personal representa- tive, and allow them to be paid directly out of the estate.^* So where an administrator, who was conducting the business owned by his intestate, agreed with a bank, which was also a creditor of the estate, that if it would discount a note for i"'Dunn V. Campbell, 47 N. J. ^'Liddel v. McVickar, 11 N. J. Eq., 4. L., 44- ^"First National Bank of Free- ^''First National Bank v. hold V. Thompson, 61 N. J. Eq.. Thompson, 61 N. J. Eq.. 188. De- 188. Concillio v. Brownrigg. 51 N. J. Fa.. 532. DiSBURSEMEXTS. 543 him he would pay other creditors of the estate, who were pressing, and the creditors were so paid, and it transpired that the estate was insolvent, it was held that the bank was entitled to be subrogated to the claims of the paid creditors to the ex- tent to which the administrator himself would have been en- titled to recover for moneys advanced for such payments. ^^ Where, however, a creditor of an estate advances money to the administrator to pay oil certain debts, the creditor can- not claim to be reimbursed from the estate as to a portion of the sum advanced which the administrator used for individual purposes, although the agreement was that it was all to be used for the estate.-" CLAIMS OF EXECUTORS OR ADMINISTRATORS. Right to Retain Assets in Payment. As has been said above, the rule is well settled that if a creditor becomes the executor or administrator of his debtor's estate, he may retain the amount of a debt due him from the estate of decedent.-^ An administrator pendente lite, or other special administrator, may exercise this right,-- and the right extends to each of several co-executors ;- ' but by refraining from exercising his right of retainer, an executor who is an alleged creditor of his decedent's estate does not thereby mis- lead a legatee in any way whereby an equitable estoppel is raised against such creditor in his lifetime, or against his per- sonal representative after h's decease.-* The right of retainer exists solely ]jy operation of law. Where an executor exercises it, he does so subject to inquiry in the orphans' court, or other tribunal which passes upon his i^First Xational Bank r. ^-^attoon v. Overacker, 8 Thompson, 61 N. J. Eq., 188. Johns. (N. Y.). 126. Franks v. 20First Xational Bank v. Cooper, 4 Ves. Jr.. -/Gi,. (31 F.ng. Thompson. 61 X. J. Eq., 188. Reprint. 394). 2iSnowhill V. Snowhill. 2 X. J. ^''Decker v. Miller, 2 Paige (N. Eq., 30. Dohnan v. Cook. 14 X. ^'.), 149. Kent v. Pickering, 2 J. Eq., 56. Personette v. Person- Keen i. 48 Eng. Reprint, 528. ctte, 35 N. J. Eq.. 472. Kinnan v. =^0'Donnell v. ATcCann. 77 N. Wight, 39 X. J. Eq., 501. Frey's J. Eq., 188. Case, 73 K. J. Eq., 346. 36 544 Probate Law and Practice. account, as to the validity of his claim; and such court has jurisdiction to pass upon the legality of his action in retain- ing for his debt.-^ It seems that the right of retainer can only be exercised where the account of the executor is before the court for the purpose of having a settlement thereof. This right would therefore not be recognized, where it would simply operate as a set-oft'.-'^ Priority Over Other Claims. While the right of retainer by an executor or administrator is undoubted, he is not entitled to retain the amount of his claim, until it is made to appear whether the estate is solvent or insolvent. If the estate prove insolvent, his claim will be subordinate to claims of preferred creditors, and will only be admitted on the same basis with other claims of equal de- gree ;-' and so in an accounting by a removed executor, he cannot be allowed for the retainer of a claim against the es- tate made by himself, if it has not then appeared that the estate is clearly solvent.-^ To What Claims Right Extends. An executor or administrator may retain any valid claim against the estate of his decedent, irrespective of the nature of such claim ; thus, where decedent's widow is his executrix, she may retain the amount of advances made by her to her husband in his lifetime from her separate estate.-^ So where the original relationship between the decedent and the ex- ecutor was that of -debtor and creditor, recognized, before testator became insane, by the payment and receipt of money on account of such indebtedness, the law will not presume that additional services afterwards rendered to the lunatic 25Kinnan v. Wight, 39 N. J. 483. In re Wiley. 65 Atl. Rep., Eq., 501. O'Donnell v. McCann, 212. ■j7 N. J. Eq., 188-201. -'sMiddleton v. Carter, 73 N. J. ^sDolman v. Cook, 14 N. J. Eq., Eq., 624. Affirmed, 74 N. J. Eq., 56-68. 853. -^Dolman v. Cook, 14 N. J. Eq., -^Personette v. Personette, 35 56. Frey's Case, 73 N. J. Eq., 346. N. J. Eq., 472; see also "Claims ot Haines v. Price, 20 N. J. L., 480- Widow for Moneys Loaned De- cedent," p. 525, supra. Disbursements. 545 were intended as a gratuity, and the executor is justified in re- taining the balance due him f" but a charge by an executor against the estate of his testator for services rendered dur- ing the hitter's Hfetinie, in a case where there is not the shght- est intimation that during that time it was expected or in- tended that such charge would be made, will not be allowed.^^ An executor's right of retainer extends to debts due to him jointly with others, or in the character of trustee, as well as to those which are due to him solely and in his own right f- but an executor largely indebted to his testator's estate will not be allowed to pay to himself out of the cash in his hands a claim that he holds against the estate, but will be required to set-off his claim and indebtedness."'^ ASSETS FROM WHICH DEBTS ARE TO BE PAID. In General. ' In the absence of any provisions to the contrary in the will, personal property is the primary fund for the payment of debts; specific legacies must yield to this payment, and lands will not be ordered sold to pay debts when it appears that suf- ficient personalty came to the hands of the executors to enable them to make such payment. The personalty will not be ex- onerated from the primary liability merely because the tes- tator has evinced a purpose to charge his debts upon his real estate, unless he has clearly indicated an intention to discharge his personalty therefrom.^* In order to exonerate the general personal estate from being applied to the payment of the debts, or to postpone its primary use for that purpose, there must ^oWaldron v. Davis, 70 N. J. Due to Personal Representalive," L., 788. p. 526, supra. •'-lEgerton v. Egerton, 17 N. J. ^i-y^liitej^gafj y Gibbons, 10 Eq., 419- N. J. Eq., 230. Shrove v. Shreye, •'•-Hosack V. Rogers, 6 Paige 10 N. J. Eq., 385. Reversed, 17 Ch., 415. Reversed, 18 Wend., N. J. Eq., 487. Winants v. Tcr- .119- liunc, 15 N. J. Eq., 185. Keene v. ■■'-Tcrhune v. Oldis, 44 N. J. Munn, 16 N. J. Eq., 398. Slack v. Eq., 146. As to right of executor Emery, 30 N. J. Eq., 458-461. Hig- or administrator to retain a claim bie v. Morris, 53 N. J. Eq.. 173- which has been barred by the 177. Ford v. Westervelt, 55 N. J. statute of limitations, sec "Deljts I'"q., 485. 540 Probate Law and Practice. be, an express direction or a necessary implication in the will.^^ So a creditor of a deceased person cannot maintain a bill to set aside as fraudulent a conveyance of the decedent's lands, when the bill shows that the personalty of the deceased is ample to pay his debts."'"' When Debt is Secured by Mortgage. The personal estate is primarily liable, even where the debt is secured by mortgage ; and the heirs-at-law or devisees may call upon the executor to exonerate the land by discharging the mortgage debt out of the personal estate.-''' This is the rule even where the devise is of all the testator's "right, title and interest" in the lands on which there is a mortgage f'^ but the mortgagee or alienee of the heir or devisee has no such equity ; the principle is adopted in favor of the heir or de- visee alone."" But where a testator .or intestate purchases lands subject to a mortgage, or assumes a mortgage on lands purchased by him, the mere assumption of the mortgage is not such proof of an intention to make the debt his own as to ren- der his personal estate pecuniarily liable therefor, unless the decedent shall have assumed the debt in such manner as to show an intention to charge his personal estate ; making him- self or his representative liable to be called on by the mort- gagee is not sufficient of itself to charge the personal estate in exoneration of the lands. ^"^ And it is only from the residuary personal estate that a devisee can demand that a mortgage on lands devised to him be paid; after the exhaustion of the "5Whi;ehead v. Gibbons, lO N. "*Higbie v. Morris. 53 N. J. J. Eq.. 230. Higbie v. Morris, 53 Eq.. 173. N. J. Eq., 173-177. Bird v. Haw- '"Keene v. Alunn. 16 X. J. Eq., kins. 58 N. J. Eq., 229. 398. Krueger v. Ferry. 41 N. J. 3'^'Rutherford v. Alyea. 54 N. J. Eq., 432. Affirmed. 43 X. J. Eq., Eq., 411. 295. 3'Keene v. Munn. 16 X. J. Eq., ^"Hetzel v. Hetzel, 74 X. J. Eq., 398. Campbell v. Campbell,' 30 770. McLenahan v. McLenahan, X. J. Eq., 415. Krueger v. Ferry, 18 X. J. Eq., loi. Campbell v. 41 X. J. Eq.. 43^. Affirmed, 43 X. Campbell, 30 X. J. Eq., 415. J. Eq., 295. Coudert v. Condert, Mount v. VanXess, 33 X. J. Eq., 43 X. J. Eq.. 407. Bacon v. De- 262. Birkholm v. Wardell, 42 X. vinney, 55 X. J. Eq., 449. J. Eq.. 337- Smith v. Wilson, 79 X. J. Eq., 310. Disbursements. 547 general residuary fund, the devisee of the mortgaged lands cannot call for contribution either on general or on specific legatees.*^ An examination of the cases cited in support of the fore- going discloses the fact that the rules there laid down have l>een approved by the Court of Errors and Appeals in several instances, notwithstanding the fact that in the case of Smith z'. Wilson*'- the Court of Chancery, without mentioning or at- tempting to distinguish these cases, held that the Act of March 1 2th, iSSo,'*' and its supplements, have abolished the right of the heir, or devisee to be exonerated from a mortgage debt created and owed by an ancestor or testator, out of the per- sonal estate of such ancestor or testator. In such cases, the statute expressly makes the mortgaged lands the primary fund out of which the debt secured thereby is to be paid, and per- mits the personal remedy on the bond only after the remedy against the lands has been exhausted. The ancient rule is based upon the theory that the personal estate of a testator or intestate is the primary fund out of which his debts are to be paid. Exoneration was not allowed where the heir or devisee received his land encumbered by a mortgage which secured a debt which the ancestor or testator did not owe. A timely presentation therefore, by the heirs of a claim against an administrator for exoneration from the burden of a mort- gage made by deceased does not amount to a claim for the whole debt, but is merely a claim for the payment of any de- ficiency which may thereafter be declared due to the claimant afterlhis primary security, the land, has baen exhausted. The rule as laid down in this case was followed in Atkinson v. At- kinson.** Attention is also called to the case of Crater v. Smith*-' in which it was held that the Act of 1880, being in derogation of the creditors' common law remedy, must be strictly construed, and that that act does not prevent the mort- gagee from presenting liis full claim to the representative of the deceased mortgagor, before the foreclosure of the mort- ^^Thomas v. Thomas, 17 N. J. *''^z Comp. Stat., p. 3421, sec. 48. Eq., 356. Higbie v. Morris, 53 ••'92 Atl. Rep., 795. N. J. Eq., 173. •'■'42 N. J. Eq., .348. Affirmed. <=79 N. J. Eq., 310. 43 N. J. Eq., 636. 548 Probate Law and Practice. gage, and obtaining his dividend on the amount of the de- ficiency, if the estate be insolvent, more than six months after the foreclosure sale, although no action has been brought on the bond. ORDER OF APPLICATION OF ASSETS TO PAYMENT OF DEBTS. In General. The order in which assets are to be applied to the payment of debts, in the absence of a contrary intention sufficiently ex- pressed in the will, is, ( i) the general, or residuary, person- alty, not specifically bequeathed nor exonerated or exempted ; (2) real estate appropriated to, and not merely charged with the payment of debts; (3) real estate descended whether acquired before or after the making of the will; (4) real estate devised charged with the payment of debts; (5) general pecuniary legacies pro rata; (6) specific and residuary devises and spe- cific legacies pro rata; (7) real and personal property which the testator has power to appoint and which he has appointed by his will.*'^ , Personalty Not Specifically Bequeathed. Personalty not specifically bequeathed must be applied to the payment of debts before specific legacies.'*^ Residuary Real Estate. After the personalty not specifically bequeathed is exha,usted, the residuary real estate is bound to contribute first to the payment of debts.** Lands Descended. Lands descended are chargeable with debts before lands de- vised.*^ ^^2> Williams on Executors, *«Martin v. Cullen, 30 N. J. Eq., 1591. 426. Anderson v. Anderson, 31 ^"Whitehead v. Gibbons, 10 N. N. J. Eq., 560. Hattersley v. Bis- J. Eq., 230. Halsey v. Patterson. sett, 52 N. J. Eq., 693. 27 N. J. Eq., 445. Kearns v. ^^Stires v. Stires, 5 N. J. Eq.. Kearns, yy N. J. Eq., 453. 224. DiSlJURSEMEXTS. 549 Lands Specifically Devised. It is not until the residuary real estate has been exhausted that specifically devised estates become liable/''*^ Specific Legacies and Devises. After the personalty not bequeathed is exhausted, in the absence of lands descended, specific legacies and devises abate equallv in payment of creditors.-'''^ Where Lands Devised for Payment of Debts. Where a testator devised certain lands for the payment of his debts, until they have been exhausted, the sale of other lands cannot be resorted to.''- PAYMENTS FOR THE BENEFIT OF LEGATEES, ETC. In General, An executor or administrator will be allowed for a claim paid by him which properly he should not have paid, but which payment accrued to the benefit of the exceptant.^ So where, although the personal estate of an intestate was not liable for the payment of a mortgage on lands bought by him, the pay- ment of which he assumed in his deed for the premises, his administratrix paid interest thereon out of the personal estate. and his child, who was his only next of kin and heir at law, ex- cepted to the allowance thereof to the administratrix, it w^as held that the exception should be overruled, the payment hav- ing been for the exceptant's benefit ;- and so services, such as caring for. nursing and ministering to the health and comfort of a lunatic, belong to the class of "necessaries" which are recoverable against the lunatic, and. after his death, against the estate." Ikit if an executor has paid part of a legacy given '^''Anderson v. Anderson, 31 N. '"Stiers v. Sticrs, 20 N. J. L., J. F.q., 560. 52. •"''Thomas v. Thomas, 17 N. T. >Birkhohii v. Wardell, 42 N. J. Eq., 356, Shreve v. Shreve, 17 Eq., 2i7- Rogers v. Traphagen, N. J. Eq., 487. I.angstroth v. 42 N. J. Eq., 421. Golding, 41 N. J. Eq., 49, and see ^girkholm v. Wardell, 42 N. J. "What Lands May be Sold," p. Eq., 337. 486, supra. •■'Waldron v. Davis, 70 N. J. L., 787. 572 Probate Law and Practice. a preference is gi\en by our laws for the administration of estates. If the personal representative of an intestate trustee treat a trust fund as such and deliver it to its rightful owner or to a substituted trustee, the court before whom the repre- sentative presents his account would probably protect him in making such payment, but it is upon the ground that the trust fund is not part of the assets of the decedent." So in Ellicott V. Kuhl,^ the court said on this point : "The cestui que trust was, therefore, held entitled to claim its proceeds, not as a preferred debt, but as property to which he had a right as against the deceased, or those who claimed under him." And so in Koch v. Feick,^ it was held that complainants, seeking to follow trust funds which they alleged to have been in the cus- tody and possession of decedent at the time of his death, did not claim to be creditors of the estate, and that a decree of insolvency in the orphans' court could not take away from such cestuis qiie trustcnt any rights which they had in such assets. Cestui Que Trust Must Trace Assets, It follows that the rights of a cestui que trust or other bene- ficiary against the estate of a trustee or other fiduciary depend entirely upon his ability to impress the trust upon the assets of the estate, which ability in turn depends upon and must be de- cided by the application to the facts in the case of the funda- mental equitable doctrine that trust property may be followed as far as it can be traced ; and the rule may therefore be stated to be that the cestui que trust is entitled to impress the trust upon the trust property when he can trace it, but that when he cannot trace it, he has no rights superior to those of the general creditors of the estate, and must come in on an equal footing with them. Application of Rule, There are, obviously, two classes of cases in which the appli- cation of this rule is simple — on the one hand, where the trust property remains in the hands of the trustee in specie, or where it can be definitely and unmistakably identified in the s6o N. J. Eq., 2Z2. ^8l N. J. Eq., 120-122. Barring Creditors. 573 form into uhich it has been converted ;'*' on the other, where it has been completely merged in and lost to sight among the general mass of the trustee's possessions, and can neither be traced nor identified. ^^ The difficulties in the proper application of the rule arise in the cases that fall between the two classes described above — that is. where the property can be partly traced or imperfectly identified. In these cases, it is generall}' held that the prop- erty may be followed so far as and to the amount that it can be identified ; and to assist in such identification, two more equi- table rules are invoked — namely, that where a person holding money in a fiduciary capacity mixes it with his own and draws out of the mixed fund, the court will presume that he applies his own money to his own debts and the moneys held in trust to the del)ts of the trust;'- and that where a fiduciary has by such mixing of property made it difficult to determine what the respective proportions are, the burden of proof is upon him to show what part of it is not trust property.'^ Illustrations of Application of Rule. In Hunt V. Smith, ^* a testator left to his wife, who was also appointed executrix, all his personal estate, in trust to use the income during her lifetime, with remainder over to others. She kept no accounts, treated all the assets of the estate as her own, and used the money obtained therefrom in making various investments. After her death, intestate, the administrator c. t. a. of the husband showed what moneys were collected in cash by her from her luisl^and's personal estate, and, in most cases, just what disjwsition she made of the moneys so col- i^Coolcy V. Vansyckle, 14 N. J. 622. Collins v. Lewis, 60 N. J. Hq., 496. Arnold v. Robins, 40 N. Eq., 488. J. Eq., 722,'. i-Standi.sh v. BaI>cock, 52 N. J. i^Nevius V. Disborough, 13 N. Eq., 628. Reversed 53 N. J. E(|., J. L., 343. Collins V. Steuart, 58 376. First National Bank v. N. J. Eq., 392. Affirmed 60 N. J. Thompson. 61 N. J. Eq., 188. Eq., 488. Ellicott V. Kuhl. 60 N. "Hunt v. Smith, 58 N. J. Eq., J. Eq., 333. O'Callaghan's Case, 25. Bohle v. Hasselbrock, 61 N. 64 N. J. Eq.., 287. Harrison v. J. Eq., 470. Reversed 64 N. J. Fleischman, 70 N. J. Eq., 301. Eq., 3.34- Pierson v. Phillips, 95 Atl. Rep., '\s8 N, J. Eq., 25. 574 Probate Law and Practice. lected. The court said: "By means of the wife's bank ac- count and the proof of witnesses, the administrator c. t. a. succeeded in tracing the greater portion of the collections made by her from the personal assets of her husband's estate directly or secondarily into the investment in the securities which were found by her adminstrator and inventoried as her estate. . . . The administrator of the wife must be decreed to pay to the complainant, the administrator c. t. a., of the husband, the amount he has collected from securities which came to his hands, and which were part of the estate of the husl:)and . . . If the estate in the hands of her administrator is not sut^cient to pav the amount I have found due to the complainant . . , then resort may be had to the Beatty property (other property of the wife, alleged by complainant to have been purchased with money of the husband's estate). No proof has been adduced that there are any other debts due from her estate, except what may be considered as pre- ferred debts, and are probably already paid, beside those that have been adjudicated upon in this cause. But if there were any other debts, as the great body of her estate came from her husband's estate and she has rendered it difficult to trace the investments which have been made with her husband's funds, the residuary legatees of her husband's estate should, upon well settled principles, have precedence. For that reason I think resort may be had to the Beatty real estate for any de- ficiency." Smith V. Combs Distinguished. It is true that the case of Smith z'. Combs,^^ apparently goes beyond the doctrines above laid down ; but it would seem that this is more in the language used by the court in its decision therein, and probably not in what was actually decided. In this case, the trustee had bought bank stocks, and probably, real estate (though if the latter, it does not appear with certainty from the case as reported) with the trust funds, and died in- solvent and intestate, with said stocks and realty still in his hands. It was held that the cestuis que triistent were entitled to priority, as against creditors, to all the fluids in the hands of ^•='40 N. j. Eq., 420. Barring Creditors. 575 the trustee'? administrators, arising from the sale of the bank stocks and real estate, up to the full amount of the trust fund. The court used this language : "I think, in case it can he shown that a trustee has converted portions of his trust estate into money or has used trust funds for the purpose of purchasing personal property and converting that into money, or where it has been converted into money by his administrator, and there is no uncertainty in either event as to the amount, whatever funds or estate may be left in his own hands, or in the hands of his administrator should be regarded as representing the the trust until it is fully satisfied, and this even against credi- tors, unless it is made manifest that injustice will be done them." In the later case of Bllicott j'. Kidil.^'' this case is ex- plained, and what is probably the better rule laid down, as fol- lows : "It is now a well settled doctrine that the cestui que trust who can trace the trust funds into a particular property may assert a right to that property and its proceeds, if sold, if the proceeds remain traceable and are found in the hands of those who can assert no better right thereto. Notwithstanding some of the expressions in the opinion of the learned vice-chancellor in Smith f. Coiiibs. when the facts of the case are considered, I think it clear that he did not in- tend to express any different doctrine upon the subject than that developed by cases in our owm courts. In that case, A^ice-Chancellor Bird found, upon the evidence, that the trust funds had been invested by the trustee in bank stock, which he held at the time of his death. The funds were therefore traced to a particular property' which the trustee had acquired by their use. . . . The true doctrine was no doubt applied in Smith v. Combs, for the trustee had purchased property with the trust funds, and the property remained in his ownership at his death and went to swell the amount of his estate. The cestui que trust was, therefore, held entitled to claim its proceeds, not as a ]M'eferre(l del)t. but as property to which he had a right as against the deceased, or those who claimefl under him. . . . "■'60 N. J. T'.q.. 3,33. 38 576 * Probate Law and Practice. Where moneys of a trust fund are traced to the bank ac- count of a trustee or person acting in a fiduciary capacity, and there are moneys remaining in the account to satisfy the whole or part of the fund, the cestui que trust, or person whose fiduciary agent has placed the moneys in such an account, may follow and take those moneys, because the presumption is that the moneys previously drawn from the account were rightfully drawn, and were chargeable first upon the private deposits with which the trust funds had been mingled. Thus considered, the whole or part of the trust fund has been traced to the ac- count and found there, and the cestui que trust may assert his right to it." It will be noted that this explanation of Smith v. Combs leaves out of consideration altogether the fact that in that case the fund in question was, as said above, partially formed by the proceeds of the sale of real estate of the trustee, which, so far as appears from the reported case, may not have been purchased with trust funds. However, there can be little doubt that, if this be the fact, the decision of that case must, so far as regards the part of the fund accruing from such sale of real estate be regarded as erroneous, both on principle and on precedent, and as having been overruled by the later case,^^ which, as has been seen, supports the rule laid down in the text. REMEDIES OF BARRED CREDITORS. In General. The decree barring creditors operates, as has been said, only to protect the executor or administrator from belated claims of creditors, to the end that the estate of a decedent may be speedily settled, and does not operate as a statute of limitations against the claims of creditors. What is barred are actions against the executor or administrator, and creditors retain un- impaired all other remedies to collect their claims.-^ ^"Ellicott V. Kuhl, 60 N. J. Eq., 210'Donnell v. McCann, 77 N. 333. J. Eq.. 188-196. Barring Creditors. "^77 Where Creditor Discovers Assets Unaccounted For. If anv creditor who has failed to present his debt, demand or claim, shall, after the final settlement of the account of the executor or administrator, find some other estate not ac- counted for. he shall be entitled to have his debt, demand or claim paid thereout, or to a ratable proportion thereof, in case other creditors shall be barred of their debts, demands or claims. -- Construction of Statute. The settlement intended by this section is a judicial settle- ment before the orphans' court, ordinary or surrogate.-^ Procedure Under Statute. The remedy of the creditor who is in laches and has not put in his claim is to present such claim to the orphans' court, and bring in at the same time property not accounted for ; and, under the direction and order of the court, to have his claim established, and the newl\- discovered property distributed.-* Against Surplus After Settlement of Estate. The statute provides that in all cases where any executor or administrator shall ha\e settled the estate of any decedent, or may hereafter settle the estate of any decedent, and there has been, or shall be, upon such settlement a surj^lus to ])e dis- tributed, it shall and may be lawful for any creditor of said estate, who may have neglected to file his claim with such exec- utor or administrator within the time herein |)rescribe(l, to ])re- sent such claim to such executor or administrator under oath at any time before said surplus shall have been distributed or jjaid over according to law by such executor or administrator, and upon such claim being so presented, it shall be the duty of such executor or administrator to pay the same, or so much ■ thereof as there may be .suri)]us in his hands for that ])urpose, in case he is satisfied that it is correct and ought to be i)aid, 2=0rphans' Court Act, sec. 70, 3 *uch suit and prosecute the same with due (hhgence according to the rules and practice of the court, he shall be thereafter forever barred from brin.c;ing any suit or action for the recov- ery of such claim.-* Against Unpaid Legacy or Distributive Share. Any legacy or distributive share which shall not have been attached in the hands of the executor or administrator, or paid over to the person entitled to the same shall, notwithstanding such decree in bar of creditors, be assets in the hands of the executor or administrator for the payment of a ratable pro- portion of the debt or claim of any creditor who shall not have presented the same within the time limited; but such creditor in any action to charge such assets shall not recover any costs, and if judgment pass against him in such action, he shall pay costs. :^ A creditor of a decedent whose claim was not presented to the executor in due season, and who is bound by a decree bar- ring creditors, may nevertheless maintain an action against the executors for payment of a ratable portion of his debt from any legacy, or legacies, which shall not have been paid over by the executors, or have been attached in their hands;"" but such action will not lie until after final settlement of the accounts of such personal representative in the court where -uch accounts are required by law to be settled.'^ Effect of Not Filing Refunding Bond. In any action by a creditor to charge a legacy or distributive share as assets in the hands of an executor or administrator for the payment of a ratable proportion of his debt, it shall be ])resumptive evidence that such legacy or distributive share, if not attached, was not paid to the legatee or distributee, if it ap- pear that at the commencement of the suit no refunding bond -^Orphans' Court .\ct, sec. 74. ■''lO'Neil v. Freeman, 45 N. J. 3 Comp. Stat., 3836. L., 208. Emson v. Allen, 62 N. J. -'^Orphans' Court Act, sec. 77. L., 491. For proceedings where 3 Comp. Stat., 3836. the jiersonal representative neg- '"Dodson V. Sevars. 52 X. J. lects or refuses to account, see Eq., 611. .Affirmed 53 N. J. Eq., p. 58.', infra. 347- -8o Probate Law and Practick. had been filed therefor; and in such case such executor or administrator shall be chargeable with such legacy or dis- tributive share as assets, unless it shall be proved that such legacy or distributive share was actually paid over before the commencement of such suit, and such executor or adminis- trator shall at the time of pleading such decree in bar file therewith a proper refunding bond, and pay the plaintiff in such action his costs of suit which shall have accrued before plea filed. ^■- The failure by an executor to file refunding bonds is pre- sumptive evidence, in a suit by a barred creditor to recover his claim for legacies unpaid and in the hands of the executor, that such legacies have not been paid by them to the legatees."^ By Suit on Refunding Bond. Everv executor or administrator, on the payment of any legacy or distributive share to the person entitled to the same, shall take a refunding bond therefor ; which bond shall be filed in the surrogate's office of the county in which letters testamentary or of administration were granted; and any creditor, who may be barred by virtue of any decree of limita- tion, may by order of the orphans' court, bring suit on such refunding bond in the name of the executor or administrator, but with the name of such creditor stated in the process and pleadings as the prosecutor thereof, and may recover thereon the proportion of his debt which ought to be paid out of the legacy or distributive share for which said bond was given, but shall not recover costs in such suit ; and if judgment be given for the defendant therein, he shall have judgment against the prosecutor for his costs of suit, and not against the plain- tiff' ; but there shall not be recovered on such bond, in the whole a greater amount than the legacy or share actually re- ceived by the person by or from whom it was given ; provided, that nothing herein contained shall enable any person to re- cover any debt or demand barred by any limitation other than, said decree ; and provided oho, that where any legacy or dis- s-'Orphans' Court Act, sec. 79. ssDodson v. Sevars, 52 N. T. 3 Comp. Stat., 3838. Eq., 611-616. Affirmed 53 N. T. Eq., 347- Barring Creditors. 581 tributive share is payable to any executor, administrator, guardian or trustee it shall be an absolute bar in any suit for the recovery of said legacy or distributive share on any re- funding bond given by said executor, administrator, guardian or trustee that prior to the commencement of said suit the moneys or property so received by said executor, adminis- trator, guardian or trustee have been lawfully paid over or distributed and that said executor, administrator, guardian or trustee has taken in the name of the executor or adminis- trator of the original decedent a refunding bond or bonds therefor and in case part of said moneys have been distributed by said executor, administrator, guardian or trustee and re- funding bond or bonds taken therefor, recovery may be had for the unpaid part only, and in case refunding bond or bonds are taken as aforesaid, suit may be brought by any such credi- tor on said refunding bond or bonds in the same manner as if payment had been made by the executor or administrator of the original decedent direct to a legatee or distributee ; but if said refunding bond or bonds shall not, prior to the com- mencement of suit as aforesaid, be filed in said surrogate's ofifice, said executor, administrator, guardian or trustee shall at the time of the pleading said payment or distribution, file a proper refunding bond therefor in said surrogate's office and pay the plaintiff in such action his costs of suit wiiich shall have accrued prior to plea filed/^* The adjudications in this state make it clear that the recovery of a legacy by one entitled thereto will not defeat the claim of a creditor, even though he has been barred of his action against the executor, for if he has been so barred, he may re- cover his debt out of the legacy and from the legatee.'^ Action Against Legatee or Distributee on Barred Claim. Though a creditor may be barred of his action against the executor of his debtor, he is entitled to a remedy against his debtor's legatee, if tiie legatee has received his legacy.^*^ 3<0rphans' Court Act, sec. 78, ssQ'Donnell v. McCann, •]■] N. 3 Comp. Stat., 3^ and Devisees. A creditor of a decedent who died seized of real estate may ignore the personal representative and bring suit directly against the heir at law or devisee. This course affords an ad- ditional method of relief to a barred creditor. This subject will be found more fully treated elsewhere."" Proceedings in Case Executor, &c., Neglects to Account, &c. In case any executor or administrator shall neglect to make a final settlement of his account within one year after letters testamentary or of administration granted, or if any adminis- trator shall not within three months after the final settlement of his account apply for a decree of distribution thereon, any creditor, whose debt or demand shall be barred by such de- cree of the orphans' court, may present a petition to the or- phans' court, alleging such facts and praying relief ; and the said court shall investigate the circumstances of the case, and the condition of the estate, and if it be made to appear that such delay was unreasonable and without sufficient cause, the said court may by decree give such creditor relief against any assets that may be in the hands of the executor or adminis- trator, in the nature of the relief he would be entitled to in case the final account of such executor or administrator had been passed, and a refunding bond taken for any legacy or dis- tributive share, and may make such order touching the proof of the claim of such creditor (if disputed), and the costs of such proceeding, as may be equitable ; and the said court may in its discretion order and decree that such costs be paid b} the executor or administrator out of his own estate. ^^ Attention is called to the fact that this section provides for relief only in case of a decree barring creditors made by the orphans' court, and tliat its provisions do not extend to a credi- tor whose claim has been Ijarred by a decree of the surrogate. Remedy in Chancery. A barred creditor may go into equity for discovery of assets in the hands of the executors, and, when there, will be per- ^"See "Action by Creditor ^^Orphans' Court Act, sec. 80. against Heir or Devisee," p. 461, 3 Comp Stat., 3838. supra. Barking Crkditoks. 5S3 mitted to establish the vahdity of his claim and to have it sat'S- tied so far as the assets discovered may lawfully l)e resorted to.^^ But a creditor of a deceased person who has not i)re- sented his claim to the personal representative cannot maintain a bill to set aside as fraudulent a conveyance of decedent's lands, when the bill shows that the personal property of tlie deceased is ample to pay his debts ;^" and so a creditor who has failed to present his claim to the executor of his debtor within the time limited b\' the orphans' court cannot apply to the Court of Chancery to have certain bequests and devises subjected to his claim, it appearing in his bill that on final settle- ment there was a large residue left in the hands of the execu- tors;^^ but where complainant, who alleged that he was the creditor of testator to a very large amount, that defendant, the residuary devisee, who was also one of the executors, had, as such, fraudulently confessed a judgment for a large amount, and that thereunder the sheriff had levied on all the testator's lands, and sold all his personal property, obtained a prelimi- nary injunction restraining the sheriff from paying over such proceeds and from going on with the sale of the lands, it was held that such injunction would not be dissolved on the appli- cation of the defendant, although complainant had never pre- sented his claim to the executors for payment, and had ob- tained no judgment at law on his claim, the executors, how- ever, having recognized it by making payments thereon, both before and after the expiration of the time limited by the rule to bar creditors. ■•- '•'Dodson V. Sevars, 52 N. J. ^iDodson v. Sevars. 53 N. J. Eq., 61 r. Affirmed 53 N. J. Eq., Eq.. 347. 347. •'-Emsnn v. Ivins. 42 N. J. Eq., 4'^Rutherford v. .-\lye.i, 54 N. J. 2-]-. Eq., 411. CHAPTER XXIX. INSOLVENT ESTATES. Real and Personal Estate of Insolvent to be Distributed Proportionately Among Creditors. The estate, real and personal, of a testator or intestate, in case the same shall be insufficient to pay all his or her debts, shall be distributed among his or her creditors, in proportion to the sums that shall be due to them respectively, except that the debts which by this act are made preferred debts shall be first paid.^ The direction of the statute that the assets of an insolvent estate shall be distributed ratably among the creditors of the decedent gives creditors a lien on such assets, so as to entitle them to a standing to contest the validity of a chattel mortgage not filed according to the statute. - APPLICATION TO HAVE ESTATE DECLARED INSOLVENT. Action of Court Upon. When any executor or administrator shall, by application in writing, represent to the orphans' court of the proper county, on oath or affirmation, that the personal and real estate of the decedent is insufficient to pay the debts of the deceased, accord- ing to the best of his knowledge and belief, the said court shall theretipon direct the said executor or administrator to give public notice to the creditors of the estate to exhibit to such executor or administrator, under oath or affirmation, their claims and demands against the estate within such time as the court shall direct and appoint not exceeding eighteen months nor less than six months.^ ^Orphans' Court Act. sec. 99. ^Orphans' Court Act, sec 100. 3 Comp. Stat. 3848. 3 Comp. Stat. 3848. -Currie v. Knight, 34 N. J. Eq., 485. IXSOLVKXT ESTATF.S. 585 Where There Are Two or More Executors. Where there are two or more executors, all of them should join in an application to have the estate declared insolvent ; and the court should not take favorable action upon an appli- cation made by one of several executors, unless sufficient reason therefor is alleged in the application and established to the court's satisfaction.* Where Rule to Limit Creditors Has Been Taken, If an order to limit creditors under the sixty-seventh section of this act"' shall be obtained by the executor or administrator, and at the time of obtaining such order, or at any time there- after, such executor or administrator shall, by application in writing, under oath, represent to the orphans" court of the proper county that according to the best of his knowledge and belief the real and personal estate of the decedent is insufficient to pay his debts, the orphans' court, on report of claims and presentation of the inventory, of the real and personal estate of the decedent, as hereinabove prescribed, may decree the estate to be insolvent, and make order for the sale of lands and real estate, as in case of insolvent estates, without the application and notice to creditors, mentioned in the one hundredth sec- tion f provided, that the notice to creditors, which is required to be given by the order to limit creditors, shall have been given, and the executor or administrator, with the notice that the re- port of claims will be made, shall also give notice that he will thereupon make application to have the said estate decreed in- solvent." An executor who has taken an order to limit creditors may at any time thereafter have the estate declared insolvent under this section.^ In proceedings under this section, the executor or administrator presents his petition to the orphans' court, re- citing the making of the order to limit creditors and the fact that he believes the estate to be insolvent, and praying that the court will so decree. The court will thereupon make its order ■*Hutcliinson v. Newljoltl, 45 N. 'Orphans' Court Act, sec. 109. J. Eq., 698. 3 Comp. Stat.. 3851. ■''See p. 558. supra. 8\'on Arx v. Wemple, 43 N. J. ''See p. <^A. supra, L.. 154. 586 Probate Law and Practice. fixing the time, which must be at least two months distant, for the executor or administrator to report to the court the claims presented to him. Notice of his intention to make such report is given by the executor or administrator as in other cases." Effect of Application on Pending Actions. If anv action be pending against said executor or adminis- trator, at the time of making the application in the one hun- dredth section mentioned," or be brought against such execu- tor or administrator after the making of the said application, the plaintiit may proceed to final judgment therein, unless the claim shall be adjusted as hereinbefore directed, or otherwise; but no execution shall in any case issue after the making of said application ; and the amount of such judgment, when re- covered, shall be the sum on which the creditor shall receive his ratable proportion as aforesaid.^ ^ An application to the orphans' court by an administrator to have an estate declared insolvent does not bar an action, nor can the administrator set up such application by plea as a de- fense to the action;^- nor will such an application bar a scire facias issued to revive a judgment entered before the applica- tion was made, it not being such an action as the statute con- templates, nor will it prevent the issuing of execution upon such judgment when revived.^^ When a rule to limit creditors has been taken by the personal representative, and upon a subsequent application such estate has been declared insolvent, the application for a decree of insolvency annexes itself to the initial order, and thus becomes contemporaneous with the order of limitation ; consequently, a judgment obtained against the representative between the time of taking such rule and making such application will not be entitled to be paid in preference to other creditors, and if moneys have been received by virtue of an execution issued upon such judgment, they will be ordered to be paid to the 9See p. 587, infra. ^-Howell v. Polts, 20 N. J. L.. i°Page 584, supra. 569. i^Orphans' Court Act, sec. 106. ^sHowell v. Potts, 20 N. J. 3 Comp. Stat., 3851. L. i. Insolvent Estates. 587 personal representati\e to be applied ratably among: the credi- tors.'^ Method of Staying Execution. If within the provisions of the statute, the relief provided may be ol^tained by motion to stay the execution wrongly issued.'"' When Execution Stayed, The application of an e.xecutor or administrator to the or- phans" court, representing that the real and personal estate of the decedent are insufficient to pay his debts, will prevent the subsequent issuing of execution in those cases that are pending when or are commenced after the application is made ; but the application to afford protection to the administrator, must lie made before judgment is entered."'' Actions Against Executors After Decree of Insolvency. After the orphans' court has reguk.rly declared an estate in- solvent, no action can be brought and maintained against the executor or administrator, except upon a claim presented and disputed for the purpose of adjusting it ; and the decree of insolvency may be pleaded in bar.'" NOTICE TO CREDITORS. Publication of Notice. The statute provides that the executor or administrator shall give notice to the creditors of the estate by setting up such notice in five of the most public places in the county, for the space of two months, and also by advertising the same at least once in each week for the like period in one or more of the newspapers in this state, as may be appointed by the said court and such further notice, if any. as the said court shall direct. '"* '^Wcnipk- V. \'on .\r.x. 46 N. J. PouLson, 40 N. J. L., 284. \'on k., 531. Arx v. Wemple, 45 N. J. L.. 87. '^Howell V. Potts. 20 N. J. L., ^'Reeves v. Tovvnsend, 22 N. J. 569. L., 396. Smith v. Crater, 43 N. J. i^Howcll V. Potts. 20 N. T. k.. Rq.. 636. I. Taylor v. Volk. 38 N. T. L., ''^( )rpliaiis' Court .Xct, sec. 100. 204. Unir.n National Bank v. 3 Comp. Slat., 3848. 588 Probate Law and Practice. Form of Notice. The notice required to be given by the foregoing section of the Orphans' Court Act shall be given by setting up and publishing a notice stating that the order has been made, at what time (its date), on whose application, in what court and what directions are thereby given, and not liy setting up and publishing a copy of the order/'' PRESENTATION OF CLAIMS. Method of Presenting Claims. The claims presented to the executor or administrator shall be in writing specifying the amount and ])articulars thereof and verified by oath ; and any debt or claim which shall be due and payable in the future may be presented, a reasonable rebate of interest being made, when interest is not accruing on the same.-" When Claims Must be Presented. Creditors are required to exhibit their claims against the estate, under oath or affirmation, to the executor or adminis- trator, within the period limited by the order of the court ; which period commences running from the date of the order (unless otherwise directed in said order), and not from the time of putting up tlie notices recjuired by the statute.-^ Where a claim was deposited in the postoffice in time so that it should, in the regular course of the postal service, have been delivered to the executor on the evening of the last day of the time limited for the presentation of claims, but was not delivered until the following day, it was held that the claim was not pre- sented within the time limited. "- Extension of Time for Presenting Claims. The orphans' court, before distribution made, may, upon the application of any creditor of any insolvent decedent, extend the time within which claims may be presented by creditors of i^Orphans' Court Rule, 40. -iCoppuck v. Wilson, 15 N. J. -"Orphans' Court Act, sec. loi. L,., 75. 3 Comp. Stat., 3850. 22Eii;son v. Lindsey. 33 N. J. Eq., 258. Insolvent Estates. 589 such decedent upon such terms as the court may deem just; and such notice of such appHcation as the court may deem proper shall be given to the executor or administrator of such deceased insolvent.-^ This section was first enacted in 1893.-* Where an order extending the time for presentation of claims against an insolvent estate is revoked by the court as improvi- dently granted, no appeal will lie from the latter order, which is one resting in the discretion of the court. -^ It is to be observed that the statute authorizes the orphans' court before distribution made to extend the time in which claims may be presented. The word distribution as used in this section undoubtedly means final distribution ; the court is therefore justified, in its discretion, in extending such time after partial distribution. This course was followed by the Essex County Orphans' Court in the settlement of the estate of Charles A. Feick. Claims Barred by the Statute of Limitations. If an estate is solvent, it admits of no doubt that the personal representative may waive the statute of limitations as to the claim of a creditor of the estate which appears to be honestly due ;-" and there appears to be no reason why a different rule should be applied to the case of an insolvent estate. It is true that the admission of the claim will diminish the dividend of the other creditors ; but creditors have no greater rights than have legatees or distributees of a solvent estate, whose inter- ests are likewise diminished by the failure of the personal repre- sentative to set up the statute.-" When a claim against an in- solvent estate is excepted to, the orphans" court has jurisdiction to adjudicate thereon, unless the claimant elects to proceed against the personal representative at law or in equity ; and when such election is made by a claimant, the personal repre- sentative is not bound to interpose the bar of the statute of limitations.-* -^Orphans' Court Act, sec. 112. -♦'See p. 526, supra. 3 Comp. Stat., 3852. 27Wheedon v. Nichols, 72 N. T. 2*See P. L. 1893, p. 268. Eq.. 366. 2BKing V. Rockhill, 41 N. J. Eq., =8\\'|-,eeclon v. Nicliols, 72 N. J. 273. Eq., 366. 590 Probate Law and Practice. Personal Representative May Present His Own Claim. A personal representative administering an insolvent estate, under the statute, may present his own claim against the estate, and, unless it is made to appear to be dishonest or fraudulent, may be admitted to participate in the distribution of the assets on the same footing as other creditors : and the orphans' court cannot disallow the claim solely on the ground that the statute of limitations has run against it."' It admits of no doulst. however, that a personal representative of an insolvent estate cannot retain the amount of the claim out of the assets of the estate, as against other creditors ; he must come in on an equal- ity with other claimants of the same degree. ^° Preferred Claims Must be Presented. A creditor holding a preferred claim against an insolvent estate must present it under oath to the personal representative within the time limited by the order of the court, or be barred. ^^ What Claims Need Not be Presented. A creditor who has obtained judgment against the defendants as administrators, before the order is taken, need not present such claim under oath or affirmation. '"•- Form of Affidavit. It is not essential that an affidavit made by a creditor to his account presented to the executor or administrator should show on its face, or in the jurat, where it was sworn.''' Effect of Presenting Claims. A widow who presents her claim to the executor or adminis- trator of an insolvent estate under an ante-nuptial contract to release dower in consideration of a provision out of personal property, and accepts her /to rata share of the estate thereon, 23Wheedon v. Nichols. 72 N. T. s-Howell v. Potts. 20 N. T. L.. Eq., 366. 569. 30Wheedon v. Nichols. 72 N. T. •■■'■Smitli v. Ahbott, 17 N. J. L., Eq.. 366. 358. "^Fogg's Case. 37 N. J. Eq.. 238. Insolvent Estates. 591 is barred from claiming her dower."* The presentation of a claim to an administrator after he has initiated proceedings to declare the estate insolvent suspends the running of the statute of limitations.^^ Effect of not Presenting Claim. Any creditor who shall not exhibit his claim to the executor or administrator as aforesaid, within the time so limited and prescribed shall be forever barred from prosecuting or recover- ing his said demand unless the estate shall prove sufficient, after all debts exhibited and allowed are fully satisfied, or such creditor shall find some other estate not inventoried or ac- counted- for by the executor or administrator before distri- bution, in which case such creditor shall receive his ratable proportion out of the same; provided, hoivever, that the orphans' court, before distribution made. may. upon the appli- cation of any creditor of any insolvent decedent, extend the time within which claims may be presented by creditors of such decedent upon such terms as the court may deem just ; and such notice of such application as the court may deem proper shall be given to the executor or administrator of such de- ceased insolvent.^" If a creditor of an insolvent estate neglects to exhibit, under oath, his claim to the administrator of his deceased debtor within the time prescribed by the rule of the orphans' court for the purpose, he will not be allowed to come in for a ratable portion of the estate of the deceased in the hands of the ad- ministrator.''' An executor's verbal statement to a creditor of the estate that his claim was alright, and that he would pay it as soon as he had enough money on hand to do so, will not excuse such creditor's neglect to formally present his claim within the time limited by the order of the court, nor estop the personal rei)resentative from setting up the order. If the '■*Camden Mutual Insurance tension of Time for Presenting .Association v. Jones. 22, N. J. Eq., Claims."' p. 588, supra. 171. ^"V'anDyke v. Chandler, 10 N. -■'Smith V. Crater. 43 X. J. Eq., J. L., 49. Coppuck v. Wilson, 15 636. N. J. L.. 7S. Gould V. Tingley, 16 ■'"Orphans' Court Aci, sec. 112, X. J. Eq., 301. Lewis v. Cham- 3 Comp. Stat.. .3852: and see "Ex- pion. 40 N. J. Eq., 59. 39 592 Projjatf: Law and Practice. estate be insolvent, the creditor's claim is barred of a dividend bv his failure to put it in under oath within the limited period, and no recognition of the claim by the executors or by the orphan's court itself can supply the place of the statutory requirement.^® Right of Debtor to Set Off His Debt Against Claims of Estate upon Him. One who is indebted to an insolvent estate may set off his own debt against claims of such an estate upon him, but cannot purchase or acquire the debts of others to the estate to set-oft against such claims. ^^ But where one who is indebted to an insolvent estate acquires from others claims against tire estate, and brings an action thereon if the representative of the estate sets off his claim against plaintiff by plea, a verdict on the issue then made must be treated as a verdict under the act concern- ing set-oft' : the only judgment which can be entered on such verdict will not accord with the intent of the legislation in respect to insolvent estates, but the verdict should not be set aside, for no plea at law can be devised that will present an issue whereon a verdict can be rendered and a judgment entered which will accord with that legislation. If the representative of the estate has a remedy under such circumstances, it must be in equity.*" REPORT OF CLAIMS AND ASSETS. Executor to Report Claims and Present Inventory of Assets. The statute requires the executor or administrator to make report to the orphans' court of the several claims and demands jvvhich may be exhibited against said estate, particularly specify- ing the demand and amount thereof at the time of such report, and whether by judgment, decree, bond, note, book account or otherwise ; and to exhibit therewith under oath to the said court, a true and just account of the moneys, goods, chattels, rights and credits of the decedent, which have come to his '^Lewis V. Champion. 40 N. J. v. Dunn. 56 N. J. L., 355. at p. Eq., 59- 358. ^^Receivers v. Paterson Gas ^^Crisp v. Dunn, 56 N. J. L., Light Co., 22> N. J. L., 283. Crisp 355. IxsoLVKXT Estates. 593 knowledge, hands or possession, and also an inventory of the real estate of said decedent, which may have come to his or her knowledge, and the value thereof, as near as may be.*^ When Report to be Made and Filed. The report required to be made by the last preceding section may be made at the term in which such limited time may expire, or at the term next after such time may expire, or at some future time to be fixed b}' the court on special a])plication. ^- Notice of Filing Report. The statute requires the executor or administrator to give two months' notice of his intention to make such report by advertisement, signed with his name, and set up in three of the most public places in the country where such decedent resided at the time of his death, and to specify therein the day on which such report will be made to such court, and to file such report in the surrogate's of^ce at least twenty days before the day named for presenting the same, or the day to which con- tinuance may be made by the court/" Exceptions to Account of Executor or Claim of Creditor. Any creditor or other person interested may file exceptions to the account and exhibition of the said executor or adminis- trator, in respect to the amount and value of the real and personal estate of the said decedent ; and the executor or ad- ministrator, or other person interested, may file exceptions to the claim or demand of any creditor, or any part thereof, and in case no exception be made against any claim or demand of a creditor, as aforesaid, it shall be held and deemed as justly due ; and in like manner the account of said executor or ad- ministrator, not excepted to, shall be allowed and held as true." •"Orplians' Court .\ct, sec. 102. ■'•''Orphans' Court Act. sec. 103. 3 Comp. Stat.. 3850. .3 Comp. Stat., 3850. ■^-Orphans' Court .-Vet, sec. 103. •'^Orphans' Court Act, sec. 104. 3 Comp. Stat.. 3850. 3 Comp. Stat.. 3850. 594 Probate Law and Practice. When Exceptions May be Filed. The statvite provides that exceptions shall be filed on or l)efore the day specified for presenting such report to the court, or within such time as the court on application may allow. *^ Extension of Time for Filing Exceptions. The power to extend the time for filing exceptions to an executor's account is discretionary, and no appeal lies from an order revoking such an extension improvidently granted.*' Hearing on Exceptions. Where exceptions are filed to the account of an executot or administrator, or to claims presented by creditors, the court shall hear the proofs and allegations in the premises, at the same or any subsequent court, and upon such exceptions, decree and determine in regard to said claims and demands of creditors, respectively, and on the account of such executor or administrator, in respect of the personal estate, as may be just and lawful.*^ In Essex County, notice of fiHng the account and report of claims is usually given for a motion day, at which time the court fixes a special day for hearing any exceptions filed thereto. Jurisdiction of Court Over Disputed Claims. The statute expressly confers upon the orphans' court au- thority to try disputed claims presented against insolvent estates. In such case, either the executor, the administrator, or any person interested, may file exceptions against the claim of any creditor, and the court will hear the proofs, and decree and determine in regard to the validity of the claims. ^'^ ^■'Orphans' Court Act, sec. 104. insolvent estate is the same as that 3 Cmnp. Stat., 3850. on exceptions to an account. See ^'■'King V. Rockliill. 41 N. J. Eq. "Exceptions to Account," p. 660. 273. infra. ^'Orphans' Court Act, sec. 104. ■^^Vreeland v. Vreeland, 16 N. 3 Comp. Stat., 3850. The practice J. Eq., 512. Miller v. Pettit, 16 N. on exceptions, in the case of an J. L., 421. Wheedon v. Nichols. ■72 N. T. Eq., 366. LxsoLVKXT Estates. 595 Appeal from Decree on Exceptions. The statute gi^■es either party the right of appeal from a decree of the orphans" court, on exceptions to the account of the executor or administrator, or to claims of creditors, within twenty days from rendering the same, and not after. '*'•' Creditor May Elect to Proceed at Law or in Equity. If any creditor, wliose claim or demand is e.xcej^ted to as- aforesaid, shall elect to proceed at law or in equity, in prefer- ence to having the same determined by the orphans' court, such creditor shall so proceed immediately ; and the sum recovered against the executor or administrator, if any, shall be the amount upon which a ratable proportion shall be paid as afore- said ; and in case any executor or administrator shall desire to have the claim or demand of any creditor against the estate determined in law or equity, he shall give notice thereof at the term at which report is made, and the said creditor shall proceed inmiediately in either court, as his case may be, and the sum recovered shall be the amount on which a ratable propor- tion shall be paid as aforesaid ; and the court in which any such action may be brought shall take order, that the same mav l)e determined as speedily as possible.'*" Where a creditor of an insolvent estate, whose claim has been excepted to, elects to proceed at law or in equity to enforce his claim, there is no provision that permits the exceptant, or any other person, to intervene in such proceedings and make defense to the claim. The estate is represented by the executor or administrator, who may, if he see fit, refuse to interpose the statute of limitations against a claim, if he admits it to be honest : nor is there any provision b\- which exceptant, or any other person, may compel the personal representative to inter- ]>ose the statute.''^ ^"Orphans' Court .'\ct, sec. 104. ^iwheedon v. Nicliols. 72 N. I. 3 Comp. Stat., 3850. Eq., 366. ^"Orphans' Court Act. sec. 105. 3 Comp. Stat., 3850. 596 Probate Law and Practice. DECREE OF INSOLVENCY. When Granted. If upon the adjustment of the claims and demands of credi- tors, and consideration of the amount of the personal and real estate, and value thereof, it shall appear to the court that the real and personal estate is insuiificient to pay the debts, and that the estate is likely to l)e insolvent, the said court shall so decree, and shall order and direct the said executor or adminis- trator to proceed as if the estate was insolvent. ^- Lands May be Ordered Sold. Upon decreeing an estate insolvent, the court may order and direct the executor or administrator to make sale of the whole or any part of the real estate of the testator or intestate, from time to time, as may appear expedient, in such manner as is now or may hereafter be directed in case of an executor or administrator directed to sell lands by an order of the orphans' court, for the payment of the debts of a testator or intestate.'^ The practice is, where there are lands, to include in the decree declaring the estate to be insolvent a general authorization for the sale of such lands. The further proceedings in connection with the sale of such lands are the same as on sale of lands for the payment of debts. ^^ Method of Selling Lands in Other Counties. It shall be lawful for the orphans' court of any other county, upon the production of an authenticated copy of such order and decree as is mentioned in the last preceding section, to order and decree the sale and conveyance of any lands or real estate of such decedent, situate in such other county, the report of which sale shall be made to the said orphans' court and if confirmed a copy of such report and confirmation shall be filed and recorded and the account of the proceeds of sale 520rphans' Court Act, sec. 107. s^Orphans' Court Act, sec. 107, 3 Comp. Stat., 385,:. 3 Comp. Stat.. 3851. "'*See p. 505. supra. IxsoLVHXT Estates. 597 made as provided in section eighty-six,^^ and the provisions of section ninety-tliree^** shall apply to such sale and conveyance.^' EfFect of Decree. A decree of insolvency is a decree in favor of creditors only, and can fasten their claims upon those funds only which are applicable to the payment of debts. If the deceased had in his possession at the time of his death any assets which were held by him in trust, a decree of the orphans' court cannot take away from the cestui que trust any rights which he or she has in those assets.^* After the orphans' court has regularly declared an estate to be insolvent, no action can be maintained against the executor, except upon a claim presented and disputed, for the purpose of adjusting it : the decree of insolvency may be pleaded in bar.^* Reconsideration of Decree. The orphans' court, in case of the insolvency of a decedent, has no authority to reconsider and alter its final decree settling the claims on the estate, or to change the amount of assets in the administrator's hands without notice to, or the appearance of. the creditors who are interested in the estate; nor may the court make any alterations in the account as sworn to in such manner as to carry the appearance of the accountant's having sworn to that which he did not.*^" Action for Waste Not Affected. The statute provides that nothing therein contained shall prevent an}' person from maintaining any action against any executor or administrator for, or in respect of, anv waste or misapplication C)f the estate of the testator or intestate. "^^ •'^'Page 480. supra. s^Reeves v. Townsend. 22 N. J. '"Page 513. supra. ' L., 396. Smith v. Crater. 43 N. J. '^Orphans' Court Act. sec. 108. Eq.. 636. 3 Comp Stat.. 3851. soEat-in v. Brick. 16 N. J. L.. 98. 5"'Kocli V. Feick. Si N. J. Eq., s^Orphans' Court \ct. sec. 113. 120. 3 Comp. Stat.. z?'^2. 598 Probatk Law and Practice. DISTRIBUTION OF PROCEEDS OF ESTATE. Proceedings After Decree of Insolvency. After obtaining a decree declaring the estate likely to be insolvent, the personal representative proceeds to reduce the assets of the estate, real and personal, into cash. After this has been accomplished, he should pay all preferred debts, and proceed with the settlement of his accounts in the orphans' court ; but in administering an insolvent estate, the executor or administrator should always bear in mind that the utmost economy should be exercised in the interest of creditors, who will be required, owing to the insolvency, to accept less than the full amount due them.*^- In his account he will, on the one hand, charge himself with all the assets collected by him, and, on the other, pray allowance for all preferred claims paid by him. The account must be noticed for settlement, and allowed by the orphans' court, as in the case of a solvent estate f^ and u])on its allowance, the court will order that from the balance found to be in the hands of the executor or administrator his commissions and, in a proper case, a counsel fee to his proctor be first paid, and that the balance be distributed among the un- preferred creditors pro rata. The decree of distribution is usually combined with the decree allowing the account. Creditors to Share Pro Rata. The proceeds of the said personal and real estate of the testator or intestate, which shall come to the hands of the said executor or administrator (the preferred debts and the reasonable allowance which may be decreed by the court to the executor or administrator, for care and expenses, being first paid), shall be distributed to the said several creditors by the said executor or administrator, in proportion to the sums that shall be found due to them respectively, as aforesaid, under the direction of the said court, from time to time, as may be found convenient and just ; and the said court may enforce obedience to such orders and directions by attachment.®* f'2In re Wiley. 65 Atl. Rep., 212. '''^Orphans' Court Act. sec. no. ^"Set p. 641. infra. 3 Comp. Stat., 3852. IXSOLVKNT ESTATKS. 599 Disposition of Residue After Payment of Debts. If it should happen that there is enougli produced from such real and personal estate to make full payment, and any residue of the said estate shall remain in the hands of the executor or administrator, after paying all the said debts and expenses, the said residue shall be divided among the heirs of the intestate, in such proportions as the said real estate would have descended, or in case of a will, as the said will directs.''^ ^^Orphans' Court Act. sec. in. 3 Comp. Stat.. 3852. CHAPTER XXX. REMOVAL OF EXECUTORS, ADMINISTRATORS. GUARDIANS AND TRUSTEES. Jurisdiction of Orphans' Court. The orphans' court has no inherent power to remove execu- tors, administrators, guardians and trustees, and can only act in those cases where it is authorized by statute so to do^ and so the mere fact that an executor or administrator is insolvent is not a sufficient reason for removing him, insolvency not being one of the statutory grounds for removal ;- but the orphans' court has jurisdiction, upon the application of the sureties of an habitual drunkard's guardian, to remove such guardian for failure to account, or for waste. ^ STATUTORY GROUNDS FOR REMOVAL. Disobedience of Order of Court. The statute provides that when any order or decree shall be made by the orphans' court that any executor, adminis- trator, guardian or trustee shall file an inventory or account, or that any executor, administrator, guardian or trustee shall give security or additional security, or shall do or perform any act or thing which the court by the Orphans' Court Act is au- thorized to order or direct, and such executor, administrator, guardian or trustee, having legal notice of such decree or order, shall refuse or neglect to perform or obey the same within such time as the court shall name, the orphans' court may revoke the letters of such executor, administrator, guardian or trustee, and remove him from office.* ^Sherman v. Lanier. 39 N. J. ^Djckerson v. Dickerson, 31 N. Eq., 249-258. T. Eq.. 652. ^Schanck v. Schanck, 7 N. J. ^Orphans' Court Act. sec. 149. Eq.. 140. 3 Comp. Stat., 3868. 600 Removal of Executors. Etc. ' 6oi The fact that the orphans' court ordered an executor to give additional security and file another account, and the execu- tor gave the bonds required, will not oust the court of its juris- diction to remove him for sufificient cause, on the presentation of his accounts.''^ Waste and Misco-nduct of Trustee, The statute provides that if it shall be made to appear before the orphans' court by proof, on complaint duly made by any person interested, that any executor, administrator, guardian or trustee has embezzled, wasted or misapplied any part of the estate committed to his custody, or has abused the trust and confidence reposed in him, the said orphans' court may revoke the letters of such executor, administrator or guardian, and remove such executor, administrator, guardian or trustee from office.'^ It is not for every unwarranted act of omission or commis- sion that an executor is to be removed ; where he has strayed from the path of fiduciary duty, he may be compelled to secure those who might sufifer loss by reason of his dereliction and the stigma of removal should be placed upon him only in a flagrant case;' but for acts done in bad faith, or that have diminished or endangered the trust fund, without l)ad faith, it is the duty of the court to remove him.* In the case of Heisler v. S'liarp,^ it was said that no man is infallible, but that the wisest make mistakes, and that the law holds no man responsible for the consequences of his mistakes which are the result of the imperfection of human judgment, and which did not proceed from fraud, gross carelessness or indifference to duty; and it is settled that an executor will not be remo\ed unless it appears that he has been guilty of batl faith, or that the estate has been wasted or misapplied.^" So ^Shreve v. Wampole. 38 N. J. 'Lathrop v. Smalley. 23 N. J. Eq., 490. Eq.. IQ2. •■'Orphans' Court Act. sec. 149. '44 N. J. Eq., 167-172. 3 Comp. Stat., 3868. "Carpenter v. Gray, 32 N. j. ^Pfefferle v. Herr, 75 N. J. Eq., Eq.. 692. Affirmed 34 N. J. Eq.. 219. Affirmed 77 N. J. Eq., 271. 282. Lathrop v. Smalley, 23 N. J. Lathrop v. Smalley, 23 N. J. Eq., Eq., 192. 192. 6o2 Probate Law and Practice. the fact that an executor or trustee allowed taxes on the testa- tor's real estate to become defaulted, so that penalties and inter- est were added to them and part of the land was sold for taxes, does not justify his removal from office, where it appears that the property has l^een redeemed and that he has been sur- charged with all penalties and interest paid to ettect the re- demption ;" and the mere fact that an executor and trustee paid to the children of testator sums in excess of the income of the estate, although the will directed that none of the corpus of the estate should be paid to them before they attained a certain age and that until that time they should have so much of the income as might be necessary for their maintenance and edu- cation, does not justify his removal from office, in the absence of bad faith and a wanton and wasteful invasion of the corpus of the estate for their maintenance and education. '- In Flinn's Case,^" Chancellor Runyon, (Ordinary, held that it was not proof of waste, in a proceeding to remove a guard- ian, who was perfectly responsible, that he had incurred lia- bility to pay counsel fees in a controversy over his management of the ward's propertw since such fees, if unlawful or un- necessary, might be disallowed in his account ; and so where a trustee is a responsible person of large property, engaged in no hazardous business, and the trust fund has not been in any danger, and the trustee supposed the money was as safe in his hands as in any investment he could make, and that by retain- ing it he would save expense to the fund and his good faith is not impeached, he will not be removed because of the invest- ment of the funds in his own business without authority.^* The mere fact that a trustee has had olTers for the purchase of real estate devised to him, which should have been, but were not in fact accepted, and that he failed to make any arrange- ment for the sale of the property at public sale, are not grounds for his removal under this section, in the absence of proof of some abuse of confidence, similar in its nature to embezzle- iiPfefferle v. Herr. 75 N. J. Eq.. 219. Affirmed 77 N. T. Eq., Eq., 219. Affirmed 77 N. J. Eq., 271. 271. ^331 N. J. Eq., 640. i^Pfefferle v. Herr. 75 N. J. ^^Lathrop v. Smalley. 23 N. J. Eq.. 192. Removal ok Executors, Etc. 603 ment or misappropriation of funds ;'^ and the mere fact that an executor and trustee sold his testator's real estate and made excessive payments to the widow on account of her dower, without having her dower interest ascertained according to law, will not justify the removal of the executor and trustee, at least until it has been detinitely ascertained what the facts are as to such excessive payments.^'"' So a guardian will not be removed on the sole ground that hostility exists between him and his ward, occasioned by the misbehavior of the ward;^' but trustees exist for the benefit of those to whom the creator of the trust has given the trust estate, and their acts may exhibit such a lack of reasonable fidelity, short of dishonesty, as to warrant their remo\al.^^ If, on the other hand, the acts or omissions of the executor or trustee be such, as to endanger the trust property, or to show a want of honesty, a want of proper capacity to execute the duties, or a want of reasonable fidelity, which has resulted in diminishing or endangering the trust fund, he will be re- moved. ^^ So where an executor was guilty of a plain derelic- tion of duty in tw^o specific matters, one of which resulted in loss to the estate, which he made good out of his own funds, and in the other of which a fortunate concurrence of circum- stances not only prevented loss, but actually produced gain to the estate, it was held that these circumstances were not suffi- cient to relieve him of the effect of his dereliction of duty ; that if he were retained and continued to manage the estate upon the conception of his duties as disclosed by his conduct in those cases, the result might be losses which he might not be able to make good, and which might not encounter so fortunate a con- currence of circumstances.-" In the case of Lett v. Emmettr^ it was held that an executor should be removed because he sought, by false representations and by taking advantage of her poverty, to induce the residuary i^In re Chittcndon, 24 N. J. L. i^Lister v. Weeks, 60 N. J. Eq.. J" 719- 215. .\ffirmed 61 N. J. Eq., 675. "^Pfefferle v. Herr. 75 N. J. i^Holcomb v. Coryell, 12 N. J. Eq., 219. Affirmed 77 N- J- Hq., Eq.. 289, at p. 297. Lathrop v. 271. Smalley, 23 N. J. Eq., 192. I'Heath v. ^[addock. 8r \. J. -"In re Marsh, 56 Atl. Rep., 886. ^■-n- 460. -i.15- N. J. Eq., 53S. 6o4 Probate: Law and Practice. legatee to sell her interest in the estate to him for one-fourth of its value, there Ijeing here no case of mistake, ignorance or carelessness, but a fraudulent act of commission of the most palpable sort, which fully merited the judgment pronounced against the executor; and so where an executor loaned money belonging to the estate, taking the borrower's bond therefor, secured by a mortgage, and at the request of the borrower with- held the mortgage from record, with the result that the bor- rower mortgaged the lands to another person and afterwards conveyed them away, so that the security of the mortgage was injuriously affected, he should be removed. -- Whether a co-trustee, who has paid no attention to the trust fund, but has left its administration entirely in the hands of the acting trustee, will be removed, depends U]:)on the circum- stances of each case ; and if the acting trutsee has properly discharged the trust, the other will not be remo\-ed. P)Ut if one trustee abandons such administration to another, who violates the trust, squanders the funds, or uses them in his own busi- ness without security, and such conduct is known to the co- trustee, he is as guilty of a breach of trust as the acting trustee, and. like him, can be removed for such conduct.-" The misconduct of a guardian in the management of an- other trust estate, upon an application to remove him from office, is relevant only to show general unfitness for fiduciary duty, and such misbehavior in that respect may not be invoked as a substantive cause for removal.-* ••; !'i''':p..i:)'! •:>;>'' '.»il Failure to File Inventory or Account. The Orphans' Court Act,-' requires executors and adminis- trators to tile an in\entory within three months after the grant of letters to them, and a like duty is placed upon guardians ;-^ and executors, administrators, guardians and trustees are required to file their accounts within one year after their --In re ]\Iarsh, 56 Atl. Rep.. 886. =^Orphans' Court Act, sec. 58, "^Lathrop V. Smalley, 23 N. J. p. 360, supra. Eq., 192. -"Orphans' Court Act, sec. 63. -4Heath v. IMaddock, 81 N. J. p. 364, supra. Eq., 469. Removal of Executors, Etc. 605 appointment.-' It has, however, been held that these pl■o^"isions of the Orphans' Court Act are merely directory, and that non- compliance, unattended by fraud, gross neglect or indifference to duty is not a cause for removal from office ;-® but a refusal on the part of an executor to account for assets of the estate, in the court where he is bound to account, and evidence of a determination on his part to invoke the aid of the courts of another state to obtain an allowance of a claim rejected by the court wherein he filed it, and which had jurisdiction, affords grounds for his removal from office, especially where it is otherwise apparent that he has wasted and misapplied the estate. ^^ Non-Residence or Incapacity of Executor, Etc. In case any executor, administrator, guardian or trustee has removed or shall hereafter remove out of this state or does not reside therein, and shall neglect or refuse to proceed with the administration of the estate and to execute and per- form the duties and trusts devolving upon him, or shall be or become of unsound mind or mentally incapacitated for the transaction of business, the prerogative court, when the letters ha\e been issued, or the appointment made by the ordinary, or the orphans' court of the county where the letters have been granted, or the appointment made upon complaint being made by any person interested in such estate, may inquire into the matter in a summary manner, and revoke such letters testa- mentary or of administration or of guardianship granted to such executor, administrator or guardian, and remove such trustee.^'^ PRACTICE. Notice of Application. Such notice of such application shall be served upon, or mailed to such executor, administrator, guardian or trustee, as the court may direct, requiring such executor, administrator, 2'Orphans' Court Act, sec. 114, -^Gray v. (xray, 39 N. J. Eq., p. 616, infra. 2^~- 28Heath v. Maddock, 81 N. J. ^''Orphans' Court Act, sec. 150. F.q., 469- 3 Comp. Stat., 3869. Oo6 Probate Law and Practice. guardian or trustee, on a certain day to be named therein, to appear before said court and show cause why such letters testamentary or of administration or of guardianship shall not be revoked, and such removal made.^^ When it is sought to remove an executor, administrator, guardian or trustee, notice of the application must be given to him ; and his removal without such notice will be invalid. So where a mother was appointed guardian of her child, but failed to give bond within the time limited by the court, and the court, without notice, appointed a stranger in her stead, the appoint- ment of the latter was not warranted/''- The better practice is to obtain a rule to show cause why the executor, administrator, guardian or trustee should not be removed, upon a proper petition, in which case the court may direct the manner in which the rule shall be served.^" This method of procedure will frequently solve difficulties in the service of notice, as where the executor is a non-resident, or hi? residence is unknown. JURISDICTION OF CHANCERY. Over Removal of Executors. The Court of Chancery has no power to remove an execu- tor or administrator.^* It has. however, power to remove a trustee f^' and where an executor is also a trustee, and the mat- ters in his charge as trustee can l^e separated from those con- fided to him as executor, the court may remove him as trustee ; l:)Ut in such case he will be left to execute and perform his duties as executor.^'' Enjoining Executors. Although the Court of Chancery does not. as has been seen, possess the power to remove an executor from office, or to "'Orphans' Court Act. sec. 150. J. Eq., 359. Bolles v. Bolles, 44 3 Comp. Stat., 3869. N. J. Eq.. 3S5. Bentley v. Dixon. 3-Weldon v. Keen, 27 N. J. Eq., 60 N. J. Eq., 353. 251. 33Bolles V. Bolles, 44 N. J. Eq., ^^Orphans' Court Act. sec. 179. 3S5. 3 Comp. Stat., 3879. seLeddel v. Starr, 19 N. J. Eq., "*Leddel v. Starr, 19 N. J. Eq., 159. 159. Newman v. \A''arner, 34 N. Kkmovai. of Executors, Jvrc. 607 cast his duties as executor upon a receiver, yet when the duties of an executor are intermingled with and inseparable from his duties as trustee, the jurisdiction of a court of equity over trusts and trustees will extend, in a proper case, to restraining him from performing his functions as trustee, notwithstanding the fact that such restraint will incidentally prevent his per- formance of his functions as executor f' and, in proper cases, in addition to enjoining an executor from further proceeding in the execution of his duties, chancery will appoint a receiver, and direct the executor to pay over the estate in his iiands to the receiver to be administered under the direction of the court; but, in such case, he is not removed or superseded as executor.^^^ A general charge of abuse of trust is not, how^ever, sufficient grounds for the interposition of the court to restrain an executor from further interfering with the estate ; nor will the fact that the executor is a bankrupt make a case for the interposition of the court by injunction;-^'' and so with insol- vency. *** Removal of Trustees for Incapacity. Chancery will remove a trustee who has become incompetent b}' reason of long illness.'*^ Intemperance. A trustee who, through continued intemperance, has become unfit to have charge of the trust property will be removed. *- Violation of Duty. A trustee will not be removed for every violation of duty ; but acts done in bad faith, that have diminished or endangered 3"Bentley v. Dixon, 60 N. J. Eq., ^oCooper v. Cooper. 5 N. J. Eq.. 353-. i-ii. 38Leddel v. Starr, 19 N. J. Eq.. •'"Schanck v. Schanck. 7 N. J. 159. Price V. Price, 23 N. J. Eq.. Eq., 140. 428. Belles V. BoUes, 44 N. J. ■•'Babbitt v. Babbitt. 26 N. 'j. Eq., 385. Bentley v. l^ixon, 60 N. Eq., 44-54. J- Eq., 353. ■<2Bayles v. Staats. 5 N. J. Eq.. 513. 40 ^S Probate Law and Practice. the trust fund, will justify his removal.*^ v^o a trustee may be removed for vexatious and trut if the executor or administrator, b)- collusion with the claimant, claims allowance for a debt not paid, in order to withdraw the cognizance of the question from the ordinary tribunals of law or equity, it is a good ground of exception before the orphans' court, and the item may be stricken from the account. - "SMcCully V. Lum. 49 N. J. Eq.. iVrceland v. \'rceland. 16 N. J. 5.S2. Hq.. 512. ^"See "Assets.'' p. Zil' supra. -\'rccland v. Vrccland. 16 N. J. looLiddel V. McVickar, 11 N. J. I"q., 51J. L.. 44. 42 640 Probate Law and Practice. What Constitutes Payment. Where a testator directs that certain debts, for which he is secondarily responsible, and which are secured upon lands of the original debtor, shall be paid, and the mortgages as- signed to a beneficiary named, the executor or administrator will not be allowed credit for the payment of these debts until he secures assignments of the mortgages.^ But an adminis- tratrix should be allowed for the payment of a debt due from the estate, although it was paid with money held by her as guardian, she being chargeable therewith in her guardianship accoiuit.* Exemption for Widow and Children. The widow and children of a deceased debtor are entitled to decedent's wearing apparel, and may select goods, moneys or effects, belonging to deceased, to the amount of $200;^ and if such exemption is set oft', pursuant to the provisions of the statute, accountant should pray allowance for the same. But unless property to the amount of $200 is actually appro- priated according to the provisions of the statute, that sum cannot be retained l:)y the administrator on the settlement of his account.*' Loss and Depreciation of Assets. Where executors inventory notes, mortgages or other assets of the estate at their face or estimated value, and less than the inventor}' value has been received for such assets by the executors upon foreclosure of the mortgage or sale of the assets so inventoried, they should pray allowance in their account for the difference between the inventory value and that actually received by them, and the amount will be allowed by the court, in the absence of proof that such loss was occasioned by their fault, neglect or misconduct.' sRurlbut V. Hutton, 44 N. J. •^Cooley v. Vansyckle, 14 N. J. Eq.. 302. Eq.. 496. ^Birkholm v. Wardell, 42 N. J. '^Dey v. Codman, 39 N. J. Eq.. Eq., 337- 258. McCully v. Lum, 49 N. J. •''See "Inventories," p. 360, Eq., 552, and see "Loss or De- supra. preciation of Assets," p. 400. supra. Accounting. 641 In Guardians' Accounts. Section 115 of the Orphans' Court Act*, provides that every guardian "shall exhibit to the orphans' court once in three vears, and oftener, if required, an account of all moneys, goods and chattels he shall receive and of the rents, issues and profits of any real estate in his possession belonging to his ward." Section 124, as amended'', provides that the inter- mediate account of every guardian shall be examined by the court, and, if found to be correct "and the articles thereof to 1)6 supported and justified by the vouchers,"' shall be entered of recorfl. It will be observed that section 115, providing for the filing of these intermediate accounts, does not provide for anything but an account of moneys actually received. Section 124, as amended, liowever, contains this provision, "and the articles thereof to be supported and justified by the vouchers." It would appear that this language contemplates the production of receipts for moneys paid and nothing else, and seems to exclude the idea that the personal services or personal claims of the guardian are intended to be included within its pro- visions. It would seem, therefore, that the jiu'isdiction of the orphans' covirt is confined to receipts and such actual dis- bursements as were made in cash, and does not include charges by a guardian for the sup])ort of her ward, who is also her child; and hence the account of such a guardian passed by the orphans' court, will not be regarded as prima facie correct in such particulars.^" STATING AND SETTLING ACCOUNTS. ^ Surrogate to Audit, State and File Accounts. The surrogate shall audit and state the accounts of execu- tors, administrators, guardians and trustees, and place the same on the files of his office, subject to the inspection of any person interested therein, at least twenty days previous to the same being j^rcsented to the court, and shall report the same to the orphans" court for confirmation and allowance on the day for which the same was noticed for settlement, or at "Page 616, supra. I'^'Keeney v. Ilcnnin.e:, 64 N. J. "See p. 649. infra. F.q., 65. 642 Probate Law and Practice. such subsequent time to which the hearing shall have been adjourned. ^^ Method of Auditing Account. To audit an account is to see that accountant is charged with everything with which he is justly chargeable, and that nothing is placed on the credit side of the account for which he is not. justly entitled to credit, and, after the debits and credits are thus made up, to ascertain the balance remaining in his hands.' - Vouchers to be Lodged With Surrogate. Executors, administrators, guardians and trustees who have noticed their accounts for settlement shall lodge with the surrogate the vouchers and receipts for payments and dis- bursement claimed therein, at least twenty days previous to the day on which said account is noticed for settlement, which said vouchers shall be open to the inspection of all interested persons. The surrogate shall not report any account to the orphans' court for allowance and settlement unless the said vouchers and receipts have been lodged with him in compliance with this rule.'" It is the duty of executors, administrators, guardians and trustees to keep accounts, and to take and preserve proper vouchers for payments they make.'* Checks as Vouchers. Tl\e question has been raised as to whether a check of the administrator to the order of the person for whose claim allowance is prayed in the account is a sufficient voucher. The object of requiring executors, administrators, guardians and trustees to account is to disclose to those interested their management of the estate : and the object of requiring the ^^Orphans' Court Act. sec. 121, ^-Heath's Case, 52 N. J. Eq.. as amended liy P. L. 1905, p. 299. Scy. and «ec "Cliecks as \'oucli- 3 Comp. Stat., p. 3855, sec. 121. crs," this page, infra. As to report of surrogate, see i^Qj-phans' Court Rule 17. "Checks as Vouchers," this page. i*Dufford v. Smith, 46 N. J. infra. Eq., 216. Smith v. Robinson. 83 X. T. Eq.. 384-388. Accounting. 643 account and vouchers lo l)e tiled twenty days before the dale upon which such account is noticed for settlement, is to enable parties in interest to inspect them, in orfler to ascertain whether the executor, administrator, guardian or trustee has propcrlv performed his duty — whether, on the (Mie hand, he has col- lected all of the assets of the estate, and has charged himself with the same at their proper value, and whether, on the other hand, he prays allowance only for claims which are justified in law. The object of requiring that the surrogate audit and state the account is that there may l^e an official verification of the same for the benefit of those in interest, and it would seem clear that it is impossible for the surrogate intelligently to audit an account from the mere production of such checks From an examination of the '125th section of the Orphans' Court Act^^, it would appear that it is the duty of the surro- gate to do something more than merely to go over the account and the vouchers for disbursements presented to him. and ascertain whether or not there is a voucher for everv item prayed allowance for; it is his duty to inspect the items for which allowance is prayed, and, if there be any which appear to be unjustified in law, to report the fact to the orphans' court. The statute, it will be recalled, requires the surrogate to report the account for settlement. Now, this language must mean something, and, if it means anything at all, must mean that the surrogate is required to call the court's attention to any inaccuracies or improper payments appearing upon the face of the papers which he has observed in going over the account; and, furthermore, the 125th section of the Orphans' Court Act^°, provides that the court shall allow the account only upon proof to the court of notice of settlement having been given "and no exception being made to the report of the surrogate." From this language, it would appear that the statute contemplates the possibility of the surrogate reporting adversely to the allowance (;f the account, and provides for exceptions, not only to the account, but to the report of the '^Page 647, infr.i. '"Page 647, infra. 644 pROiiATE Law and Practice. surrogate, from which it would clearly follow that in auditing the account the surrogate is required to examine the account and vouchers, and to report any inaccuracies, errors, or im- proper items appearing upon the face of the papers, to the orphans' court. It is manifestly impossible for the surrogate to properly perform this quasi judicial act by the mere scrutiny of checks purporting to justify the payments in the account. It is therefore apparent that the statute contemplates the pro- duction before the surrogate of evidence of the payments for which allowance is claimed in the account, from which he can ascertain whether or not such payments are proper, and that checks do not fulfill the requirements of the statute.^' Appeal from Statement of Accounts by Surrogate. No appeal lies from the statement or re-statement of ac- counts by the surrogate, but only from the decree of the court.^® NOTICE OF SETTLEMENT OF ACCOUNTS. Statutory Provisions. ♦ The account of every executor, administrator, guardian or trustee shall be noticed for settlement on a day certain, and shall not be allowed by the orphans' court except as herein- after provided, unless such executor, administrator, guardian or trustee shall first give at least one month's notice of such settlement by advertisements set up in five of the most public places of the county in which such settlement is to be made, one whereof shall be set up in the surrogate's ofifice of said county, and also by publishing the same at least once in each week in one or more newspapers published in such county for the same length of time, and in case no newspaper be published in the county, then, instead of advertising such notice in the newspaper, by setting up advertisements in ten of the most public places in said county for the like space of time, two of which places shall be the clerk's and surrogate's offices of said county, and in every instance by mailing at least twenty days ^'In re Ketcham. 35 N. T. L. J., ^^Cooley v. Vansyckle. 14 N. J. 34^. Eq., 496. ACCOUNTIKG. 645 prior to the date fixed for settlement of sueli account a copy of such notice to the sureties on the bonds of such executor, administrator, guardian or trustee, at the last known post- ot^ce address of such sureties; proz'idcd, //ou-rirr,. that where the personal estate does not exceed the sum of five hundred dollars, the judge of the orphans' court may on application or of his own motion, dispense with or modify these require- ments.^^ In Cases of Guardians and Trustees, Citations May be Issued. In cases of the accounts of guardians and trustees, in lieu of the notice aforesaid the surrogate may issue citations to all parties concerned, including the sureties of such guardians and trustees, to appear at the said orphans' court, which cita- tions shall be ser\ed at least ten days before the sitting of the court ; and such guardian or trustee, or any person on his behalf may serve such citation on such wards or other parties by delivering a cop}- thereof to them, or by leaving a copy at their usual place of abode with some person of the age of fourteen years or upwards, and make and file with the surro- gate an affidavit setting forth the time, place and manner of such service, whereupon the same shall have the force and effect of a service by the proper officer; no other notice of such settlement shall be required, but a citation shall issue on the final accounting of guardians or trustees.-'^ Intermediate Accounts of Guardians. The intermediate accounts of guardians are required by the act to be noticed for settlement, audited and stated by the surrogate, and reported to the court, in the same manner as the accounts of executors, administrators and trustees.-' Notice of Settlement of Accounts to be Mailed. In addition to the posting and puI)lication of notices of settlement of the accounts of executors, administrators, guard- ^•'Orphans' Court Act, sec. 122, as amended by P. L. 1906, p. 575. as amended by P. L. 1915. P- 7i5- 3 Comp. Stat., p. 3856, sec. 123. ^''Orphans' Court Act, sec. 123, -'Orphans' Court Act, sec. 124. p. 649, infra. 646 Probate Law and Practice. ians and trustees ])rescribed by law, one month's notice of the settlement of all accounts of executors, administrators, guard- ians and trustees, together with a statement as to whether counsel fees and commissions will be applied for by said ac- countant on the allowance of said account by the court, shall be given by said accountant to all persons interested therein, which notice may be sent by mail with the postage thereon pre- paid. In case any person interested in the settlement of such account be a minor, such notice shall be mailed to the guardian of such minor, if any; if there be no guardian, then to the parent or other person standing in loco parentis to said minor. Proof of such mailing shall be by affidavit filed in the office of the surrogate on or before the day on which said account is noticed for settlement. ■- Sufficiency of Notice. Notice of an intention to settle an account "in the term of December ensuing," dated January 2, 1883, and purporting to have been signed by the executor, when in fact he had died before the notice was signed, is insufficient to authorize the passing of the acc6unt in April, 1883.-" Necessity for Notice. In an attempted settlement by a guardian of his account, there must be a compliance with the requirements of the statute to render the account exhibited by the guardian prima facie evidence of its correctness, and to impose upon the ward the burden of proving or showing the falsity or injustice of any item of the account to which he may afterwards take excep- tions.-* The orphans' court has no jurisdiction to allow the account of an executor, administrator, guardian or trustee unless it has been advertised, posted and reported for settle- ment by the surrogate, as provided by section 122 of the Orphans" Court Act.-^^ "Orphans' Court Rule 18. ^sSmith v. Smith. 80 N. J. Eq.. -•''Gray v. Myrick, 38 N. J. Eq., 474, and see Orphans' Court Act, 210. sec. 122, p. 644. supra. -*Burnham v. Balling, 16 N. J. Eq., 144. Accounting. 647 When Account is Filed Pursuant to Citation. Where an executor or administrator files an account pur- suant to a citation requiring him to account, he must notice his account for settlement according to the i)rovisions of sec- tion 122 of the Orphans' Court Act.-" DECREE ON ALLOWANCE OF ACCOUNTS. Decree on Accounts Other Than Guardians' Intermediate. The court to which the account of any executor, adminis- trator or trustee, or the final account of any guardian, sliall he reported shall examine the said account and the \ ouchers and receipts for payments and disbursements claimed therein, and, if the same be found to be correct in all res]jects, the court, on due proof that notice of such settlement has been given and advertised, or that the parties have been cited as aforesaid, and no exce]:»tion being made to the report of the surrogate, shall decree an allowance of the account as stated ; provided, that in all cases where it appears that there is a balance due the accoinitant the coiu't shall not decree an allowance of the accoinit imtil the ne.xt regular term after that to which the report is made.-' Decree on Final Account Conclusive. The sentence or decree of the orphans" court on the final settlement and allowance of the accounts of executors, ad- ministrators, guardians or trustees shall be conclusive upon all parties, and shall exonerate and forever discharge every such executor, administrator, guardian or trustee from all demands of creditors, legatees or others, beyond the amount of such settlement, except' for assets or moneys which may come to hand after settlement as aforesaid, excepting also in cases where a party applying for a re-settlement shall prove some fraud or mistake therein, to the satisfaction of the said orphans' court. -- -''Githens v. (".oodwin, 32 N. J. as amended by P. L. 1905, p. 300. Hq., 286, and .see Orphan.s' Court 3 Comp. Stat., p. 3856, sec. 125. Act, seg, 122, p. 644, supra. -**Orphans' Court Act, sec. 127. ^^Orphans' Court .Xct, sec. 125, 3 Comp. Stat., 3857. 648 Probate Law and Practice. What Constitutes a Final Account. The mere fact that an account is styled "intermediate,"' or "final." has no weight in determining its character. When an executor or administrator presents his account, purporting to charge himself with everything that he has received and to credit himself with everything that he has disbursed, and to show the balance on hand for distribution among the legatees or next of kin, and the court, after due notice to parties inter- ested, makes its decree approving and allowing such account, it is a final settlement of the account, even though it appear that there is still outstanding property of the decedent which may yet come into accountant's possession for administra- tion ;-^ and if an account rendered in the orphans' court appears on the face of it to be a final account, it will be deemed such, although not so styled in the caption."" Conclusiveness of Decree on Final Account. A- decree of the orphans' court on final accounting cannot be questioned in a collateral proceeding, and equity will take the balance stated in the account to be the true balance in the hands of the executor, and will not look behind the settlement of the orphans' court, except on the ground of fraud or mis- take in procuring it f^ but a decree of the orphans' court settl- ing a balance in the executors' hands does not decide that this balance must, under the will, be paid in cash.^- It is essential to the validity of a decree allowing an account that there be a compliance with the requirements of the statute -''Stevenson v. Phillips, 21 N. J. 14 N. J. Eq., 527. Voorhees v. L., 70. Pomeroy v. Mills, sj N. J. Voorhees, 18 N. J. Eq., 223. Eq- 578-581. Terhune v. Oldis, Search v. Search. 27 N. J. Eq., 44 N. J. Eq., 146-147. Weyman v. 137. Tehan v. Maloy, 45 N. J. Thompson, 50 N. J. Eq., 8-21. Re- Eq., 68. Weyman v. Thompson, versed 52 N. J. Eq., 263. 50 N. J. Eq., S-22. Reversed 52 ^''Stevenson v. Phillips, 21 N. J. N. J. Eq., 263. Lippincott v. L., 70. Bechtold, 54 N. J. Eq., 407; see siConover v. Conover, i N. J. also "Jurisdiction of Chancery," Eq., 403. Boulton v. Scott, 3 N. J. p. 655, infra. Eq., 231. Black v. Whitall, 9 N. 32]VJacy y Mercantile, Trust T. Eq., 572. Ordinary v. Kershaw. Company. 68 N. J. Eq.. 235. Accounting. 649 as to noticing the account for settlement and as to the auditing, stating, and reporting of the same to the court by the surro- gate. In the absence of these forniaUtios, the decree allowing the account is ineffectual."'''' Decree on Guardians' Intermediate Accounts. The intermediate account of e\"er\ guardian, after the same has been audited and stated by the surrogate and reported to the orjihans' court, and notice given to or citation served on the parties in interest as aforesaid, shall be examined by the court, and being found to be properly and fairly stated, and the articles thereof to be supported and justified by the vouchers, shall l)e entered of record ; and if any article of such account be at any time afterwards excepted to by the \vard or his representative, or other party interested, it shall be incumbent on him to prove or show the falsity or injustice thereof, unless notice on his behalf shall have been given, at the time of passing the account, that such article would be expected to and a memorandum of that notice shall have been entered on record or desired to be entered.''^ DECREE ON JOINT ACCOUNTS. Liability of Executors. Where two or more executors exhibit a joint account and procure the same to be finall} settled and allowed, the earlier doctrine was that they stood jointly lialsle for the balance shown by the account to be in their hands. In the case of H'ey]naii v. Thompson r' howe\'cr. the Court of Errors and Appeals held, that the fact that executors or administrators have filed a joint final account, and that a certain balance has been adjudged by the orphans' court to be due thereon, is not per se conclusive evidence as to their joint liability for the amount so settled. "•'■ An account which appears on its face "•'Burnham v. Balling, 16 N. J. Fcnniniore, 3 N. J. Eq., 292. Eq., 144. Schenck v. Sclienck. 16 N. J. Eq.. "^Orphans' Court .\ct. sec. 124, 174-181. Suydam v. Bastedo, 40 as amended by P. L. 1905. P- 299. N. J. Eq., 433. Tehan v. Maloy, 3 Comp. Stat., p. 3856, sec. 124. 45 N. J. Eq., 68. Weyman v. 3552 N. J. Eq., 263. Thompson, 50 N. J. Eq., 8. Hill ^^For the authorities as to tlio v. Hill, 79 N. J. Eq., 521. earher doctrine, sec Fennimore v. 650 Probate Law and Practice. to be joint may be sbown to l)e separate : and where an account is stated both ways, first jointly and then separately, the court may, if such appears to have been the intention of the account- ants, treat it as a separate account.-'' Where each of several executors files accounts exhibiting the sums received and disbursed by himself, they will not be jointly liable f^ and where one of two executors refused to take any part in the management of the estate, and so notified the beneficiaries, and an account, joint in form, Init in reality the account of one, was filed, the executor not participating in the management of the estate was not lialile for the acts of his co-executor, nor for the property which came into his hands."'* Where an, account of joint executors has been allowed by the orphans' court, the matters conclusively adjudicated by such decree are the receipt of assets and disbursements in behalf of the estate, and that the balance is in the hands of all, or one, of them; the decree is not an adjudication that each of the executors has the balance, or as to which one of them has it.'*'^ OPENING AND SETTING ASIDE DECREES ALLOWING ACCOUNTS. Decrees on Accounts Other Than Guardians' Intermediate. The amendment in 1905" of sections 124. 125 and 126 of the Orphans' Court Act of 1898"*-, made radical changes in the effect to be given to decrees allowing intermediate accounts of executors, administrators and trustees. Section 124 of the act of 1898 ])rovided that the intermediate account of every executor, administrator, guardian or trustee, after the same had been audited and reported for settlement by the surrogate, should be examined by the court, and if found to be fairly stated, should be entered of record. If ^"Fennimore v. Fennimore, 3 N. Eq., 76. Affirmed 43 N. J. Eq., J. Eq., 292. Tehan v. Maloy, 45 295. N. J. Eq., 68. 40Van Houten v. Stevenson, 74 38Merselis v. Alerselis, 7 N. J. .N. J. Eq., i-io. Eq., 557- ^'P. L. 1905, p. 299, 3 Comp. ^''English v. Newell, 42 N. J. vStat., 3856 et seq.. pp. 649 and 647 supra, and 666 infra. 42P. L. 1898, p. 715- Accounting. 651 further provided that if any person in interest thereafter attacked any item of such account, the burden was upon him to prove the falsity or injustice thereof, unless notice on his behalf was given at the time of passing said account that such item would be excepted to. The amendment of this section by the act of 1905^-% re- enacted this section exactly as it stood in the act of 1898. except that it omitted the words, "executor, administrator or trustee," thereby limiting the operation of the section to guard- ians' intermediate accounts. Section 125 of the Orphans" Court Act of i898^\ provided that the court to which the piial account of any executor, ad- ministrator, guardian or trustee shall be reported shall examine the account and siiall decree an allowance of tne accouni a>> stated, the language used being identical with that used in the amendment of 1905*^', except that the latter omits the word "final" and adds the words, "or the final account of any guardian." thereby extending its provisions to all accounts of executors, administrators and trustees, and the final ac- counts of guardians, thus placing all accounts of executors, administrators and trustees, whether intermediate or final, upon the same basis. Section 126 of the Revision of 1898^'", provided that "if any person interested in the settlement of the final account of any executor, administrator, guardian, or trustee, shall by himself, or attorney, appear and make exception to said ac- count," the court shall proceed to hear the exception. The amendment of 1905*'. re-enacted this act in the identical lan- guage used by the Revision of 1898, except that it omits the word "final," thereby extending the pro\isions of this act to all accounts, whether final or intermediate. It will be observed that the amendments of 1905' work a radical change in the importance of intermediate accounts. I'nder the scheme of the Revision of i8c)8, no exceptions 43 P. L. 100.=;. |>. 200. 3 Cotnp. ^•'■P. L. 1.^08. i>. 715. Stat., 3856, p. 640, supra. '"P. P. 1005. p. 300. 3 Oomp. *4P. L. i8q8. p. 715. Stat.. 3857, p. 666. infra. •'■'■P. L. I'Xi.T. p. ,300, 3 Comp. Stat., 3856. p. 647, supra. 652 Probate Law and Practice;. could be filed to such account, and they were not allowed, but merely "entered of record'' and were subject to exception upon the filing of the final account, while the legislative scheme as disclosed by the amendments of 1905 appears to be that all ac- counts, whether intermediate or final, with the exception of guardians' intermediate accounts, stand on the same footing; they are subject to exception, and are allowed by the court. While section 127 of the Orphans' Court Act ^® provides that the decree of the court on a final account shall be conclusive, except for fraud or mistake, still it would appear to be clear that, the legislature having placed all accounts of executors, administrators and trustees, whether intermediate or final, upon the same footing, making them subject to exception and requiring that they be allowed by the court, it should be held that the provisions of this section are applicable to all such accounts, and that they can only be attacked upon proof of fraud or mistake. Jurisdiction of Orphans' Court. As has been seen above, a decree of the orphans' court allowing the account of an executor, administrator or trustee, whether intermediate or final, and the final account of a guardian, can only be opened by the court on proof to its satisfaction of fraud or mistake appearing therein ;*^ but the meaning of the words, "to the satisfaction of the court,'' is not to enable the orphans' court to dispense with proof, but to indicate to it that the proof should be clear and satisfactory, and that it should not in a doubtful case open an account.^" For Fraud or Mistake. The application, in case of alleged fraud or mistake, is one addressed to the discretion of the court, and must be proved to its satisfaction f^ but the mistake which will justify the **P. L. 1898. p. 715. 3 Comp. J. L., 70. Hyer v. Morehouse, 20 Stat., 3857, p. 647, supra. N. J. L., 125. 49Baker's Case, 61 N. J. Eq., siEngle v. Crombie, 21 N. J. L.. 592. Liddel V. McVickar, 11 N. J. 614. Reversing Crombie v. Engle, L., 44. 19 N. J. L., 82. In re Baker's Es- s^Johnson v. Eicke, 12 N. J. L., tate, 61 N. J. Eq., 592. 316. Stevenson v. Phillips, 21 N. Accounting. 653 orphans' court in opening an account must be one of fact or law. not a mere error in the judgment of the court on a point resting in its discretion. ^^ In the case of Runkle v. Gale^'-'\ a guardian's final account, prepared by himself and assented to in writing by the ward on coming of age, had been allowed by the court. It appeared bv. a memorandum at the foot of the account that commissions were either paid by the ward or waived by the guardian. It subsequently appeared that there were mistakes in the account against the ward : one in the footing of an account, and the other in a calculation of interest. On application to the court to open the account, it was held that, the mistakes appearing upon the face of the account, the decree allowing the same should be opened, and the account re-stated ; but that the com- missions, having been waived, could not be charged in the re- stated account, and that counsel fees should not be allowed accountant on such re-statement. In Morris's Case''*, persons interested in an estate presented a petition to the orphans' court to open several accounts filed by executors and allowed by the court, on the ground that the executors had not charged themsehes with specific items of money or property of the decedent for which they should have accounted, and an order requiring the executors to show cause why the accounts should not be opened was made. The execu- tors answered the petition, and by the answer admitted that they had omitted from the accounts, by inadvertence, certain of the items specified in the petition, but set up, by way of cross- petition, that they had omitted, by like inadvertence, certain disbursements and expenses for which they should have been allowed. An order to show cause was issued on the cross- l)etition, and both orders came to hearing together. The court found that the disbursements omitted or proved to have been omitted were at least equal to the charges proved to have been omitted, and refused to open the accounts. In Baker's Case''^, exceptions were filed to an account of trustees, alleging that accountants had not made certain i^ay- ^^Stevenson v. Pliillips. 21 N. J. ^^65 N. J. Eq.. 699. L., 70, 556j n j gq^ -Q2. 537 N. J. Eq., loi. 654 Probate Law and Practice. ments of income as provided for in testator's will. The excep- tions were withdrawn, and the orphans' court made its order, directing the trustees to make certain payments and allowing the account, the portion of the decree directing the payments to be made not being within the jurisdiction of the court. Subsequent intermediate accounts were filed and allowed by the court upon the basis of the directions of the court contained in the original decree ; and later a petition was presented to the court to open all of the decrees on the ground that in the first decree, wherein the court directed accountants as to the manner of the payment of the income, the court did not cor- rectly construe testator's will. The Prerogative Court held that the mistake complained of as to the jurisdiction of the court and the effect of its decree was a mistake of law, appar- ently shared in by the parties and the court, which might be reviewed upon appeal, but was not an error correctible by an application to open the decrees; and the court pointed out that upon an}' other view the final decree of the orphans" court would possess no conclusive character, but would be open to reversal by any subsequent court which disagreed with the view of the law upon which the decree was based. When Improvidently Entered. A decree not made in compliance with the statute will be set aside. Thus, where the orphans' court allowed a final ac- count, without the advertisement of the notice of settlement prescribed by the statute, it was held that the court should set aside the decree on the ground of mistake and inadvertence in entering the same.^'' But when a decree is set aside as im- providently allowed, it will be set aside in its entirety, and the parties permitted to contest every item of it^" Matters Resting in Discretion. The orphans' court may open a decree to review a matter resting its discretion, e. g., the allowance or division of com- missions ;^* but a decree will not be opened on the application ■^•"■Crithens v. Goodwin, 32 N. J. "'"Trimmer v. Adams, 18 N. T. Eq., 286. Eq., 505. Accounting. 655 of a third person, on allegations of fraud or mistake, for the purpose of re-adjusting commissions between executors.^'"' Jurisdiction of Chancery. The power and jurisdiction of the Court of Chancery over decrees of the orphans' court on final settlement of accounts is not taken away or abridged by section 127 of the Orphans' Court Act.''*' A court of equity exercises the power of setting aside decrees of the orphans" court for fraud, not on the grount of concurrent jurisdiction, but l)y reason of inherent authority growing out of the principles and constitution of the court itself and extending over judgments of courts of every description f^ thus, where an account stated that certain assets of the estate were sold, and it was alleged that they were not sold, but remained in the hands of the executor, and were worth much more than the price for which they were alleged to have been sold, the Court of Chancery entertained jurisdiction, opened the account and disregarded the decree of the orphans' court.''- But it- is not enough that the orphans' court may haxe erred in judgment as to a subject-matter prop- erly before it ; it must have been led into error by some fraudulent and unconscientious act or omission of the party to be benefited, or the Court of Chancery can take no cognizance of the matter.''^' Equity will not interfere where the claim is a stale one. even in the case of the account of a guardian which was settled during the minority of the ward."* 5sCulver V. Brown. i6 N. J. Eq.. N. J. Eq.. 137. Tehan v. Maloy, 533. Stevenson v. Phillips. 21 N. 45 N. J. Eq., 68. Schweitzer v. J. L., 70. Bonn. 55 N. J. Eq., 107. Bird v. s^Stevenson v. Phillips. 21 X. J. Hawkins. 58 N. J. Eq., 229. L., 70. ''-Schweitzer v. Bonn. 55 N. J. '•"See p. 647, supra. Eq.. 107. G'Black V. Whitall. 9 N. J. E(|.. '•■'Boulton v. Scott. 3 N. J. Eq.. 572. Vanmeter v. Jones. 3 N. J. 231. Eq., 520. Boulton v. Scott, 3 N. J. 64Wood v. Chetwood. 33 N. J. Eq., 231. Frey v. Demarest. 16 N. Eq., 9. J. Eq., 236. Search v. vSearch. 27 ' 43 656 Probate Law and Practice. Decrees on Guardians' Intermediate Accounts. As has been seen, intermediate accounts of guardians are not settled, but are merely ordered to be recorded*'^, if, on examination, they prove satisfactory in the particulars and to the extent stated in the statute. They are still open to attack after they have been recorded, and the ward may examine the guardian as to every item of each account filed by the latter, if he sees fit, and may examine his vouchers with a view to showing errors in the accounts. The effect of the order to record the accounts is merely to shift the burden of proof as to any items not objected to and which appeared to the court to be correct. The act, as has been seen, provides that mere notice, on behalf of the ward, at the time of passing the ac- count, that an item will be excepted to, will, if a memorandum of the notice be entered on the record, prevent the shifting of the burden of proof as to that item, and will leave it upon the guardian up to the time of passing his final account. This provision was designed for the protection of the guardian, as well as for that of the ward, to give him the advantage of submitting the account of his expenditures to a judicial exami- nation soon after making the disbursements, and to give him the benefit of an approval thereof to the extent of establish- ing its correctness prima facie, so far as it appears to be correct and indisputed.*''' If, by mistake or through other good and sufficient cause shown to the court, an omission has taken place in an account appearing on its face to be partial and not final, such omission may be corrected and just allowance made to the guardian in his subsequent or final account. It is true that the court, when called upon to make such an allowance, may and ought to require strong circumstances to excuse and explain the omis- sion ; but, the circumstances being proved, and the justness of the demand and the reason why no previous claim was made ^^Orphans' Court Act, sec. 124, 65. Liddel v. McVickar, ir N. J. p. 649, supra. L., 44. Jackson v. Reynolds, 39 N. 66Davis V. Combs, 38 N. J. Eq., J. Eq., 313. In re Baker's Estate, 473. Affirmed 39 N. J. Eq., 336. 61 N. J. Eq., 592. Keeney v. Henning. 64 N. J. Eq., Accounting. 657 liaving been sufficiently shown, the court is not restrained by any rule of law or equity, or by any sound principle relative to matters of account, from introducing and allowing the omitted items ; on the contrary, it is bound to do so. Even a final account is subject to correction when mistake is proved to the satisfaction of the orphans' court ;''' and the excessiveness of commissions allowed to a guardian on an intermediate account can be examined by exceptions to one of his subsequent accounts.*^* It has been held that the jurisdiction of the orphans' court in allowing a guardian's intermediate account is confined to receipts and such actual disbursements as are made in cash, and does not include charges by a guardian for the support of her ward, who is also her child; and hence the account of such a guardian, passed by the orphans" court, will not be regarded as prima facie correct in such particulars."'^ So the settlement of a guardian's intermediate account in the orphans' court will not be presumed to include damages sustained by the infant's estate through the fraud or misconduct of the guardian. "° The weight and strength of the presumption arising imder the statute in favor of the guardian's account passed by the orphans' court will depend upon the fairness and propriety of the account itself.'^ PRACTICE ON APPLICATION TO OPEN DECREE. Application. A party seeking to open an account should primarily, and before any rule opening the account or calling on the other party to show cause why it should not be opened is made, point out specifically wherein the fraud or mistake complained ^"Liddel V. McVickar. ii N. J. "^-'Keeney v. Henning. 64 N. J. L., 44. Jackson v. Reynolds, 39 Eq., 65. See also "Allowances to N. J. Eq., 313. Dey v. Codman, Accountants — In (luardians' Ac- 39 N. J. Eq., 258. In re N. J. counts," p. 641, supra. Trust & Safe Deposit Co., 73 N. '"Ordinary v. Dean. 44 N. J. L., J. Eq., 628. 64. •'^Liddel V. McVickar, 11 N. J. "^Keeney v. Henninc;, 64 N. 1. L., 44. Jackson v. Reynolds, 39 I'.q.. 65. X. J. Eq.. 313. 658 Probate Law and Practice. of consists, and should lay such evidence of it before the court as to make out at least a prima facie case ; and if the court thinks proper, upon such complaint, to give the parties a hear- ing, the burden of proof must lie entirely on the complaining party, and the account and decree must stand until overthrown by evidence of fraud or mistake.'"' The application should be by verified petition addressed to the orphans' court, which should set forth fully the fraud or mistake relied upon to confer jurisdiction upon the court to open the decree. The petition should also give the names of all persons in interest. If the petition discloses prima facie grounds for opening the decree, the court will allow a rule to show cause directed to all parties in interest, which rule may direct the manner in which it shall be served.''' Upon the return of the rule to show cause, the issue is whether or not the decree shall be opened. If the court decides this question in the affirmative, it will make its order opening the decree and giving the petitioner an opportunity to be heard on the merits of his ol:)jections to the account. Practice on Opening Decrees on Intermediate Accounts. The better practice in dealing with an intermediate account, in which an error is alleged to e.xist, is to attack it directly by a rule to set it aside in respect to the matter complained of. This has the advantage of directness, and of bringing into court parties who may be interested in the intermediate, but have no interest in the final account, such, for instance, as deceased or discharged executors, or former trustees who have settled their accounts as joint trustees with those still acting."^ When Application Must be Made. As the statute does not s])ecify the time within which an account may be opened for fraud or mistake, it must depend upon the sound discretion of the court and the circumstances '-Hyer v. Morehouse. 20 N. J. '^sOrphans' Court Act. sec. 170. L.. IJ5. Engle v. Cromhie, 21 N. J. p. 39. supra. L.. 614, but see contra. Trimmer ^*Jackson v. Reynolds, 39 N. J. V. Adams, 18 N. J. Eq., 505. Eq.. 313. Accounting. 659 of each particular case, considered with reference to the nature and extent of the account, the condition and situation of the parties and the character and evidence of tlie alleged fraud or mistake.'' Notice of Application. In proceedings for the re-settlenieni of the account of an executor, administrator, guardian or trustee, at least five days' notice of the intended application shall be given to such execu- tor, administrator, guardian or trustee.''' The better ])ractice is to obtain a rule to show cause why the decree should not be opened, which should be duly served upon the accountant.'' Effect of Opening Decree. \\ here a decree is opened to correct alleged mistakes in any l)articular item or items, the whole account is not thereby thrown open for review, but the re-settlement should be con- fined to correcting the items in which fraud or mistake is l)roved, and such parts of the account as are affected by the changes so made ; the residue of the account should be allowed to stand as settled.'"^ It is otherwise, however, where the decree is set aside as improvidently entered.'*' Method of Re-Stating Account. if fraud or mistake is established tcj the satisfaction of the court, the original account should not be mutilated' or set aside, but a new account stated, making the footings of the old one the basis of such new account, adding thereto or deducting therefrom such sums as the discovery of the fraud or mistake shows should have ])een charged or credited to the accfnmtant, thus showing u]:)on the face of the account the i)aniculars in ^^Hyer v. Morehouse, 20 N. J. Hycr v. Morehouse, 20 N. J. L., 1,., 125. 125. Trimmer v. Adams, 18 N. J. "•'Orphans' Court Rule 22. Eq., 505. Morris's Case, 65 N. J. ''See ".Application," p. 657. Eq., 699. supra. "''Trimmer v. Adams, 18 N. J. "Stevenson v. Phillips. 8 N. J. Eq., 505. Eq., 593- S. C. 15 N. J. Eq., 236. 66o Probate Law and Practice. which the former account had been defectively or improperly stated.^° Appeal. An order refusing to set aside a decree allowing the final settlement of an administrator's account is appealable; and where no notice of such settlement was given, the decree will be set aside.®^ EXCEPTIONS TO ACCOUNT. In General. Any person in interest desiring to object to an account, or to any item therein, may do so by filing exceptions thereto at any time before the account is allowed by the court. ^- Jurisdiction of Orphans' Court. The statute invests the orphans' court with full power and authority to hear and determine all controversies respecting the^ allowance of accounts of executors, administrators, guardians and trustees under wills, and authorizes it to issue process to compel such persons to account for the estates in their hands. The court may also compel obedience to its process, orders and sentences by imprisonment or distress. Its orders or decrees, whereby a sum of money is ordered to be paid by one party to another, being properly recorded, have the same lien and priority as judgments of the circuit court, and like exe- cutions may issue thereon. It is apparent from the language of the statute that it was the intent of the legislature in con- ferring this jurisdiction upon the orphans' court to provide an inexpensive and summary process for the settlement and adjustment of the accounts of executors, administrators, guardians and trustees under wills, and to remove the neces- sity of a resort to the Court of Chancery for that purpose. In other words, for all purposes of settling accounts between executors, administrators, guardians and trustees under wills soHyer v. Morehouse, 20 N. J. of appeals, see "Appeals," p. 80. L., 125. supra. siGithens v. Goodwin, 32 N. J. ^^Orphans' Court Act. sec. 126, Eq., 286. On the general subject p. 666, infra. Exceptions to Accounts. 66i and the persons entitled to the estate in their hands, the or- phans' court is invested with ah the jurisdiction which had before been exercised by the Court of Chancery, to be exer- cised, however, in the cases and in the manner prescribed by statute ; and while the orphans' court can only exercise the jurisdiction expressly conferred upon it, the statute, being remedial and for the advancement of justice, should receive a liberal construction, such as will give to it the force and efficiency intended by the legislature.*" Thus, in Pyatt v. Pyatf*, it was held that the powers of the court are sufficiently broad to justify it in allowing a guardian credit for payments for the support of his ward after the latter 's majority. In Jroolsey's Case^'% it was held that the orphans' court might apply the equitable rule of estoppel, in a proceeding founded upon exceptions to an executor's account ; and the same rule was applied in Hill z\ HilP*^, in which it was held that it was within the jurisdiction of the orphans' court, upon exceptions to an account, to surcharge an executor, adminis- trator, guardian or trustee, upon the ground of negligence.®' So the orphans' court has power to determine whether except- ants, who claim to be creditors of the estate, are in fact credi- tors, and as such interested in the settlement of the estate.®* But the court, on the hearing of an exception to the final account of an administrator, based on the failure of the ad- ministrator to perform his duty, in that he consented to ex- travagant allowances to a receiver and his counsel, cannot review the action of the Court of Chancery in determining what was a reasonable compensation to the receiver and his counsel, and it must be assumed that the allowances were made after a consideration of the work done by them.®" s^Pyatt V. Pyatt, 46 N. J. Eq.. ^^But see Duncan v. Davison, 285-288. Dunham v. Marsh. 52 N. 40 N. J. Eq.. 535. and Suydam v. J. Rq., 256. Affirmed ib. 831. Hill Bastedo. 40 N. J. Eq., 433- V. Hill, 79 N. J. Eq.. 521. Wool- sspoulson v. National Bank, 33 sey V. Woolsey, 72 N. J. Eq., 898. N. J. Eq.. 250. .A.ffirnied ib. 618. 8*46 N. J. Eq.. 285-288. «"Tn re N. J. Trust &c. Co., 73 8568 N. J. Eq., 763. N. J. Eq., 628. 8C79 N. J. Eq., 521. 662 Probate Law and Practice. It is, as has been seen, established that the jurisdiction of the orphans' court over the accounts of trustees under wills is as ample as that of the Court of Chancery"", and that the accounts of an executor, administrator, guardian or trustee must be stated and settled on equitable principles according to the truth and substance of the matters in controversy and without regard to matter of form ;''^ and in all cases where a decree in equity would be binding upon persons not in esse at the time, or upon persons whose interests had not yet arisen, the decree of the orphans' court will be equally binding."- It is, however, well settled that the orphans' court has no juris- diction to declare a trust. ^^ In the exercise of its powers to e.xamine and adjudicate upon accounts of executors, administrators, guardians and trustees, the orphans' court is invested with all the incidental powers necessary to effectuate that jurisdiction.''^ Thus, where the judicial action of the orphans' court, in settling and allowing the accounts of trustees, involves the question of their duty under a will creating the trust, that court may construe the will on the subject of such duty; and when the court has made its construction of the will in such respect the basis of a decree allowing the trustees' account, the decree may not be opened by the court because subsequent judges have a variant view as to the true construction of the will.^^ But the orphans' court has no power upon exceptions to an account to reform or set aside releases which are produced as vouchers for dis- bursements for which allowance is prayed or to determine their force. In such case the jurisdiction of the court is limited to ascertaining the amount for which the trustee should be liable leaving the affect to be given to the releases to be settled when 90Pyatt v. Pyatt, 46 N. J. Eq., ^-In re O'Callaghan. 64 N. J. 285-288. Dunham v. Marsh, 52 N. Eq., 287. In re Lippincott, 68 N. J. Eq., 256-261. Affirmed ib., 831. J. Eq., 578. Koch v. Feick, 81 N. Hill V. Hill, 79 N. J. Eq., 521. J. Eq., 120. «iHiIl V. Hill, 79 N. J. Eq., 521. »*Pyatt v. Pyatt, 46 N. J. Eq., 9-Woolsey v. Woolsey, 78 N. 285-288. Dunham v. Marsh, 52 N. T. Eq., 517. Affirmed ib., 579. J. Eq., 256-261. Affirmed ib., 831. Shearman v. Cameron, 78 N. J. Hill v. Hill, 79 N. J. Eq., 521. Eq., 532. 95Baker's Case, 61 N. J. Eq.. 592. Exceptions to Accounts. 663 payment of the trust fund, as determined by the aceounting, is sought to be enforeed.'''"' Who May Except. Any person appearing to be interested in the disposition of the property of a decedent may hie exceptions to the account of the executor or administrator of the deceased.'"^ So \yhere a testator's \yill does not dispose of aU of his property, his iiext of kin, who take notliing under the will, have a standing to except to the executor's account, so far as such excei)tions,. if allowed, will affect the portion of testator's estate as to which he died intestate : and upon a motion to strike out such exceptions on the ground that exceptant had no interest in the controyersy, the orphans' court has jurisdiction to construe the will for the purpose of ascertaining whether exceptants haye any standing to except to such accotnit.''' A creditor of an estate is a "person interested in the settle- ment of the account," and may except thereto f^ and a creditor barred by a decree barring creditors, who has brought him- self within the terms of section 80 of the Orphans' Court Act"'' by presenting his petition for relief to that court may lawfully file exceptions to the final account of the administrator, which, if, established, would enhance the amount of the assets in the latter's hands. ^"" The same rule applies to exceptions to ac- counts of removed or discharged executors as in other cases. ^ Form of Exceptions. When exceptions are made to the account of an executor, ad- ministrator, guardian or trustee, such exceptions shall be in writing; and where the objections are to disbursements, they -hall state specifically the item or items and particulars ob- "•^"Truitt V. Lawrence, 94 Atl. ^spouJson v. National Bank. 33 I^ep.. 575. N. J. Eq.. 250. Affirmed ib., 618. •'cPoulson V. National Bank. 33 ""Page 582. supra. N. J. Eq., 618. Alexander v. Ba- '""Equital)le Life Assurance So- cot, 41 N. J. Eq., 511.* Dunham V. ciety v. Chesley, 63 N. J. Eq., Marsh, 52 N. J. Eq.. 83r. 2r(). Reversed 64 N. J. Eq., 348. ''^Dunham v. Marsh, 52 N. J. Jordan v. Logue, 76 N. J. Eq., 471. Eq.. 256. .Affirmed ib., 831. ' Poulson v. National Bank, 33 N. J. Eq.. 618. 664 Probate Law and Practice. jected to, and the reasons therefor.-' The object of an excep- tion is to specify the objections which the exceptant makes either to the whole account, or to specified parts thereof, with some statement of the grounds on which the exception is based. Exceptions to the whole account which state no reasons for criticism, specify no items of which the exceptant complains, and no particulars wherein the account is alleged to be inac- curate, will not be entertained." Where a party excepts to an account which contains a num- ber of items of charges, he must specify the specific items of which he complains : he cannot by a general exception im- pose upon the court the burden of examining every item in the account to detect the error.* So where allowance is asked in an account for the payment of a judgment, and exceptants desire to object to its allowance because the accountant fraud- ulently and collusively sufi^ered the judgment to be procured, their exception should specify facts from which fraud or collusion may be inferred.^ An exception must either insist upon a charge, or object to an item of discharge which the accountants seek. An excep- tion cannot merely object that a duty remains unperformed, and impliedly seek to enforce the performance of that duty through the payment of money. Such an objection, although called an exception to the account, is in reality a demand that the executors may be required to do their duty by paying a sdm of money to the exceptants. Thus, a creditor may not, by exception to the executor's account, demand the payment of his claim and seek to have its validity established.® Where no exception was taken in the orphans' court to an executor's account as to a certain item, it cannot be considered on appeal." ^Orphans' Court Rule 20. -^HurllHit v. Hutton, 44 N. J. sMerritt v. Jordan, 65 N. J. Eq., Eq.. 302. 772. sCarey v. Monroe, 54 N. J. Eq.. ^Holcombe v. Holcombe, 11 N. 63Z • J. Eq., 281. Tucker v. Tucker, 28 "In re Ramsey's Estate. 66 Atl. N. J. Eq., 223. Orphans' Court Rep., 410. Rule 20. Exceptions to xA.ccounts. 665 Motion to Strike Out Exceptions. If accountant conceives that exceptant has no standing to except to his account or that the exceptions have no merit, or if he desires to raise any other question in regard to the ex- ceptions, he may move, on notice to the exceptant, to strike them out; and upon such a notice the court has jurisdiction to construe the will for the purpose of ascertaining whether ex- ceptant has any standing to except to such account.*' So where exceptions allege that exceptant is the next of kin of deceased, and accountant moves to strike out the exceptions on the ground that exceptant is not such an interested person as the statute contemplates, without demanding the substantiation of this allegation by proof, such a motion, for its purposes under the circumstances, must be treated like a demurrer, as admit- ting the truth of the allegation touching the exceptant's kin- ship.^ . HEARING ON EXCEPTIONS. Court May Hear or Refer Matter. If any person interested in the settlement of the account of any executor, administrator, guardian or trustee shall, by him- self or attorney, appear and make exceptions to said account, the court shall either proceed to hear the proofs and allegations, at such time as they may appoint, and correct any mistake or errors that may happen in the account as reported, or refer the same to the surrogate, an auditor or master in chancery, to examine and re-state the account, after hearing parties and witnesses, and make report to the court for confirmation and allowance ; the court to whom any account is reported for an allowance as aforesaid, or the surrogate, auditor or master to whom an account is referred as aforesaid, at the instance of any party interested in the same, or by their own proper au- thority, may examine any executor, administrator, guardian or trustee exhibiting such account, on oath or affirmation, touch- ^Dunhain v. Marsh. 52 N. J. ^Dunham v. Marsh, 52 N. J. F.q., 256. Affrmed ib., 831. Eq., 256. Affirmed ib., 831. 666 Probate Law and Practice. mg the truth and fairness of the same or any part or item thereof/" Under the general ])o\vers conferred upon the orphans' court by the Act of 1907, that court has power to refer exceptions to an account to a master, to hear the same and determine what order or decree should he made therein;'' l:)ut the power to refer an account to a master, conferred by the act, is limited to cases where notice has been duly given, an account exhibited, and exceptions to the account made b\ persons interested, in which case the court may hear the con- test, or refer it to the surrogate, an auditor or a master, to hear the parties and their witnesses and thereupon re-state the ac- count or to hear the exceptions and determine what order or decree should be made therein. The court has no power to refer to a master the matter of stating the accounts of an executor or until he has filed his account, and exception has been made thereto by some interested party. ^-. Examination of Accpuntant. This summary mode of inquiring into the conduct of execu- tors, administrators, guardians and trustees, in the manage- ment of the estate entrusted to them, is intended to be a sub- stitute for the more expensive remedy by bill of discovery in chancery. ^^ The practice is for the exceptant to first call the accountant to the stand and examine him as to the matters involved in the exceptions. In such examination, much the same latitude is allowed exceptant as is allowed upon cross- examination in ordinary cases. The accountant is in no sense the exceptant's witness, but is called upon to make full dis- covery as to his acts and doings in relation to such matters. Thus, an administrator entitled to a distributive share of the personal estate of his intestate may be so examined for the ^"Orphans' Court Act, sec. 126, ^-Smith v. Smith, 85 Atl. Rep., as amended by P. L. 1905, p. 300. 226. 3 Comp. Stat., p. 3857, sec. 126. i^Davison v. Davison, 17 N. J. lip. L. 1907. p. 293. 3 Comp. L., 169. Stat., p. 3815, sees. 9-a, 9-I1 and 9-c. Exceptions to Accounts. 667 purpose of showing that he or liis co-administrator was in- debted to the intestate.'* xAfter the examination of accountant by exceptant has been completed, counsel for accountant is permitted to cross- examine him upon the testimony given, in what would ordi- narily be called his direct examination. After the examination and cross-examination of accountant has been completed, ex- ceptant is permitted to produce such other evidence as he may have in support of his exceptions, after which the accountant is permitted to produce evidence to rebut the case established bv the exceptant. EVIDENCE. In General. The general rules of evidence are ordinarily applied in determining whether the evidence offered in a proceeding on exceptions to an account is admissible ; but it is settled that under section 4 of the Evidence Act,'^ which excludes the testimony of any party to tlie action as to any transaction with, or statement by, the decedent, unless the representative offers himself as a witness in his own behalf and testifies to trans- actions with, or statements by, his decedent, an executor, ad- ministrator or trustee whose account has been excepted to, and who offers himself as a witness in his own behalf, will not be permitted to testify as to transactions between himself and his decedent. The words of the statute nowhere prohibit a representative from tendering himself as a witness to the fullest extent ; but the executor, seeking to show his dealings with decedent in his lifetime, is in this case, not called bv any party. ^^^ So where a devisee and legatee is also an executor, and. in his former capacity, excepts to his co-executor's account, '^Davison v. Davison. 17 N. J. Sherman v. Lanier. 39 N. J. Eq., L., 169. Smith V. Burnet, 34 N. J. 249-253. Carlin v. Carlin. 64 Atl. Eq., 219-221. .\ffirmed 35 N. T. Rep., 1018. Tn re Riker's Estate. Eq., 315. 94 Atl. Rep. 622. the testimony of ^^P. L. 1900. p. 363. 2 Comp. the wife of tlie personal repre- Stat., p. 2218, sec. 4. sentative as to transactions with i^Smith V. P.urnct. 34 X. J. K(i.. decedent is however competent 219. Affirmed 35 X. J. T'.(|.. 314. In re Riker's Estate, supra. 668 Probate Law and Practice. his testifying does not remove the statutory bar that prevents his co-executor from being a witness in his own behalf to estabhsh his individual claim against the estate at the hearing of the exceptions to his account. ^^ But an administratrix is a competent witness on the question whether a claim for which she asks allowance has been paid, and her testimony, in the absence of contradiction, may be relied upon by the court. ^* Presumptions. Executors, administrators, guardians and trustees are bound to keep clear and accurate accounts of their management of the estate, and in case doubts or obscurities arise from their failure to do so, they should be resolved against the account- ant ; if he fails to keep proper accounts, or if his accounts become lost through his carelessness, he should be required to ■bear any injurious consequences arising therefrom. The law imposes the duty of keeping accounts on executors and adminis- trators for the protection of the beneficiaries of the estate, and they will not be permitted to defeat this salutary purpose by their carelessness.^^ So where an administrator adopted loose methods in dealing with the affairs of his estate, and delayed his accounting for more than fifteen years after the time when it ought to have been filed, doubts arising upon the evidence taken on exceptions to his account should be resolved against him.-** So where an executor has purchased lands sold by him under order of the court to pay debts, and is called to account for the value of the property, all doubts as to its true value should be resolved against him.-^ And so where a trustee has so intermingled the trust property with his own that it is im- possible to ascertain how much of certain charges, such as taxes, levied upon the whole property, should he borne by the I'Tichenor v. Tichenor, 43 N. 216. Welsh v. Brown, 50 N. J. J. Eq., 163. Affirmed 45 N. J. Eq., Eq., 387. Hatfield v. Debaud, 54 303. N. J. Eq., 371. Smith v. Robin- isFrey's Case, 73 N. J. Eq., 346. son, 83 N. J. Eq., 384- i»Downie v. Knowles, 37 N. J. ^ofjug^o^ y j^q^^ -g j^ j_ gq^ Eq., 513-519. Affirmed 39 N. J. 215. Reversed 79 N. J. Eq., 220. Eq., 594. In re Gaston Trust, 35 -i Huston v. Cassidy, 14 N. J. N. J. Eq., 60. Affirmed ib., 348. Eq., 320. Dufford V. Smith, 46 N. J. Eq., Exceptions to Accounts. 66g trust estate, he will not he entitled to any allowances with re- spect to such charges.-' Presumptions Arising from Payment. The fact that a bill has been paid by the executor ailords, under ordinar\ circumstances, a fair presumption of its just- ness and propriety. While he acts, within the line of his duty, every presumption is to be made in his favor; if, however, he ]jays groundless or illegal claims upon the estate, he must bear the loss ; if he pays disputed claims, especially after being warned, he acts at his peril. -^ Burden of Proof. In all matters of charge against the accountant, the l)urden of proof is upon the exceptant;-* but in matters of discharge, the burden is upon the accountant.-' So where accountant in- ventories securities as assets of the estate of his decedent, and afterwards in his account prays allowance for those securities on the ground that they were not in fact assets of the decedent, or for any other reason, the burden of establishing the fact that they did not belong to decedent at his decease is cast upon him, and he will not be permitted the allowance prayed except upon satisfactory proof of that fact.-'^ So a claim on the part of an executor for money paid in testator's lifetime on a note of testator is not sustained by proof that the money was paid by the executor, who was the son of testator; in the absence of any legal evidence to show that the money was actually advanced by the son, the presumption under the circumstances of the case is that he made the payment as the agent of the father, and with the funds of his jjrincipal.'-' Ikit if the court --Elmer v. Lopcr, 25 N. J. Eq., 216. Brewster v. Dcniarest, 48 N. 47.S- J. Eq., 559- Frey's Case, 73 N. J. -^Egerton v. Egerton, 17 N. J. Eq., 346. In re Wiley's Estate, Eq.. 419-423. In re Dreier's Es- 65 Atl. Rep., 212. McCulloch v. tate. 92' Atl. Rep., 51. Tomkins, 62 N. J. Eq., 262. -'"Kirhy v. Coles. 15 N. J. L., -''••Bayley's Case, 67 N. J. Eq., 441- 566. Tichenor v. Tichenor, 45 N. -^Kirby v. Coles, 15 X. J. L., J. Eq., 303. 441- Pyatt V. Pyatt. 44 N. J. Eq., ^-p^rsel v. Pursel. 14 N. J. Eq.. 491- Reversed 46 N. J. Eq., 2S5. 514. Dufforrl V. Smith. 46 X. J. Eq., 6/0 Probate; Law and Practice. • , is satisfied of the good faith of the accountant, it is not bound to reject a payment actually made, because of some doubt of the fairness of the claim, or because the evidence thereof is not as full and ample as may l)e required in other cases ; if reasonable prudence and discretion are exhiljited in the pay- ment, it is enough.-* Vouchers and Proof of Payment. It is the duty of executors, administrators, guardians and trustees to take and preserve proper vouchers for payments made by them, and the statute requires them to produce them to the court for its examination ;'■'•' but while evidence of pay- ments by an executor, administrator, guardian or trustee is ordinarily shown by the production of vouchers, other con- vincing proof may be introduced to justify an allowance to him for payments made.^'" In all matters of account, the party who produces vouchers in support of his account produces them at his peril ; and the court is bound to admit a voucher in evidence, unless the other side can lay a reasonable ground to show that it can be impeached. The court may, however, require proof besides the vouchers, if it doubts the payment. ^^ So where accountant produces vouchers in support of her claim for allowance for moneys paid by her, and an exception is taken to the allowance of such claim, and the accountant is not required to produce additional proof thereof, the claim will be allowed upon the vouchers. '- ^^l^ere accountant is unable to produce a voucher in support of a payment for which he prays allowance in his account, he is a competent witness on this question, and his testimony, in the absence of contradiction, may be relied on by the court. ^^ So where it satisfactorily appears that an executor has made ■-'^Kirby v. Coles, 15 N. J. L.. and "Checks as \'(uichers." j). 441- 642, supra. -■'Smith V. Robmson. 83 N. J. 3"Smitli v. Ro1)inson. 83 N. J. Eq.. 381. Dufford v. Smith, 46 N. Eq., 384. J. Eq., 216. Willis V. Clymer, 66 ^iHalsted v. Tyng, 29 X. J. Eq., N. J. Eq., 284-289. Orphans" 86. Court Act, sec. 125. p. 647. supra. 32]3jj-t;|,Qi„-, y Wardell. 42 N. J. and see "Vouchers to be Lodged Eq., 2>?)7- with Surrogate." p. 642. supra, ^r.prey's Case, y^ N. T. Eq.. 346. Exceptions to Accounts. 671 payments to the widow of testator, with the express assent of the other legatees, in pursuance of an equitable arrangement by which controversies about the estate were settled, and liti- gation avoided, it is clear that the legatee by whose consent such arrangement was made cannot, on exceptions to the ac- count of the executor, object to his being allowed for such payment.^* So where an executor allowed a claim for farm produce furnished the testatrix, and the claimant swore posi- tively that he furnished the produce and that no part of the price had ever been paid, his oath is not overcome by that of one of the next of kin, the exceptant, who swore that the claimant lived with testatrix and had no place where he could raise the produce. ^^ An accountant should not, however, be allowed credit for money alleged to have been paid to satisfy a judgment against the trust estate, merely on his own testi- mony as to such payment, without any voucher or evidence of judgm.ent or execution, such evidence being readily procur- able.^*^ An administrator may be allowed in his account surro- gate's fees required by law to be paid, although no vouciier is produced therefor.'" COSTS ON EXCEPTIONS. General Rule. As a general rule, where exceptions to an account are sus- tained, the costs will be charged against accountant personal- ly.^^ So where the executors have permitted great and un- warrantable delay in the final settlement of their account, they will be charged with costs on exce])tions ;•'" and so where the difficulty is caused by the failure of the executor to exhibit a proper inventory and to keep proper accounts, costs and coun- sel fees will not be allowed him, though the exceptions be over- 3*Pursel V. Pursel, 14 N. J. Eq.. ■"■^Aldridge v. McClelland, 36 N. 514. J. Kq., 288. Affirmed 38 N. T. Eq.. 35Middleton v. Middleton, 35 N. 279. Fluck v. Lake, 54 N. J. Eq., J. Eq., 141. 638. Rrokaw v. Brokaw, 41 N. J. 38Willis V. Clymer. 66 N. J. Eq., Eq., .304. 284. ""Egerton v. Egerton, 17 N. J. 'TBirkholm v. Wardcll. 42 N. J. Eq., 419. Eq., 337. 44 672 Probate Law and Practice. ruled. ■^"^ So where the necessity of exceptions to an account is due to the failure of the executor to discharge his duty to the estate, and to comply with the orders of the court, he should be required to pay the costs of the proceedings ;^^ and so where an erroneous payment of a legacy is made by an executor, and the litigation on an exception to an allowance of such payment in his account is unnecessarily and unreasonably protracted by him, he will be charged with interest on such payment from the time of making the same.^- But where the exceptions are not sustained, no costs will be given against accountant.*' Where some of the exceptions are sustained and some over- ruled, the accoimtant will be charged with the costs on the exceptions sustained, while the estate will be charged with the accountant's costs on the exceptions overruled. ^^ Allowance of Counsel Fees. The power of the orphans' court to order the payment by accountants personally of counsel fees allowed by the court on exceptions to an account has been approved by the Preroga- tive Court in man)- cases ;^'' and where the dereliction of an accountant occasioned loss to the trust fund, and was estab- lished on his own admission, it was held that a decree allow- ing exceptant a counsel fee to be paid by the derelict trustee was proper. The allowance of such a fee. and its amount, is to be determined in the discretion of the court, which dis- cretion should not be destroyed by a reversal unless it mani- festly appears to have l:)een unreasonably exercised.*" Where on exceptions to an account the court orders that accountant personally pay the counsel fees of exceptant, the amount of such counsel fees shotild be fixed as a compensation for such labor as counsel has been compelled to perform for ^"Pursel V. Pursel, 14 N. J. Eq., 585. In re Dreier's Estate, 92 Atl. 514-526. Rep., 51. 4iAldridge v. McClelland, 36 N. ^^Slierman v. Lanier, 39 N. J. J.- Eq., 288. Affirmed 38 N. J. Eq., Eq., 249-258. McCloskey v. Bow- 2/9. den, 82 N. J. Eq., 410. 42VanHouten v. Post. 32 N. J. ^^King v. Foerster, 61 N. J. Eq., Eq., 609. Reversed 33 N. J. Eq., 584-588. 344- ^^King v. Foerster. 61 N. J. E(i., *3King V. Foerster, 61 N. J. Eq., 584. at p. 589. Appeal from Decree on Accounting. 673 his client. It is not to be treated as a penalty imposed upon the delinquent trustee, and graduated by the court's sense of his misconduct, but only as an imposition upon the trustee of the expense which the cestui que trust has reasonably been required to pay to compel the trustee to render a proper account. Any award exceeding reasonable compensation for such services of counsel must be held to be excessive.''' Where an executor's account is successfully attacked, and he is surcharged, it.is, as a general rule. imi)r()per to allow him a counsel fee for defending exceptions filed against the account. The result of allowing such counsel fees would be to enable the executor to pay counsel for an unsuccessful attempt to main- tain his own account. "*■* So where the litigation on exceptions to an account is caused by the fact that the accounts kept by the administrator were meagre and filled with inaccuracies and errors, and, bv the fact that the administrator had used a large part of the moneys belonging to the estate for his private busi- ness, as his conduct led to confusion, and was the cause of the litigation, no counsel fees will be alkiwed payable out of the estate. *° APPEAL FROM DECREE ON ACCOUNTING. Matters Considered, Where an a]:)peal is taken from the sentence or decree of the orphans' court on the settlement of the account of an execu- tor, administrator, guardian or trustee, if the appellant wishes to review the decision of the orphans' court as to the allowance or rejection of any particular items of the account, such items shall be specified in the petition of ap]:)eal, or the allowance or disallowance of anv such item shall not be considered a suffi- cient ground for reversing or modifying the sentence or decree a))pealed from. The res])ondent in his answer to the ])etilion of a])i)eal in such cases, may also s])ccify an\- items in llie accotuit as to which he supposes the sentence or decree is erroneous as ^^King V. Foerster, 61 N. J. Eq., Ivep., lozo. Affirmed 72 N. T. Eq.. 584, at p. 589. 944. ■♦''In re Flaacke's Estate, 64 Atl. '♦^•Fluck v. Lake, 54 N. J. Eq., 638. 674 Probate Law and Practice. against him and in favor of the appellant ; and upon the hearing of the parties upon such appeal, the sentence or decree of the orphans' court may be modified, as to any such items, in the same manner as if a cross-appeal had been brought by such respondent.^" On an appeal from the orphans' court on final accounting, no question can be raised in the Prerogative Court which was not raised and decided in the court below,'^ and only those portions of the account to which exceptions have been taken in the orphans' court will be considered.^- An inquiry whether a guardian has made use of a balance due his ward, before the final allowance of the accounts, may be made in the Pre- rogative Court f^ and when the orphans' court does not fix the value of a chattel with wiiich both it and the Prerogative Court adjudge that accountant should be charged, its value may be fixed in the appellate court. ^* Although a respondent does not appeal from a decree of the orphans' court against her, the Prerogative Court may never- theless correct an obvious error in the amount of a claim to which she is entitled. ^•'^ Appeal from Allowance of Counsel Fees. An appeal will lie from a decree of the orphans' court foi the payment of counsel fees.'^" ^''Prerogative Court Rule 62. "Birkholm v. Wardell. 42 N. J. 5iTrimmer v. Adams, 18 N. J. Eq., 337. See also "Jurisdiction Eq., S05. of Court," p. 89, supra. 52Polis V. Tice, 28 N. J. Eq., 432. ^^Brokaw v. Brokaw, 41 N. J Luse V. Rarick, 34 N. J. Eq., 212. Eq., 304. Burr v. Burr, 53 N. J In re Ramsey's Estate, 66 Atl. Eq., 627. Fluck v. Lake, 54 N. J Rep., 410. Eq., 638. King v. Foerster, 61 N 53In re Mott, 26 N. J. Eq., 509. J. Eq., 584. Kingsland v. Scudder 5*Schick V. Grote, 42 N. J. Eq.. 36 N. J. Eq., 284. 352. CHAPTER XXII. COMMISSIONS. RIGHT TO COMMISSIONS. Common Law Rule. At common law. an executor, administrator, guardian or trustee was allowed nothing for his care or trouble, as the office of personal representative was regarded as honorary ;^ but the practice of allowing compensation to executors, adminis- trators, guardians and trustees has long prevailed in New Jersey.- The earliest legislation in New Jersey limiting such allowance was passed March 17, 1855.^ Necessity for Allowance by Court. An executor, administrator, guardian or trustee is not en- titled to commissions until they are settled and allowed by the orphans' court, and they cannot be deducted by him until they are so fixed and allowed.* If he takes them before that time, he occupies the position of a borrower of the amount so taken, and is chargeable with interest thereon to the time of his ac- counting f and where a trustee had paid commissions to him- self before his account was passed, and upon the passing of his account it was held that by reason of his misconduct no com- missions would be allowed him by the court, he was surcharged 1 State Bank v. Marsh, i N. J. sions, see Reporter's Note tc Eq., 288. Warbass v. Armstrong. Mount v. Slack, 39 N. J. Eq., 230: 10 N. J. Eq., 263. also to Stein v. Huesmann, 38 N. -Warbass v. Armstrong, 10 N. J. Eq., 405-406. J. Eq., 263. \^oorhees v. Stool- ' *Lathrop v. Smalley, 23 N. J. lioff, II N. J. L., 145-149- Eq., 192. Wyckoff v. O'Neil, 72 3See Nix. Dig.. 561. For an ex- N. J. Eq., 880. tensive examination of cases rela- , ^Wyckofif v. O'Neil, 72 N. J. live to the allowance of commis- -Eq., 880. 675 dyd Probate Law axd Practice. with the amount of the commissions so taken by him, with compound interest computed with annual rests.*' y Where Will Provides for Compensation. Where provision shall be made by a will for specific compen- sation to an executor, guardian or trustee, the same shall be deemed a full satisfaction for his services in lieu of the allow- ance aforesaid, or his share thereof, unless he shall, by writing filed with the surrogate, renoiuice all claim to such specific compensation.' A testator may deprive his executor of all compensation, if he so expressly provides in his will, and the executor, by accepting his ofiice, accepts the terms of the will.^ Where, however, the estate exceeds $50,000, a provision in the will that executors shall "act without fee or emolument for their services rendered in that capacity" is invalid, since the statute'^ provides that commissions in such cases shall, be de- termined by the orphans' court, and the effect of such a pro- vision is to deprive that court of jurisdiction ; and the execu- tors who prove the will and perform their duties faithfully may be allowed the u.sual commissions.^'' Where testator gave all of his estate to his executors in trust to convert the realty into personalty, with directions as to the disposition thereof, and authorized the executors to retain as their compensation five per cent, of the money realized by them in the settlement of his estate, both real and personal, and the executors paid all legacies and claims against the estate, without resorting to the sale of all the real estate, and the residuary legatee objected to the conversion of the remaining realty, they will be entitled to a commission of five per cent on the unconveyed realty ;^^ but in a case where testator devised the bulk of his estate to his executors, who were his sons, and directed that his debts and expenses be paid from the legacies bequeathed to them, the executors were Iield not entitled to commissions. ^- ^McKnight v. Walsh, 23 N. 1. ^Section 129. p. 680, infra. Eq.,^ 136. Affirmed 24 N. J. Eq., ^nx\ re Taylor, 12 N. J. L. J., 49- 498.* "Stein V. Huesmann, 38 N. J. "Orphans' Court Act, sec. 132.' Eq.. 405. 3 Comp. Stat.. 3861. i^in re Haines, 8 N. J. Eq., 506. sSecor v. Sentis, 5 Redf. Sur. (N. Y.) 570. Commissions. 677 FROM WHAT FUND PAYABLE. In General. The commissions of personal rejn-esentatives are paid ont of the residue of the personal estate ; and when a will contains no directions as to commissions, specific legacies and bequests of specific sums, even though bequeathed as trust funds, are not charged with them, but are paid in full, and the commis- sions are taken from the residue, or from such assets as are not disposed of.'' Where, however, the residue of the personal estate is insufficient to pay the commissions allowed, sufficient lands of decedent may be sold, under proceedings for sale of lands to pav debts, to pay the amount of such commissions.'* As Between Life-Tenant and Remainderman. Where the interest of a fund is directed to be paid to one person for life and the principal fund to another on the death of the first, commissions for collecting and paying the inter- est must be paid out of the income, and are not chargeable against the principal.'^ ON WHAT SUMS ALLOWED. In General. The statute provides"' that commissions of executors, ad- ministrators, guardians or trustees under a will shall be allowed "on all sums that come into their hands" ; and it is settled that commissions may be allowed upon any personal property that comes to hand having a money value. Thus, where the estate consisted of securities which the executors received and inventoried at their market value, and afterwards transferred to the legatees as so much cash, the\- are entitled to commissions on the inventoried value of such securities;'" and it has been held that this principle applies to real property i3Fowler v. Colt, 22 N. J. Eq., berry, 40 N. J. Eq., 545-549- Af- 44. McKnight v. Walsh, 23 N. J. firmed 42 N. J. Eq.. 699- Eq.. 136-149. Affirmed 24 N. J. i^Orphans' Court Act, sec. 129, Eq., 498. p. 680, infra. "•'Personette v. Johnson, 40 N. i^Pomeroy v. Mills, 37 N. J. J. Eq., 173. Eq., 578. Stein v. Hucsmann, 38 '•"'Danly v. Cummins, 31 N. J. N. J. Eq., 405- Eq.. 20S. Woodruff v. Louns- 678 Probatk Law and Practick. which they are directed to convert. ^^ So executors are entitled to commissions on the proceeds of sales of real property sold under a testamentary power of sale/^ Uncollected Assets. An executor or administrator is not entitled to commissions on any part of the assets not collected ; thus, where the execu- tor is a debtor of the testator, and a trust fund established by the testator consists of a debt which the executor has never paid into the estate, but upon which he paid the interest as it accrued, he is not entitled to commissions. -° So commissions will not be allowed on stock, belonging to testator, which never came under the control of the executors.-^ So an executor is not entitled to commissions on the appraised value of the testa- tor's interest in a New York partnership, which never came to his hands, and for which he was never in any way responsi- ble ;" and, upon the same principle executors will not be allowed commissions on advances by the testator to his sons, though they had inventoried such advances.-" So where an executor with power of sale of realty, who is also a devisee, unites with other devisees in conveying the lands, stipulating that it was not necessary to execute the testamentary power, he will not be entitled to commissions on the purchase money of the lands so sold.-* So where commissions are paid on moneys received by executors, which are again paid out by them and afterwards re-paid to them, they will not be allowed a commission thereon again, '^ but where a conversion of realty is directed by will, and a bill is filed to restrain the executor from converting the real estate, on the ground that there is no necessity therefor. i^Matter of De Peyster, 4 --In re Flaacke's Est., 64 Atl. Sandf. Ch., 511. Stein v. Hues- Rep., 1020. Affirmed 72 N. J. Eq.. mann, 38 N. J. Eq.. 405. Wag- 944. staff V. Lowerre, 23 Barb., 209. -^Metcalfe v. Colles, 43 N. J. i^Baker v. Johnston, 39 N. J. Eq., 148. Eq., 493. 24]y[etcalfe v. Colles, 43 N. J. 20McKnight v. Walsh, 23 N. J. Eq., 148. Eq., 136. Affirmed 24 N. J. Eq., -^Metcalfe v. Colles, 43 N. J. 498. Eq., 148. 2iPomeroy v. Mills, 2>7 N. T. Eq., 578. Commissions. 679 and to convey it to the devisee, commissions on the appraised \alue of the realty will be allowed.-'^ Where a power of appointment is given to an executor, he is not entitled to com- missions for investing and managing the fund.-' Where Property Sold at Less Than Inventoried Valuation. Where the personal assets of an estate are sold for a less -um than that at which they were inventoried, the amount of such loss should l)e deducted from the amount of the inventory for the purpose of ascertaining the sum on which commissions are to be computed ; the amount of such loss never "came into" the executor's hands, either actually or constructively, and he therefore, had no "actual pains, trouble and risk" with relation thereto, as contemplated by the statute fixing the com- pensation of executors.-* Where Executor, Etc., Continues Business. Where an executor continues the business of his testator under authority of the will, or merely for the purpose of wind- ing it up, his compensation for this service is included in his commissions as executor, and the basis for fixing commissions is not the amount of the gross receipts or expenses of the busi- ness, but the net income, and the amount by which this in- creased the corpus of the fund, and cannot include a charge for services for continuing the business.-'' But where the carrying on of testator's business by an executor is unauthorized, the right of such executor to compensation beyond his statutory commissions on the amount of the estate coming to his hands is based upon other principles. In such case, the general rule is that the beneficiaries have the option to charge the executor either with the value of the estate, including the business, together with interest, or with the amount of the net profits 2«Stcin V. Huesmann., 38 N. J. tate, 64 Atl. Rep., 1020. Affirmed Eq., 405- 72 N. J. Eq., 944- 27Lippincott V. Stokes, 6 N. J. --'In re Merchant's Case, 39 N. Eq., 122-152. J. Eq., 506-509. Affirmed 41 N. J. ^^Orphans' Court Act, sec. 129, Eq., 349. C.illigan v. Daly, 79 N. p. 680, infra. In re I'laacke's Es- J. Eq., 36. 68o Probate Law and Practice. realized from the business r" and compensation for his serv- ices in conducting the business may be allowed as expense and deducted from the profits of the business, if the business is not conducted at a loss.^^ It might happen, therefore, that the compensation to the executor, in cases where the business was continued without authority, would sometimes be larger than where authorized, and therefore fixed by the statute; but it is to be considered, first, that in the former case the continuance of the business is at the personal risk of the executors indemni- fying the estate against loss and also of being personally liable for debts, and secondly, that the court in enforcing the liability of trustees does not act as a court of penal jurisdiction, or for the purpose of punishment, but only for the purpose of compelling restitution, or granting compensation for loss actu- ally sustained/'- RATE OF ALLOWANCE. Where Receipts are Less Than $50,000. On the settlement of the accounts of executors, adminis- trators, guardians or trustees under a will, their commissions, over and above their actual expenses, shall not exceed the following rates : On all sums that come into their hands, not exceeding one thousand dollars, seven per centum ; if over one thousand dollars, and not exceeding five thousand, four per centum on such excess ; if over five thousand dollars and not exceeding ten thousand, three per centum on such excess ; and if over ten thousand dollars, two per centum on such excess. ^^ Executors', Administrators' or Trustees' Commissions, Where Receipts Exceed $50,000. The commissions of executors, administrators and trustees in any estate where the receipts exceed the sum of fifty thou- sand dollars, shall be determined by the orphans' court on the final settlement of their accounts according to the actual serv- •''oGilligan v. Daly, 79 N. J. Eq., ssGiHigan v. Daly, 79 N. J. Eq.. 36. 36. ^iGilligan v. Daly, 79 N. J. Eq.. ^sQrphans' Court Act, sec. 129. 36. 3 Comp. Stat.. 3860. Commissions. 68 i ices rendered, not exceeding- live per centum on all sinus which come into their hands.''* Guardians' Commissions, Where Receipts Exceed $20,000. Whenever, upon the settlement of the account of a guardian of an infant, idiot, lunatic or feeble-minded person it shall appear that the estate of such infant, idiot, lunatic or feeble- minded person received into the hands of such guardian ex- ceeds the sum of twenty thousand dollars, it shall and may be lawful, upon such and any subsequent accounting, for the court before which said account shall be presented for settle- ment and allowance, to consider the actual pains, trouble and risk of such accountant, and to allow such commission upon the estate and interest or income received as to the said court shall be deemed fair and just: prurided, that said allowance, with all former or other allowances made to such- guardian, shall not together exceed the sum of five per centum on such estate and the income received by such guardian for such in- fant, idiot, lunatic or feeble-minded person."^ . Considerations Influencing Court in Allowing Commissions. The statute provides that the allowance of c9mmissions to executors, administrators, guardians or trustees shall be made with reference to their actual pains, trouble and risk in settling the estate, rather than in resjiect to the quantum of such estate ;'■ but the allowance of commissions, w^hile in the dis- cretion of the court, is subject to certain positive limitations, which cannot be exceeded, and also to certain admonitory pro- visions by which the legislature intended still further to circum- scribe the exercise of the discretion, such as the provisions that the amount to be allowed shall not exceed certain rates, and that in the exercise of discretion regard is to be had to what are the true grounds of compensation, namely, trouble, risk and actual pains, rather than to the size of the estate. Courts arc thus admonished by statute, as well as by the requirements of the •■■••Orphans' Court Act, sec. 129. "Orphans" Court Act, sec. 12S. 3 Comp. Stat., 3860. 3 Comp Stat.. 3859. s^Orphans' Court Act, sec. 131. 3 CV.mp. Stat.. 3861. 682 pROiJATK Law and Pkactick. due administration of justice, that the mere fact that the estate is large is not of itself sufficient warrant for a large allowance to those to whom the law has committed it for protection and management, but that they are to have regard rather to other and more proper considerations — actual pains, trouble and risk. At the same time, it is equally due to the proper administration of justice, and therefore to the interests of society, that the remuneration should not be so meager and unsatisfactory as to induce such as can render valuable services in the management of such trusts, and whose acceptance thereof is to be desired, to refuse to assume the care and responsibility attendant there- on. In fixing such compensation, the size of the estate, where there is responsibility for its protection, should, of course, not be left out of consideration."* Where a guardian simply received from the executors of an estate a sum of money less than $i,ooo, and paid it over to his ward, without further trouble, it was held that an allowance of 3 per cent was suffi- cient compensation for his services."'' The court is, however, restricted by the statute in the amount of commissions which it may allow to executors, administra- tors, guardians and trustees, and any allowance at a higher rate than that provided in the statute will be set aside on appeaP'^ So where under the terms of a will it was the duty of executors to see that the property was kept in tenantable condition, and one of the executors, who was a carpenter, per- formed services in repairing such buildings, he was not allowed additional compensation for the services so rendered by him.*^ Where Receipts Exceed $50,000. The statute provides that where the receipts exceed the sum of fifty thousand dollars, the commissions of executors, ad- ministrators and trustees shall be determined by the orphans' court, on the final settlement of their accounts, according to the s^Wolfe's Case, 34 N. J. Eq., 39Holcombe v. Holcombe, 13 N. 22^. Warbass v. Armstrong, 10 J. Eq., 415. N. J. Eq., 263. Weeks v. Selby, *oCulver v. Brown, 16 N. J. Eq., 61 N. J. Eq., 668. Pomeroy v. 533. Mills, 27 N. J. Eq., 578. Conover ^iwilkinson v. Abbott, 30 All. V. Ellis, 49 N. J. Eq., 549. Marsh Rep., 1098. V. Marsh, .82 N. J. Eq., 176. Commissions. 683 actual services rendered, not exceeding five per centum of all sums which come to their hands. ■•- It has been seen that, while the allowance of commissions rests in the discretion of the court, the court is required to consider the actual pains, trouble and risk of the accountant, rather than the size of the estate, though that should not be left out of consideration.''^ W'hile precedents in allowances of commissions to executors afford but little assistance in fixing compensation, as each case must depend upon its own circumstances and be tested and controlled by the criterion intended by the statute, still they aft'ord some guide in determining this troublesome question,** and the following may be found useful. In Marsh i\ Marsh*'' the estate amounted to $5,000,000. The trustee devoted his entire time to the management of the estate, which largely increased in his hands, and was allowed commissions at the rate of i 1-4 per cent, on the total principal and 2 per cent, on the total income. In Pomcroy v. Mills*'' the estate amounted to approxi- mately $500,000 and was made up almost entirely of se- curities readily saleable in the New York market, wliich were either sold there by brokers employed by the executors at the usual commission, or transferred by the executors to the legatees in specie. The indebtedness of the testator was very slight. No litigation attended the administration, and the exe- cutors were prepared to settle their accounts in about one year after the probate of the will. One of the executors was a counsellor-at-law. Commissions to the amount of 2 per cent, were allowed. In Wolfe's Case*' the estate in the hands of the administra- tor pendente lite amounted to $1,350,000. and consisted of government securities and large blocks of shares of railroad stock, which were sold without difficulty. The administrator collected about $28,000 of interest on the coupons of the gov- ernment bonds, and a large sum for dividends. He had no <20rphans' Court Act, sec. 129, ''^Metcalfe v. Colics. 43 N. J. p. 680, supra. Eq.. 148-153. ^■■'Weeks v. vSelby. 61 N. J. Eq.. *-'^2 N. J. Eq.. 176. 668, and see "Considerations In- '•^'37 N- .1- Rq- 578. fluencing Court," p. 681, supra. *^34 N. J. Eq., 223. 684 Probate Law and Practice. risk of investment, and but littk risk of safe-keeping, and he was allowed i per cent, on the whole amount of the estate as his commissions. In Lyon v. Bird*^ the inventory showed corpus of $72,000 and income collected amounting to $9,000. It was held that 5 per cent, on the gross receipts was excessive, and that i per cent on the amount of the inventor}- and 2 1-2 per cent, on income was sufficient. In the case of In re Hibblcr,*'-' the executor and trustee was allowed 3 per cent, on $166,000 as executor. After managing the estate for twelve years, he resigned and asked for 2 per cent, on the corpus for compensation as trustee. This was denied. The 3 per cent, allowed to him as executor was held excessive, and the court held that it should be deemed to cover commissions as trustee also. In Metcalfe v. CollesJ''^ the executor was a lawyer, and his duties as executor were not lal)orious. He employed lawyers, brokers, agents, and servants to perform most of the work which was required of him, and paid them liberally, and with- out objection, from the estate. His individual work was in the main confined to a general supervision and direction of these subordinates, and to the keeping of his accounts. The employ- ment of counsel saved him niucli of the mental labor which he as a lawyer was capable of performing. The estate in the ' hands of the accountant amounted to $150,000, and he was allowed commissions at 4 per cent. In the case of Rogers -c'. Hand;'^ and allowance of commis- sions amounting to 3 1-2 per cent, on $289,000 was approved, in a case where the executors had been compelled to carry on litigation to investigate and ascertain exactly what land the testator owned, and to exercise the testamentary powers to sell it. Where a trustee was held to a strict accountability, had charge of a large estate of a most varied character, was re- quired to exercise due diligence in the calling in of unauthor- ized investments, and had duties and responsibilities not inci- dent to the care of an ordinary trust estate, he was allowed ^879 N. J. Eq., 157. 5043 N. J. Eq.. 148-153. *^7% N. J. Eq., 217. 5139 N. J. Eq., 270. Commissions. 68s 4 per cent, upon the principal ;''- and where a trustee had for thirty years the sole management of a large amount of real estate, involving great responsibility and great care, and the expenditure of large sums of money in repairing, and renting and collecting the rents of several dwelling houses thereon, he was allowed 5 per cent, commissions on the corpus of the estate. ^^ Where Executor is Also Trustee. If a person be appointed by a will both executor and trustee, such person is entitled, to commissions calculated on the corpus of the estate in each capacity at such rate as will yield a rea.son- able compensation for the service in each of such representa- tive offices ;^* but double commissions are not allowed where the two offices are inseparably blended and there is no time desig- nated for separating the trust fund from the estate in admini- stration. -'"^ So where one was named executor and trustee in a will, and the estate of testator came to him under the will. and his duties as executor were inconsiderable as compared with his duties as trustee, in determining the amount of his compensation, the principal fund should be deemed as having passed to him at once as trustee, and an allowance on the corpus should be held to have been an allowance to him as trustee, though the account was filed as executor.-"' So wdiere executors who were also trustees under the will settled their accounts as executors in eleven months from the assumption of the administration of the estate, amounting to $80,000. of which amount $72,000 was the amount of the inventory and appraisement, it \tas held improper to allow them as e.xecutors commissions of 5 per cent, on the principal, a proper allow- ance being i ]x'r cent, on the amount of the inventory and 2 52Babbitt V. Fidelity Trust Co., ^ ssBruere v. Gulick, 41 N. J. Eq., 72 N. J. Eq., 745- 280. Johnson v. Lawrence, 95 N. 53 Jacobus V. Munn. 37 N. J. Eq.. Y.. 154. Valentine v. \'aIcntino. 48. Reversed 38 N. J. Eq., 622. 2 Barb. Ch., 430. I ■■•^Baker v. Johnston, 39 N. J. r.rq„ ,.p Hibblcr's Case. 78 N. J. Eq., 493- Pitney v. Everson, 42 Eq., 217. N. J. Eq., 361. In re Kibbler's Case, 78 N. J. Eq., 217. 686 Probate Law and Practice. per cent, or 21-2 per cent, on the principal by which the in- ventory was augmented. ■'^^' Practice on Application, Application for commissions, in all cases where the sums which shall come into the hands of executors, administrators, or trustees, shall exceed fifty thousand dollars, or where, in the case of guardians, such sums shall exceed twenty thousand dollars, shall be accompanied by an afifidavit stating fully tht pains, trouble and risk of such applicant in settling such es- tate.^^ Commissions on Intermediate Accounts. Commissions are allowed to executors, administrators, guardians and trustees for the complete performance of their dutv. Not more than the maximum sums mentioned in the statute can be allowed to one, or to several in succession, for the care and management of the estate.^" So where the final dis- tribution of an estate by an executor is by the will deferred for a considerable time after the settlement of his account, he will not be allowed commissions upon that accounting for the dis- tribution, nor will he be allowed commissions at the highest rate permitted by the statute, even though he may have earned such an amount. It will not do for the probate court to exhaust itself by paying in advance all that it has power to pay, even if the pains, trouble and risk already suffered by the executor should have justly earned that amount. In each case wisdom dictates that the value of the work to be done in the future shall be estimated in order that the proportionate share of the whole amount available for commissions may be paid, and a proportionate share held back to remunerate for the future services f^ and where a trustee had administered an estate for seven years, during which time his only services had been to receive and disburse the income of investments already made, 57Lyon V. Bird, 79 N. J. Eq., ^^In re Hibbler's Case. 78 N. T. 157- Eq., 217. 580rphans' Court Rule 23. eoConover v. Ellis, 49 N. J. Eq., 549. Lyon V. Bird. 79 N. J. Eq., 157- Co M M I SSIO N S . 687 and the trust would probably continue for thirty years longer, it was held that no commissions should be allowed him on the corpus of the estate upon an intermediate accounting.''^ When commissions have been paid on part of the estate on an intermediate accounting, commissions can only be allowed on the amount which comes into the executor's hands afterwards, and such commissions are calculated as if the sul^sequent receipts were part of the prior receipts.*'- Commissions on Income. WTienever. in pursuance of the provisions of any will, or by the direction of the court, any pro])erty from which income is derived shall remain in the hands of or be entrusted to execu- tors, administrators with the will annexed, or trustees under a will, or commissioners in partition, the income or interest of which is required to be paid to any legatee or other person who may be entitled thereto, it shall and may be lawful, upon anv accounting, either intermediate or final, for the court before which said account shall be presented for settlement and allowance, to consider the actual pains, trouble and risk of such accountant, and to allows such commission upon the interest or income received as by the said court shall be deemed fair and just ; provided, that said allowance shall not exceed the sum of five per centum on such interest or income.^^ In the case of In re X. J. Title Guaranty & Trust Co.,^* the Court of Errors and Appeals affirmed a decree of the orphans' court, wherein 5 per cent, commissions were allowed upon in- come, but in approving this allowance, said : "We are not to be understood as approving the custom, if it be a custom, of allow- ing a trustee 5 per cent, on the income in all cases. It is quite evident that a dififerent test of the propriety of the allowance is prescribed by section 130 of the Orphans' Court Act.*" The act authorizes the allowance of such commission upon the income as the court shall deem fair and just, con- '"•'In re N. J. Title Guaranty & berry; 40 N. J. Eq., 545-549- Trust Co., 76 N. J. Eq., 293. ' "•'Orphans' Court Act, sec. 130 "-Tucker v. Tucker, 33 N. J. as amended hy P. L. iQor. p. 178. Eq.. 235. .\ffirmed 34 N. J. Eq., 3 Comp. Stat.. 3860. 292. Wilson V. Staats. 33 N. J. ^475 n j Eq_^ 293. Eq., 524-532. Woodruff V. Louns- ''■"■This page, supra. 688 Probate Law and Practice. sidering the actual pains, trouble and risk of the accountant. It then provides that the allowance shall not exceed 5 per cent., a sufficiently plain intimation that it might well be less. No doubt, in the case of estates where the income is small, 5 per cent, mav be j^roperly allowed, in order to give the trustee sufficient compensation to induce proper men to assume the responsibility, but where the annual income is large, it must require unusual circumstances to justify the allowance of com- missions at the rate of 5 per cent." Where Will is Probated After Administration Granted. Where administration has been granted of an estate and afterwards a will shall be produced to the surrogate or where probate of a will has been granted, and afterwards a later will shall be produced, the orphans' court shall require the administrator or prior executor, to make final settlement of his account and shall make such order in relation to the com- missions as shall be just and equitable.**'' Effect of Agreement as to Amount. The fact that the parties in interest agree upon the compen- sation to be allowed executors will not justify the court in making such allowance. The statute, as has been seen, pro- vides that allowance of commissions to executors, adminis- trators, guardians or trustees shall be made with reference to their actual pains, trouble and risk in settling such estate, rather than in respect to the quantum of the estate; and the court should not make an allowance, unless it appears that it is proper, taking into consideration the services rendered by the accountants,**^ but where an administrator was appointed under an agreement that he would not exact commissions as such, the fact that the beneficiaries of the estate instituted' litigation against him, and made unfair and unjust charges, does not entitle him to commissions, where he has acted for several years under such agreement. Even though two bene- ficiaries of the estate agreed to aid the administrator in manag- ing the estate, in consideration of his promise to charge no ''•'Orphans' Court Rule 7, p. 200, ""Kingsland v. Scudder. 36 N. supra. J. Eq., 284. Commissions. 689 oommissi(jns, and failed to render assistance, tlie administrator cannot recover commissions without showing that he asked for the assistance and was refused, and that notice was given to the parties interested.''* So when a removed administrator had sought his appointment, and obtained renunciations from those entitled to administration, upon his promise that his services should he gratuitous, he will not be entitled to commissions, nor for money paid to a lawyer for services which he himself should have performed.'^" Rate of Allowance in Chancery. The Orphans' Court, Act does not control the Court of Chancery, in fixing the commissions allowed to trustees ap- pointed by that court to execute the trusts created by a will ;'° Init it affords at least a criterion l)y which, in the judgment of the legislature, the value of those services may be estimated, and the court will usually follow it."' DIFFERENCES BETWEEN EXECUTORS AS TO DI- VISION OF COMMISSIONS. Statutory Provisions. Where any difference arises between executors, adminis- trators, guardians or trustees in regard to the proportion of commissions between them, the orphans' court shall determine the same, having regard to their respective services. '- Jurisdiction of Orphans' Court. The dift'erences to which this section refers are only such as arise in regard to the apportionment of the commissions to which each of several executors, administrators, guardians or trustees may be entitled in respect of his services, and are to be adjusted by the adjudication of the court. This section does not give the orphans' court jurisdiction to compel payment by '•Mxandall v. Cray, 80 N. J. Eq., J. Kq., 417-419. \'aii lloutcn v. 13. Van Hoiiten, 45 N. J. Eq., 796. ""Middleton v. Carter, 73 N. J. ''iHoIcombe v. Holcntnhc, 13 N. Eq., 624. Affirmed 74 N. J. Eq., J. Eq., 417-419. Wilkinson v. Ali- 853. l)ott, 30 Atl. Rep., 1098. ^"Holcombe v. Holcoml)e, 13 N. "-Orphans' Court Act. .sec. 133. 3 Comp. Stat.. 3861. 690 Probate Law and Practice. one executor or administrator to another of his share of the commissions allowed in gross to both." Notice of Application. Upon the adjustment of commissions between executors, administrators, guardians or trustees, the orphans' court shall not determine the matter upon the application of some or one of them without proof that not less than five days' notice of such application has been given to the other or others."* Practice on Application. An application for the apportionment of commissions be- tween executors or administrators may be made upon proper notice at the time of the passing of the account, or at any time thereafter. A general allowance of commissions, with- out directions as to how they are to be divided, does not amount to a direction that they should be divided in equal shares : and where, upon the passing of an account of co-executors or ad- ministrators, a general allowance of commissions is made to accountants, without direction as to how they shall be divided, and differences thereafter arise between the co-executors or administrators as to the division of the commissions so allowed, the proper proceeding is not by application to open the decree allowing the commissions, but for one of the executors or ad- ministrators, upon notice to the others, to make application to the court under section 133 of the Orphans' Court Act^^ for a decree apportioning the commissions between them.'''' Rate of Division. The word "services" used in this section should be held to mean the pains, trouble and risk bestowed by each in the ad- ministration of the estate ; and an executor who has done the principal part of the work, collected the moneys, made all the settlements and payments, taken care of the securities, and alone accounted for the estate before the orphans' court, should be allowed double the amount allowed to his co-execu- ■•''Mount V. Slack, 39 N. J. Eq., '^^Page 68q, supra. 230. 76Mount V. Slack. 45 N. J. Eq.. "^Orphans' Court Rule 24. 129. Affirmed ib.. 889. Commissions. 691 tor, who simply made a few journeys in behalf of the estate, and assisted in a division of the assets among the next of kin."' So where there are two executors, and each one appears to have discharged his duty toward the estate with discretion and fidelity, the commissions should be divided equally;"*' but, as has been seen, a general allowance of commissions, without directions as to how they shall be divided, does not amount to a determination that they shall be divided into equal shares.'* Where one of two executors kept all of the moneys of the estate, and after the passing of their account entered into a litigation as to the division of commissions, the co-executor will be entitled to recover from the executor so retaining such commissions interest thereon from the date of the passing of the account.^'' Effect of Decree. When the court at the time it fixes the amount of the com- missions also determines, upon due notice, the proportions in which they shall be divided and records its determination on the account, the action of the court amounts to a judgment, and will not be changed except for fraud or mistake.®^ FORFEITURE OF COMMISSIONS. In General. Commissions are a compensation for the faithful discharge of duty; and when executors or administrators violate that duty, they will not be entitled to commissions.''- Where, how- ever, an executor has not been guilty of any intentional wrong or misconduct in the discharge of his ofticc, he will not. as a ''^'\ndress v. Andress, 46 N. J. s^w^arbass v. Armstrong, 10 N. Eq- 528. J. Eq., 263. McKnight v. Walsh.. '«Squier v. Squier, 30 N. J. Eq.. 23 N. J. Eq., 136. Affirmed 24 N. 627. Pomeroy v. Mills, 40 N. J. J. Eq., 498. Blauvelt v. Acker- ^^•' 517- man, 23 N. J. Eq., 4(^5. Affirmed^ 7«Mount V. Slack, 45 N. J. Eq., 25 N. J. Eq., 570. DuflFord v.. 129. Affirmed ib., 889. Smith. 46 N. J. Eq.. 216-222. In soPomeroy v. Mills, 40 N. J. re Walsh's Estate, 80 N J E . >-T.,r- I Commissions. 693 As a general rule, where executors, who are directed to invest funds, neglect to do so. commissions will not be allowed ;*'' and so an executrix, who, pending a dispute which inay be decided adversely to her, not only disposes of secur- ities, but allows funds to lie idle, has not faithfully performed her duty, especially where the estate is a loser by reason of her management, and under such circumstances commissions will be denied f'^ but an executor who has faithfully discharged his duties will not forfeit his commissions by merely keeping on hand larger amounts than the necessities of the estate require, but which he does not personally use."' Misconduct. An accountant who has been guilt}' of misconduct in conr nection with the estate committed to his care will usually be denied commissions; fraud or misconduct on his part will always justify the court in depriving him in whole or in part of his commissions, the matter being within the sound dis- cretion of the court."- So where the course of an adminis- trator is irregular, and productive of danger and injury to the estate, commissions may be withheld.'-'^ A^'noil'-i ■ Where an accountant has used the funds of the estate in his own business, as a general rule no commissions will be allowed him.®* So where a trustee appropriates trust funds to his own use, and purchases real estate therewith, all without the knowledge and consent of the cestui que trust, and when called to accoimt sets up a false claim for greater allowances of credit than he is entitled to, he should not be allowed com> missions for his services as trustee.''^ But where, while there s-'Warbass v. Armstrong, 10 N. 622. Morris's Case, 65 \. J. Eq.. J. Eq., 263. Frey v. Frey, 17 N. J. 699. Eq.. 71. McKnight v. Walsh, 23 ^-Frey's Case, 73 N. J. Eq.. 346. N. J. Eq., 136. Affirmed 24 N. J. »^Frey v. Frey, 17 N. J. Eq., 71. Eq., 498. McKnight v. Walsh. 23 N. J. Eq.. ''"'In re Walsh's Estate, 80 N. J. 136. Affirmed 24 N. J. Eq., 498. Eq., 565-575- ... • Lathrop v. Smalley, 23 .N. J. Eq.. »iFrost V. Denman, 41 N. J. 192. Fluck v. Lake, 54 N. J. Eq.. Eq., 47. 638. . ' »2Jacobus V. Munn, 38 N. J. E<1., "^McCulloch v. Tnnikins, 62 N. J. Eq., 262. 694 Probate Law and Practice. is proof that one of the executors has used some of the funds of the estate in his own concerns, it also appears that he has accounted for all the interest on the money so used, and turned over the funds of the estate, satisfactorily secured, to a substi- tuted trustee, so that no loss whatever has occurred to the estate by his misconduct, it is a matter for the exercise of the discretion of the court whether to allow him any or -all the com- missions to which he would have been entitled in the absence of such misconduct.''® An executor and trustee charged with the care and renting of real estate has no right to receive for his personal use gifts in money from those employed by him to make repairs, or from tenants. In ordinary cases, upon proof of such misconduct, the trustee should be deprived of commissions ; but when the circumstances show that his services have been such that the deprivation of all commissions would impose too heavy a penalty for the ofifense, the court will, in consideration thereof, deprive him only of so much as will serve to mark its dis- approval of his conduct."" Thus, in the case of Post v. Stevens,^* commissions at the highest rate were allowed executors, although expense and litigation were caused the estate by the conduct of one of their number in omitting a debt due from himself to the testator ; they were, however, required to pay their own costs of the litigation. Failure to Account. While the neglect or omission to file accounts will always be given due weight in considering the allowance of commis- sions, there is no hard and fast rule that the mere omission to file account will disentitle the accountant to compensation."" A party who is guilty of great delay in presenting his accounts or of negligence in keeping them, will not be heard with favor ; yet great liberality will be extended where the transactions re- late to the family interests of both parties.^ So where a guardian 96Morris's Case, 65 N. J. Eq.. ^^Gilligan v. Daly. 79 N. J. Eq.. 699. 36. and cases cited at p. 40. ^^Jacobus V. Munn, 38 N. J. Eq.. ^Morgan v. Morgan, 48 N. J. 622. Eq., 399. Reversed 50 N. J. Eq., »8i3 N. J. Eq., 293-295. 473. Commissions. 695 of minors was appointed on February i, 1889, and kept regu- lar accounts, with vouchers for disbursements, and was always willing to submit them to inspection, his delay in filing formal accounts until 191 1. when he annexed his account to his answer in an action for an accounting, was not so unreasonable as to deprive him of the statutory compensation.- So commissions were allowed to an executor who had not filed an account for ,^0 years, but who had handed over all the i)apers of the estate to his co-executor to file an account, and who supposed that the latter had done so ;" and although a trustee had abused his trust, yet he was compensated for special and extraordinary services rendered to his cestui que trust, in defending him on a charge of murder.* So the fact that an executor has not filed an account for thirty years since the estate was settled will not of itself deprive him of commissions where it is not shown that anything is due to legatees or creditors, and no reason appears why they could not have compelled him to account f and commissions have been allowed in some cases where the executor or administratcjr was held to be in laches, but had shown no bad faith." Removal from Office. • Any executor, administrator, guardian or trustee who is removed from his office by the orphans' court for any cause for which he may be removed by the Orphans' Court Act, shall forfeit his commissions and shall not be entitled to any com- missions, or compensation for his services, unless the court shall otherwise direct.' 2Gilligan v. Daly, 79 N- J- Eq.. •'•Wilson v. Staats, ::^3 N. J. Eq., 36. 324. "Birkholm v. Wardell, 42 N. J. 'Orplians' Court Act, sec. 134, Kq., 337. 3 Conip. Stat., 3861. See also Or- *Moore v. Zabriskie, 18 N. J. phans' Court Act, sees. 64. p. 365, Eq., 51; supra, and 117, P- 631. supra. °In re Barcalow, 29 N. J. Eq., 282. Reversed 36 N. J. Eq., 611. 696 Probate Law and Practice. APPEAL FROM DECREE ALLOWING COMMISSIONS. In General. An appeal lies from an order fixing the amount of an execu- tor's commissions f but the Prerogative Court will not exer- cise its jurisdiction to review the decision of the orphans' court except in case of manifest error of judgment. Where, how- ever, the amount of commissions allowed executors is grossly inadequate, it is the duty of the Ordinary to substitute his own judgment, and to exercise his own discretion upon the subject- matter;'' but where a guardian's account is grossly erroneous, and he made no application for commissions to the orphans' court, he will not, on appeal, be allowed commissions in the Prerogative Court. ^^' If, on an appeal from a decree of the orphans' court opening an account and determining that a certain sum did not belong to the estate, and should not have been brought into the ac- count by the executors, and reducing commissions computed thereon, the Prerogative Court reverses that part of the decree of the orphans' court striking out such sum from the account, the appellate court may also decree that the commissions struck out by the orphans' court be restored." - .. An appeal will lie to the Court of Errors and Appeals from a decree of the Prerogative Court allowing commissions. ^- Who May Appeal. The statute provides that any person aggrieved by an order or decree of the orphans' court may appeal from the same to the Prerogative Court. ^" So one entitled to a part of the surplus of an intestate's estate may appeal from the order ^Anderson v. Berry. 15 N. J. ^"In re Marcy. 24 N. J. Eq., 45i. Eq., 232. Pomeroy v. Mills, 35 N. ^i Stevenson v. Hart. 7 N. J. Eq.. J. Eq., 442. Reversed 37 N. J. 471. Eq., 578. Kingsland v. Scudder, ^-Pomeroy v. Mills, 37 N. J. 36 N. J. Eq., 284-286. Eq., 578. ^Anderson v. Berry, 15 N. J. ^^Orphans' Court Act, sec. 204. Eq., 2^2. Pomeroy v. Mills, 35 N. 3 Comp. Stat., 3889. For a con- J. Eq., 442-445. Reversed 37 N. sideration of the general subject J. Eq., 578. of appeals, see "Appeals," p. 80. supra. Commissions. 697 allowing commissions;'* and an administrator of an estate, who is also one of the next of kin. and who is aggrieved by a decree of the orphans" court awarding excessive commissions to his co-administrator, may appeal therefrom, though the decree also awards the appellant excessive commissions.'"' i reason of any such appeal, if the said order of distribution and enforcement be affirmed.^® DISTRIBUTION OF SECURITIES WHEN MINORS ARE ENTITLED THERETO. Statutory Provisions, Whenever upon the settlement and allowance of the tinal or intermediate accounts of any administrator, it shall appear that he has in his hands as assets or part of the assets of the estate of which he is the administrator, any bonds, mortgages, stock shares, loans on personal security or other security which came to him as investments made by or belonging to his in- testate, and there be minor child or children entitled to dis- tribution of the balance shown by said account or accounts, or to some part thereof, it shall be lawful for such administrator to present a petition to the court by Avhich he was appointed, or to the court by law authorized to pass on his accounts, setting forth the nature and amount of such bonds, mortgages, stock shares, loans on personal security or other securities, that have come to his hands, and pray the direction of the court as to the sale and conversion of such bonds, mortgages, stock shares, loans on personal security or other securities, or whether he shall distribute the same in kind, as near as may be, to the said minor child or children, through their guardian or guardians ; and the said guardian or guardians, if any there be, may join in said petition and ask the direction of the court as to the acceptance of investments or securities, and thereupon the said court, upon the consideration of all the circumstances of the case and the evidence produced, may make such order, either directing the sale, or conversion of such securities or directing such administrator to distribute them in kind or authorizing and empowering said guardian or guardians to accept such portion thereof as would be equal in money to the amount of the distributive share, or shares to which their ward or wards would be entitled thereunto, as in the judgment and discretion of the court will l)e most adxantao^eous to the interest I'^Orphans' Court Act. sec. 173, as amended by P. L. 1915. p. 343. ■726 Probate Law and Practice. of the persons entitled to share in said fund ; and any ad- ministrator or guardian applying as aforesaid and receiving such order and direction, shall, upon compliance therewith, be as fully exonerated and acc|uitted as if he or they had dis- tributed said funds in money and invested the same in such loans and investments as are now authorized by existing laws relating to investments by executors, administrators with the will annexed, trustees and guardians ; and such guardians shall not be accountable for any loss by reason of accepting such distribution upon the making of said order." Executor May Require Security from Legatee for Life. Whenever personal property is bequeathed to any person for life, or for a term of years, or for any other limited period, or upon a condition or any contingency, the executor or adminis- trator cum testamento anne.vo shall not be compelled to pay or deliver the property so bequeathed to the person having any such life interest or other interest as aforesaid, until security shall be given to the orphans' court having jurisdiction of such executor's or administrator's accounts, in such sum and form as in the judgment of the said court shall sufficiently secure the interest of the person or persons entitled in remainder, whenever the same shall accure or vest in possession ; but where the person or persons next immediately in remainder shall be the lineal descendant of any such life tenant, or person having any limited estate as aforesaid, and such executor or administrator shall not have filed any security, such life tenant or other person having such limited interest or estate as afore- said shall not be required to give security in a greater sum than fifty thousand dollars ; provided, hozvevcr, in every case where the executor or administrator is the person to whom any such life interest, or other interest as aforesaid is bequeathed, then such executor or administrator, before receiving into his pos- session such personal property, unless by the will it is qr may be provided that no security shall be required of such executor, shall file with the surrogate of the county in which the will shall be or has been proved or letters granted, a bond to the isp. L. 1900, p. 423. 3 Comp. Stat., p. 3859, sec. 127-a. Distribution. 727 ordinary of this state, in double the amount of money or the \ akie of the property to he received, with two sufficient sureties, to be approved by the orphans' court, conditioned for the faith- ful conservation of said property, and until such a bond shall t)e tiled it shall not be lawful for such executor or adminis- trator to receive such money or personal property, but the orphans' court may, upon petition presented, by any person in interest, and upon ten days' notice in writing to such execu- tor, or administrator, appoint some other tit person to receive and administer such property as trustee, upon such security being given for the faithful discharge of his duties as to the said court shall seem proper.-" The aforesaid act shall be held to apply as well to all cases where any will has already been proved as where it shall be proved ; provided, however, that any such executor has not already received such personal property in his possession.-' Construction of Statiite. Where the testator gives to a legatee for life the absolute possession and control of the fund, the executors may pay it over without requiring security," and when an executor delivers a specific legacy bequeathed to one for life and to another absolutely after the life estate to the life tenant, taking a proper receipt, or inventory, for the taker in remainder, he is discharged from any further duty, or liability, with refer- ence to the legacy. Thereafter it becomes the care of the person who is to take in remainder to see that the corpus thus delivered was not consumed or wasted.-^' A gift of testator's half interest in a firm business to his son, with directions that the son immediately take testator's place as partner and continue the business, with a gift over on the son's death, while not a life estate is, notwithstanding the im- ])lied i)owers to sell the firm's interest in the i)roperty for the benefit of the firm, a gift of an estate on a contingency within the provisions of this act.-* •203 Comp. Stat., p. 3089, sec. 8. F.q., 611. Affirmed 53 N. J. Eq., -'3 Comp. Stat., p. 3090, sec. 9. 347. --In re Ryerson, 26 N. J. Eq., -■•Meis v. Meis, 35 Atl. Rep., 43- 369. See also Ott v. Tewksbury, 23Dodson V. Sevars, 52 N. J. 75 N. J. Eq., 4. 728 Probate Law and Practice. The statute does not make it obligatory upon the executors to require security in the cases therein mentioned, but leaves it to their discretion whether they will require security before paying over to a legatee the amount of a bequest for life, or years, -^ but where the legatee for life is by the terms of the will entitled to receive the property bequeathed and it appears that there is danger that the principal of the legacy will be wasted, or lost, the settled rule in equity is that the court will protect the interest of the legatee in remainder by compelling the legatee for life to give security for the safe return of the principal.-® Order of Distribution of an Intestate's Estate. The personal estate of an intestate will be distributed as follows : I. IF THERE BE HUSBAND OR WIDOW AND CHILDREN. « One-third to husband or widow, balance to children and the representatives of deceased children equally per stirpes, deducting from the share of any child any advancement or settlement made to such child by intestate. II. " IF THERE BE HUSBAND OR WIDOW, BUT NO CHILDREN NOR ISSUE OF ANY. All to the husband or widow. III. IF THERE BE NO HUSBAND OR WIDOW. If intestate die leaving Children. — x\ll to be divided equally among the children and such persons as legally represent deceased children, deducting from the share of any child any advancement or settlement made to such child by intestate. -^In re Ryerson, 26 N. J. Eq.. ^^Howard v. Howard, 16 N. T. 43- Dodson v. Sevars, 52 N. J. Eq., 486. Post v. Van Houten, 41 Eq., 611. Affirmed 53 N. J. Eq., N. J. Eq., 82. Affirmed 43 N- J. 347- Eq., 296. Distribution'. 729 Father, Mother ojid Brothers and Sisters. — If in- testate was of full age. all to be divided equally among them : if intestate was a minor, then all to the father and mother. Father or Mother, and Brothers and Sisters. — If intestate was of full age, all to be divided equally among them; if intestate was a minor, then all to the surviving parent. Brothers and Sisters. — All to them equallv and their legal representatives. No Children or Representatives of Deceased Children, Nor Father or Mother, Nor Brother or Sister or Any Representative of Deceased Brother or Sister. — All to grandparents. If no grandparents, then uncles and aunts, nephews and nieces and then cousins succeed in the order named. IV. ILLEGITIMATE PERSON WHO DIES UNMARRIED LEAVING NO LAWFUL ISSUE NOR THE ISSUE OF ANY. All to the mother. V. MOTHER OF ILLEGITIMATE CHILD DYING WITH- OUT HUSBAND OR LAWFUL ISSUE OR ISSUE OF ANY. All to such illegitimate child. CHAPTER XXXIV. SUITS FOR LEGACIES AND DISTRIBUTIVE SHARES. Practice. Suits for the recovery of legacies and distributive shares before the orphans' court shall be commenced by petition set- ting forth concisely the petitioner's claim and the relief prayed for and shall be verified by the oath of the petitioner, his agent or solicitor, and on filing thereof a citation or citations shall issue under the seal of the court, signed by the clerk and by the petitioner or his solicitor, and may be served in the same manner as citations are served in other cases, and may be made returnable in term or vacation ; and the proceedings in such suits thereafter shall in all respects be governed by the rules and practice of the court of chancery so far as the same are applicable ; provided, hoivevcr, that any question arising in any such suit or proceeding may be tried and determined in a summary way before the court without being referred to a master.^ Duties of Clerk. In suits under the last preceding section, the clerks of the orphans' court shall perform the same duties as are required to be performed by the clerk of the court of chancery in simi- lar cases, and in such suits the fees of the solicitor for draw- ing and engrossing a petition, or answer thereto, shall in no case exceed three dollars, and all other fees and costs shall be the same as are allowed for similar services in the court of chancery, except that the fees of the clerk shall be two-thirds of the sum allowed for like service in the court of chancery. - ^Orphans' Court Act, sec. 192. sQrphans' Court Act, sec. 193. 3 Comp. Stat., 3883. 3 Comp. Stat., 3884. 730 Suits for Legacies, Etc. 731 Jurisdiction of Orphans' Court. The orphans' court shall have jurisdiction over suits for the recovery of legacies and distributive shares, in .cases where the will has been proved in the same court, or before the surrogate, or a decree of distribution has been made in the same court." Necessity for Demand and Refunding Bond. Xo suit shall be maintained for the recovery of any legacy or bequest until after a reasonable demand made of the execu- tor or administrator cum testamento aniie.vo, who ought to pay the same, and a tender of a bond to such executor or administrator signed and executed by the legatee, or by the guardian, if such legatee be an infant under the age of twenty- one years, in double the amount or value of such legacy or bequest with condition, that if any part or the whole of such legacy or bequest shall at any time thereafter appear to be wanting to discharge any debt or debts, legacy or legacies, which the said executor or administrator may not have other assets to pay, that then and in such case he, the said legatee, will return his said legacy, or such part thereof as may be necessary for the payment of the said debts, or for the payment of a proportional part of the said legacies ; and if the said executor or administrator shall not accept such bond, the plaintiff shall file the same in the said court before suing out process in such action, and for want thereof the action shall abate.* When Decree of Distribution Necessary. No suit can be brought for a distributive share until the decree of distribution is made f but a suit for the recovery' of a legacy may be maintained before decree of distribution made.*^ ^Orphans' Court Act, sec. 3. Ordinary v. Smith. 15 N. J. L., 92. 3 Comp. Stat., 3814. Sayre v. Sayre, 16 N. J. Eq., 505. *3 Comp. Stat., p. 3089, sec. 5. ^In re Eakin, 20 N. T. Eq.. 481- sWier V. Lum, 5 N. J. L., 823. 483. Adams v. Adams, 46 N. J. Eq., 298-304. 732 Probate Law and Practice. PARTIES. In General. The only proper parties defendant to a suit for a legacy are those against w.hom the decree of distribution is made.^ The rule that all persons interested in the fund or property that is in question must be brought before the court in order to be bound by the result is subject to some limitations, dictated by common sense upon grounds of necessity, or even of con- venience. Where courts have to deal with property the ulti- mate destination of which is in doubt, and which may go to persons not yet /// esse, or not yet ascertained, they must per- force proceed without the attendance of such persons, or not proceed at all. It results that such contingent interests are held to be bound if the interest be represented in the litigation by a trustee, or, in some cases, by the predecessor in estate.* Even where the parties in interest are /';/ esse and ascertained, they need not in all cases necessarily be brought before the court. Thus in Davison v. Rake,^ the Court of Errors and Appeals held, in a suit for the recovery of a legacy under the Orphans' Court Act, that a residuary legatee is not a necessary party, and this on the general ground that in suits by creditors or legatees, not involving the construction and efifect of the residuary clause of the will, and where a residuary legatee is interested consequentially only from the circumstance that the recovery of the debt or legacy will reduce the residue, the executor is regarded as the representative of all persons inter- ested.^° Debtors of the Executor. • A debtor of the executor is not a proper party to a proceed- ing in the orphans' court for the recovery of a legacy.^^ Debtors of the Estate. Ordinarily, a legatee or next of kin must sue only the execu- tor or administrator for the legacy or distributive share, and ■^Hunt V. Mayberry, 29 N. J. L.. U5 N. J. Eq., 767. 403. loWoolsey v. Woolsey, 78 N. ^Dunham v. Doremus, 55 N. J. J. Eq.. 517. Affirmed ib., 579. Eq., 511. Woolsey v. Woolsey, 78 nHunt v. Mayberry, 29 N. J. L., N. J. Eq., 517. Affirmed ib., 579. 403. Suits for Legacies, Etc. js3 cannot join debtors to the estate, or other persons; but where there is colhision between the executor and the debtor or person having the property in his hands, or where the executor is in- solvent, the debtor may be made a party, and recovery had against him.^- Where Executor is Dead. Legatees cannot call upon the administrator of the executor of a will for the payment of legacies ; such administrator must account with the substituted administrator of the testator, and the substituted administrator must account with the legatees.'^ DEFENCES. Retainer of Debts Due from Distributee to Estate. In general, legacies or distributive shares are subject to the set-off of debts due by the legatee or distributee to his testator or intestate.^* If the debt is less than the distributive share, the appropriation of the share to its payment is payment of the share pro tanto, and a sufficient compliance with the decree of distribution;^^ and if it exceeds the share, the unpaid balance is assets of the estate like any other debt.^" The amount of the set-off may be retained even though the share out of whicli it is withheld is less than the amount of the legal exemption from execution,^' or although the distributee be insolvent.^- An assignee of the legatee or distributee, or the personal representative of a deceased legatee or devisee, takes the legacy or distributive share subject to all equities which existed against it in the hands of the assignor.'^ Thus, the del)ts of a child '-Dorsheimer v. Rorback. 23 N. ^^Howland v. Heckscher, 3 J. Rq.. 46. Affirmed 25 N. J. Eq., Sandf. Ch. (N. Y.), 519. Char- 516. lick's Estate, 11 Abb. N. Cas. (N. i3Boulton V. Scott, 3 N. J. Eq., Y.). 56. 231, and see "Account I)y Repre- ''Fiscus v. Fiscus, 127 Ind., 283. sentative of Deceased Executor,"' "'Howland v. Heckscher, 3 p. 618, supra. Sandf. Ch., 519. i*Denise v. Denise, 2,y N. J. Eq., '"Jefifs v. Wood, 2 P. Wm., 128. 163, and see "Debts Due from Leg- Bailey's Estate, 156 Pa. St., 634. atees or Devisees," p. 339, sui)ra. 27 Atl. Rep., 560. vSmith v. ^^^Tinkham v. Smith, 56 Vt., Kearney, 2 Barli. Cli. (N. Y.\ 187. 533. Haskin v. Teller, 3 Redf. fN. Y.), 316. 734 Probate Law and Practice. to his father may be set off against such child's distributive share, although he died before the father and his children took the share.^° In an action for a legacy against executors in their repre- sentative capacity, they cannot set oft" a claim against the lega- tee for rent due to them as residuary devisees or as heirs of the testator,-^ or due to themselves personally. -- This right of retainer exists whether the legatee or distribu- tee was indebted to the deceased before his death, or contracted a liability to the estate thereafter ;-^ but a debt not due when the legacy becomes payable cannot be satisfied from the legacy, and, in such case, the legatee is entitled to payment of his legacy in full.-* The statute of limitations does not operate as the extinguish- ment of a debt, but bars the remedy only ; hence such debts may be set-off against legacies or distributive shares notwith- standing the expiration of the statutory period of limitation.-'' The doctrine of retainer is not applicable to the proceeds of lands sold to pay debts, or under partition proceedings.-® Release, Distributees may, by agreement, release to one another, or to the administrator,-' or even to the intestate himself before his death. Thus where money is paid by a father to a son and receipted "in lieu of dowry," it will be a release of the -"Denise v. Denise, zi N. J. Ind., 587. 49 N. E. Rep., 452. Eq., 163. Matter of Smith, 14 Misc. Rep.. -^Warwick v. Ely. 59 N. J. Eq., 169. Matter of Bogart, 28 Hun., 44. 466. Jeffs V. Wood 2 P. Wm.. --Davis V. Newton. 6 Met. 128. Courtenay v. Williams, 3 (Mass.), 537. Blake v. People, Hare, 539. In re Cordwell's Es- 161 III. 74. 43 N. E. Rep., 590. tate, L. R. 20, Eq., 644, but see -3McGee v. Ford, 5 Sm. & M., Allen v. Edwards, 136 Mass., 138. 769. Gosnell V. Flack, 76 Md.. 423- Light's Estate, 136 Pa. St., 211, 426. New v. New, 127 Ind., 576. contra. -^Hayes v. Hayes, 2 Del. Ch., -'^LaFoy v. LaFoy, 43 N. J. Eq.. 191. 206. Smith V. Kearney, 2 Barb. -5Woerner on Admrs., 1237. Ch., 533. 2 W^oerner on Admin- Tinkham v. Smith, 56 Vt., 187- istrators, 1237. 190. Garrett v. Pierson, 29 Iowa, -'Comer v. Comer, 120 111., 420. 304. Holmes v. McPheeters, 149 Suits for Legacies, Etc. /T,^ son's share in the estate of his father, in the event of the lat- ter's dying intestate,-"* and this although it appears that the sum so received by the son was much less than his share of his father's estate was worth ;-"' and such release precludes the son from any distributive share in his father's estate ac- quired since such relinquishment, as well as in all the father had at the time of the execution thereof.^" So where one having a claim against an estate entered into an agreement with the heirs, one of whom was also administrator, whereby claimant agreed to accept a stipulated consideration in full settlement of all claims against the estate of said intestate, his heirs or administrator, the release was held valid as to any claim against the administrator, though he was not an express party in his official capacity."^ The Court of Chancery will, however, set aside a release obtained by the other next of kin from an aged and infirm distributee, under circumstances amounting to fraud f- and where the residuary legatee, before an inventor}' of the estate was filed, executed a release to the executor of all his interest in the estate for $700, and the residue after- wards proved to amount to $4,500, such release was held not to be a bar to a suit in equity to recover the legacy. ^^ But where a widow relinquished her right under an order of distri- bution in compromise of a suit brought in equity by creditors who had failed to duly present their claims to the administrator, she cannot afterwards seek to enforce the order of distribution against the administrator. -"** When Outstanding Claim is no Defense to Suit for Legacy. ^ In any citation to account, or suit for any legacy or distribu- tive share, it shall be no defense that there are disputed claims -^Havens v. Thompson, 26 N. soSmith v. Smith, 59 Mc, 214. J. Eq., 383. Brands v. DeWitt. ^ipirst National Bank v. 44 N. J. Eq., 545. Quarles v. Thompson, 61 N. J. Eq., 188. Quarles, 4 Mass.. 680. Kenney v. "'-Rickey v. Davis, 7 N. J. Eq.. Tucker, 8 Mass., 142. Trull v. 378. Eastman, 3 Met., 121. Kershaw •"'•'■Pennington v. ImiwIct, 7 N. J. v. Kershaw, 102 111., 307. Curtis Eq., 343. V. Curtis, 40 Me.. 24. "''Robhins v. Mylin, 34 N. J. Eq., -"Kenney v. Tucker, 8 Mass., 205. 142. 48 736 Probate Law and Practice. outstanding or in suit against the estate, if the executor or administrator shall have neglected for six months to obtain an order to limit creditors, and to proceed thereon according to law, unless a suit brought within a year from the grant of probate or administration be pending on such claim."^ The prohibition contained in this section is levied against a plea in abatement in a suit for a legacy, but leaves ultimate rights unaffected. Even if the executor or administrator is unable to plead want of assets in abatement, it does not follow that, as a penalty for neglect to enter a rule to Isar creditors and to proceed thereon, the executor shall be compelled to pay and discharge the legacy in full, upon entry of judgment or decree therefor, and also to pay a debt of the testator upon the recovery of such deljt, when there are not sufficient assets in the estate to pay and discharge both the legacy and the debt. The law does not favor a forfeiture, and equity abhors one, and under such circumstances the court will not grant a decree directing the payment of the legacy, when in fact the executor would not have sufficient assets in hand to pay the creditor. Sections yz, y^ and 74 of the Orphans' Court Act'"'" give relief to the creditors of a decedent's estate who may be in such a situation.^' So where an executor had neglected to take out a decree barring creditors, and a suit was brought against him by a legatee to recover his legacy, and it appeared that prior to the bringing of such suit a claim against the executor had been presented, which, if valid, would consume the entire balance of assets, it was held that the suit for the legacy should be permitted to proceed, and if a decree should be entered for the legatee, it would be stayed pending the disposition of the action at law for the debt.^''* Burden of Proof. The complainant, in a suit to recover a distributive share, must prove affirmatively that he is entitled as one of the next of kin, and negatively that there are no others who are entitled, •"^•'Orphans' Court Act. sec. 76. 370'DQi-,iie]i y McCann, "j"] N. 3 Comp. Stat., 3837. J. Eq.. 188-197. •■'"'Pages 578 and 579, supra. ^sO'Donnell v. McCann, "]- N. J. Eq., 188. Suits for Legacies, Etc. 737 except those whose right he admits. Thus, if one claims as an only child, he must prove that he is the child, and also that there are no other children; so if one claims as a nephew, he must show the relationship, and also that there are no others related in an equal or higher degree, other than those acknowl- edged by him, or his claim is not supported. The court sIkhiUI be satistied not only that the complainant is entitled to a i)art of the property, but also to what part of it he is entitled.^''' When Costs are Chargeable Against Executor. If an executor or administrator delay for an unreasonal>le length of time in paying a legacy or distributive share, whereby it becomes necessary for the legatee or distributee to bring a proceeding therefor, such executor or administrator will be charged personally with all the costs of the proceeding to collect such legacy or distributive share.'*" Jurisdiction of Chancery. The Court of Chancery has general jurisdiction over suits to recover legacies and distributive shares;*' and a l)ill may be filed in that court for the recovery of a legacy or distribu- tive share, either before or after the settlement of the estate in the orphans' court. An action at law to recover a distribu- tive share of an estate is purely statutory, and can be maintained only after a decree of distribution ; this statutory remedy is one given in addition to that existing in equity, and in no way limits or qualifies the jurisdiction of the Court of Chancery over the subject.*- So it is not necessary to tender to execu- tors a refunding bond before filing a bill in the Court of Chan- cery for a legacy.*" The fact that the accounts of an administrator have been settled in the orphans' court in no way militates against the -■'Delany v. Noble, 3 N. J. Eq.. -"^Frcy v. Demarest. 16 N. J. 441. Eq., 236. VanDyke v. VanDyke. *"Meeker v. Arrowsmith, 16 N. 72 N. J. Eq., 300. Dnrsheimcr v. J. L., 227. Rorhack, 23 N. J. Eq.. 46. Affinn- ^^ Smith V. Moore. 4 X. J. Eq., ed 25 N. J. Eq.. 516. Affirmed 5 N. J. Eq., 649. •'••Wilson v. Fislicr. 5 N. J. Eq., Hedges v. Norris, 32 N. J. Eq., 192, and Reporter's Note at p. 193 49.1 738 Probate Law and Practice. propriety of the next of kin seeking in the Court of Chancery an ascertainment of a distributive share in a proper case, where a decree of distribution has not been made by the orphans' court ;^* but while the Court of Chancery has ecjuitable juris- diction of a suit by legatees to recover their legacies, notwith- standing the pendency of probate proceedings, such jurisdiction will not be exercised, unless special cause therefor exists.^'' 4*VanDyke v. VanDyke, 73 N. «Wyckoff v. O'Niel, 71 N. J. J. Eq., 300. Eq.. 681, and cases cited. Affirm- ed ib., p. 729. PAKT IV. Guardian ship. CHAPTER XXXW GUARDIANSHIP OF INFANTS. In General. In considering the subject of the guardianship of infants, the distinction between the case of an orphan, that is, a father- less child, and that of a minor, whose father is living, must be kept clearly in mind. In the former case, letters of guardian- ship of the person and estate of the orphan are granted ; in the latter, guardianship of the estate only, the father being the natural guardian of the ^erson of his child. The practice upon the application for guardianship in these two classes of cases differs radically. Prior to the enactment of the act of 1843, neither the Ordi- nary, the orphans' court, nor the surrogate had power to appoint a guardian of a child whose father was living. '^ This matter is now governed l\v section 40 of the present Orphans' Court Act.- Jurisdiction. The jurisdiction of the Ordinary, orphans' court and surro- gate over the grant of letters of guardianship in uncontested cases is concurrent, except that the jurisdiction of the orphans" court and surrogate extends only to minors residing within their respective counties. The statute provides that if there be any dispute with respect to the right of guardiansliip, application shall be made to the orpiians" court.'' The CVdinary has, of course, original jurisdiction o\er matters of guardianship,' whether contested or uncontested. The court is not authorized to dixide the guardianship of a minor and commit his propert}' to one and his person to Hn re VanHouten, 3 N. J. Eq.. "Orphans" Court Act, sec. 36. 220. 3 Coinp. Stat., 3825. ^See p. 754, infra. 741 742 P'robate Law and Peactice. another ;^ and this rule will control the Prerogative Court in the exercise of its jurisdiction, iniless its application would work great hardship.^ Under the general power conferred by the statute to hear and determine all controversies respecting the right of guard- ianship, the orphans' coiu't has power to revoke letters of guardianship obtained through false representation f but an order of the orphans' court revoking letters of guardianship so far as relates to the person of the minor, and leaving them in full force as regards his estate, is erroneous.' Letters of guardianship in due form will be presumed, in a collateral proceeding, to have been legally issued.* Residence of Minors. The residence of an infant born in Xew Jersey of parents resident here is presumed to continue in this state imtil proof is adduced that it has been lawfully changed. An infant's residence will follow that of the father while he is living; after the father's death, it will, in general, follow that of the mother. The residence of an infant, domiciled in this state at the death of the father, will not be shown to have been changed by proof that the mother afterwards took the infant with her to a foreign state, unless it appears that the change of abode was with the intent, on the part of the mother, to abandon the residence in New Jersey and acquire residence in the foreign state.''' Bond Required. Guardians of every character and description are required to give bond, with such sureties and in such amount as the orphans' court or surrogate may approve. A bond in double the amount of the personal property which will come to the ^Tenbrook v. McColm, 12 N. J. sva,-(^erveere v. Gaston, 25 N. L., 97. In re Van Houten, 3 N. J. J. L-, 615, and see "Validity ot Eq., 220-230. Acts of Surrogate," p. 58, supra. •'•Ross' Case, 53 N. J. Eq., 344. also "Validity of Decrees of Or- «In re Clement's Appeal, 25 N. phans' Court," p. 48, supra. J. Eq., 508. ^Russell's Case, 64 N. J. Eq., ^Tenbrook v. AlcColm, 12 N. 313. J. L., 97. Guardianship of Ixfants. 74?> hands of the guardian, with two sufficient sureties, is usually required." TESTAMENTARY GUARDIANSHIP. In General. At common law. no person had power to appoint a guardian for an infant child, by will or otherwise; this right was first given by the statute of 12 Car. II, c. 24, which provided that any father, whether an infant or of full age, might, by deed executed in his lifetime or by his last wall and testament, dispose of the custody and tuition of his child, either born, or unborn, to anv person or persoi-"i. in possession or in remainder. This statute, which was substantia'ly re-enacted in this state by the act of 1795,^^ gave the powder of appointment to the father; and it w^as held that the mother had no powder to dispose of the guardianship of an infant child, and that any such provision in her will was void.'- The present statute, providing that the mother must consent to the appointment of a guardian, was enacted in 1871." Who May Appoint. When any person hath or shall have any child or children un- der the age of twenty-one years, and not married at the time of his death, it shall be law^ful for the father of such child or children, whether born at the time of the decease of the father or at that time in rent re sa mere, or whether such father be within the age of twenty-one years, or of full age, by his deed executed in his lifetime or by his last will and testament in writing, made and published by such father according to law. and proved and recorded in the manner prescribed by the laws of this state, to dispose of the custody and tuition of such child or children for and during such time as he, she or they shall respectively remain under the age of twenty-one years or any less time, to any person or persons in possession or remainder; provided, that the mother if living, consent to such ^"See "Guardians' Bonds," p. ^-In re Van Houten, 3 N. J. Eq., 315, supra. 220. In re Turner, 19 N. J. Eq., "Elmer's Digest, p. 598, sec. 14. 433-436. i3See P. L. 1871, p. 23. 744 Probate Law and Practice. appointment, which consent shall be in writing, and signed and acknowledged by the mother in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the mother, and such consent shall be proved to have been so given and acknowl- edged at the time the will appointing the testamentary guardian shall be admitted to probate/* Authority of Testamentary Guardian. Such disposition of the custody of such child or children so made as aforesaid, shall be good and effectual against all and every person or persons claiming the custody or tuition of such child or children, as guardian in socage or otherwise; and such person or persons to whom the custody of such child or children hath been or shall be so disposed or devised as aforesaid, may maintain an action of ravishment of ward or trespass against any person or persons who shall wrongfully take away or detain such child or children, for the recovery of such child or children ; and may recover damages for the same in the said action, for the use and benefit of such child or children ; and may take into his. her or their custody, for the use of such child or children, the profits of all lands, tenements and hereditaments of such child or children ; and also the custody and management of the goods, chattels and personal estate of such child or children, till his or her or their respective age of twenty-one years or any less time, according to such disposition aforesaid ; and may bring such action or actions in relation thereto, as by law a guardian in common socage might do.^^ When Mother May Appoint. The mother of any minor child or children, being a widow, may by her last will and testament made and published, and proved and recorded according to law, appoint a guardian for her minor children in all cases in which the father is author- ized to make such appointment ; and such guardian shall have the same power and authority in all respects as a guardian appointed by the father of a minor child ; provided, that no ^*2 Comp. Stat., p. 2627, sec. i. i"'2 Comp. Stat., 2627. sec. i. Guardianship of Infants. /45 guardian shall have been appointed by the father under the last preceding section. ^^ Effect of Appointment. Testamentary guardians stand in loco parentis, and super- sede guardians appointed by^the orphans' court,'' subject, how- ever, to the power of the Chancellor as parois patriae to change the custody when the welfare of the child will be [)ro- nioted thereby.^* What Constitutes Appointment. \o particular form of language is necessary for the appoint- ment of a guardian by will. The manifestation by the will of the intention of the testator is all that is required. Language wdiich confers, expressly or by implication, a power extensive enough to include custody and tuition, the statutory words, is enough.^'' The distinction that runs through the cases seems to be this : If general expressions are used by a testator conferring ujion his executor or trustee power over both the person and the property of his infant child, the intent to constitute him also a testamentary guardian may be inferred ; whereas if such execu- tor or trustee has only the custody of the infant's property, the rule is otherwise.-" So where testator directed by his will that during the minority of his daughter the income of his estate, w^hich he had thereinbefore bequeathed to her and to her use, should be paid to her mother, she remaining a widow, for the support, maintenance and education of his child, it was held that the language was sufficient to constitute a testamentary appointment of the mother as guardian ;-^ but where testator, after giving the residue of his estate to his infant son, ordered his executors to invest the personal estate and the proceeds of the real estate for his benefit, and directed as follows: "I do further order that my executors gi\e unto my said son out of 162 Comp. Stat. 2627, sec. 2. '^Macknet v. Macknet, 24 N. J. i^In re Van Houten. 3 N. J. Eq., Eq., 277-295. 220. -''In re Van Horn, 5 N. J. L. J., isSlack V. Perrine. 19 N. J. L. 37^- J.. 40. -1 Macknet v. Macknet, 24 N. J. Eq , 277-295. 746 Probate Law and Practice. mv estate a good college education and a decent support until he arrives at the age of twenty-one years," it was held that the executors were not constituted guardians of the person of the infant, so as entirely to sui)ersede the natural rights of the mother, or those derived under the authority of the guardian appointed by the surrogate, although, on the other hand, the duties of the executors, were not to be limited to the mere furnishing of the money necessary for the education of the child, but, the right and power of directing the education of the infant being vested in the executors, they were entitled to the custody of his person, so far as necessary and proper for the purpose of education. -- Effect of Caveat Against Probate of Will. Tile filing of a caveat against a will appointing a guardian for infants raises a doubt as to the validity of the appointment, and prevents the testamentary guardian from prosecuting a claim to the sole custody of the children.-' Acceptance of Guardianship. Every guardian appointed by last will and testament, which shall be legally proved and recorded, shall, before he exercise any authority over the minor or his estate, appear before the orphans' court or surrogate and declare his acceptance of the guardianship, which shall be recorded.-* Bond Required. A testamentar}' guardian is required to give a bond with such sureties and in such sum as the orphans' court or surro- gate may approve of and order for the faithful execution of his office, unless it is otherwise directed by the testator's will.-' A bond in double the amount of the personal property which will come to the hands of the guardian, with two sufficient sureties, is usually required.-'' =-In re Van Houten. 3 N. J. Eq., -■'Orphans' Court Act, sec. 50. 220. 3 Comp. Stat., 3829. 23Slack v. Perrine, 19 N. J. L. -^Orphans' Court Act, sec. 50. J., 40. 3 Comp. Stat., 3829. -^See "Guardians' Bonds," p. 315. supra. Guardianship of Infants. 747 Practice on Application. The application should be by petition containing the recitals contained in Orphans' Court Rule thirteen.'-" and should ha\e annexed thereto the acceptance by the guardian of his appoint- ment.-^ Control of Appointment by Court. Where bv any last will and testament, the testator shall dis- pose of the custody and tuition of his minor child or children, and such last will and testament shall be offered for probate, it shall be lawful for the ordinary or orphans' court, upon petition alleging cause, and after notice to the testamentary guardian named in the proferred last will and testament, to in- quire into the present custody of such infants, and, after hear- ing, make such order touching testamentary guardianship as mav be for the best interests and welfare of the infants.-" APPOINTMENT OF GUARDIANS FOR ORPHANS. WHERE ORPHAN IS OVER FOURTEEN YEARS OF AGE. Application for Letters. When an orphan is of the age of fourteen years or upwards, letters of guardianship shall be granted on petition to the orphans' court or surrogate, signed by such orphan in the presence of the surrogate, deputy surrogate, or a special master of the court of chancery of this state.''" The appointment of a testamentar}- guardian for an infant by a person authorized to make such appointment destroys the right of the infant to select his own guardian.^^ Form of Application. Application for letters of guardianship shall l)e in writuig, verified by affidavit; such application shall state the age and residence of the minor, the names and residences of his nearest ="This page, infra. soorphans' Court Act. sec. 37- s^Orphans' Court .\ct, sec. 50. 3 Comp. Stat., 3S-'6. 3 Comp vStat., 3829. '■'Sec "Tcsfmuntarv Cuardian- 290rphans' Court Act, sec. 3,P>. ship."' p. 7-I3. supra. 3 Com]). Stat.. 3826. 748 Probate Law and Practice. of kin, the names and residences of all persons standing in loco parentis to such minor, if any, and the names and resi- dences of the persons with whom he resides, and shall have annexed thereto an affidavit of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him. In the case of applications by orphans over the age of fourteen, the foregoing affidavit shall be made by some person having personal knowledge of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him.^'- Where Minor is Out of the State. When an orphan is of the age of fourteen years, or upwards, and is out of this state, letters of guardianship shall be granted in this state, on petition to the orphans' court or surrogate, signed by such orphan in the presence of a judge of a court of record in the state, territory or country in which such orphan may be. which signature shall be acknowledged before said judge, in the same manner and form as deeds are re(|uired to be acknowledged by the laws of this state ; or when said orphan is out of the United States, on a petition signed and acknowledged as aforesaid h\ such orphan before any public ambassador, minister, consul, vice-consul, consular agent, or charge d'affaires or other representative of the United States for the time being in the empire, kingdom, state or country where said orphan was at the time of signing and acknowl- edging such petition."" Selection of New Guardian by Orphan After Arriving at the Age of Fourteen. The statute,"* provides that the person appointed guardian of an orphan under the age of fourteen shall remain the lawful guardian of such orphan until the said orphan, after arriving at the age of fourteen, shall choose another guardian. A guardian appointed for a minor under fourteen thus re- mains the lawful guardian of the orphan until the said orphan. 32Qj-pi-,^^ris' Court Rule. 13. "*Orph.Tns' Court Act. sec. 2>7. '•''Orphans' Court Act, sec. 41. p. 747. supra. 3 Comp. Stat., 3827. • Guardianship of Infants. 749 after arriving at the age of fourteen, shall choose another guardian ; there is no termination of the guardianship by the simple fact of the orphan arriving at the age of fourteen years. The statute expressly declares otherwise, and provides also that the bond given by a guardian for an infant under fourteen shall continue in force after the infant reaches fourteen. There is no ])ower in a surrogate to remo\e a guardian, nor is there any in the infant. The infant only has power, after arri\ing at fourteen, to choose another guardian. That ])ower of the infant is not arbitrar}-. nor without restriction. When the infant, having the right of choice of another joerson for guardian, elects to exercise that choice, that is a controversy about the guardianship which is determinable only by the orphans' court under its general powers, conferred by section two of the Orphans' Court Act ; and its power to appoint a new guardian of the choosing of the infant can only be exercised upon a petition by the infant under the form required by the first para- graph of section thirty-seven,''^ where an infant over fourteen petitions for a guardian in the first instance.^*' Practice on Application. In case any orphan, for whom. Avhile under the age of four- teen years, a guardian has been appointed, desires, upon arriv- ing at the age of fourteen years, to choose another guardian, application may be made to the orphans' court of the county wherein the original letters of guardianship were granted, which ai)i)lication shall be signed i)y the minor in the presence of the v^urrogate, Deinity-Surrogate, or a special master in chancery of New Jersey, and shall be in conformitv with the requirements of rule thirteen.^" The same notice of such application shall be given to the existing guardian, and also to the next of kin. ])ersons stand- ing in loco parentis and persons with whom such minor may reside, as is ])rescribed in rule fourteen ^^" ; upon such applica- tion, the court .shall incfuire into the circumstances of the case, and shall take such action in respect to the a])pointment of a "''Page 747, supra. •''Orphan.s' Court Rule 15. For ^^Matter of Guardianship of l\ule 13 see page 747, supra. Ida S. Smitli. Rssex Orphans' ^'"See page 752, infra. Court, May 12, 1899, Fort, J. 750 Probate Law and Practice. guardian, or guardians for such minor, as shall seem to be for his best interest and advantage. ^'^ WHEN ORPHAN IS UNDER FOURTEEN. Who Entitled. When an orphan, is under the age of fourteen years, the mother, or next of kin of full age, and where there are several relations in equal degree of kindred, any one, giving due notice to the rest, may apply to the orphans' court or surrogate for the guardianship of such orphan, who upon inquiry into the circumstances of the case, may admit one or more of them, or a stranger willing to accept the trust, at its or his dis- cretion, to be guardian or guardians of such orphans, until he or she attains the age of fourteen years or other guardian or guardians be appointed in his stead ;•'■' and the person or persons so appointed such guardian or guardians shall remain the lawful guardian or guardians of such orphan, under the said letters of guardianship, until the said orphan, after arriv- ing at the age of fourteen, shall choose another guardian or guardians, and the bond given thereon shall continue in full force ; but where the orphan after arriving at the age of four- teen years, shall choose any other person or persons to be guardian or guardians, letters of guardianship shall be applied for, as before directed, and all proceedings thereon be had accordingly.'"^ If a testamentary guardian for an infant has been appointed l)y a person authorized to make such appointment, the right of the next of kin to guardianship of" such infant is destroyed.'*^ Right of Mother, The mother, and after her the nearest of kin, are entitled to the guardianship of orphan children under* the age of four- teen after the father's death, and their claim cannot be dis- regarded, except for some satisfactory reason, apparent to the ^''Orphans' Court Rule, 15. ^"Orphans' Court Act, sec. 2i7- 39For practice on appointment 3 Comp. Stat.. 3826. of new guardian after orphan has *^See "Testamentary Guardian- attained the age of fourteen, see ship."' p. 743. supra, p. 74Q. supra. Guardianship of Infants. 751 court ;^- but the right of the mother must be held in subordi- nation to the rights and welfare of the child. *'^ So where an infant had not. since early infancy, been under the care, con- trol or custody of the mother, or been in any way interfered with or provided for by her. l)Ut had been under the care and guardianship of her paternal grandfather and his family, to whose charge she was committed by the mother for a fteriod of nearly eight years, and no objection whatever was suggested to the mode of treatment which she had experienced, or to the care and control which had been exercised over her, it was held that the interest of the infant w^ould not be promoted by a change in her position, social relations, habits of life and mode of training, and that it was obviously for her best inter- ests that she should remain where she was until she was at liberty to choose a guardian for herself ; and the application of the mother for guardianship of the infant was denied, and letters granted to the grandfather.''* Where the mother is unfitted by loss of intellect or want of female virtue for the proper care and training of the child, where her house is the resort of improper company or is other- wise an unfit place for the training of a child of tender years, where the children are trained in habits of vice or profligacy, or where from any cause no proper moral or social restraint is exerted, but counter-influences are continually operating to an extent destructive of morals and virtue, in these and in like cases the court is justified in refusing to place a child of tender years within her influence.*^ Where Mother is Dead. Where the mother is dead, as between relations having no legal claim to the services of the infant, a greater latitude of discretion is allowed the court ; and a reason which might not *-Eldridge v. Lippincott. i N. J. Eq., .^45. Reversed 47 N. J. Eq., L., 397. Read v. Drake, 2 N. J. 302. Eq., 78. Albert v. Perry, 14 N. J. ••^Albert v. Perry, 14 N. J. Eq., Eq., 540. Weldon v. Keen, zi N. 540. Luppie v. Winans, 37 N. J. J. Eq., 251-253. Woodruff v. Eq.. 245-248. Reversed 47 N. J. Snoover, 45 Atl. Rep.. 980. Eq., 302. ^•''Albert V. Perry, 14 N. J. Eq.. ■'■'"'Albert v. Perry, 14 N. J. Eq., 540. Luppie V. Winans, 37 N. J. 540 49 752 PROBATii Law and Practice. be sufficient to bar the legal rights of the mother may suffice to decide the question between the claims of other relations. As the guardianship of the orphan involves the charge both of the person and the estate, it is important that the person to whom the charge is entrusted should not only be a capable and fit person to take charge of the estate, but, in the case of an infant of tender years, should be qualified, either personally or through his family, to superintend the habits and training of the ward.**' The paternal kin are not entitled to any preference over the maternal, but both stand on the same footing.*' As a general rule, where there are several next of kin, the court will appoint as guardian the person nearest in relationship to the orphan, unless there is something which unfits him from acting;*^ and the court, in the absence of disqualifying objections to the next of kin, cannot appoint a stranger, except with the consent of, or upon notice to such next of kin entitled to guardian- ship.*® Where Ijoth parents of an infant are dead, in the absence of any direction or expressed preference by the father as to the guardianship or religious education of his child, the clearly expressed wishes of the mother during her lifetime will be regarded, if not contrary to the best interest of the child.®" Application for Letters. The same form of application for letters of guardianship is required where the orphan is under fourteen as in the case of an orphan over fourteen except that the petition is by the applicant instead of the orphan.®^ Notice of Application for Guardianship. Where application for letters of guardianship of an orphan under fourteen or for guardianship upon the estate of a minor ^^Albert v. Perry, 14 N. J. Eq., ^oWeldon v. Keen, Zl N. J. Eq., 540. 251. ^^Albert v. Perry, 14 N. J. Eq., sojn re Turner, 19 N. J. Eq., 540. In re Anne Turner, 19 N. J. '433. Eq., 433-436. 5i3eg p -47^ supra. ■'^Woodruff V. Snoover, 45 Atl. Rep., 980. Guardianship of Infants. 753 whose father is Hving. is made by any person other than the next of kin or party tirst entitled, or by one of several equally entitled to receive letters of guardianship, the person making such application shall produce to the Surrogate or Orphans' Court the renunciation and request of such persons so entitled and of the person or persons standing in loco parentis to said minor, if any, and also of the persons with whom said minor resides, that letters be issued according to the application, or proof that at least ten days' notice has l)een given to all of the next of kin or parties by law entitled to such guardianship, and to all persons standing in loco parentis to said minor, if any, and also to the persons with whom said minor resides, who reside in this state ; or that not less than ten nor more than sixty days' notice, as the court or Surrogate may by order direct, has been given to the said next of kin or parties l)y law entitled to such guardianship, and to any person standing in loco parentis to said minor, and to the persons with whom the said minor may reside, who shall reside without this state. Notice to non-residents of the State of New Jersey may be sent by mail, with the postage thereon prepaid, addressed to the last known residence of such next of ki^i, person standing in loco parentis, person with whom said minor may reside, or persons by law entitled to such guardianship. The application and the renunciation and request, if any, shall be recorded by the Surrogate in a book to be kept for that purpose. ^- It has already been seen that the mother is first entitled to guardianship of her minor child ; no notice of her application is therefore necessary. If, during the lifetime of the mother, others of the next of kin apply for letters of guardianshi]), notice of such application must be given to the mother. So where a mother was appointed guardian of her child, but failed to give bond within the time limited by the court, and the court, without notice to her, appointed a stranger in her stead, the appointment of the latter was held not warranted f' but where no notice of application for the appointment for an infant under the age of fourteen had been given, Imt the application was 520rphans' Court Rule 14. Sec "'nVeldon v. Keen. 37 N. J. Kq.. Orphans' Court Act. sec. 37- .3 ^.t'- Coinp. Sl;it.. 3826. p. 7\7. suprn. 754 Probate L(AW and Practice. afterwards fully heard in the presence of all of the parties interested, the order appointing a guardian will not be re- versed.^* Where Next of Kin are Non-Resident. Where it shall he made to appear upon oath, to the satis- faction of the orphans' court or surrogate, that the next of kin of any orphan minor under the age of fourteen years re- siding in this state, do not reside within this state, the orphans' court or surrogate may take such action in respect to the ap- pointment of a guardian or guardians of said minor as shall seem to be for his best interest and advantage.''^ APPOINTMENT OF GUARDIAN OF ESTATE OF MINOR. Jurisdiction. If any minor shall become seized or possessed of or be entitled to any real or personal estate in the lifetime of the father or mother of such minor, the ordinary or the orphans' court or surrogate of the county where such minor resides or such real or personal estate may be, may appoint the father or other suitable person guardian of the estate of such minor.^' Neither the Ordinary, orphans' court nor surrogate has power to appoint a guardian for a minor whose father is living, unless the child owns property.^' Necessity for Appointment. The father is the guardian by nature of his minor children : but a guardian by nature is guardian of the person only, and not of the estate. When, therefore, a child in the lifetime of his father becomes vested with personal property, the father is not entitled to receive it. The only person entitled is the guardian duly appointed by some public authorit}.'''' '*Luppie V. Winans. 27 N. J. ^''Orphans' Court .-\ct, sec. 40. Eq., 245. Reversed 47 N. J. Eq., 3 Comp. Stat., 3827. 302. s^Friesner v. Symonds. 46 N. J. ^^Orphans' Court Act, sec. 42. Eq., 521. 3 Comp. Stat.. 3827. ssGraham v. Houglifalin, 30 N. J. L., 552. Guardianship of Infants. 755 Who Entitled. Tlie father, while living, is as has Ijeen seen, the r.atin'al guardian and protector of his child, and cannot he divested of the privilege except under extraordinary circumstances. In case of the father's death, the mother succeeds him as guardian hy nature.®" Practice. The application for guardianship of the estate of a minor whose father or mother is hving is made hy the applicant, irre- spective of whether the minor is over fourteen years of age or not. The only case in which an infant over fourteen is permitted to select his own guardian is that of an orphan minor applying for letters of general guardianship pursuant to the provisions of section 37 of the Orphans' Court Act.'"' The ap- plication should l>e in the same form as is prescril)ed in other cases. *^^ Notice of Application. If the application he made by one other than the father, notice of such application must be given as in other cases.*'' APPOINTMENT OF GUARDIAN FOR CHILD OF ABSENT OR ABSCONDING PARENT. Statutory Provisions. If any citizen of this state has absconded, or shall here- after abscond or absent himself from this state for the term of two years, leaving in this state any child or children under the age of twenty-one years, without competent and suitable provision for their maintenance and education, the orphans' court or surrogate of the county where such child or children reside, on application of the said child or children, or of his, her or their next of kin. may appoint a guardian for such child or children, and said court may revoke such appoint- ment as the said court shall see occasion ; which guardian shall snjn re Van Houten. 3 N. J. Eq., f'lOrphans' Court Rule 13, p. 220. 74-^ supra. '»Page 747, supra. "^Orphans' Court Rule 14. p. 752. supra. 756 Probate Law and Practice. have tlie same authority over the said child or children as guardians have in other cases, until the revocation of his au- thority as aforesaid, notwithstanding any right or claim of au- thority of the said parent, and may lawfully do all acts for the maintenance and education of the said child or children and the disposition of his or her time and services which the said parent could lawfully do.''^ It is to be observed that this section does not require that the children with whom it deals be possessed of property, but contemplates the appointment of a guardian for the purpose of providing for their education and maintenance. The letters granted should doubtless be of the person and estate of the infant, and the guardian so appointed may lawfully claim any property to which his ward becomes entitled. Practice on Application. The same practice as to the form and contents of the appli- cation,'^* and as to giving notice of such application,*'^ is fol- lowed as in all other applications for letters of guardianship. The statute provides that the application shall be by the child ■or his next of kin. It would therefore appear that when the child is over fourteen he should make the application, while in the case of a child under fourteen the application should be by the next of kin. APPOINTMENT OF SPECIAL GUARDIANS. Statutory Provisions. The ordinary shall have full authority to appoint a special guardian for the property, real or personal, within this state of any non-resident minor, and the orphans' court or surrogate of any county shall have concurrent authority to appoint a special guardian for any property, real or personal, within said county of any minor residing without the state ; and said courts shall have authority to control, remove or substitute such guardian, and in any case not already provided for by 630rphans' Court Act. sec. 39. esSee Orphans' Court Rule 14. 3 Comp. Stat., 3826. p. 752, supra. ""•See Orphans' Court Rule 13, p. 747, supra. Guardianship of Ixfants. /?/ statute or the rules of the court, the court shall take such action in the matter as it shall deem most for the advantage of the infant.®^ Attention is called to the fact that a guardian appointed by the surrogate under the provisions of this section may be re- moved by him. The statute provides that the Ordinary, or- phans' court or surrogate may make such appointment, and that "said courts shall have authority to control, remove or substitute such guardian ;" and it is entirely settled that in ap- pointing a guardian the surrogate holds a court. APPOINTMENT OF GUARDIANS AD LITEM. Practice on Application on Behalf of Infant. Whenever it shall be necessary, in any cause or proceeding in the Orphans' Court, that a guardian ad litem for any infant or incompetent party thereto should be appointed, a petition may be presented by the infant, if above the age of fourteen years, or, if under that age, by his guardian appointed by the Surrogate or Orphans' Court, his father, or some other friend in his behalf, praying such appointment. In the case of an incompetent party the petition shall be by his guardian ap- pointed by the Orphans' Court or some next friend in his be- half. Annexed to the petition there shall be an agreement, bv the person petitioned for as guardian, to accept the appointment, and also an affidavit that the petition and agreement were duly signed by the persons purporting to sign them, and verifving the age of the infant.*^" Where No Application is Made on Behalf of Infant or In- competent. If no application shall be made by or on behalf of the infant or incompetent party within five days after the service upon him of the citation or other authoritative command of the court to appear, &c., the Orphans' Court may. on application on behalf of the party instituting or prosecuting the proceed- ings, by its order assign a guarrlian ad Vitcui for said infant «80rphans' Court Act, sec. 43. cTQrphans' Court Rule 46. 3 Comp. Stat., 3827. 758 Probate Law and Practice. or incompetent party ; but ten days' notice of such application must be given to the infant, if of the age of fourteen years and resident within this State, or. if under that age or not a resi- dent in this State, to his guardian appointed by the Surrogate or Orphans' Court, if any there be, and if no such guardian, to the father of such infant, or, if no father, then to the mother, or, if no mother, to the person standing in loco parentis to the infant ; provided such guardian, father or mother, &c., be resident in this State, which notice may be served at the time of service of the process of citation or at any time thereafter. If such guardian, father or mother, &c., be not resident in this State, such notice shall be given as the court may by order direct. In the case of an incompetent person, ten days' notice of such application shall be served upon him and also upon his gtJardian appointed by the Orphans' Court, if any there be, and if no such guardian, then upon such persons as the court may by order direct. *^^ APPEAL. From Appointment of Guardian by Surrogate. Any person aggrieved by any order of the surrogate in grant- ing letters of guardianship may appeal to the orphans' court, by filing a petition of appeal with the surrogate within twenty days after such order is made.''^ From Appointment of Guardian by Orphans' Court. An appeal lies to the Prerogative Court from a decision of the orphans" court granting letters of guardianship.'" POWERS AND DUTIES OF GUARDIANS. In General. A guardian appointed l:)y the orphans' court or surrogate under the' statute supplies the place of both a guardian for nurture and a guardian in socage, in the ancient law. Such ^^Orphans' Court Rule 47. supra. ^^Orphans' Court Act, sec. 201. '^Read v. Drake, 2 N. J. Eq.. 3 Comp. Stat.. 3888. For practice 78. Albert v. Perry. 14 N. J. Eq.. on appeal, see "Appeals," p. 74, 540. Guardianship of Infants. 759 guardian has not only the custody of the person of his ward, but also the care of his land.'^ The office of a guardian is that of a trustee. He is charged with the duty of collecting and receiving the choses in action of the ward, and may execute receipts and discharges for the same."-' The power of a guard- ian over the person and property of a female infant, however, ceases at her marriage: from that time such guardianship (iexolves upon tlie husband."" Power to Contract. A guardian has no authoritx whatever to l)ind either the person or the estate of his ward by contract. It is his duty to see that his ward is maintained and educated in a manner suit- able to his means; and if, in the performance of this duty, it becomes necessary for him to enter into contracts, such con- tracts impose no duty on the ward, and do not bind his estate. l)Ut bind the guardian personally and alone. For any reason- able expenditure made by the guardian out of his own means for the benefit of his ward, he is of course entitled to be re- imbursed out of the ward's estate ; but this is the limit of the ward's liability, whether measured by rules of law or of equity. A guardian is without the least capacity or authority to impose contract obligations on his ward. lie may do so under the direction of a court of competent jurisdiction ; but he does not exercise in such cases a power belonging to his office, but an extraordinary power conferred for a special purpose.'* Power to Compromise Claims. A guardian can compound and settle a claim due the ward. He stands in the same position as any other trustee, and may generally, when acting in good faith, compound or release a debt due the trust estate. Such composition or release, for a valuable consideration, is prima facie valid and effectual ; and if the ward, after coming of age, seeks to impeach it, the burden 7iVan Doren v. Everitt, 5 N. J. T:^Porch v. Fries, 18 N. J. Eq., h.. 539- 204. ^-Ordinary v. Dean. 44 N. J. L., "•'Reading v. Wilson, 38 N. J. 64-67. Brooks V. Metropolitan Eq., 446. Life Insurance Co., 70 N. J. L., 36-40. 760 Prodate Law and Pkactici:. is upon him to show that it was not made in good faith, but in fraud of his rights.'^ Power over Lands of Ward — In General. A guardian appointed by the orphans' court or surrogate is charged with the care of his ward's lands, and is entitled to the possession thereof.^'' Thus, he may make leases of his ward's lands ; and if he make a lease to continue beyond his guardianship, it is not absolutely void upon the infant coming of age, but voidable only, and consequently the infant may at that time either affirm or avoid the lease at his pleasure. And so a guardian may expend rents of his ward's lands in satisfy- ing an incumbrance upon them.'*''' If he accept rent, or do any other act or acts showing his assent thereto, it is construed to be an affirmance.'" Such a lease may, however, be avoided by another guardian chosen by the infant after he attains the age of fourteen. ■^^ A guardian has no power to erect buildings upon the lands of his ward, without the authority of the Chancellor : if he does so, he will not be allowed the cost, or even the value of such buildings.''^ SALE OF LANDS BY GUARDIANS. In General. As a general rule, a guardian has no right to sell, or make a deed for the property of his ward, without an order of the orphans' court or Court of Chancery. He is as has been seen, entitled to the possession of his ward's lands, and may transfer that possession, or lease the lands, without any order; but he can convey no title to the freehold otherwise than as the statutes authorize.®" ■^sOrdinary v. Dean, 44 N. J. L., L. 539- Snook v. Sutton. 10 N. 64. J. L., 133- "6Van Doren v. Everitt, 5 N. J. "sSnook v. Sutton, 10 N. J. L., L., 539, Jackson v. Todd, 25 N. 133. J. L., 121. Reversed 26 N. J. L., ^'^Haggerty v. McCanna, 25 N. 525. Antonidas v. Walling. 4 N. J. Eq., 48- J. Eq., 42. sojackson v. Todd, 25 N. J. L.. ''e^Switzer v. Switzer. 57 N. J. 121. Reversed 26 N. T. L., 5^5- Eq., 421. Antonidas v. Walling, 4 N. J. Eq., ^■'Van Doren v. Everitt, 5 N. J. 42. GuARDIAXSIIir OF IxFAXTS. 761 Lands Purchased by Guardian on Foreclosure of Mortgage of Ward. Where any guardian heretofore has or shall hereafter become the purchaser of any land, tenements or heredita- ments, at a sale upon the foreclosure of any mortgage held by such guardian, such lands, tenements or hereditaments shall be assets in his hands, and may be sold and conveyed by him with- out any order of court, and he shall receive, be accountable for and pay over the proceeds of such sale the same as the other assets in his hands.®^ Lands Purchased by Guardian by Mistake. The statute provides that if any guardian purchase real estate by mistake, or under a misapprehension of the right to do so, he shall have power to re-sell such lands. ''- When Guardian is Grantee for Ward. In case any guardian has heretofore or shall hereafter become the grantee for or on account of his ward, of any lands, tene- ments or hereditaments, or undivided interest therein, in the transfer or distribution of assets held by any executor or trustee, such lands, tenements or hereditaments, or undivided interest therein, shall be assets in such guardian's hands, and may be sold and conveyed by him without any order of court, and he shall receive, give security, be accountable for and pay over the proceeds of such sale or sales the same as the other assets in his hands. **^ Jurisdiction of Orphans' Court to Order Sale of Lands. If the personal estate and the rents, issues and profits of the real estate of the ward be not sufficient for his maintenance, the or])hans' court of the proper county, on full investigation thereof, may from time to time order the guardian to sell so much of the timber growing or being upon the lands of said ward or such parts of the ward's lands, tenements, heredita- 8I2 Comp. Stat., p. 2637, sec. 33. ^sp l 1904, P- 4^. 2 Comp. 82P. L. 191S. P- 356. Stat., p. 2637, sec. 35. 762 Pkobate Law and Practice. ments and real estate as they shall direct and judge adequate for his or her maintenance and education.^* Construction of Statute. In Graham v. Houghtaliu/'" it was held that this statute gave jurisdiction to the orphans' court only over the estates of wards who were orphans. This case was decided under the statute as it existed in 18 18, and before the enactment of the fortieth .section of our Orphans' Court Act, which was first enacted in 1846,^*^ and which confers upon the orphans' court and surro- gate jurisdiction to appoint a guardian for a minor entitled to an estate, though the parents of such minor be living. The principle upon which the decision in this case was based was that the orphans' court had no jurisdiction over minors other than orphans ; the rule established by this case is therefore obsolete since the enactment of the fortieth section of the Orphans' Court Act.^' The statute authorizing the orphans' court to order a guardian to sell so much of the ward's lands as may be adequate for his maintenance and education applies to testamentary as well as to statutory guardians.*^ Practice. Application for an order for the sale of infants' lands should be made by the verified petition of the guardian,*" which should set out fully all of the ward's estate, real and personal, the encumbrances thereon, and the income derived therefrom. It should show the relationship existing between the guardian and his ward ; and, if the guardian stands in loco parentis to his ward, or if the latter is living as a member of the former's family, it should set up the full circumstances relied upon to relieve the parent from the duty to support his child, all of which facts must be established by testimony before the court. 842 Comp. Stat., p. 2628, sec. 3. ssPfefferle v. Herr, 75 N. J. 8530 N. J. L., 552. Eq., 219. Affirmed 7J N. J. Eq., s^Nixon's Digest, p. 318. 271. ^"Orphans' Court Act, sec. 40, ^sOrphans' Court Rule 33, p. p. 754, supra. 763, infra. Guardianship op Ixfaxts. 763 When Orphans' Court Will Order Sale of Lands. It is onl\' when a minor has no other means for his edu- cation and maintenance that the orphans' court is empowered by the statute to order the sale of his lands ; and where the parent is of sufficient ability to maintain and educate the infant, as a general rule the lands of the latter should not be sold for that purpose, unless there be such a disparity between the fortune of the minor and the pecuniary circumstances of the father as would make it proper that the fortune of the child should contribute to his own support. The principle which should govern the court in making the order should be the same as has l^een adopted in chancery in Hke cases. ^° Report of Sale. After the lands, tenements, hereditaments and real estate of the ward so ordered to be sold, shall be sold, the guardian shall make report thereof in writing to the said orphans' court, and if said court shall approve of such sale, it shall confirm the same as valid and effectual in law, and shall by rule of court direct the said guardian or guardians to execute good and sufficient conveyances in the law, to the purchaser or purchasers for the tract or tracts of land or real estate so sold.^^ Application and Reports to be Under Oath. All applications to the Orphans* Court for the sale of lands, all petitions by substitutionary administrators wath the will annexed or administrators with the will annexed for confir- mation of sales of land, and all reports of such sales to said court shall be verified by the oath or affirmation of the party making the same.'-*- Affidavits as to Value of Property to be Annexed to Reports of Sales. Reports of sales and petitions for the confirmation of sales by substitutionary administrators with the will annexed or ^^Morris v. Morris, 15 N. J. Eq., '''2 Comp. Stat., p. 2628, sec. 4. 239, and see "Education and '-'-Orphans' Court Rule 33. Maintenance of Ward," p. 765. infra. 764 Probatk Law and Practice;. administrators with the will annexed, shall state the names and addresses of all parties in interest and shall have annexed thereto affidavits of at least two persons familiar with the value of property in the neighborhood where the lands so sold are located, giving the fair market value of the lands and premises so sold.^^ Notice of Intention to Report Sale for Confirmation. Notice of the intention of any executor, administrator, guardian or trustee to make report of any sale to the Orphans' Court, or of any application by a substitionary administrator with the will annexed or an administrator with the will an- nexed for the confirmation of a sale of lands made by him shall unless the court shall otherwise direct, be given to all per- sons in interest. Five days' notice of such application shall be given to all persons in interest who are residents of the State of New Jersey, and not less than five nor more than sixty days' notice, as the court may by order direct, to all such persons in interest who shall reside without the State of New Jersey, which last mentioned notice may be sent by mail with the postage thereon prepaid. °* Bond of Guardian on Sale of Land. The Orphans' Court, on granting an order to a guardian to sell land, or timber on the land of his ward, shall examine as to the sufficiency of the bond of the guardian previously given, and if, in its judgment, said bond is insufficient, it shall require the guardian to give such additional bond for the faith- ful execution of his office as, in its judgment, shall be ade- quate.^° Form and Effect of Deed. The guardian shall make a deed or deeds to the purchaser or purchasers, for the lands, tenements, hereditaments and real estate so sold ; which deed shall set forth that the same ^■■'Orphans' Court Rule 34. considerations influencing court in ^*Orphans' Court Rule 35. fixing the amount of bonds, see ^^Orphans' Court Rule 36. For "Amount of Bond," p. 316. supra. Guardianship of Infants. 765 was made by \irtue of an order of the orphans' court by wliich the sale shall be authorized, the term of the court in which it was granted, and the date of the order ; which conveyances, duly executed as aforesaid, shall vest in the purchaser or purchasers all the estate therein that the ward was seized of or entitled to at tlic time of making the said order.*'" Distribution of Proceeds of Sale in Case of Death of Infant. If, after the sale of infants' lands pursuant to the statute, and before the j^roceeds of the sale of such lands are entirely expended for the support and maintenance of the infant, the infant dies before reaching his majority, it would seem that the unexpended ])ortion of such proceeds should be treated as realty, and not as personalty, and that it would pass to the heir at law of the infant, rather than to his administrator.^' EDUCATION AND MAINTENANCE OF WARD. In General. It is the duty of guardians of the person and estate of minors to provide for the education of their wards. If the ward be of limited fortune, and al:)le to earn his support, it is the guard- ian's duty to see that he does so, rather than to permit him to remain in idleness, or expend his limited patrimony ; but if the ward is physically unable to earn his support, or cannot do it without encroaching upon the time necessary to acquire a proper education, the guardian may use the property of the ward for his support and education. The guardian's discretion in respect to the quality of maintenance and the extent of schooling that ought to be allowed to his ward is on a similar footing to that of a parent, lie is not compellable to i)rcfcr mere economy of cost to the welfare and comfort of his ward."** In case the income from the ward's estate is insut^cient for his maintenance and education, the personal estate, princi- pal as well as interest, may be used for that purpose, if neces- "«2 Comp. Stat., p. 2628, sec. 5. Kq.. ,1|6. Affirmed ih., 575. Wetli- s^Snowhill V. Snowhill, 2 N. J. crill v. Hoiisii, .=;.' N. J. Rq., 6S3. Eq., 30. Obcrly v. Lcrch, iS N. J. "'^Woerner on ( '.uardiansliip, 162. 766 Probate Law and Practice. sary, without application to the court, subject, of course, to its allowance in the settlement of the guardian's accounts, at which time the propriety of the expenditure may be questioned by the court, or by parties interested.'"' The criterion of the propriety of payments by guardians for the support, education and maintenance of their ward is not mere physical necessity, but rather social and moral necessity, having regard to the situation of the parties and the fitness of things. Food, shelter and clothing are physical necessities. In an enlightened com- munity, the education of a child is a moral and social necessity. Professional training is not a general necessity, but is a special advantage.^ Where a guardian, in his account, asks for an allowance for the support of his ward, the court will make such an allowance only as it would have made had it been asked for in advance, and will not be influenced by any subse- quent fortuitous increase of the infant's fortune. In fixing such allowance, the court will do no more than indemnify the parent or guardian for actual disl)ursements ; it will not allow anxthing in the nature of profits. - Duty of Father to Support Child. In general, a father is bound to support his infant children, and is not entitled to have the income of their estate appropri- ated for their support, without order of some competent court, based upon his inability to su])port them properly.^ So where it does not appear that the guardian, who was the father of the wards, was vmable to support them, and it does appear that he received and had the benefit of their wages meanwhile, his expense of maintaining the wards will not be allowed.* In determining the question of the extent of a parent's duty to support his or her infant child, the court will take into consideration all the circumstances, including as well the ^^In re Hannah Barr}-, 6i N. J. 92. Keeney v. Henning, 58 N. J. Eq., 135-139. Smith v. Robinson, Eq., 74-79- 83 N. J. Eq., 384- 3McKnight v. Walsh, 23 N. J. 1 In re Alexander, 79 N. J. Eq., Eq., 136. Affirmed 24 N. J. Eq.. 226, at p. 229. 498. 2Alling V. Ailing, 52 N. J. Eq., '^Wilson's Case, 38 N. T. Eq.. 205. GUARDIAXSHII' OF IxFANTS. 767 parent's liability as the child's fortune.'' So the guardian of infant children of parents having an income less than $1,200 a year is justified in using the income of the estate of the children for their education along the lines for which they show special aptitude.*^ There are some cases reported, where the minor is very rich and the father poor, where the court has allowed the •parent a reasonable sum for maintenance out of the child's estate : but this has never been more than to make his edu- cation proportionate to his estate. It is belie\ed that no case can be found where the court has allowed all of a minor's estate to be sold for his education, when the father was living. It is against the whole theory upon which such allowances are made. The allowances are made, not to free the father from supporting the child, but that the child should be educated according to his estate, which perhaps the father could not afford to do.' Where there is a bequest to infants, payable when they attain their majority and providing that in the meantime their father should hold the bequest in trust and apply the income thereof to their education and support, so long as the father adequately supports and educates the legatees during their minority, he will not be held accountable for any portion of the income."^ The principle underlying this class of cases is, that where the interest of the children's fund is expressly given to the person who stands in loco parentis for their main- tenance, such a gift is in fact pro tan to for the benefit of such trustee, and he will not be compelled to account for the income, where it appears that he has adequately supported the chil- dren.^ Duty of Mother to Support Children. There is no dift'erence between the parents as to their duty to maintain their offspring. The mother is under the same ■'^•Mling V. Ailing, 52 N. J. Eq.. 8£)ixon v. Bentley, 50 N. J. Eq., 92. 87. Affirmed ib., 486. "In re Alexander, 79 N. J. Eq., ■'Macknet v. Macknet, 27 N. J. 226. Eq., 594. Wood v. Chetwood, 3:-, "Graham v. Ilouglitalin, 30 N. J. N. J. Eq.. 9-14. Dixon v. Bentley, L-, 552-568. 50 N. J. Eq., Sy. Affirmed ib., 486. 50 768 Probate Law and Practice. obligation as the father in that respect. At the common law, during coverture with its incidents, the duty of the mother was suspended ; but during her widowhood, and especially under the modern statutes giving her dominion of her own property, she is under the same obligation as the father. ^° So where testator gave the use of all his property, excepting a small legacy, to his widow until her re-marriage, and the amount was amply sufficient for her own comfortable support and the maintenance of the children, it was held that the in- tention of the testator was, that with the use of the property devised to the widow, she should take care of the children, and that she could not claim an allowance for the care, support and maintenance of the children during their minority, and from the testator's death to the time of her re-marriage ;" and a mother, who is also the guardian of her infant child in arms, is not entitled to credits for the motherly services ren- dered to it, but, in a case where she should be allowed for the support of her child, will be entitled only to her actual outlay in money. ^ - In the case of Pyatt v. Pyatt^^ the learned judge who spoke for the Court of Errors and Appeals used this language: "As a general rule, a widow is not bound to support her minor children, if they have means of their own." The facts in this case show that the mother had no fortune of her own, beyond the trifle received from her husband's estate, and whatever of business and earning capacity she had was expended in keeping a home for her children, so that there was not the least ground for throwing upon her any part of the burden of supporting her children, beyond what she actually did. The principal question litigated in this case was whether the or- phans' court had jurisdiction to take into account transactions between a mother and daughter, occurring after the child became of age, and the principal subject of contention was her support after she became of age, the foregoing remarks in ^"Ailing V. Ailing. $2 N. J. Eq., "Crane Y..\'an Duyne. 9 N. J. 92. In re Hannah Barry, 61 N. J. Eq.. 259. Eq.. 135. Keeney v. Henning, 64 ^-Keeney v. Henning. 64 N. J. N. J. Eq.. 65. Eq., 65. ' 1346 N. J. Eq., 285. Guardianship of Infants. 769 regard to the liability of the mother being obiter. This case was distinguished in the case of Ailing z'. .Illiiig,^* and the rule laid down as stated in the text. Duty of Person Standing in Loco Parentis to Support Minor. Where a guardian voluntarily assumes the care and support of his ward, and stands toward him in loco parentis, he will not be allowed for expenditures for the support of the ward.'"' So where a guardian had taken his ward to live with him before guardianship, and had agreed with her father when he took her that he would sup[)ort her at his own cost as his own child, and the ward appeared to have rendered whatever service she could in the family where she occupied the position of a child, it was held the guardian would not be allowed for her board, washing, etc."' vSo where a person intermarries with a widow, who has a child, and takes such child into his family and supports him as a member thereof, he stands in loco parentis to such child, and assumes all of the duties and liabilities and acquires all the rights of a parent ; and while the child continues to live with him, the same (lut\- is imposed upon him to support such child as in the case of his own child, and he wnW not be allowed for the maintenance of the ward while she resided in his liousehold, althougli he will 1)6 allowed for board paid to tliird persons thereafter.'" JURISDICTION OF ORPHANS' COURT TO AUTHORIZE EXPENDITURE FOR SUPPORT, ETC., OF WARD. Orphans' Court May Authorize Use of Principal for Support of Minor. It shall be lawful for the general guardian of the estate of any minor, from time to time, to apply in writing to the orphans' court charged with the settlement and allowance of '^52 N. J. Eq., 92. i«Snover v. Frail. 38 N. J. Eq... ^^Haggerty v. McCanna, 25 N. 207. J. Eq., 48. Snover v. Frail, 38 N. ''Disscnger's Case, .39 N. J. Eq... J. Eq., 207. Pyatt v. Pyatt, 44 N- J27. Haggcrty v. McCanna, 25 N. J. Eq., 491-494- Reversed 46 N. J. J. Eq., 48. See also Tittlebaum Eq., 285. V. Boehmcke, 81 N. J. L., 6g: 770 Pkobate Law and Practice. his accounts, for an order fixing the sum that may be expended yearly by the guardian for or toward the support, maintenance and education of the ward ; the hearing on such apphcation shall be on ten days' notice to the next of kin of the ward, if there be any such next of kin other than such guardian ; the court in a summary way, by testimony taken before it. or before one of its masters and examiners, shall proceed to inquire into the merits of the application, and may make such order in the ]M-emises as to it shall seem proper under all the circumstances of the case, having special reference to the amount of the estate and the condition in life of the ward, and to the pecuni- ary means of any parent who is under legal obligation with reference to the support of the ward ; no order shall be made to continue for more than one year, and if the ward shall be adequately supported, maintained and educated during the continuance of such order, the court shall allow the said guard- ian in the settlement of his account the amount expended not exceeding the sum fixed b\' said order.'* Orphans' Court May Authorize Use of Income for Support, Etc., of Minor. When it shall be made to appear to the orphans" court upon the application, in the form of a verified petition, of the parent or parents or other person or persons having the custody of any minor child, that said parents or persons having the cus- tody of said minor are unable to afTord said minor proper edu- cation, maintenance and support, and that said minor has or is entitled to a certain fund, estate or other property in the hands of a guardian or other person, and that the best interests of said minor will be substantially promoted by the use of the income of said estate or property, or a portion thereof for the education, support and maintenance of said minor, it shall 1)6 lawful for the Orphans" Court to inquire into the circum- stances of the case or refer the same to a master in chancery for investigation and report ; and if upon such inquiry or report it be found that the parents of said minor or the persons having the custody thereof are unable to provide said isp. L. 1903, p. 106. 2 Comp. Stat., p. 2629, sec. 5-d. Guardianship of Infants. 771 minor with proper education, support and maintenance, and that said order would be for the best interests of said minor, the said court may make an order authorizing and directing the guardian or other person in control, of the estate or funds of said minor to pay the income of said estate or fund, or so much thereof as the court shall direct, to the parents or person having the custody of said minor, to be used for the education, maintenance and support of said minor.''-' Practice. An application for the use of either principal or income for a minor's support should be on petition, duly verified ; the court will, upon the presentation of such petition, proceed to take such testimon}- as may Ije offered in behalf of the pe- titioner. When Order Should be Granted. When a person undertakes to act as guardian, he assumes certain responsibilities, and it becomes his duty to exercise a certain discretion, within legal lines, to the extent that the circumstances of the particular case warrant. There is no doubt of the authority of a guardian to expend his ward's funds, principal as well as income, for his proper education, maintenance and support ; and an application to the court to designate, in advance, the amount which a guardian may expend from the principal and interest of his ward's estate is an attempt by the guardian to relieve himself of a portion of the responsibility which he assumed when he accepted that office. Under these acts, the court is authorized, but not required, to make such order in the premises as shall seem proper under all of the circumstances of the case ; and unless special circum- stances exist which would make it unsafe for the guardian to make the expenditures requested, the court should, in its dis- cretion, decline to act. An illustration of a case where special circumstances exist, which would justify the court in acting, is that of a ward whose estate is comparatively small, and who believes he has special aptitude for some particular profession, lop. L. loi,^, p. 277. //- Probate Law and Practice. the necessary training for which would involve the expendi- ture of his entire estate before he reached the age of twenty- one. Under such circumstances, if the court should, upon full investigation, find that the expenditure would be justified, and the ward's entire estate jeopardized for his future advan- tage, the court should authorize the expenditure ; but the ordi- nary application, which simply seeks to shift responsibility from the shoulders of the guardian, where it belongs, to that of a court, which often is not in so good a position to ascertain what is for the best interest of the minor as is the guardian, should be denied. The subject of applications of this character was treated at length, in the learned opinion of Mce Chancellor Emery in a recent case.'° In that case, the Vice Chancellor laid down the rule to be followed, in the following language : "The general policy of the decisions of this state, upon application to the court for an order authorizing the expenditure of the principal of a ward's estate for his support, has been to leave the question of the necessity of the expenditure of the personal estate, both income and the principal, to the judgment of the guardian, in the first instance, subject to affirmance of the orphans' court, on the settlement of his accounts, and in all ordinary cases, this course, which has been followed for over a century, affords protection both to the guardian and the infant."-^ This language was quoted with approval by the Court of Errors and Appeals in a later case.'-- This case, decided b\' the Court of Chancery, which has full inherent jurisdiction in matters of this kind, furnishes the only safe guide to the orphans' court, which by virtue of the act of 1913,-3 was for the first time invested with full jurisdiction over the subject, its jurisdiction before the approval of that act being limited to applications to authorize the use of the principal of a ward's estate. -f'ln re Barry, 61 N. J. Eq., 135. v. Herr, 75 N. J. Eq., 219-223. -^In re Hannah Barry, 61 N. J. Affirmed 77 N. J. Eq., 271. Eq., 135. In re Alexander. 79 N. 221^ j-e Alexander. 79 N. J. Eq.. J. Eq., 226-228. See also Pfefferle 226-228. -"Page 770, supra. CHAPTER XXXVI. APPOINTMENT OF GUARDIANS FOR INCOMPETENTS. AFTER IDIOCY OR LUNACY FOUND BY INQUEST. Statutory Provsions. In cases of idiocy or lunac}' found, the chancellor shall cause to be transmitted to the orphans* court of the county where such idiot or lunatic may reside, a certified copy of all proceedings which may be had thereon, which shall be recorded and filed in the surrogate's ofiice of said county ; and the said orphans' court is hereby directed and required, on further application for that purpose, to appoint some fit and discreet person or persons, guardian or guardians of such idiot or lunatic : and if it shall so happen that the orphans' court of said county shall not be then sitting, it shall and may be lawful for any one of the judges of the said orphans' court, forthwith to call an orphans' court, to be holden at the usual place of holding said court, and the said orphans' court so convened, shall and may proceed to appoint such person or persons as guardian or guardians of the said idiot or lunatic.^ WHERE LUNATIC, WHOSE ESTATE DOES NOT EXCEED $I,000 IS COMMITTED TO ASYLUM AT EXPENSE OF COUNTY. Statutory Provisions. Whenever any person or persons have been adjudged insane, or may hereafter be adjudged insane, by a judge of the court of common pleas, as now provided by law, and have been or may hereafter be, on the certificate of such judge or 'Rev. 1877, P- 601. 2 Comp. Stat., p. 2781, sec. I. 773 774 Probate Law and Practice. judges, committed to or confined in any lunatic asylum in this state, at the expense of any county therein, and it shall appear that such person or persons are seized or possessed of anv property, real or personal, or entitled to any interest therein, it shall be lawful for the orphans' court of the county at whose expense the lunatic or lunatics are maintained to appoint some fit and discreet person or persons as guardian or guardians of such lunatic or lunatics, in the manner as pro- vided in the first section of the aforesaid act,- without its being necessary to have the idiocy or lunacy determined by an in- quest on a commission to be issued out of the court of chan- cery and a certified copy of the proceedings thereof filed and recorded in the office of the surrogate, as is now required by said act ; provided, the estate of which said lunatic or lunatics are so seized, possessed or entitled to shall not exceed the sum of one thousand dollars, to be determined by said orphans" court.^ Provisions of Act Applicable to such Guardians. The provisions of the aforesaid acf* and the supplements thereto shall be applicable to any guardian or guardians after the appointment is made by any orphans' court as above pre- scribed, in the same manner as is now applicable to any guard- ian or guardians appointed under the provisions of the afore- said act.^ WHERE LUNATIC OWNS PERSONAL PROPERTY AND HAS BEEN CONFINED IN ASYLUM FOR ONE YEAR. Statutory Provisions. Whenever any person or persons have been admitted to and confined in any state or county asylum of this state for the insane, upon the certificate of two reputable physicians residing in this state, or may hereafter be admitted and con- fined as aforesaid, and it shall appear that such person or persons are possessed of personal property, and shall have been for at least one year insane and confined in any insane -2 Comp. Stat., p. 2781, sec. i, p. ■'2 Comp. Stat., p. 2781, sec. i, p. 71Z, supra. 773, supra. 32 Comp. Stat., p. 2785, sec. 3-e. ^2 Comp. Stat., p. 2785, sec, 3-f. Guardianship of Ixco.\lPKTE^•T^ //o asylum of this state, or where such person or ]>ersons lia\e been confined in any asylum of this state for the insane for ten consecutive years, upon the certificate of one reputable physician, and no inc|uisition of lunacy shall have adjudged such person or persons an idiot or lunatic, it shall be lawful for the judge of the orphans" court (if the county in which the lunatic shall have been a resident when committed, to ap- point any one of the next of kin or other proper person as guardian or guardians of such lunatic or lunatics in manner provided by law governing the appointment of guardians by the orphans' court.'' Petition — Form and Contents. In all applications under the i)receding section, a petition duly verified b\' oath of the petitioner shall be presented to said judge, which petition shall set forth the name or names, when, where and how long confined, and the age of such person or persons possessing such personal property, the value of the same, and what it consists of. whether in money or se- curities, and what relationship said lunatic or lunatics bear to the petitioner ; and. provided further, that the affidavits of two physicians connected with said asylum for the insane, one of whom shall be the superintendent or medical director thereof, shall be attached to said petition and form a part of the same, giving a full medical history of said insane person or persons while confined in said asylum for the insane, when admitted, and if still a patient or patients, and In- reason of insanity not capable to receive, manage or take care of said personal property.' FOR NONRESIDENT IDIOT OR LUNATIC. Statutory Provisions. When any person residing out of this state hath ])ccn or shall be duly found and proved to be an idiot or lunatic, according to the laws (jf the state, territory, nation or kingdom where such idiot or lunatic shall reside, it shall and may be lawful for the orphans' court of any county in the state in ^2 Comp. Stat., p. 2786. sec. 3-h. ^2 Comp. Stat., p. 2786, sec. 3-I1. 776 Procate Law and Practice. which any property or real estate of such idiot or lunatic may be found or situate, or for the ordinary of this state, upon application made to them for that purpose, and upor. exhibiting to the said court and tiling in the surrogate's office of such county, or with the register of the prerogative court, an exemplified copy of the proceedings upon such inquest or finding of idiocy or lunac*', or upon proof being made that an inquest has found the said person to be an idiot or lunatic, and that such person is yet an idiot or lunatic, to make an order that cause be shown before the court to whom such •application may be made, at a certain time and place therein to be expressed, not less than thirty days nor more than six months from the time of making such order, why a guardian should not be appointed for the said idiot or lunatic, which order shall be served or published in such manner as the said court shall direct ; provided, that when it shall appear to the court that the person making such application for the appointment of guardian has been appointed guardian, trustee or committee of such idiot or lunatic in the state or king- dom where the said person may have been found by an in- quest an idiot or lunatic, in that case the said court may at once appoint the person making the application guardian of such idiot or lunatic, without the order to show cause as above stated.® Procedings on Return of Rule to Show Cause. The said orphans' court, at the time and place mentioned in the said order, or at such other time and place as they may then appoint, shall hear and examine the allegations and proofs of the party making such application, and of other persons interested, if any shall apply to be heard; and if the court upon examination, shall be of opinion that letters of guardian- ship for the said idiot or lunatic ought to be issued, then the said court shall appoint such person or persons, as they may approve, guardian or guardians of the said idiot or lunatic.^ sRev. 1877, p. 602, as amended »Rev. 1877, p. 602. 2 Comp. by P. L. 1890, p. 507. 2 Comp. Stat., p. 2784, sec. 3. Stat., p. 2783, sec. 2. Guardianship of Incompetents. 777 Jurisdiction of Orphans' Court. Under the prox isions of the preceding section, the orphans' court has power, upon application for that purpose, and upon proper proceedings and proofs, to appoint a guardian of a hmatic residing in another state, but having property here, and. in its discretion, may appoint as such guardian a person within this state or the committee of said lunatic in the foreign state.'" Effect of Application to Orphans' Court. Where proceedings for the appointment of a guardian for a lunatic residing in another state had already been begun in the orphans' court, and that court had obtained jurisdiction over the subject matter, a petition in the Court of Chancery praying a decree for the payment of moneys belonging to the lunatic, and then in its control, to the committee of the lunatic in a foreign state, and to enjoin further proceedings to appoint a guardian in the orphans' court, was held to have been prop- erly denied." JURISDICTION OF CHANCELLOR TO APPOINT GUARDIAN FOR LUNATIC WITHOUT IN- QUISITION FOUND. Statutory Provisions. The statute of 1915^' provides that whenever it shall be made to appear to the Chancellor, by duly verified petition, that any person, resident of this state, is an idiot or lunatic, and that no inquisition of lunacy has been issued to determine such idiocy or lunacy and that no guardian for such idiot or lunatic has been appointed by the orphans' court of the county in which such idiot or lunatic resides, and that said idiot or lunatic is possessed of real or personal property, it shall be lawful for the Chancellor to ascertain, in a summary manner, the truth of the allegations of the said petition, and to api)oint a guard- ian for such idiot or lunatic. The act further authorizes the Chancellor to iiKjuire into and determine the question of insanit}-. and to order sale of land of such insane person. '"Brown v. Wallis. 63 N. J. Eq., I'Brown v. Wallis. 63 N. J. Eq., 791. 791- ^-P. L. 1915. P- 57- 7/8 Probate Law and Practice. WHO ENTITLED TO LETTERS. In General. Tlie nearest of kin of an idiot or Innatic, in the absence of special circumstances disqualifying them, are entitled to guard- ianship ; but if the applicant be one of several in equal degree, he will be required to produce either the renunciation and consent of those e(|uall}- entitled with him, or proof that at least five days' notice of his application has been given to them. The court, however, is not bound to select the guardian from among the next of kin. The statute authorizes the appoint- ment of "some fit and discreet person"; and, while the court will usually appoint one of the next of kin guardian, still when it appears for the best interests of the lunatic to select one other than the next of kin, the court has the power so to do. BOND OF GUARDIAN. Guardian to Give Bond — Condition of Bond. Every person appointed guardian as aforesaid shall, before he enters upon the duties of his appointment, enter into bond to the ordinary of this state, and his successors in office, with two or more sureties being freeholders, approved of by the orphans' court, in such sum as said court shall order and direct, conditioned that the said guardian shall well and truly take care of the person and estate of said idiot or lunatic, and of all writings and evidences touching his or her lands, and render the same to such person or persons as by law are or may be entitled to receive the same, and render a just and true account of the rents, issues and profits of the real estate of the said idiot or lunatic, and if any part should be ordered to be sold, that he or she will render a just and true account of the money arising on the sale thereof, and in the meantime improve the said lands and tenements to the best advantage, and that he or she commit no waste or destruction thereof or thereon, and also that he or she will render a true account of the expenditures and disbursements of the goods, chattels Guardianship of Incompetent-. 779 and personal estate of said idiot or lunatic, that shall come to his or her hands. ^" \\'hile this section is a part oi the Revision of 1877. which l)rovided only for the appointment of a guardian after inqui- sition found, still the later acts ])roviding for the appointment of a guardian, under certain conditions, without an incjuisition, are in form supplements to the Revision of 1877, and are thus engrafted thereon. The provisions of this section therefore apply to the bonds of all guardians of idiots and lunatics, whether appointed after inquisition found or under the pro- \ i^i()ns of one of the later acts. Amount of Bond. The practice is for the court to require the guardian to give a bond in double the amount of the personal property which will come into his hands. \\'here the lunatic is possessed of real estate or other property producing an income, the same rules should be followed in fixing the amount of his bond as are heretofore laid down for fixing the amount of the bond of the guardian of a minor under like circumstances.'^ New Sureties May be Required. The orphans" court, when they shall know ov ha\'e cause to suspect that the sureties of a guardian of an\- idiot or luna- tic, or any of them, are or is failing, or in dubious circum- stances, may require said guardian to give additional surety or sureties, and if he or she refuse or neglect so to do, may displace him or her and on application ap])oint another person guardian to said idiot or lunatic.'"' APPOINTMENT OF NEW GUARDIAN AFTER DEATH OF FIRST APPOINTEE. New Guardian to be Appointed in Case of Death. In case of the death of any guardian of any idicjt or lunatic. appointed under this act, it shall be lawful for said orplian^' i3Rev. 1877, p. 604. 2 Comp. i-^'Rev. 1877. p. 604. 2 Comp. Stat., p. 2793, sec. 15. Stat., p. 2793, sec. 16. ^*See "Amount of Bond," ]). 316, supra. 780 Probate Law and Practice. court forthwith to appoint another guardian for such idiot or lunatic, if said court be then sitting; and if the said orphans' court be not then sitting, it may be lawful for any one of the judges of said court to call a special orphans' court for that purpose, in the manner directed in the first section of this act.i« POWERS AND DUTIES OF GUARDIAN. General Powers of Guardian. The guardian of a lunatic is a mere curator, without title in the property of the lunatic. As such curator, he possesses the power to repair and improve, for the purpose of pre- serving the estate of his ward ; but the right to exercise any control over the property of his ward, Ijeyond this, must be found in some legislative grant.'' Statutory Powers and Duties. Such guardian shall have the care and safe keeping of said idiot or lunatic, his or her lands, tenements, goods and chattels, that the said idiot or lunatic may live and be com- petently supported and maintained by and out of his or her goods, chattels and the profits of his or her lands and tene- ments, and that no waste or destruction of his or her. lands or tenements be done or permitted, and such lands shall in no wise be aliened, saving that the same be done by authority of this or some other statute of this state. Init shall, upon the death of any such idiot, descend and go to his or her heirs, and the residue of the goods, chattels and profits of said idiot, after payment of his or her just debts, shall go to and be dis- tributed according to law among his or her next of kin ; and in case any such lunatic shall come to his or her right mind, that the lands and tenements, with the residue of the goods, chattels and profits of such lunatic, be restored to him or her. and in case he or she shall die in his or her lunacy, such lands i6Rev. 1877, p. 604. 2 Comp. I'Cooper v. Wallace. 55 N. J. Stat, p. 2793, sec. 17. For pro- Eq., IQ2. Van Horn v. Hann, 39 ceedings to require account from N. T. L., 207. personal representative of deceas- ed guardian, see p. 783, infra. Guardianship of Incompetents. 781 and tenements shall descend and go to his or her heirs, and the residue of the goods, chattels and protits, after payment of his or her just debts, shall go to and be distril)uted according to law among such lunatic's next of kin.^* While the foregoing provisions form a part of tlie Revision of 1877, providing for the appointment of a guardian after an inquest found, they unquestionably apply to guardians ap- pointed under the later acts, which are as has been before said, in form supplements to the Revision of 1877 and thus en- grafted thereon. Support of Family. The husband is liable for all things necessary for the com- fortable support and maintenance of his wife and family, con- sistent with his station or condition in life : and this liability continues notwithstanding his insanity. It follows, therefore, that the estate of an insane person is liable for the proper support of his wife and family.^^ Funeral Expenses of Wife. A husband is liable to defray all necessary expenses inci- dent to the decent burial of his wufe, and the insanity of the husband does not destroy that liability ; the estate of an insane person is therefore liable for the same, and, where the guard- ian of a lunatic pays such funeral expenses, he is entitled to re-imbursement out of the proceeds of the sale of his ward's real estate, although the wife, by will, directed that such expenses should be paid from her separate estate. Under such circumstances, however, there is strong reason for insisting that, since the wife had a separate estate and by her will charged it with the payment of her funeral expenses, in equity, if not in law, she intended to exonerate her husband's estate from all lial)ility therefor; and to guard against mistake, the guardian should file his claim ior these expenses with the executor of the wife's will.-" J«Rev. 1877, p. 6or. 2 Comp. ^ojn re Stewart, 22 Atl. Rep.. Stat., p. 2781, .sec. I. 122. '^In re Stewart. 22 .\t\. Rep., 122. 782 ^ Probate Law and Practice. Debts of Insane Person. The statutes-^ clearly provide that the guardian should pay all of the debts of the insane person ; and equity will require the guardian of a lunatic to redeem, for the benefit of the wife, her jewels, pawned by the husband, while sane, to pay his personal expenses, the proceeds being actually so applied. -- Jurisdiction of Court to Order Use of Principal for Support of Ward. The orphans' court has jurisdiction to authorize the use of the principal of the idiot's or lunatic's personal estate, or such part thereof, as it may deem for his best interests.-'' The principles governing applications of this character are fully con- sidered elsewhere.-^" Jurisdiction of Chancery to Instruct Guardian as to His Duties. Where the duty of a guardian is a matter of doubt, it is his right to ask and receive the aid of a court of equity in the execution of his trust ; as caretaker of the estate of the noii compos, there may clearly occur occasions when the direction of a court of equity may be properly invoked concerning the line of conduct which the guardian should follow in his efforts to preserve the estate.-^ DUTY OF GUARDIAN TO ACCOUNT. In General. It shall be the duty of every guardian of any idiot or luna- tic once in three years, and oftener, in case the orphans' court shall so order and direct, to render to the orphans' court from Avhom he or she received his or her appointment as guardian, a true account of his or her administration of the estate of the said idiot or lunatic, and he or she may be cited by -^2 Comp. Stat., p. 2781, sec. i, -^''See "When Order Should Be p. 773^ supra. 2 Comp. Stat., p. Granted," p. 771, supra. 2787, sec. 4, as amended by P. L. -*Cooper v. Wallace. 55 N. J. 191 1, p. 70, p. 786, infra. Eq., 192. See also P. L. 1903, p. 22Harrairs Case 31 N. J. Eq., 112. 2 Comp. Stat., p. 2792, sec. loi. 14-I. -^2 Comp. Stat., 2633, sec. 19. Guardianship of Incompetents. yS^ the said court to do the same, on" the application of any one of the heirs or next of kin to the said icHot or lunatic.-"' Accounting by Guardian After Death or Coming of Sane Mind of Ward. On the death of any such idiot or lunatic, or the coming of sane mind of any lunatic, the guardian of such idiot or lunatic may be compelled to render an account of his or her administration of the estate of such idiot or lunatic to the orphans' court, in the same manner as executors and adminis- trators are compelled by law to render an account of the ad- ministration of the estate of testators and intestates.-*^ Accounting by Guardian Appointed by Chancellor. Where a guardian for a lunatic has been appointed by the Court of Chancery, the general jurisdiction of equity extends over such guardian, and he should account in that court. The foregoing section of the statute requiring guardians of idiots and lunatics to file their account in the orphans' court applies only to guardians appointed by that court, and does not extend to a guardian appointed by the Court of Chancery ; and the Court of Chancer}- may call upon him to render an account of his trust.-" Representatives of Deceased Guardian to Account. \\'henever a new guardian is appointed, as aforesaid, upon the death of a former guardian of any idiot, or lunatic, the executor or executors, administrator or administrators of every such deceased guardian, shall account to such new guardian for all ]M-operty of such idiot or lunatic in their possession or under their control ; or. if required, shall ac- count for the same before the said orj^hans" coifrt. upon a citation issued for that pur])ose. at the instance of such new- guardian.-* -5Rcv. 1877, p. 604. 2 Comp. 27Compton's Case, 70 N. J. Eq.. Stat., p. 2793, sec. 19. 556. -6Rev. 1877, p. 604. 2 Comp. ^kr^.^. jg^-^ ^ ^^ ^ Comp. Stat., p. 2793. sec. 19. Stat., p. 2793, sec. 18. 51 ^84 Probate Law and Practice. DEVOLUTION OF PROPERTY ON DEATH OF LUNATIC. Statutory Provisions. In case of the death of any idot or kmatic, when the lands, tenements, hereditaments or real estate, or any part thereof, hath been sold by order of the orphans' court, and at his or her death personal estate shall remain in the hands of the guardian more than sufficient to pay the just debts of such idiot or lunatic, so much thereof as shall be equal in value to the real estate so sold, shall be deemed and taken to be real estate, and go to the heirs of the deceased ; the personal estate and the rents, issues, and profits of the real estate being the funds first to be applied to the support and maintenance of the idiot or lunatic.-^ APPOINTMENT OF GUARDIANS FOR DRUNKARDS. Jurisdiction of Court. It shall be lawful for the court of chancery to issue a com- mission in the nature of a writ de lunatico inquirendo, as heretofore practiced and allowed, and returnable thereto, to inquire into the habitual drunkenness of any person in this state, and in case of habitual drunkenness found, by reason of which such habitual drunkard has become incapable of con- trolling or managing himself or his estate, or is wasting his estate, the chancellor shall cause to be transmitted to the or- phans' court of the county where such habitual drunkard may reside, a certified copy of all proceedings which may be had thereon, which shall be recorded and filed in the surrogate's office of said county, and thereupon the said orphans' court, upon application for that purpose, is hereby directed and required to appoint a guardian or guardians for such habitual drunkard, who shall have the same power over the person and estate of such habitual drunkard, and perform the same duties, and be subject to the same liabilities, as are conferred on and required of the guardian or guardians of an idiot or lunatic by the act entitled, "An Act Concerning Idiots and -'jRev. 1877, p. 604. 2 Comp. Stat., p. 2793. sec. 19. Guardianship of Incompetents. 785 Lunatics," approved April sixteenth, one thousand eight hun- dred and forty-six. ^° Extent of Jurisdiction. It is apparent, from an examination of the statutes, that the legislature designed not only to place the original appoint- ment of guardians of the estates of persons found to be habit- ual drunkards under the jurisdiction of the orphans' court, ])ut to give that court the necessary control over the guardian.s appointed by them, to secure, so far as it might be done by the exercise of the powers conferred on the court to that end, fidelity in the discharge of their duties and protection not only to the estates committed to their hands, but also to their sureties ; and the orphans' court has as full power, control and jurisdiction over such guardians as over those appointed for infants.-^ Control of Property Vested in Guardian. After such inquisition found as aforesaid, and until the same be determined, such habitual drunkard shall be divested of all power and control over and legal estate in his property, real, personal, or in action, and the same shall be vested in hi^ guardian in trust for him, and no contracts made In' him shall hind either his j^erson or estate. "'- Guardian May Apply to Court for Instructions as to Management of Estate. It shall be lawful for the guardian of any habitual drunk- ard, by petition in writing, to the court of chancery or the orphans' court, to apply for an order directing what amount may be expended by such guardian for the support and main- tenance of said drunkard or that of his or her family or household, out of his or her personal estate and the income thereof, and the profits of his or her lands and tenements, or directing the payment of any debts of said drunkard or his or her family, or otherwise directing said guardian in relation 302 Comp. Stat., p. 2797, sec. 25. ^-Rew 1877, p. 325, sec. 4. 2 3iDickerson v. Dickerson, 31 N. Comp, Stat., p. 27C)S, sec. 28. J. Eq., 652. 786 Probate Law and Practice. to the management and preservation of the estate of said drunkard, and the court of chancery or the orphans' courts are hereby authorized, on investigation of the matter in said petition alleged, to make such order or decree as shall be equitable and just in the premises, and to direct what notice if any, shall be given of the proceedings to be had under such application ; and the costs of such application and proceed- ings thereunder shall be paid out of the estate of said drunk- ard. ^^ Sale of Lands. The like powers are hereby conferred on the orphans' courts, and the like proceedings shall be had relative to a sale of timber or lands of an habitual drunkard, as are required in the act entitled, "An act concerning idiots and lunatics," afore- said.^* Distribution of Estate and Descent of Land of Drunkard at Death. Upon the death of any such habitual drunkard, intes tate or without any will, except such as was executed during the existence of said inquisition, his personal estate shall be distributed according to law among his next of kin, and his land shall descend and go to his heirs. ^^ Sale of Intoxicating Liquors to Drunkard After Notice — Penalty. If any innkeeper, distiller, grocer, or other person, shall receive notice from the guardian of the estate of an habitual drunkard, not to furnish or supply him intoxicating liquor and shall after such notice sell, or in any manner furnish, or supply any intoxicating liquor to such drunkard, or any person for him, every person so selling or furnishing shall forfeit and pay the sum of ten dollars, for each and every time he or they may sell or furnish the same, to be recovered 33P. L. 1910, p. 157,, sec. I. 2 2 Comp. Stat., p. 27^7. sec. 4, p. Comp. Stat., p. 2798, sec. 33. 787, infra. 3*Rev. 1877, p. 325, sec. 3. 2 ssRev. 1877. p. 325. sec. 2. 2 Comp. Stat., p. 2798, sec. 27. See Comp. Stat., p. 2797, sec. 26. Guardianship OF Ixcompi-tents. 7^7 ill an action of debt, one-half to any person who shall sue fur the same, and one-half tcj ihe overseers of the poor of the township in which suit may !)e brought.-^" SALE OF LANDS OF IDIOTS, LUNATICS AND HABITUAL DRUNKARDS. Jurisdiction of Court. If any idiot, lunatic or habitual drunkard is justly indebted to any person or persons, or if any person or persons shall have advanced moneys, purchased necessaries or rendered services on account of any such idiot, lunatic or habitual drunk- ard, for his or her care, support or maintenance or for the preservation or benefit of his or her estate, beyond the ability of any such idiot, lunatic or habitual drunkard t(o pay the same out of the income of the estate, real and personal, of such idiot, lunatic or habitual drunkard, or in case the income of such idiot, lunatic or habitual drunkard, including the profits, of his or her personal and real property, shall be insufficient for his or her support and comfortable maintenance, and that of his or her household, if any he or she shall have, it shall and may be lawful for the Chancellor of this state or the Or- phans' Court of the county in which the lands and tenements of any such idiot, lunatic or habitual drunkard shall be situate, on full investigation of the situation and circumstances of the idiot's, lunatic's or habitual drunkard's real and personal estate, and of the just debts owing by him or her, and of the advances that have been made on his or her account, and of the services rendered for him or her or for his or her estate, from time to time, to order the guardian of said idiot, lunatic (jr habitual drunkard to sell so nmch of the timber, grow- ing or being upon the lands of said idiot, lunatic or habitual drunkard, or to sell such ])arts of the said idiot's, lunatic's or habitual drunkard's lands, tenements, hereditaments or real estate, or to use so much of any money or proceeds of sale received from the sale, already made, of any real estate or personal property of said idiot, lunatic or habitual drunk- 36Rev. 1877, p. .325, sec. 6. 2 Comp. Stat., p. 270R, sec. 30. 788 Probate Law and Practice. ard, as the Chancellor or said Orphans' Court shall direct and judge sufficient to pay his or her just debts and the advances as above-mentioned, and proper and necessary for his or her support and maintenance, and for the support of his or her household, if any he or she have."' Application for Sale — Form and Contents. The application to the orphans* court for an order directing a guardian to sell the lands of his ward should be by petition, verified by the oath or affirmation of the party making the same.^* Report of Sale to Orphans' Court. After the lands, tenements and real estate of such idiot or lunatic so ordered to be sold, shall be sold, said guardian or guardians shall make report in writing, of all proceedings thereon, to the next orphans' court after such sale."" Form and Contents of Report. The report of sale is required to be under oath,'*'* to state the names and addresses of all parties in interest, and to have annexed thereto affidavits of at least two persons familiar with the value of property in the neighborhood where the lands so sold are located, giving the fair market value of the lands and premises so sold.*^ Notice of Intention to Report Sale for Confirmation. Notice of the intention of any guardian to make report of any sale to the orphans' court shall, unless the court shall other- wise direct, be given to all persons in interest. *- Service of Notice. Five days' notice of such application shall be given to all persons in interest who are residents of the state of New 3'2 Comp. Stat., p. 2787, sec. 4, ■"^Orphans' Court Rule 33, p. as amended by P. L. 191 1, p. 70. 763, supra. 380rphans' Court Rule 33, see ^^Orphans' Court Rule 34, p. p. 763, supra. 763, supra. 39Rcv. 1877, P- 60Z 2 Comp. ^^Orphans' Court Rule 35, p. Stat., p. 2788, sec. 5. 764, supra. GUAkDlAXSillP OF IXCOMI'ETENTS. 789 lersey, and not less than five, nor more than sixty, days' notice, as the court may by order direct, to all such persons in interest who shall reside without the state of New Jersey, which last mentioned notice ma\ he sent 1)\ mail, with the postage thereon prepaid/" Bond of Guardian on Sale of Land. The Orphans' Court, on granting an order to a guardian to sell land, or timber on the land of his ward, shall examine as to the sufiiciency of the bond of the guardian previously given, and if, in its judgment, said bond is insufficient, it shall require the guardian to give such additional bond for tjie faith- ful execution of his office as. in its judgment, shall be ade- quate.** Guardian's Deed — Form and Effect, The said guardian or guardians shall make a deed to the purchaser or purchasers, for the lands, tenements, heredita- ments and real estate so sold, which deed shall set forth the said order at large, and shall vest in the purchaser or pur- chasers, as good and perfect an estate in the premises so sold, as the said idiot or lunatic shall be seized of or entitled to at the time of making said order by the court.*'"' Payment of Proceeds of Sale to Non-Resident Guardian. Whenever any such sale shall have been made by order of the Chancellor as aforesaid, or whenever any idiot or lunatic shall be entitled to property of any description in this state, and such idiot or lunatic shall be a non-resident and shall have a guardian in the state or place of his or her residence, and such non-resident guardian shall produce an exemplification from under the seal of the office (if there be a seal) of the court in the state or place of his residence, containing all the entries on record in relation to his appointment and giving bond, or of appointment only, when the said non-resident guardian is a cor])oration or ])ublic official (|nalifie(l to act as ^sOrphans" Court Rule 35, p. '•■^Rev. 1877, p. 602. 2 Comp. 764, supra. Stat., p. 2788, sec. 6. ^^Orphans' Court Rule 36. 790 Probate Law and Practice;. guardian without giving bonds, and authenticated as required by the act of Congress in such cases, or if the non-resident guardian shall produce a certiticate of a court or public official of the State, province or place where he holds office, certifying that he is such guardian and under the law, is not required to give bond as such guardian, the Chancellor, or the ordinary, or Orphans' Court of the proper county in this State may cause suitable orders to be made, authorizing the delivering and pass- ing over the proceeds of any such sale, or any property in this State to which such idiot or lunatic may be entitled, to such non-resident guardian, and discharging any resident guardian, executor* administrator or trustee, and requiring receipts to be passed and recorded if deemed advisable ; provided, that » thirty days' notice shall be given to the resident guardian, executor, administrator or trustee of the intended application for the order of remo\'al, unless it shall appear to the court that such notice has been waived, or that the application is made by the resident guardian, and the court may reject the application and refuse such order whenever it is satisfied that it is for the interest of such idiot or lunatic that such removal shall not take place. ^'' JURISDICTION OF ORPHANS' COURT TO AUTHORIZE REMOVAL FROM THE STATE OF PROPERTY. When Court May Make Such Order. In case any guardian and his ward are both residents of another state or of a foreign country, and such ward is entitled to any property, real or personal, in which shall be included property or money in the hands of any resident guardian, any legacy or distributive share in the hands of any execu- tor or administrator in this state, moneys in the hands of any commissioner, officer or other person, being the proceeds of the sale of lands under any judicial proceedings, or awarded as damages for the taking of lands under any legislative au- thority, or deposited in any court of this state, arising from the sale of any property of such ward or otherwise, and moneys *^2 Comp. Stat., p. 2789, sec. 14, as amended by P. L. 1914, p. 551. Guardianship OF Incompetents. 791 or funds under the direction or control of the chancellor, it shall be lawful for the ordinary or the orphans' court of the proper county to make an order that such guardian may receive the rents, issues and profits of such real estate, and demands, sue for, collect and receive such legacy, distributive share, moneys or other personal property, and remove the same to the place of the residence of himself and ward; and the delivery, transfer or payment of such property or money to such guardian after the making of such order shall be a legal discharge and acquittance for the same/' Construction of Statute. This act does not contemplate a litigation to establish the amount due to the ward. In proceedings under this act, where the property sought to be removed is a deljt due to the ward, it is not incumbent on the court to settle the question whether a debt is due or not, except so far as may be necessarv to satisfy it that there is property to he removed, what it is, and the amount of it ; that is, so far as may be necessar\- to enable the court to adjudicate upon the matters wdiich are submitted to it in the proceedings — the sufficiency of the security, whether it is for the interest of the ward that the removal should take place, whether the removal will conflict with any terms or limitations attending the right by which the ward owns or is entitled to the property, and whether the interest of any citizen of this state in the property may be prejudiced by the re- moval.^* Proceedings to Obtain Order. Before any such order as is mentioned in the last section shall be made, proof to the satisfaction of the ordinary or orphans' court shall be made, by certificate, according to the acts of congress, in case the guardian and ward reside in another state, or by attestation under the seal of the court wherein, or officer before whom the proceedings were had. if their residence be in a foreign country, of the appointment of such guardian, and that he has given ade(|uate security *~2 Comp. Stat., p. 2629, sec. 6. -"^Mahnken's Case, 36 N. J. Eq., 518. 792 Pkobate -Law and Practice;. as such guardian in double the amount in value of such prop- erty, over and above the value of the property of such ward in the place of his residence ; and in case the ordinary or orphans' court shall not be satisfied with the sufficiency of such security, additional security, to be given in this state, ma}" be required in such form as the ordinary or court shall direct.*'* Notice of Application, Twenty days notice of an application for the removal of property under the preceding section shall be given to thfc resident guardian or the executor or administrator in whose custody such property shall be, and the ordinary or orphans' court may direct notice of such intended ajjplication to be given to other persons interested ; proz'ided, nevertheless, that the ordinary or orphans' court may reject such application and refuse such order whenever it shall appear that it is for the interest of the ward that such removal shall not take place ; and no order shall be made in any case where such removal will conflict with the terms or limitations attending the right by which the ward owns or is entitled to such prop- erty, or the interests of any citizen of this state in such prop- erty may be prejudiced. ^° Miscellaneous Jurisdiction of Chancery in Connection With Estates of Lunatics. The statute provides for various proceedings in relation to the estates of idiots and lunatics which, while not within the scope of this work, should be referred to. Thus, where an incompetent is a member of a partnership, the chancellor may, on application of the partner of such lunatic, dissolve the partnership ;^^ and where the lands of any idiot or lunatic are subject to an estate by the courtesy or in dower, or to an estate for life or for years devised to any woman in lieu of dower, such tenant by the curtesy or doweress may elect to accept such gross sum in lieu thereof as may be approved by the Chancellor, who may order the payment of such sum to the *«2 Comp. Stat., p. 2630, sec. 7. ^'^2 Comp. Stat., p. 2790. sec, 5°2 Comp. Stat., p. 2630, sec. 8. 14-a, Guardianship of Ixco.mpetexts. 793 tenant in curtesy or dower.''- Tlie guardian of an idiot or lunatic may apply to the Court of Chancery for directions as to what amount he shall expend yearly for the support and maintenance of such idiot or lunatic, or of his household.''^ Where any power, discretionary or otherwise, is vested in, or the exercise of any power is dependent upon the consent of a person of unsound mind, the court may, ui)on the application of his guardian, authorize and direct him to exercise such power or execute such consent.^'' Where it is represented to the Chancellor, upon the appli- cation of the guardian of any incompetent person, that it would be advantageous to him or his family that a dwelling house should be purchased for the use of such incompetent and his family, the Chancellor may order the guardian so to do/"'^ Where the income of an incompetent is more than sufficient for his supi)ort and that of his family, the court may order that such surplus income be applied by the guardian of such incompetent to the support of his indigent relatives. ^"^ Whenever any person of unsound mind is seized or possessed of any real estate by way of mortgage, or as a trustee for others in any manner, his guardians may apply to the court for authority to convey such real estate to any person entitled to such con\eyance,''' and the person entitled to such con- veyance ma\- apply to the court for relief.^* The court also has power to compel the specific performance of any contract made by such incompetent while he was of >oun(l mind.^^ 5-2 Comp. Stat., p. 2790, sec. ^^'•2 Coinp. Stat., p. 2792, sec. 14-b. 14-ni. 5"2 Comp. Stat., p. 2791, sec. ^~2 Comp. Stat., p. 2791. sec. i4-d- 14-e. 5^2 Comp. Stat., p. 2792, sec. ^^2 Comp. Stat., p. 2791, sec. i4-j- 14-f. 5^2 Comp. Stat., p. 2792, sec. ^>^2 Comp. Stat., p. 2791, sec. 14-I. 14-h. PART V. Adoptiox of ]\rixoRs. CHAPTER XXXVII. ADOPTION OF MINORS. A Statutory Proceeding, The adoption of children, although a practice of great an- tiquity, recognized by the civil law througliout its entire history. and observed in countries whose jurisprudence is founded upon that law, was unknown to the common law, and exists in states which have inherited that system of jurisprudence only by virtue of some statute.^ In applying statutes of this kind, courts have uniformly held that the statutory mode prescribed is the measure of their power, and that an adoption is invalid unless made in pursuance of the essential requirements of the statute. - Jurisdiction of Orphans' Court. It shall ])e lawful for any person, of full age, not married, or any husband, with his wife's consent, or any wife, with her husband's consent, or any husband and wife jointly, to petition the orphans' court of the county wherein any minor child may reside, or of the county wherein any such petitioner may reside, for permission to adopt such minor child, and for a change of name of such child.' iHillers v. Taylor. 69 A., 715, McCormick, 108 Wis.. 234. 84 (Md.). Appeal of Woodward, 70 N. W., 148. Furgeson v. Jones, A., 453. (Conn.), i Cyc. p. 917. 17 Or.. 204. 20 Pac. 842. Watts ^Matter of Thome's Will, 155 v. Dull, 184 111., 86. 56 N. E., 303. N. Y., 140. 49 N. E., 661. In re Taber v. Douglass. loi Me.. 363. Johnson, 98 Cal., 531. 33 Pac, 64 Ad. Rep., 653 Appeal of 460. .Shearer v. Weaver, 56 Iowa, Woodward, 70 At!. Rep., 453. 578. 9 N. W., 907. Long V. Hew- ^p l 1902, p. 259, sec. i, a.i itt, 44 Iowa, 363. In re Humph- amended by P. L. 1905, p. 272. 2 rey, 137 Mass., 84. In re Estate of Comp. Stat., 2807. sec. 13. ■97 7g8 Probate Law and Practice. Consent of Parents. The written consent of the parents of such child to such adoption must be obtained and presented with the petition, luit if either parent be dead, unknown, insane or habitually intemperate, or shall have abandoned the child, or shall have been divorced from the father or mother of said child because of his or her adultery or desertion, then the consent of the other parent shall be sufficient.* What Constitutes Abandonment. The statutory notion of abandonment does not necessarily imply that the parent has deserted the child, or has ceased to feel any concern for its interests. It may fairly import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child, even though there is no actual abandon- ment.^ It does not follow that the purpose may not be repented of, and. in proper cases, all parental rights again acquired, in- cluding this statutory right of preventing adoption by with- holding consent ; but, when once the abandonment is shown to have existed, it becomes a judicial question whether it really has been or can be terminated, consistently with the welfare of the child. When, in pursuance perhaps of the implied al:)andonment, new ties have been formed, and a new station in life has l^een taken by the child, it might be unjust, that, solely l)ecause of the parents' caprice, legal sanction should be refused to the new conditions. Under such conditions, a court might lawfully deem the abandonment irrevocable, so far as the claims of the parent are concerned.'' Thus where a child was permitted by its parents to live with others from the time it was less than one year old until it reached the age of ten years, and such child was nurtured, maintained and educated, both secularly and religiously, as the daughter of the persons with whom it was living, in a manner warranted by their con- siderable wealth, but far beyond that of its parents, and such *P. L. 1902, p. 259, sec. I, as 503. W'inans v. Luppie, 47 N. T. amended by P. L. 1905, p. 272. 2 Eq.. 302. Comp. Sta., p. 2807, sec. 13. "^Winans v. Luppie, 47 N. J. ■'■Wood V. Wood, TJ N. J. Eq., Eq.. 302. Adoption of ^Minors. 799 child received a new christian name, as well as the name of the persons with whom it was li\ing. it was held that there was an implied abandonment of the child by its parents;' and so where a girl six years old was placed by her father, with her mother's consent, in the care of her aunts, with the intention of having her brought up and educated by them, and she had a good home and loved her aunts, and was loved by them and brought up in a much better condition of life than was within the power of her parents to offer and the conduct of her father and mother and of the mother after the father's death, during all the time the child was with her aunts, showed their confidence in the aunts, and their belief that it was for the child's welfare to remain there, and the mother made no ob- jection to the method of the child's bringing up, but after the father's death forcibly seized the child and took her away, apparently to make use of her and to have her "rough it" at home with her younger sisters, it was held, upon an application b}- the aunts for the adoption of the child, that there had been a constructive abandonment of the child by the mother within the meaning of the act.* Where, however, for three years after the birth of an illegiti- mate child the mother maintained it at the home of another woman, when, an abandonment becoming necessary, the mother inserted an advertisement offering the child for adoption, stating that there would be a complete surrender, and that the child might be seen at the home where it was being maintained, it being understood between the mother and the one caring for the child that the mother should be notified if any one cared to take it, and a woman called and took the child, but did not adopt it. the mother not ])eing notified of the taking at the time, nor though she made efforts, able to discover the child's whereabouts for six years, it was held that the mother had not forfeited her rijjfht to the custodv of the child.'' 'Winans v. Luppie, 47 N. J. Eq., 302. See. however. State v. Baldwin, 5 N. J. Eq., 454. ^Wood V. \V'or)(l 77 X. T. Eq. 593- ■'Ifesselman v. 1 iaas, 71 N. J Eq., 68g. 52 8oo Probate Law and Practice. Proceedings Where Consent of Parents Cannot be Obtained. If both parents be dead, unknown, insane or habitually in- temperate, or shall have abandoned the child, then the written consent to such adoption must be obtained from the legal guard- ian of such child, if any there be, or if there be no legal guard- ian, from some discreet and suitable person appointed by the court to be next friend of such child ; provided, hozvever, if the parent or parents shall have granted the custody and control of such child for the full term of its minority to any orphan- age or children's home, or society incorporated under the laws of this state to care for children, or if such orphange or children's home or society shall have otherwise legally acquired the custody and control of such child, then consent to such adoption must be obtained from such orphanage or children's home or society, which consent shall be in writing and under the common seal of the orphanage or children's home or society aforesaid, and the hands of the president and secre- tary thereof; and protnded further, if the child be above the age of fourteen years, its written consent to the adoption and change of name must be obtained.'" All Consents to be Acknowledged. Every consent to be given as aforesaid must be acknowl- edged or proved as deeds of land are required to be.'' Foreign Children's Society Cannot Consent. It is to be observed that the character of an "orphanage," "children's home," or "society to care for children," which may consent to the adoption of a child, is limited by the statute to those "incorporated under the laws of this state." Where, therefore, a society for the care of children, incorporated under the laws of another state, has acquired the custody and control of a minor, a petition for whose adoption is pending in an orphans' court in this state, that court can only acquire juris- diction in one of the other two methods prescribed by the act, lop. L. igo2, p. 252, sec. I. as "P. L. 1902. p. 259, sec. i, as amended by P. L. 1905, p. 272. 2 amended by P. L. 1905. p. 272. 2 Comp. vStat.. p. 2807, sec. 13. Comp. Stat., p. 2807, sec. 13. Aix)PTiox OF Minors. 8oi i. e., by the consent of the parents, or by proof of the abandon- ment of the child by the parents. Who May Petition. The statute provides that the person petitioning for the adoption of any minor shall be at least ten years older than the child sought to be adopted ; no adoption heretofore granted in accordance with the ]:)rovisions of this act shall be deemed void or voidable because the petitioner was not of the age required by this act ; but such adoption shall be held in all respects valid and lawful : ]:)rovided such ado])tion was other- wise made agreeably to the proxisions of this act.^- What Petition is to Recite. Such petition shall specify the name, age and ])lace of resi- dence of the petitioner and of the child, and the name by which the child shall be known ; whether such child be pos- sessed of any property, and the full description of the prop- erty, if any: whether such child has either father or mother, or both, living; in case he, she or they are alive, then the name or names and place of residence of such father and mother shall be given, unless proven to be unknown to the petitioner.'" Petition to be Verified. The act requires that all petitions for the adoption of minors shall be duly verified.'* Court to Fix Day for Hearing. Upon the presentation of such petition to the court, the same shall be filed with the clerk of said court, and the court shall appoint a day for the hearing of said petition and the examination, under oath, of the parties in interest, not less than ten nor more than thirty days from the filing of the petition ; and it shall be at the (jption of the court to adjourn the hearing ^-P. L. 1902, p. 259. sec. 2. 2 34P. L. igo2, p. 259. sec. 2. 2 Comp. Stat., p. 2807, sec. 14. Comp. vStat., 2807. sec. 14. '^P. L. 1902, p. 259, sec. 2. 2 Comp. Stat., 2807, sec. 14. 8o2 Probate Law and Practice. of said petition or the examination of the parties in interes; from time to time, as the nature of the case may require. ^^ When Notice of Petition is Necessary. If it shall be necessary, under the provisions of this act, that a discreet and suitable person shall be appointed as next friend to the child sought to be adopted, then and in that case the court shall order a notice of the petition, and of the time and ])]ace when and where the appointment of next friend will be made, to be published in two newspapers circulating in the count^• where said court is located, once a week for three weeks successively ; and at the time and place so designated, and upon due proof of the publication of such notice, the court shall make such appointment, and shall thereupon assign a day for the hearing of said petition and examination of the parties in interest, not less than ten nor more than thirty days from the time of appointing the next friend : provided, the said court may, if the court shall deem it for the interest of said child, omit to make the said order for a notice of the petition and of the time and place when and where the appointment of next friend will be made, and may immediately appoint a next friend for said child, and assign a day for the hearing of said petition and examination of the parties in interest as is herein provided. ^"^ Hearing. Upon the day so appointed, the court shall proceed to a full hearing of the petition and the examination of the parties in interest, under oath, with the right of adjourning tlie hearing and examination from time to time as the nature of the case may require.^' Upon the hearing, both of the petitioners are called to testify in open court, and to substantiate all of the allegations of the petition. If the parent or parents of the child have consented to its adoption, the common practice is to call them as witnesses and prove their consent l)v their testimonv. If an abandon- ''P. L. 1902, p. 259, sec. 3. 2 I'^'P. L. 1902. p. 259, sec. 3. 2 Comp. Stat.. 2S08. sec. 15. Comp. Stat., 2808, sec. 15. i"P. L. 1902. p. 259, sec. 3. 2 Comp. Stat.. 2808. sec. 15. Adoption of Minors. 803 ment of the child is alleged, such abandonment must be proved by the testimony of competent witnesses to the satisfaction of the court. When Court May Decree Adoption — Recitals of Decree. If the court, from the testimony, shall be of the opinion that the facts stated in the petition are true, and that the pe- titioner is of good moral character and of reputable standing in the community, and of ability to properly maintain and educate the child sought to be adopted, having reference to the con- dition in life of the child's parents, and that the best inter- ests of the child would be promoted by such adoption, then the court shall make a decree reciting the facts at length, and the name by which the child shall hereafter be known, declaring and adjudging that from the date of such decree the rights, duties,- privileges and relations theretofore existing between the child and his parent or parents shall be in all respects at an end, excepting the right of inheritance ; and that the rights, duties, privileges and relations between the child and his parent or parents by adoption shall thenceforth in all respects be the same, including the right of inheritance, as if the child had been born to such adopted parent or parents in lawful wed- lock, except only as otherwise provided in this act."' Proceedings to be Recorded. The petition, decree, testimony and proceedings shall ))& recorded at length in a book kept for that purpose and properly indexed ; but testimony taken orally or without subscription by the witnesses need not be recorded ; said book shall become part of the records of the surrogate's ofifice of the county where- in the said court is located, and the surrogate for recording the same shall receive the same fees as for recording a will.''-' EFFECT OF ADOPTION. On Parents of Child. Upon the entry of such decree of adoption the j^arents of the child, if living, shall be divested of all legal rights and ^^P. L. 1902, p. 259, sec. 3. 2 '-'P. I,. 1902, p. 259, sec. 4, 2 Comp. Stat., 2808, sec. 15. Comp. vStat., p. 2808, sec. 16, as amended by P. L. 191^, p. 53. 8o4 Tkobate Law and Practice. obligations due from them to the child, or from the child to them; and the child shall be free from all legal obligations of obedience or otherwise to the parents.-" On Adopting Parents. The adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the- child as if said child had been born to them in lawful wedlock.-^ This provision of the act does not confer upon the adopting parent any right to inherit the estate of an adopted child, and such parent is not entitled to administration upon the estate of a deceased adopted child ; nor can he, if appointed adminis- trator, maintain an action for damages for the death of such adopted child caused by the negligence of another. -- Nature of Relationship. An adopting parent stands /;; loco parentis to his adopted child ; he is liable for its support, education and maintenance, and is entitled to its services and earnings. It is scarcely necessary to add that an adopting parent is not entitled to compensation for the support of the adopted child.-" Effect of Marriage of Adopting Parent. Where a parent has procured a divorce, or a surviving parent, having lawful custody of a child, lawfully marries again, or where an adult unmarried person who has become a foster parent and has lawful custody of a child, marries, and such parent or foster parent consents that the person who thus be- comes the step-father or the step-mother of such child may adopt such child, such parent or such foster parent so con- senting shall not thereby be relieved of any of his or her parental duties toward, or be deprived of any of his or her -'-'P. L. 1902, p. 259, sec. 4. 2 22fjeidecamp v. Jersey City &c. Comp. Star., p. 2808, sec. 16, as R. R. Co., 69 N, J. L., 284. amended by P. L. 1912, p. 53. ssBrown v. Welsh, 27 N. J. Eq.. -'P. L. 1902, p. 259, sec. 4. 2 429. Comp. Stat., p. 2808, sec. 16, as amended by P. L. 1912, p. 53. Adoption of Minors. 805 rights over said child, or to his property by descent or succes- sion.'* Child's Right of Inheritance. The child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock ; provided, said child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the collateral kindred of such adopting parent or parents by right of representation : and proi^ldcd also, on the death of the adopting parent or parents and the subsequent death of the child so adopted, without issue, the property of such adopting deceased parent or parents shall descend to and be distributed among the next of kin of said parent or parents and not to the next of kin of the adopted child ; and provided also, if such adopting parent or parents shall have other child or children, then, and in that case the children by birth and by adoption shall respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock.-^ Where property is devised to testator's son for life, with remainder to his children, an adopted son of the life-tenant is not entitled to share in such remainder. Section 4 of the statute,"'' provides that the child shall be invested with the ■'rights of inheritance of real estate, or to the distribution of personal estate, on the death of such adopting parents, as if born to them in lawful wedlock." Section 3 of the act,-^ pro- vides that "the rights, duties, privileges and relations between the child and his parent or parents by adoption shall thence- forth in all respects be the same, including the right of inherit- ance, as if the child had been born to such adopted parent or parents in lawful wedlock." It is apparent that the statute •*'P. L. 1902, p. 259, sec. 4. 2 Comp. Stat., p. 2808, sec. 16, as Comp. Stat., p. 2808, sec. 16, as amended by P. L. 191Z, p. 53. amended by P. L. 1912, p. 53. -''This page, supra. -■"'P. L. 1902. p. 259, sec. 4. 2 27p^ge 803, supra. 8o6 Probate Law and Practice. relates only to the right of inheritance as between the child and his adopting parent, and that an adopted child is not in- cluded within the provisions of a will of a third person pro- viding for the children of a legatee therein named.-® Bequest to Adopting Father Under Will of Another. The statute invests an adopted child with the right of in- heritance from the adopting parent, but does not create in such child capacity to take as next of kin or heir at law the share which the deceased adopting parent would have taken, if alive, under the will of another person. '*^^ When Adopted in Foreign State. If a child as legally adopted in a foreign state while the adopting parent is domiciled there, and such parent thereafter removes his domicile to this state and dies here, the courts of this state will order that the estate of such adopting parent be distributed as though such adoption proceedings were had in this state. One who has legally adopted a child in the state of his domicile will not be permitted to shake ofif by a change of domicile the relation created by the adoption.^" Costs to be Paid by Petitioner. All the expense of the aforesaid proceedings shall be borne by the petitioner.''^ -^Eureka Life Ins. Co. v. Geis, Rep., 453. Ross v. Ross, 129 88 Atl. Rep., 158 (M'd.). Mass., 243. Van Matre v. Sankey, 29Stout V. Cook, t; N. J. Eq., 148 III., 536. 153. 3ip_ L 1902, p. 259, sec. 5. 2 30Appeal of Woodward. 70 Atl. Comp. Stat., 2809, sec. 17. PART VJ. A Summary of Proceedings Before the Orphans' Court and Surrogate. CHAPTER XXXVIII. OUTLINE OF PROCEDURE. Scope of Chapter. This chapter contains a brief abstract of various proceedings before the Surrogate and Orphans' Court. Xo attempt has been made to give more than a bare outHne of the procedure nor to set forth precedents or to cite authorities : for these the appropriate chapters in the body of this work should be con- sulted. ^ PROBATE OF WILLS. Petition for Probate. A will cannot be offered for probate until ten full days have elapsed after the death of the testator. This means the eleventh day after the testator's death. The first proceeding in the petition for probate, (see form i, infra) which must be verified by the affidavit of the applicant, taken before any official authorized to administer an oath. Depositions of Witnesses. If the will has a perfect attestation clause the testimony of only one witness is necessary. If, however, the will has no attestation clause, or the same is defective in any particular, or in case the will is signed by the testator with a mark, it is necessary to produce both witnesses. Since in most states a will is required to be proven by two witnesses, whenever the testator died seized of land in another state it is advisable to take the proofs of both witnesses and thus avoid the expense of opening the probate to take the testimony of the secontl witness when it is desired to transfer the lands in the foreign state. If both witnesses are dead, and the will has a perfect attesta- tion clause, it may be proved by producing proof of the signa- tures of the testator and of both witnesses. In a case, where one witness is living, and it is necessary, by reason either of testator 809 8io Prouativ Law and Practice. having owned lands in another state or of a defective attesta- tion clause, to prove the will by both witnesses, then the proof of the deceased witness is supi)lied by proof of the genuine- ness of his signature. Depositions of witnesses and proofs of the signatures of deceased witnesses must he taken l)efore the Surrogate or his deputy. If either of the witnesses whose testimony is required resides out of the State of New Jersey, the Surrogate, upon a petition filed with him for that purpose, will make an order directing that a commission issue to the judge of a court of law, mayor, or other chief magistrate of the place where the witness resides, authorizing him to take the deposition of such witness ; or the Surrogate may, by order, deputize any attorney, counsellor at law, master in chancery, notary or commissioner of deeds of New Jersey to take such deposition. Qualification o£ Executor. After a will has been proved by the depositions of witnesses, the executor is required to take an affidavit to the effect that he will well and truly administer the estate according to law, which affidavit must be taken before the Surrogate or Deputy- Surrogate. Bond of Executor. An executor is not required to give a bond for the faithful performance of his official duties unless expressly required by the will so to do, or unless he is a non-resident and the will does not waive bonds, in which cases a bond is required. When a bond is required, its penalty will usually be fixed in double the amount of the personal property of the testator, except in a case where the will confers upon the executors a power of sale, in which case the penalty of the bond should be in double the amount of testator's reaj and personal property. Two sureties are required, each of whom must qualify in the amount of the penalty of the bond. Affidavits of qualifi- cation of sureties may be taken before any person authorized to administer an oath. Under certain circumstances, as will be found fully explained in the chapter devoted to the subject of "Bonds of Executors, Administrators, Guardians and Trus- tees," the penalty of the bond may be reduced. Probatk of Wills. Si i Non-Resident Executors. A non-resident executor is, as has been seen, required to give a bond unless the will waives bonds. In addition thereto, he is required in every case to give to the Surrogate a power of attorney to acknowledge service of process issued in any cause to which he as such executor is made a party. Where Doubts Arise Upon the Face of the Wilh Where the will presented for probate is mutilated, or con- tains interlineations or erasures which change the terms of the will, and which are not noted in the attestation clause to have l)een made prior to the execution of the paper, a doubt is said to arise upon the face of the will : the Surrogate is deprived of jurisdiction to probate the will, and must issue citations to all persons concerned to appear in the Orphans' Court, where the will will be probated. In most cases of this character, it is only necessary to pro- duce before the court the testimony of both subscribing wit- nesses, and also such testimony as may be available tending to explain the mutilation of the will, or the interlineations and erasures appearing thereon. Any person cited, may, however, upon the return of the citation, contest the probate. No formal action to contest the probate of a will under such circumstances is necessary, beyond the simple statement of the party contest- ing, or his proctor, after which the matter is heard in the same manner as though a caveat had been filed or an appeal taken from the ])robate of the will. Probate of After Discovered Wills. If after the probate of a will a later will of the testator is discovered, or if after the grant of letters of administration a will is discovered, the practice is to hie a i)etition with the Surrogate for the probate of such later will, which petition follows the form of the ordinary petition for ])rol)ate of a will, wath the addition thereto of an allegation setting forth the date of the grant of administration or probate of the prior will, and the fact that thereafter the will offered for ])r()ha(e was dis- covered; and in the case of an applicatif)n for the probate of a later will, the petition should recite the dati- of the will 8i2 Pkdbate; Law and Practice. admitted to probate Ijy the Surrogate, and the date of the after- discovered will. Upon the tiling of such petition with the Surrogate, citations are issued to all persons interested, returnable to the orphans' court, to show cause why probate of such will should not be granted. Upon the return of such citations, any person so cited may contest such will offered for probate, in which case the matter proceeds like any other contested case. If, however, there is no contest, the will is proven in open court by taking the testi- mony of both attesting witnesses. If the will so offered is admitted to probate, the court, in the decree for probate, will require the administrator or prior executor to make final settlement of his accounts, and upon the passing of such account, the court will make such order in relation to his commissions as is just and equitable. Proceedings for Discovery of Will. iliis proceeding is used in a case where a person in interest believes that any person or corporation has in his or its posses* sion, or has knowledge of the existence or whereabouts of any will of a decedent, and refuses to surrender the same for probate. This proceeding is initiated by a petition to the Orphans' Court (see form 131 infra) which is required to be verified by the afffdavit of the petitioner, before any offfcer authorized to administer an oath. Upon the presentation of such petition, the court will make an order requiring the person in whose possession such will is alleged to be, or who is alleged to have knowledge of its existence or whereabouts, to appear before the court on a day named in the order, to make discovery as to his possession of or knowledge of the existence of such will. Upon the return of the order for discovery, the person or persons to whom the same is directed are required to submit themselves to examination by the petitioner ; in this exami- nation the latter is allowed all of the privileges of cross-exami- nation, the entire proceeding being in the nature of a discovery in the Court of Chancery. The petitioner may also call other Probate of Wills. 813 witnesses to testify in support of the allegations of his petition. The court, at the conclusion of the testimony, may order any person, whom it may find to have in his possession any such will, to lodge the same with the Surrogate of that county for probate, and may compel obedience to such order or decree by the same process and in the same manner as orders or decrees of the Court of Chancery are enforced. CONTESTED PROBATE. Methods of Raising Contests. The validity of a will may be contested either by filing a caveat with the Surrogate before the probate of the wall, or after probate, by taking an appeal from the decree of the Surrogate admitting the will to probate, which appeal, if made ])y a resident of New Jersey, must be taken within three months or in the case of a non-resident, within six months from the entry of the decree of probate. Upon the ofifering of the will for probate after the filing of a caveat, the Surrogate issues citations to the caveators ; in the case of an appeal, he issues citations to all of the next of kin and heirs at law of the testator, and all the legatees and de- visees named in the will. Proceedings in Orphans' Court. In Essex County and in others of the more populous counties, citations are made returnable upon a motion day, at which time the court, upon a]j]jlication for that ])urpose will fix a dav for hearing. Hearing. The proceedings in a disputed will contest before the Or- phans' Court are the same whether the contest is originated by a caveat or an appeal. The proponent, in either case, is the moving party, and in the first instance examines the attesting 8i4 Probate; Law and Practice. witnesses as to the execution of the will, after which the caveator or appellant, as the case may be, has the privilege of cross-examination. The court usually requires the production of both witnesses or a satisfactory explanation of the absence of one of them. The proponent, after introducing the testimony of the sub- scribing witnesses, rests, and if the testimony establishes that the will was executed in accordance with the statute, it then becomes the duty of the caveator or appellant as the case may be, to produce witnesses in support of his contentions, which witnesses are subject to cross-examination by the proponent. After the contestant has rested his case, the proponent has the privilege of introducing evidence in rebuttal. FOREIGN WILLS. In General. A Surrogate has no jurisdiction to admit to probate an original will of a non-resident of New Jersey, even though such decedent leave assets within the Surrogate's county. In case probate of a will of a non-resident is desired in this state for any purpose, the will must first be duly proved at the domicile of the testator, after which an exemplified copy of the record of the foreign probate is obtained and filed in the office of the Surrogate. The subsequent proceedings are identical with the probate of an original will, except that it is unnecessary to take the depositions of the subscribing witnesses, if it appears from the witness proofs annexed to the foreign record of probate that the will was executed in accordance with the laws of this state. If it does not so appear, then it becomes necessary to take the depositions of the subscribing witnesses, as in the case of the will of a resident of New Tersey. Letters OF Administration. 815 LETTERS OF ADMINISTRATION. Application for Letters of Administration. An application for letters of administration is by petition to the Surrogate of the county wherein decedent resided at the time of his death. Unlike an application for probate of a will, application for administration may be made at any time after the death of the intestate. The Surrogate of the county in which a non-resident intestate leaves real or personal property has jurisdiction to grant letters of administration upon his estate within such county. Petition for Letters of Administration. The petition for letters of administration is required to be in writing (see form 34 infra) and to be veritied by affidavit, which must also recite the value of the personal estate of the intestate. This affidavit may be taken by any person author- ized to administer an oath. Renunciation by or Notice to Next of Kin. Where application for administration is made by any person other than the party first entitled, or by one o^ several equally entitled, the applicant must produce to the Surrogate either the renunciations and requests of the persons so entitled that letters be issued according to the application, or ])roof that at least ten days' notice has been given such of them as reside in this state. In the case of non-resident next of kin, the surrogate has power to direct what notice shall be given, provided, however, that it must be not less than ten nor more than sixt}' days. Notice to residents of this state is served either personally or by leaving a copy thereof at their residence or usual place of abode. Non- residents may if the surrogate so directs, be served by mail, ])OStage ])repaid, addressed to their last known residence. Administration After Forty Days from Death. If the executor named in any will does not a])ply for the |)robate thereof -or for letters testamentary thereon within forty (lays from the death of his testator, or if the next of kin of any intestate do not a])pl\- for administration within fort\' davs from his dcalli. the surrogate may grant administration or ad- 53 8i6 Probate Law and Practice. ministration with the will annexed, as the case may require, to any fit person who will accept the same. The petition for letters of administration in cases of this character follows the form prescribed in the ordinary case, with the addition of allegations reciting the neglect of the parties in interest to make application for forty days after the death of the decedent and the interest of the party making the application. The same notice is given of applications of this character as in the ordinary case of application for grant of letters of adminis- tration. Applications of this character are usually made at the instance of creditors of the deceased, in cases where the next of kin neglect to take such proceedings, and the creditor finds it neces- sary to have a personal representative appointed. A creditor applicant should not, however, receive the appointment, as his interests are adverse to those of the next of kin; and if, in response to the notice of application, one of the next of kin appears and demands administration, it should be granted to him. Bond of Administrator. Administrators are required to give security for the faithful performance of their duties, and the Surrogate has no power to grant letters of administration without taking such security. The security required from administrators is a bond in double the amount of all the personal estate of the intestate. The mis- take is often made, in fixing the amount of an administrator's bond, of taking into consideration only such assets as cannot be transferred without administration, and ignoring cash, jewelry and similar personal property found among the personal effects of the intestate. The bond is for the benefit of creditors and next of kin, and in fixing the amount thereof, the entire per- sonal estate of the intestate must be taken into consideration. Under certain circumstances, the amount of an administra- tor's bond may be fixed at less than double the amount of the personal estate, as will be found fully explained in the chapter devoted to "Pjonds of Executors, Administrators, Guardians and Trustees." Letters of Administration. 817 Two sureties are required upon an administrator's bond, who must each qualify as the owner of real estate in the amount of the penalty of the bond. A married woman cannot be a surety on a bond nor can either husband or wife in a case where the title to the property is in both. Affidavits of qualification of sureties may be taken before any person authorized to ad- minister an oath. Qualification of Administrator. An administrator, before the issuing of letters to him. is required to take an affidavit well and truly to perform the duties of his office, which affidavit can only be taken before the Surrogate or Deputy- Surrogate. Non-Resident Administrators. The appointment of a non-resident should be avoided when- ever possible. The Orphans' Court Rules provides that a resi- dent shall always be preferred to a non-resident. When a non- resident is appointed as administrator, he is required in every case to give to the Surrogate a power of attorney to acknowl- edge service of process issued in any cause to which he as such administrator is made a party. Inquiry for Absent Next of Kin. If the residence of any next of kin entitled to notice of an application for letters of administration or guardianship is un- known the applicant or his proctor is required to make diligent inquiry from the nearest relatives of the decedent or minor and also all persons who the applicant or his proctor has reason to believe know the residence of such absent next of kin. These inquiries may be made by letter which must state the object of the inquiry. Proof by affidavit of making such inquiry nuist be tiled with the Surrogate before letters will be granted. 8i8 Probate Law and Practice. ADMINISTRATION WITH THE WILL ANNEXED. Application for Letters. The application for letters of administration with the will annexed follows the usual form of an application for probate, with the addition of allegations reciting the death of the execu- tor named in the will before the death of the testator, the renunciation of the executor, or the fact that the will named no executor. The petition must be verified by affidavit which must also recite the value of the personal estate of the testator. This affidavit may be taken before any person authorized to administer an oath. Notice of Application. The residuary legatee named in a will has a prior right to administration with the will annexed; and if there be several residuary legatees, one only of whom applies for letters, the renunciation of those not applying, or notice of the application of the same character as that required upon application for letters of administration, is required. If the will contain no residuary clause, then the next of kin of the testator are entitled to administration with the will annexed, and the applicant is required to produce renunciation or proof of the service of notice, as in the case of the ordinary grant of administration. Bond of Administrator c. t. a. An administrator with the will annexed is required to give a bond for the faithful performance of his duties with sufficient sureties. The requirements as to the penalty of the bond and the sureties thereto are the same as those. in the case of ordi- nary administration which see supra. SUBSTITUTIONARY ADMINISTRATION. Application for Letters. Application for letters of substitutionary administration is by petition in the form required upon the application for letters of Letters of Administration. 819 administration (see form 48 infra), with the addition thereto of an allegation reciting the appointment of the original ad- ministrator, and his death, discharge or removal, as the case may be. The petition must be verified by affidavit which must recite the value of the estate and may be taken bef(jre any person authorized to administer an oath. Renunciation or Notice of Application. Renunciation by or notice of application to the ne.xt of kin entitled to substitutionary administration is required, as in the case of an application for letters of administration, which see supra. Qualification of Substitutionary Administrator. A substitutionary administrator is required to make oath that he will well and truly perform the duties of his office, which oath can only be administered by the Surrogate or Deputy- Surrogate. Where Next of Kin Neglect to Apply for Forty Days. If any administrator dies before fully administering the estate of his intestate, and the parties by law entitled do not apply for substitutionary administration for forty days after the death of such administrator, any person in interest may make such application. Renunciation by, or notice to those en- titled by law to administration, as well as the same bond and qualification, are required as in the case of grant of letters of administration, which see supra. SUBSTITUTIONARY ADMINISTRATION C. T. A. Application for Letters. An application for letters of substitutionary administration with the will annexed is by petition, which should recite the name and address of the applicant, and the date of the probate 820 Pkobate Law and Practice. of testator's will, and also the fact that the executor thereof, having duly taken upon himself the burden of administering the estate of testator, has died, been discharged or removed. as the case may be. The petition should then set forth the names of the next of kin and heirs at law of the said testator, as well as the names of the residuary legatees named in his will, if any, and if none are therein named, the petition should so recite. The petition should also recite the post-oiifice addresses or places of residence of aH of the next of kin, heirs at law, and residuary legatees of said testator, and if any of the above- named be minors, the age of such minors, and should be verified by the affidavit of the applicant, which should also recite the value of the personal estate for administration of which the application is made. Notice of Application. The same provisions as to renunciation by or notice to next of kin, heirs at law or residuary legatees entitled to sub- stitutionary administration apply as in the case of administra- tion with the will annexed, which see supra. Bond of Substitutionary Administrator c. t. a. A substitutionary administrator c. t. a. is required to give bond, with the same penalty and sureties as are required from an administrator which see supra. Where no Application is Made for Forty Days. If the persons by law entitled do not make application for letters of substitutionary administration with the will annexed for forty days after the death of an executor, any person in interest may make such application. Renunciation by or notice to persons entitled to such administration, as well as the same bond and qualification as in the case of the grant of letters of administration with the will annexed, are required. Lkttkrs of Admixistratiox. 82 r ADMINISTRATION UPON ESTATES OF NON- RESIDENTS. In General. The Surrogate of a county wherein a non-resident intestate leaves real or personal property has jurisdiction to grant ad- ministration upon his estate within this state. The adminis- trator of such non-resident intestate, appointed in the foreign jurisdiction, has a prior right. If, however, he renounces such right, then the next of kin or persons entitled to administration under the laws of this state become entitled, and where appli- cation is made by one other than the foreign administrator, such notice of such application is to be given as the Surrogate may by order prescribe. If the executor or administrator of a non-resident decedent neglects for the space of sixty days after the death of such decedent to make application in this state for letters testament- ary or of administration upon such decedent's estate, then any person having a debt or legal claim against such decedent may make application therefor, and the Surrogate may issue letters of administration or administration with the will annexed, as the circumstances may require, to any tit person. Before granting administration, the applicant is required to give such notice to the foreign executor or administrator as the Surrogate may prescribe. The practice upon applications of this character is the same as above outlined -upon an application for administration upon the estate of a resident, except that the petition, if made by the foreign administrator, should recite the fact that deceased was a non-resident, and the fact of the appointment of the petitioner as administrator upon his estate in the place of his domicile, and that the said intestate left personal or real property within the county in which the application is made. In case the application is made by one other than the foreign administrator, the petition should recite the non-residence of ecomes apparent that the personal estate is insufficient to pay the debts of decedent. It is not necessary to await the expira- tion of the order to limit creditors, if one be taken, nor until the executor or administrator is satisfied that all debts have been presented, although if possible it is better to do so, as otherwise, it may become necessary to go to the expense of obtaining a second order of .sale to pay debts which were un- known at the time the first order was taken. Order to Show Cause. Upon the presentation of the petition, the court will there- upon make an order requiring all persons interested in such lands to appear before it at a certain day, not less than two months after the making of such order, to show cause why so much of the said lands of decedent should not be sold as will be sufficient to pay his debts, which order to show cause must be 846 Probate Law and Practice. signed by the Surrogate, and set up in three of the most pubHc places in the county for six weeks, and must also be published for the same time, at least once in each week, in one or more of the newspapers of this state, as the court may direct. Method of Objecting to Schedules Annexed to Petition. Any person in interest may object to the schedule of assets annexed to the petition on the ground that it does not contain a true statement of all of the personal property of decedent, or may object to the statement of debts annexed thereto, on the ground that some of them are not legal claims against the estate, or are excessive, by tiling exceptions thereto, which exceptions will be heard on the return of the rule to show cause : in hearing such exceptions, the court may determine the validity of any claim against the estate. Hearing. Upon the return day of the rule to show cause, the testimony of the executor or administrator is taken for the purpose of proving the allegations of the petition, and also of the sched- ules annexed thereto ; and if, after disposing of any exceptions to the statement of assets or debts, it appears that the personal estate of the said decedent is insufificient to pay his debts, the court will make its order directing such executor or adminis- trator to sell so much of the lands of the decedent as may be necessary for that purpose. At the hearing, if any of the heirs at law or devisees of the decedent appear and give bond with sureties satisfactory to the court, conditioned for the payment of all debts of the decedent, the court will not make the order of sale, but will adjourn the hearing until the amount of the deficiency of personal estate to pay the debts has been ascertained, at which time the exec- utor or administrator gives notice to the heir who has given the bond of the amount of such deficiency and if he does not pay the same the court will upon five days' notice to the heir and to his sureties, order that his bond be prosecuted or that sufficient lands of decedent to pay the residue of his debts be sold. Sale of Lands for Debts. 847 Order for Sale. The order for sale (see form 136 infra) must contain an adjudication of the amount of the dehciency of the personal property of the decedent to pay his debts, and must direct what lands be sold ; as has already been said, the court cannot order the sale of more lands than is necessary to raise sufficient money to meet such deficiency. Thus, if decedent died seized of several tracts of land of varying value, the court will order the sale of that tract which is nearest in vaUie to the sum necessary to be raised. Executor or Administrator to Give Bond. Upon ordering lands sold to pay debts, the court is required to order further that the executor or administrator give a bond (see form 137 infra), which must be approved by the court, with a penalty in double the amount of the estimated value of the lands directed to be sold. The condition of this bond is different from that required from an executor or administrator, and therefore, even though the executor or administrator has given a bond amply sufficient to cover the estimated proceeds of the sale, he is still required to give a bond in double the estimated value of the lands di- rected to be sold, with condition prescribed by the statute. Confirmation of Sale. After the executor or administrator has sold the lands as directed by the court, which sale may be either public or private in his discretion, he makes his report of such sale to the court under oath (see forms 157, 158 and 161 infra). The affidavits of two persons familiar with the value of property in the neighborhood of that which the executor or administrator has sold, setting up the value of the lands so sold, is required to be annexed to the report. The executor or administrator is required to give five days' notice of his intention to apply for the confirmation of such sale to all persons in interest who are residents of New jersey, and not less than five nor more than sixty days" notice, as the court may by order direct, to all persons in interest who reside without the state of New Jersev, which notice to non-residents may be sent by mail. 55 848 Probate Law and Practice. The notice to persons in interest may be dispensed with by the executor or administrator procuring the consent of such persons to the sale. If, alter hearing any objections to such sale, the court is satisfied that the same was fair and that an adequate price was obtained for the land sold, it will make its order confirming the sale and directing the executor or administrator to execute ? deed to the purchaser therefor. SALE OF LANDS BY ADMINISTRATOR WITH THE WILL ANNEXED. General Remarks. The statute confers upon an administrator with the will an- nexed authority to execute any power of sale given by the will to the executor therein named, but provides that such sale shall be confirmed by the Orphans' Court. Tf upon the filing of the record of probate of a foreign will, it appears that an administrator with the will annexed was appointed in the jurisdiction in which the will was probated, and that such will was executed in accordance with the laws of this state, such administrator with the will annexed is em- powered to execute any power of sale conferred upon the executor named in said will, in the same manner as though the will had originally been admitted to probate in this state. Practice on Application. It is unnecessary for an administrator with the will annexed to make any application to the court for permission to sell the lands of his testator. He is, however, after he has entered into contract to sell such lands, required to make application to the court for the approval of such sale ; the proceedings upon such application, including proof of the value of the land so sold, and notice of or consent by all persons interested, are the same Insolvent Estates. S4() as upon an application of an executor or administrator to the court for the contirmation of a sale in a proceeding to sell lands for the payment of delfts.- Security Required. Cpon an application for the confirmation of a sale of lands by an administrator with the will annexed, the court is required to order such administrator to give such additional security l>y bond as the court shall deem advisable, having regard to the value of the real estate sold. The statute does not prescribe any special condition in the bond required from an administrator with the will annexed upon the sale of lands of his testator, but the bond is in the same form as that required from an administrator ; and in fixing the amount of such bond, the court will take into con- sideration the amount of assets in the hands of the adminis- trator, and the amount of security which he has already given, and will hx the penalty of the bond accordingly. INSOLVENT ESTATES. General Remarks. Where all of the real and personal estate of a decedent is insufficient for the payment of his debts, the estate is said to be insolvent, and it becomes the duty of the executor or ad- ministrator to take proceedings to have the estate judicially so declared. This proceeding must not be confused with an ap- plication of an executor or administrator for the sale of lands to pay debts, which is only appropriate in a case where the personal estate is insufficient to pay debts, but there is real estate sufficient in value, when sold, to make uj) the deficiency. The practice on the api)lication for an adjudication that an estate is insolvent differs in a case where a decree barring creditors has been talst-n from that in a case where no sucli proceeding has Ijetn had. 850 Probate Law and Practice. I. WHERE NO RULE TO LIMIT CREDITORS HAS BEEN TAKEN. Application for Order. This proceeding is initiated by a petition of the executor or administrator (see form 176 infra) under oath, upon the pre- sentation of which the court will make an order directing such executor or administrator to give notice to the creditors of the estate to exhibit to the executor or administrator, under oath, their claims against the estate, within such time as the court shall direct, not exceeding eighteen months nor less than six months. Publication of Notice to Creditors. The notice to creditors directed by the court is given by pub- lishing a notice, not the order, (see form 178 infra), at least once a week for two months in one or more of the newspapers printed in this state, as directed by the court, and also by post- ing the same for the same period of time in five of the most public places of the county. Presentation of Claims. The claims presented to the executor or administrator pur- suant to the aforesaid notice are required to be in writing, specifying the amount and particulars thereof, and verified by oath; and debts payable in the future may be presented, a proper allowance of interest being made. Report of Claims and Inventories of Assets. After the expiration of the time limited by the court for the presentation of claims, or at the term of court next ensuing, the executor or administrator is required to make a report of all claims exhibited against said estate (see form 182 infra), and also to exhibit under oath to the court an account of all of the personal property, and an inventory of the real estate of such decedent with the value thereof as near as may be. Notice of Filing Report. The executor or administrator is required to give two months' notice of his intention to make such report by adver- tisement, signed with his name, and set up in three of the most Insolvent Estates. 851 public places in the county wherein such decedent resided at the time of his death, which notice shall specify the day on which such report will he made to the court (see form 181 infra). The report must be filed in the Surrogate's office at least twenty days l:)efore the day named in the notice for pre- senting the same. Exceptions to Executor's Report. The e.xecutor or administrator, or a creditor or any person interested, may file exceptions to the claim of any creditor in- cluded in the report of the executor or administrator ; and any person in interest has the right to except to the account of as- sets and inventory of real estate made by the executor or ad- ministrator. Such exceptions are filed with the Surrogate at any time prior to the day fixed for the presentation of the re- port to the court. If any creditor whose claim is excepted to prefers to have the same determined in a court of law. or in equity, he may do so by proceeding immediately to bring such suit. Executor May Require Creditor to Obtain Judgment at Law. If an executor or administrator prefers to have the claim or demand of any creditor determined at law or in equity, in preference to filing exceptions to the same, he may give notice to the creditor at the term in which the report is made to so proceed, and the creditor is required to proceed to bring such action immediately. Hearing. Upon the presentation of the aforesaid report, the executor or administrator presents to the court testimony in support of the allegations therein contained. The testimony of the exec- utor or administrator that he has received the amount of per- sonal property set forth in his account, that the decedent died seized of lands of the value set forth in his inventory, and that claims of the amount set up in his report have been presented to him, is usually sufficient. After the testimony in snpport of the report has been pre- sented, the court will proceed, either forthwith, or on a sub- 852 Probate Law and Practice. sequent day to be then fixed by it, to hear and adjudicate upon any exceptions to the report. Decree of Insolvency. If upon adjustment of the claims and demands of creditors, and on consideration of the amount of the personal and real estate, it appears that the real and personal estate of the dece- dent is insufficient to pay his debts, and that the estate is likely to be insolvent, the court will so decree, and will order the executor or administrator to proceed as though the estate was insolvent; the order may also authorize the administrator to make sale of any land whereof the decedent died seized. Proceedings Subsequent to Decree of Insolvency. After an estate has been decreed to be insolvent, the exec- utor or administrator proceeds to convert into cash all of the personal property of the decedent, and also to sell any lands whereof he may have died seized. He also pays all preferred debts. After converting all of the estate into cash, the executor or administrator files his account with the Surrogate, in which he charges himself with all moneys, whether the proceeds of per- sonal property or of real estate received by him, and prays al- lowance for all preferred debts paid, as well as for the ex- penses of administration. This account must be noticed for settlement and audited and stated by the Surrogate in the same manner as accounts of exec- utors, etc., in the case of a solvent estate (see Accounts of Exec- utors, infra), and must not be confused with the account which the executor or administrator is required to annex to his report to the court. Upon the allowance of this account, the court will fix the executor's commissions, and direct distribution of the balance of the estate then remaining in his hands among decedent's creditors in proportion to the sums that shall be due to them respectively, fixing the percentage to be paid (see form J 92 infra). I X SOLVE XT Estates. ^d:> II. PRACTICE IN CASE RULE TO LIMIT CREDITORS HAS BEEN TAKEN. General Remarks. If a rule to limit creditors has been taken, an executor or ad- ministrator may. as soon as claims have been presented to him to such an amount as to satisfy him that the estate is insolvent, make his application to the court to have the estate decreea insolvent. Practice on Application. The executor or administrator presents to the court his peti tion (see form 179 infra), and the court will thereupon, with- out further publication, by order, fix a day for the presentation of the account of assets and report of claims by the executor, which day must be at least two months distant. Two months' notice of his intention to make such report on the day so fixed by the court must be given by the executor or administrator. by advertisement signed with his name and set up in three of the most public places in the county in which decedent resided at his death. The executor must file his account with the Surrogate at least twenty days previous to the day on which he has given notice that he will present the same to the court. The subsequent proceedings are identical with those in a case wher€ no rule to limit creditors has been taken, (which see supra). ACCOUNTING BY EXECUTORS. ADMINIS- TRATORS, GUARDIANS.AND TRUSTEES. Duty to Account. The statute rc()uires every executor, administrator, guard- ian or trustee to present his account to the Orphans' Court for settlement within one year after his appointment, or at the first regular term of the Orphans' Court after the expiration of said 854 Probate Law and Practice. year, unless the court shall, upon application, allow further time therefor. Guardians and trustees are required to file intermediate ac- counts at least once in three years, and oftener if required bv the court. When Unnecessary to Account. An administrator who is entitled to all the personal estate of his intestate after payment of debts is not required to file any account unless required to do so by some person interested in said estate. A guardian or trustee who shall file with the Surrogate a re- lease from his ward or cestui que trust of full age, duly exe- cuted and acknowledged as deeds of land are required to be, is not under any duty to account. An executor or administrator with the will annexed, who is entitled to all the personal estate of the testator after payment of debts and legacies, is under no obligation to account in the Orphans' Court, provided he record in the Surrogate's office re- ceipts or releases from the persons entitled to legacies under the will. Any person interested may, however, require such executor or administrator to account. I. FINAL ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. Form of Account. . Accountant should first charge himself with the amount of the inventory filed, with all increases in personalty inventoried, and also with all additional personalty which has come to his hands subsequent to the inventory or which was not included therein. The accountant should then pray allowance for all disbursements made by him. If property inventoried has been sold for less than its inventoried value, he should pray allow- ance for such depreciation in value. If, however, personalty^ Accounting. 855 ill the nature of stocks which have not been converted by the accountant into cash, etc., have increased or decreased in market value subsequent to the fiHng of the inventory, ac- countant should not charge himself with such increase nor should he pray allowance for such decrease. It is only when personalty has been turned into cash that the accountant is en- titled to an allowance for diminished value over the inventory value, or is chargeable with its increased value. Accountant should not pray allowance in his account for commissions, as he is not entitled thereto until they are fixed by the court. He should however, pray allowance for the amount of Surrogate's fees. The account should conclude with a summary, showing the amount received by accountant and deducting therefrom the amount prayed allowance for, and showing the balance remaining in his hands ( see form 229 infra). There is required to be annexed to all accounts a statement or list of the securities, investments and assets of which the balance of the estate in accountant's hands consists, and a state- ment of all changes made in the securities since the filing of the inventory, or since the last settlement. There is also required to be annexed to the account a peti- tion for the allowance thereof (see forms 224-228 infra), and also for the allowance of commissions and counsel fees, if the accountant intends to apply therefor. It is not, however, necessary to specify the amount of the commissions or counsel fee for which application will be made. A simple statement that such an application will be made is sufficient. Notice of Settlement of Account. One month's notice of accountant's intention to settle his ac- count is required to be given by him, which notice in substance states that on a day therein named he will apply to the Or- phans' Court for a settlement of his account, and also (see form 222 infra) for counsel fees and commissions, if he intends to apply therefor. This notice is required to be pul)]ishcd once a week for one month in a newspaper circulating within the county ; and it has been held that in order to comply with this provision, five insertions are necessary. The notice is also re- quired to be posted in five of the principal places of the county 856 Probate Law and Practice. for the same period of time, and a copy mailed to all persons interested therein, one month before the day whereon the ac- count is noticed for settlement. Proof of the due publication, posting and mailing of such notice is required to be filed with the Surrogate before the day fixed for the settlement of the account. The statute provides that in the case of accounts of guard- ians and trustees, in lieu of the publication, posting and mailing of the notice of settlement, accountant may issue citations to all persons in interest, which may be served by the guardian or trustee or any person in his behalf. Proof by affidavit of such service is required to be filed with the surrogate. A cita- tion must, however, in all cases issue on the final accounting of guardians or trustees. It is to be observed that the Orphans' Court is without juris- diction to allow an account unless notice of the settlement thereof has been given as provided by law, and the same has been audited and stated by the Surrogate and reported to the court for settlement. When Account to be Filed. The account, together with all vouchers and receipts for payments and disbursements claimed therein, is required to be filed in the office of the Surrogate at least twenty days previous to the day on which said account is noticed for settlement, and the Surrogate is prohibited from presenting the account for settlement unless the vouchers have been so filed with him. Allowance of Account by Court. Upon the day for which the account has been noticed for set- lement, or the day to which such settlement has been adjourned, the Surrogate, who has in the meantime audited and stated the account, that is to say, examined it and ascertained whether there was a proper voucher for every item of disbursement claimed therein, and the account appears to be correct upon its face, reports the account to the Orphans' Court for settlement. If the Surrogate finds any errors in the account, it is his duty to call the same to the attention of the court. Upon the presentation of the account, accountant may ask for commissions and counsel fees, if he has given notice of his Accounting. S57 intention to apply therefor. After examining the account anil the report of the Surrogate, the court, if satistied .with the same, will make its decree allowing the account. Application for Counsel Fees. In an application for counsel fees, it should be kept clearly in mind that the court is not permitted to allow counsel fees for services such as preparing the account or inventory, gath- ering together the assets of the estate, etc., which the account- ant is required by law to perform, and for which he is com- pensated by his commissions. Counsel fees can only be al- lowed for legal services rendered to accountant of such a char- acter that a layman of ordinary intelligence would not be able to perform them. Where the counsel fee applied for is large, having regard to the size and the apparent difficulties in admin- istering the same as disclosed by the account, the application should be accompanied by an affidavit of counsel, setting forth in detail the nature and necessity of such services. Where the accountant is himself a member of the bar, no counsel fee can be allow^ed to him under any circumstances. He will, however, be allowed counsel fees paid to counsel for conducting litigation or for assistance rendered in matters of unusual difficulty, but not for assistance in connection with the , problems which ordinarily arise in the administration of an estate. Application for Commissions. Where the amount passing through the hands of an executor, administrator or trustee exceeds in, value the sum of fifty thou- sand dollars, or where, in the case of a guardian, it exceeds the sum of twenty thousand dollars, the application must be accompanied by an affidavit of the applicant, setting forth the pains, trouble and risk incurred by him in the settling of the estate. In other cases, a simple oral application is all that is re- quired. Commissions on Income. Where an executor, administrator or trustee has in his hands moneys, the income of which he is rec|uircd to pay to a person 858 Probate Law and Practice. (luring a certain period, and upon the happening of a certain event to pay the remainder to another, the court is authorized to allow such commissions on the income so collected by him as will compensate him for his pains, trouble and risk, not ex- ceeding, however, five per cent, on the sum so collected. Guardians are not allowed commissions on income as income. The total amount of principal and income passing through their hands is added together, and commissions at the statu- tory rate computed upon the sum so found. Adjustment of Commissions Between Co-executors. Where there are two or more executors or administrators, an allowance of commissions to them does not carry with it an implication that such commissions are to be divided equally among them. If difierences arise as to the division of such commissions, application may be made by any of the executors to the Orphans' Court, by verified petition upon five days' notice to his co-executors, for an order fixing and determining the proportion of the commissions which each shall receive. In such a proceeding, the court will take the testimony of the several executors or administrators, and of such other wit- nesses as they may produce, and will ascertain as nearly as may be the services performed by each, and apportion the com- missions among the several executors and administrators in accordance with such services respectively rendered by each. II. ACCOUNT BY REPRESENTATIVE OF DECEASED EXECUTOR, ETC. General Remarks. If an executor, administrator, guardian or trustee dies with- out having fully administered the estate, his executor or ad- ministrator may file an account of the receipts and disburse- ments of the said deceased executor, guardian or trustee, in his lifetime, of the assets of the estate which came to his hands. ACCOU NTl NG. 859 Practice on Accounting. The same practice in regard to the form of account and no- tice of settlement, etc.. obtains in accounts of this character as in the case of an ordinary account, except that in the allow- ance of commissions, the deceased executor, etc., is only al- lowed the proportionate amount of the commissions earned by him computed upon the principles adopted in the case of inter- mediate accounts of trustees, (which see infra). III. TRUSTEES' ACCOUNTS. General Remarks. ]\Iuch confusion is often caused l)y the blending together of accounts in a case where the same person is appointed by the will both executor and trustee ; and in this connection, it must be borne in mind that in order to constitute an appointment as a trustee, it is not necessary that the word trustee be used in the will. If the testator appoints an executor and confers upon him duties foreign to those of an executor, and which can only be performed by a trustee, he is constituted the trustee under the will, though the word trustee is not employed. The duties of an executor and trustee differ radically, the only functions of an executor being to gather together the as- sets of the estate and pay therefrom all debts of the testator, and the legacies mentioned in the will, and then to turn the bal- ance over to the person entitled by law to receive it. In a case where the same person is both executor and trustee under a will wdiich contains the very common provision of providing for the payment of the income from decedent's estate to cer- tain persons during the lifetime of another, and upon the death of the life-tenant, directs the principal of the fund to be paid to others, tlie duty of the executor is to proceed with the ad- ministration of the estate as though the will contained no trust provisions, to gather together the assets of the estate, pay all debts of the testator and legacies mentioned in said will. ;ind to 86o Probate Law and Practice. settle his final account as executor at the expiration of one year, or as soon thereafter as possible, and turn over the balance so ascertained to the persons entitled by law to receive the same, which in this case would be, of course, himself as trustee, after which he proceeds as trustee; and the balance ascertained upon the passing of his final account as executor, will be that with which he is chargeable as trustee. It is necessary to keep clearly in mind the meaning of the term final account, as used in this connection. The word final does not mean the last of several accounts, but relates to the nature of the account ; that is to say, where the accountant is in a position to distribute the balance found in his hands In- the account in question. Take for illustration, the case of a will directing the payment of income to one during his life, with remainder to another, and appointing the same person exec- utor and trustee, where the testator died seized of numerous tracts of real property and conferred upon his executor, as executor, a power of sale. The executor finds it undesirable to sell any of the real property at the time when he is ready to pass his account in respect to the personalty, and he according- ly proceeds to have his account allowed. The balance in his hands has been fully administered, and he is in a position to pay the same over to himself as trustee. This, therefore, is a final account. If it so happens that during subsequent years, he finds it necessary or desirable to sell some of the testator's real estate, he may again account as executor, in which case he would charge himself with the balance shown by his previous ac- count, and in addition thereto, with the proceeds of the realty so sold by him, and should pray allowance for the balance shown in the previous account as paid over to himself in his capacity as trustee, and also with any other expenses, either in connec- tion with the sale of the realty or the administration of the decedent's estate. He then strikes his balance of receipts over expenditures, and the sum so ascertained is that which he is again required to pay to himself as trustee; and this account, therefore, is also a final account. Notice of Settlement. The statute and rules make the same provisions in regard to notice of settlement of a trustee's account, whether inter- Accounting. 86 i mediate or final, including the posting and service of notice upon parties interested, as in the case of accounts of executors and administrators (which see supra). A citation must, how- ever, issue upon a trustee's final account. Form of Account. A trustee's account is required to be verified by afiidavit, and to have annexed thereto a petition for the allowance thereof and a statement concerning the assets in his hand, in the same manner as the accounts of executors and administrators ( \\liicli see supra). The account of a trustee differs radically from that of an executor or administrator, inasmuch as he is accountable to two classes of persons. The life-tenant, on the one hand, is interested in knowing that the trustee has charged himself with all income received, and that he is receiving all the income which the estate is capable of producing, and also to know what disbursements the trustee is charging off against the in- come so received l\v him ; on the other hand, the remainder- man is interested to know whether the fund in the hands of the trustee is properly invested, and also to know whether the trustee is charging against the corpus of the estate, which will eventually come to him, disbursements which should by law De paid out of the income. It is perfectly apparent, therefore, that a trustee's account should distinctly separate items relat- ing to corpus and income. • A trustee should, in his account, in the first place charge him- self with the balance as ascertained by his executor's account; and if between the filing of his first executor's account and his account as trustee several accounts have been filed in his ca- pacity as executor, he should also charge himself with the tialances as shown by these accounts. He should then pray al- lowance for all expenditures made l)y him which are properly chargeable against the corpus of the estate, and then strike a balance showing the amount of the corpus of the estate in his hands. lie should then ])rocced to charge himself with all in- come received l)y him, tlien jiray allowance for all cx])en(litures made, which are properly chargeable against income, including, of course, i)ayments to the life-tenant, and then strike a l)al- ance wliicli will sIimw \hv amotml of income rcm;iining in his 862 Pkobate Law and Practice. hands. These two balances of corpus and income should never be blended, inasmuch as they go in different directions, the balance of corpus to the remainderman, the balance of in- come to the life-tenant. Commissions. Commissions are allowed for the faithful performance of the trust committed to the trustee, and are only allowed upon the completion of the trust. And so, as a general rule, com- missions will not be allowed to a trustee until the completion of his trust. Where, however, a trust continues over a long period of years, and the trustee has performed an appreciable portion thereof, the court will upon the passing of his inter- mediate account allow him a sum on account of his commis- sions. In estimating the amount to be allowed, the court will con- sider the entire period during which the trust is likely to con- tinue, the portion of that term which the trustee has, at the time of the application for commissions, served, and will then, in the case of an estate over fifty thousand dollars in value, fix the rate at which the trustee will be entitled to compensation at the expiration of his trust, and will allow him a sum some- what less than the proportionate amount earned. The trustee is, of course, entitled, upon the passing of every intermediate account, to commissions on such income as he has collected. IV. INTERMEDIATE ACCOUNTS. General Remarks. \ Intermediate accounts are of two classes first, where an executor or administrator has been unable to complete the per- formance of his duties within the time required by law, and desires to present his account, to the end that his doings up to the time of accounting may have the approval of the court; and second, the intermediate account of a guardian, or of au Accounting. 863 executor and trustee, who has funds in his hands whicli he is required by law to retain during a certain period of time, dur- ing which he is required to pay the income to one, and the re*- mainder of the corpus over to others upon the happening of a certain event. Accounts of the first class above mentioned are not, in a strict sense, intermediate ; they partake more of the nature of partial accounts. What is hereinafter said relates only to accounts of the second class above described. Form of Account. Intermediate accounts are required to have annexed thereto a petition, (see form 225 infra), a schedule of assets and state- ment as to changes of investments since the prior account (see form 232 infra), and to be verified in the same manner as final accounts (which see supra). Intermediate accounts of trus- tees should show the receipts from corpus, the expenditures from corpus, and strike a balance of corpus remaining on hand, and also the receipts from income and the expenditure from income, and exhibit the balance of income remaining in the hands of the trustee. All that was said above in regard to the form of trustees' accounts is applicable to their intermediate accounts. In the case of a second or other account, the ac- countant should charge himself in the first instance with the balances shown in his prior account, both of corpus and of in- come. Notice of Settlement. Notice of settlement of an intermediate account is required by publishing, posting and mailing the same, in the same man- ner as is required in the case of a final account (whicH see supra). Commissions. All that was said above, where the question of commissions on trustees' accounts is considered, is applicable to intermediate accounts of guardians and trustees, and, indeed, to partial ac- counts of executors, except that in the last named case the sum upon which commissions are computed is usually the amount of disbursements shown in the account. -Guardians, as has already been seen, are not entitled to commissions on income .S6 864 pROBATD Law axd Practice. Effect of Decree on Intermediate Account. It is important to bear in mind the distinction between the effect of a decree on an intermediate account of a guardian, and that of a trustee, or the partial account of an executor or administrator. An intermediate account of a guardian is not allowed by the court; it is merely ordered to 1)e entered of record. The effect of the decree is only to make the account prima facie correct, and to throw upon any person thereafter attacking it the burden of proving that the items objected to are erroneous. The intermediate account of a trustee, or the partial account of an executor or administrator, is allowed by the court; and the decree allowing the same cannot be attacked except for fraud or mistake. V. PROCEEDINGS TO COMPEL ACCOUNTING. General Remarks. Where an executor, administrator, guardian or trustee neg- lects to file his account as required by law, there are various methods of compelling him so to do. Where Executor, Etc., Fails to Account Within One Year. Where an executor, administrator, guardian, or trustee neg- lects to file his account within one year from the time of the grant of letters to him, any person in interest may file with the vSurrogate a verified petition setting up the default of the exec- utor, etc., and disclosing the fact that he is a party in interest (see form 245 infra) ; and the Surrogate may thereupon issue a citation requiring such executor, etc.. to account at the next term of the Orphans' Court. Where Executor, Etc., Is In Default for Two Years. Where an executor, administrator, guardian or trustee neg- lects for two years after the grant of letters to file his account, any person in interest may file with the Surrogate a verified Accounting. ^'65 petition setting up the de fault of the executor, etc., and the fact that petitioner is a party in interest (see form 247 infra). It thereupon becomes the duty of the Surrogate to report such default to the Orphans' Court, which court may in its discretion by order direct the Surrogate to cite the executor to account at such time as the court may chrect. Application May Be Made to Orphans' Court. In case an executor, administrator, guardian or trustee has faikd to file his account for one year from the date of his ap- pointment, any person in interest may petition the Orphans' Court, setting up such default and the nature of his interest (see form 251 infra), and the court will thereupon issue a rule, returnable at such time as the court may direct, requiring such executor, etc., to show cause why he should not be required to- file his account, which rule may direct the manner of its service. Upon the return of the rule, if the executor, etc., is unable to show cause why he should not file his account, the court may by order direct him so to do. Failing to obey such order is punishable as a contempt. VI. METHOD OF OBJECTING TO ACCOUNT, General Remarks. Any person in interest desiring to object to an account, whether intermediate or final, or to any item thereof, nftiy do so by filing exceptions thereto with the Surrogate at any time before the allowance of the account l^y the court. Proceed- ings upon exceptions to an account are in the nature of a bill' for discovery in Chancery, and the Orphans' Court is invested with all the jurisdiction exercised by the Court of Chancery in^ similar cases. Thus, the Orphans' Court has power to charge an executor, etc., on the ground of negligence, or to determine- whether exceptants, who claim to be creditors of the estate,, are in fact creditors, and as such interested in the settlement of the estate; and so it may apply the equitable rule of estop- pel. 866 Probate Law and Practice. Who May Except. Exceptions can only be filed by a person in interest, that is to say, one who will receive benefit if the exception be sus- tained. If exceptions be filed by a person whom the account- ant conceives not to be a party in interest, the proper procedure is to move to strike out such exceptions on notice to the ex- ceptant, and upon such motion the court will, if necessary, take testimony and inquire into the interest of the exceptant, and if it finds that he is without interest in the proceeding, will strike out the exceptions. Form of Exceptions. Exceptions to an account must be specific, that is to say, they should point out the alleged infirmity in the account in such manner that accountant will be informed as to the nature of the objection; they must also specify the grounds on which the exception is based. Hearing on Exceptions. As has already been seen, exceptions to an account must be filed before the day on which the account is noticed for settle- ment, or before the day to which the settlement has been con- tinued by the court, on which day the account, with the ex- ceptions thereto, comes before the court, which may thereupon either proceed at once to hear the matter, refer the same to a master, or fix a day for hearing the same. In the larger coun- ties, the practice is to have the court fix a day for hearing the exceptions, or, in some instances, to refer them to a master. As has already been seen, exceptions to an account partake of the nature of a discovery in the Court of Chancery. In the first instance, the exceptant calls the accountant to the stand, and examines him in regard to the particular items in the ac- count excepted to. Upon such examination, the exceptant has all of the l.atitude allowed upon cross-examination, but does not make the accountant his witness in the sense of being bound by his testimony; and the exceptant is permitted to probe the conscience of the accountant as fully as in the case of a dis- covery in the Court of Chancery. After the exceptant has concluded his examination of the accountant, counsel for the ac- Appointment of Trustees. 867 countant may cross-examine upon the testimony given by ac- countant. After the cross-examination of the accountant is concluded, the exceptant proceeds to examine such other witnesses as may be produced by him in support of his exceptions. These witnesses are, however, the witnesses of exceptant and he is restricted in his examination of them by the ordinary rules applicable to the direct examination of witnesses. Wit- nesses so called by the exceptant are subject to cross-examina- tion by the accountant. After the exceptant has put in his case, the accountant is per- mitted to call witnesses in support of his account, and in re- buttal of the testimony produced by the exceptant; the latter may in turn, after the closing of the accountant's case, produce testimony in rebuttal of accountant's witnesses. Burden of Proof. Where an exceptant seeks to surcharge the accountant with items not accounted for by him, the burden of proof is upon the exceptant. Where, however, the exception is to items in discharge of the account, the burden of proving the correct- ness of the items so prayed allowance for is on the accountant. APPOINTMENT OF NEW TRUSTEES. General Remarks. The Orphans' Court has power, in case any trustee appointed by last will neglects or refuses to act, dies, or is removed or discharged before the execution and completion of the trust committed to him, to appoint some suitable person to execute such trust. Practice Upon Application. A proceeding of this character is initiated by petition (see form 255 infra). Five days notice of the application is re- quired to be given to all persons in interest or to such of them 868 Probate Law and Practice. as the court shall by its order direct, when they reside in this state, and at least thirty days' notice to non-residents, which last notice may be sent by mail. Provision is made by rule for service ui)on minors or persons iion compos mentis. Xotice cf the application may be dispensed with if the applicant pro- duces the consent of all the persons in interest to the appoint- ment of the person petitioned for, or the petitioner may obtain a rule to show cause why such appointment should not be made, which rule may direct the manner of its service upon the parties interested. The latter course is to be preferred, espe- cially in a case where there are numerous non-resident persons in interest. Upon presenting the matter to the court on the day upon which the matter is noticed for hearing or upon the return day of the rule to show cause, the court will examine into the mat- ter, and if there be any ol^jections to the appointment of a trus- tee or of the person proposed, will hear and determine such ob- jections, and will make its decree appointing some fit person trustee, which order will also fix the bond to h& given by the new trustee, upon the same principles upon which the bonds of administrators are fixed. PROCEEDINGS FOR DISCOVERY. General Remarks. If any person interested in an estate has reason to believe that the executor or administrator of such estate is wasting, embezzling or misapplying it, he may apply to the Orphans' Court for an order requiring such executor, etc., to make dis- covery before said court as to the condition of the estate. If any executor, etc., has reason to believe that any person has in his or her possession personal property of the estate of his testator, etc., or has knowledge of the existence or whereabouts of any such personal property, the Orphans' Court may by order require such person to appear before it and make dis- PkockivDings fok DiscovKkv. 869 oovery as to his possession or knowledge of the whereabouts or existence of such personal property, and may require the production of books and papers or other documents which will tend to make the discovery complete. Practice on Discovery by Executor. W here a person in interest desires to call upon the executor to make discovery of the condition of the estate, the practice is to present to the court a petition, (see form 125 infra). If a prima facie case for the intervention of the court is alleged therein, a rule will be allowed calling upon the executor, etc., to appear before the court, and show cause why he should not make the discovery prayed for ; and if upon the return of such rule the executor, etc., is unable to present to the court any reason why such discovery should not be had, the court will make its order requiring him to appear before it on a day therein named and make the discovery prayed for. On the day named in the above-mentioned order the peti- tioner calls the executor to the stand to testify under oath as to any matters relating to the estate concerning which he chooses to question him. The petitioner does not thereby make the executor his witness in the sense of being bound by his testi- mony, as the executor appears merely for the purpose of dis- covery, and the petitioner is permitted to examine him with all the latitude allowed upon a cross-examination. The petitioner has the privilege of producing other witnesses in support of his contentions, and also to contradict the testimony of the executor. After the petitioner has concluded his case, the executor is permitted to present testimony in rebuttal to the case made by the petitioner, and the court may take such action for the protection of the estate as may be taken in like cases in the Court of Chancery. Proceedings by Executor for Discovery of Assets. This proceeding is very similar to tliat in which it is sought to have an executor make discovery, and is used in a case where the executor or administrator believes that some person has assets of the estate in his possession, or has knowledge as to the whereabouts of assets of the estate, which tlie executor is unable to locate. 870 Probate Law and Practice. This proceeding is initiated by a petition which alleges all the facts in the possession of the executor (see form 128 infra). An order is thereupon made by the court, requiring the person whom the executor alleges to have in his possession assets of the estate, or to have knowledge of the whereabouts of such assets, to appear before the court on a day therein named, to make discovery in regard to the allegations contained in the petition. The proceedings thereafter are identical with those in a case where an executor is ordered to appear to make dis- covery in regard to the condition of the estate, (which see supra) . RELIEF OF SURETIES. Proceedings by Surety to Require Executor to Secure Him from Loss. If the surety on the bond of any executor, administrator, guardian or trustee believes that such executor, etc., is wast- ing or mismanaging the estate, whereby the surety may be- come liable to loss or damage, he may present his petition to the Orphans' Court, praying relief in the premises (see form 71 infra) ; and the court may thereupon make an order requiring such executor, etc., to show cause why he should not account to the surety and secure him from loss. It is the better prac- tice, although it is not always followed, for the executor to file his answer under oath, traversing the allegations of the pe- tition. Upon the day fixed in the rule to show cause, the executor will be required to submit himself to cross-examination by the surety as to the facts contained in his petition ; and if the court is satisfied that sufficient reason therefor exists, it may order such executor, etc., to render an account of his administration to such surety on or before a certain day, and will continue the proceeding until a day sufficiently far distant to enable the surety to examine the account produced by the executor, etc. Discharge of Executors, Etc. 871 L'poii this last named day, the executor again presents him- self for cross-examination upon the account rendered by him to his surety; and if it appears that such executor, etc., ha? embezzled, wasted, misapplied or mismanaged the estate, the court will direct him to give separate security to his surety for the due payment of the balance remaining in his hands to the parties entitled thereto. Relief of Sureties from Further Liability. If any of the sureties upon the bond of any executor, ad- ministrator, guardian or trustee desire to be released from re- sponsibility on account of the future acts of such executor, etc., such surety may make application to the Orphans' Court by pe- tition (see form 65 infra), and the court will thereupon direct the Surrogate to issue a citation to such executor, etc., requir- ing him to appear before the court to state and settle his ac- count of the estate that has come into his hands, and to give new sureties in the usual form for the discharge of his duties. This citation must be served by the sheriff. The account required from the executor, etc., under these circurmtances, is noticed for settlement and audited and stated by the Surrogate in the same manner as the accounts of execu- tors, etc., under ordinary circumstances, and the requirement of the citation is satisfied by the filing of such account and the noticing of the same for settlement. Upon the passing of the account, the executor, etc., gives a new bond, which must be approved by the court, which thereupon makes its order reliev- mg the sureties upon the original bond from any liability for the acts of sueh executor, etc., subsequent to the entry of such order. He remains liable, however, for any acts of such exec- utor, etc., prior to the entry of such order. If the executor neglects to obey the citation to account and give new sureties, he may be punished as for a contempt. DISCHARGE OF EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES. General Remarks. An executor, administrator, guardian or trustee has no ab- solute right to be discharged from the performance of his du- 872 Probate Law and Practice. lies as such for the mere reason that they have become bur- densome to him. The court will only grant such relief where upon examination into the matter, it appears that there is suffi- cient reason for such discharge ; and if the estate will be bene- fited by the denial of such application, whether by reason of the peculiar abilities of the applicant under the special circum- stances of the case, or for other reasons, the court will deny the application. Practice on Application. An application by an executor, etc.. for his discharge from the further performance of his duties is by petition to the Orphans' Court ( see form 207 infra), and upon thirty days' no- tice to all persons in interest, unless the court shall otherwise order. This notice may be served upon non-residents by mail- ing. If upon the day for which the matter is noticed for hearing the court, either from examination of the moving papers, or by such testimony as it may require, is satisfied that there is suffi- cient reason why such executor, etc.. should be discharged, it will order that he be discharged from all further duties of his office except accounting for and paying over the assets in his hands. If there be more than one executor or trustee, all may join in the same application for discharge ; and one or more exec- utors or trustees may apply to be discharged from the perform- ance of any particular trust imposed upon him oi" them by the will. Upon the discharge of a sole executor, administrator, guard- ian or trustee, the court will appoint a suitable person to execute the trust imposed upon the person so discharged, and will require the administrator, etc., appointed in his place to give a bond for the faithful performance of his duties in such sum as the court shall direct, which bond must be approved by the court. Riv.MOVAL OF ExKCrTORS. 873 REMOVAL OF EXECUTORS, ETC. General Remarks. The power of the Orphans' Court to remove an executor, ad- ministrator, fjuar(Han or trustee is purely statutory ; the court has no jurisdiction to make an order of removal cxcei)t for one of the grounds specified in the statute. Except in cases of fraud or embezzlement, courts are slow- to impose upon an executor, etc., the stigma of removal, and will usually do so only where it clearly appears that to permit him to continue to act is certain to result in loss to the estate ; and even in a case where it appears that an executor, etc., has mismanaged an estate, if the court finds it possible to protect the estate from further loss by requiring him to give surety for the faithful performance of his duties, it will usually adopt that course. Grounds of Removal. The statute provides that an executor, administrator, guard- ian or trustee may be removed for the following reasons : Where he is a non-resident, or after his appointment removes from the state, and neglects to proceed in the administration of the estate : where after his appointment he becomes of un- sound mind ; where he fails to file his inventory or account WMthin the time prescribed by statute; in case he refuses or neglects to perform or obey any order or citation issued by the court after due service thereof upon him; or when it is made to appear to the court that he has embezzled, wasted or mis- applied any part of the estate committed to his custody or has abused the trust and confidence reposed in him. Practice on Removal of Executors, Etc. Aj)plication for the removal of an executor, administrator, guardian or trustee is by petition (.see form 2c)(j infra ) of some person in interest, upon the presentation of which, if the al- legations therein are suf^cient, the court will make its order requiring the executor, etc., to show cause before the court on a day therein named why he should not be removed as such executor, etc. Upon the return of the rule to show cause, the petitioner calls witnesses to support the allegations contained 874 Probate Law and Practice. in his petition, which witnesses are subject to cross-examina- tion on the part of the executor. After the petitioner has closed his case, the executor may offer testimony, either of himself or of witnesses, in denial of the petitioner's allegations, after which the petitioner is permitted to offer testimony in rebuttal of that offered by the executor. Upon the removal of a sole executor, administrator, guard- ian or trustee, the court will appoint some fit person to per- form his duties, and will require such successor to give bond for the faithful performance of his duties in such sum as the court shall direct, which bond must be approved by the court. Duty of Removed or Discharged Executor. Upon the removal or discharge of an executor, etc., it is his duty to forthwith turn over to his successor any funds of the estate then remaining in his hands, and at the next term of the court to state and settle his account in the same manner as ac- counts of executors, etc., are required to be stated and settled under ordinary circumsances ; and it is the duty of such dis- charged or removed executor, etc., within sixty days after his account has been allowed, to pay the balance shown by such account to be due to his successor. Upon the allowance of such account, he will be allowed such commissions as he, in the discretion of the court, is entitled to ; or the court may refuse to allow any commissions, or may make such order respecting the same as in its discretion seems advisable. If upon the ])assing of such account it appears that upon the discharge or removal of the executor he turned over to his successor in. office a sum greater than that shown by the account to be due, the court will order the newly appointed executor, etc., to re- turn such overpayment to him. DISTRIBUTION. General Remarks. Upon the allowance of the account of an executor, adminis- trator or trustee, it becomes his duty to distribute the balance Distribution. 875 ii. his hands, as ascertained by the decree allowing the account, to the persons by law entitled thereto. In cases of administra- tion, the distribution is, of course, made to the next of kin of the intestate; in case of a will, to the legatees named therein. The executor or administrator should take refunding bonds and releases for the sums so paid by him to the next of kin or legatees, and file the refunding bonds and have the releases recorded in the office of the surrogate. Upon the filing of such refunding bonds and releases showing the distribution by him of the balance in his hands as ascertained in the decree allow- ing his account, he is automatically discharged, as are his bondsmen, from all liability for any of his acts up to the time of the filing of the account. He is not, however, discharged as executor or administrator ; and in case occasion arises there- after, either by the discovery of new assets or for other rea- sons, he may again administer. In the ordinary case, where, in the case of an administrator, the next of kin are definitely known and there is no dispute in regard to the right of distribution, or where, in the case of a will, the provisions of the same are clear, and no question arises in the mind of the executor as to who are the beneficiaries thereunder, no decree of distribution is required, such a decree being only taken in a case where doubts arise as to who are the distributees of intestate's estate, or as to who are the legatees under a will. Practice on Application for Decree of Distribution of^an In- testate's Estate. Application for a decree of distribution of an intestate's estate is by petition, (see form 258 infra). No notice of such application is necessary if the same be made at the time of the allowance of the administrator's final account, as all persons in interest arc in court upon the notice of settlement of the ac- count, and it is provided by a rule of court that the proof as to who are entitled may be made by the affidavit of any person having knowledge of the facts. The court may, however, re- quire additional testimony if, in its discretion, it seems advisa- ble so to do. The function of a decree of distribution is to fix the propor- tions of the estate of an intestate to which the several next of 876 Probate Law and Practice. kin are entitled, but not to fix or ascertain the amount of each share, l^ie decree of distribution, therefore, should not state the amount due each next of kin, Init only the proportion due each. The reason for this is that next of kin may have, during the administration of the estate, assigned their shares, or other- wise dealt with them. The proper proceeding for ascertain- ing the amount due any legatee is by suit for a distributive share, (which see infra). Application for Decree of Distribution in Case of a Will. Application for a decree of distribution, in the case of a testate decedent, is by petition addressed to the Orphans' Court (see form 262 infra). Five days' notice of such application is recjuired to be given to all persons interested, therein who are residents of the State of New Jersey, and not less than five nor more than sixty days' notice, as the court may by order direct, to non-residents, which last mentioned notice may be sent by mail with the postage thereon prepaid. The questions presented for solution upon an application for a decree of distribution where there is a will can only be solved by construing the will, since they arise from uncertainties in regard to the intent of the testator, as expressed in the lan- guage used by him. The court has, therefore, power, as an incident to its jurisdiction to make a decree of distribution, to construe such will. Such construction is, however, limited to the purpose for which it is obtained, that is to say, the distri- bution^of the estate, and is not binding for other purposes. PROSECUTION OF BONDS OF EXECUTORS, ETC. Practice. When the bond of any executor, administrator, guardian or trustee has been forfeited, any person aggrieved may present to the Ordinary a petition (see form 85 infra) praying that he be permitted to prosecute such bond, and upon good cause shown, the Ordinary will so order, but will require a bond to Suits for Legacies, Etc. >^J/ secure the payment of costs. This order and bond are filed in the Prerogative Court, after which a suit at law must be brought upon such bond in the name of the Ordinary; and if the same has been found to have been forfeited, judgment must be for the full amount of the penalty. After judgment has been obtained upon the bond, applica- tion is made to the Ordinary by petition, upon five days' notice (see form 89 infra) to assess the damages sustained l)y the breach of the bond ; and the Ordinary may assess such dam- ages, or may refer such matter to a master. Upon an application to assess damages upon a judgment against sureties, the only question to be determined is the amount to be raised, and no defences against the liability of the sureties on the bond can be set up. In such proceeding, the person prosecuting the bond proceeds to establish by evidence the amount which has come to the hands of the executor, etc. The latter may then show by competent testimonv such pay- ments as may have been made by him. and those which are war- ranted by law will be deducted from the amount so collected ; and the damages awarded will be the difference between the amount shown to have been received by the executor, etc.. and the amount of payments lawfully made by him therefrom. The Ordinary may, in his discretion, order the executor, etc., to settle his account in the Orphans' Court before damages are assessed, in which case the damages are assessed at the amount of the balance shown to be in his hands by the decree allowing the account. SUITS FOR LEGACIES AND DISTRIBUTIVE SHARES. Practice on Application. Suits for the recovery of legacies and distributive shares are commenced by petition (see forms 276 and 280 infra) which must be verified by the oath of the petitioner, his agent or solicitor. Dn the filing of the petition, a citation issues, which is served by the Sheriff on all jjarties in interest, and the 878 Probate Law and Practice. proceedings thereafter are governed by the rules and practice of the Court of Chancery. Upon the return of the citation, no proceedings are had, but an answer must be filed by the executor or administrator within twenty days from the return day thereof, and a replication filed by petitioner within ten days after the expiration of the time limited for filing the answer, after which the petitioner makes application to the court upon five days' notice to the executor or administrator, for an order fixing a day for hear- ing, at which time the court proceeds to inquire into and de- termine the matter. PROCESS. Issue and Service, Process for the appearance of any person before the Orphans' Court may be by citation issued by the Surrogate, or, in any pro- ceedings against executors, administrators, guardians or trus- tees, by rule to show cause made by the Orphans' Court. Cita- tions may be issued into any county of the state, and must be served by the Sheriff of the county into which they are issued ten days before the day whereon they are returnable. Rules to show cause must be served at least five days before their return, but the court may direct the manner and time in which the same shall be served. Service of Process upon Non-Residents. There are two methods of service of process upon non- residents ; service by any person whom the Surrogate under his hand shall appoint, either personally or by leaving a copy at his residence or usual place of abode thirty days before the return day of such citation, or publication, in which latter case the practice is identical with that of the Court of Chancery in a like case. If the process is served by a person delegated by the Surrogate, an affidavit of such service, setting forth the Process. 879 time, place and manner of service, must be filed in the Sur- rogate's office. Service upon Non-Residents by Publication. The practice upon the service of non-residents by publica- tion is to issue citations to such non-residents, and have the same returned by the Sheriff not found; or proof of the non- residence of the parties may be made by affidavit. The court thereupon will make its order directing such absent defendant to appear at a certain time not less than thirty days from the date of said order, or that such proceedings will be had against the said absent defendant as if he had appeared in such suit or proceeding. Notice of such order must within twenty days thereafter be served personally upon such absent defendant by the delivery of a copy thereof to him, or be published in one or more news- papers, designated in such order, for four consecutive weeks, at least once in each week ; and in case of such publication, a copy of such notice must be mailed to such defendant, prepaid, and directed to him at his residence or post-office ad- dress, unless such residence or post-office address is unknown and cannot be ascertained. The notice to be published is entitled in the court only, and addressed to the absent defendant l)y name. It is required to state the date of the order, the name of the petitioner, and the time within which the absent defendants are required to ap- pear, and shall also state briefly, in general terms, the object of the suit and why the persons to whom it is addressed are made parties. In all cases where the residence and post-office address of an absent defendant not actually served with a notice to appear is not known, the petitioner, his proctor or agent is required to make diligent and careful inquiry therefor, which inquiry must be made of the nearest relatives of the defendanl. if known, or. if not known, of any person known to be connected with such party by marriage or in business, or of any person whom the ])etitioner or his proctor has reason to believe possesses knowl- edge of the residence or i)ost-office address of such partv. S7 88o Probatk Law and Practice. CONTEMPT PROCEEDINGS. General Remarks. The Orphans' Court has power to punish as for a contempt any person who disobeys or does not comply with any order or decree made by it. Practice. The practice upon application to hold a person as for a contempt is to present the matter to the court by a petition (see form 237 infra). The court will thereupon issue an order directed to such person, requiring him to appear before the court at a day therein fixed, to show cause why he should not be punished for his contempt, which order should be served personally. Upon the return day of the order to show cause, the court will inquire into the matter; and if the person to whom such order is directed does not appear, or, in case he does appear, if he does not purge himself of the contempt, the court may inflict punishment by way of fine, or may order that he be committed to jail until the further order of the court, which order is delivered to the Sherifif and exe- cuted by him. An order holding a person in contempt may be executed by a Sheriff of any county of this state in which such person may be found. APPEAL. Who May Appeal. Any person aggrieved by any order or proceeding of a Surrogate in proving an inventory, granting letters of admin- istration or guardianship or in admitting a will to probate, may appeal therefrom to the Orphans' Court. Appeals from all other orders or decrees of the Surrogate are to the Pre- rogative Court. Appeals. 88 i When Appeal Must be Taken. An appeal from any {)roceeding of a Surrogate in proving an inventory or granting letters of administration or guardian- ship, must be taken within twenty days after such order or proceeding. Appeal from a decree of the Surrogate admitting a will to probate must be taken within three months from the entry of such decree, or within six months in cases where the person appealing resides out of this state at the death of the testator. Petition of Appeal. In a recent case, the Prerogative Court has held that the proper method of taking an appeal from the Surrogate is by petition filed with the Surrogate as Surrogate, and not as clerk of the Orphans' Court. The appeal should therefore be addressed to the Surrogate (see forms 355 and 356 infra). A copy of the petition of appeal is required to be served within ten days from the filing thereof, unless the court, in its dis- cretion, grant further time, upon the executor, administrator or guardian in case of an appeal from the probate of a will or from an order granting letters of administration or guardian- ship, and in other cases, upon the adverse party. Issue of Citations. It is the duty of the appellant, within ten days after filing the petition of appeal, unless the court shall grant further time, to cause the Surrogate to issue citations to all the i)ersons concerned and to cause the same to be duly served. Hearing of Appeal. On an appeal from a decree of tiie Surrogate the matter is tried de novo by tbe Orphans' Court, which ])roceeds as though no jjroceedings had been had l)cfore the Surrogate, and the petitioner before the Surrogate were the moving party. The i^ractice in case of an appeal from the ])robate of a will has l^een consirlercd under tbe subject of contested ])r(tbates (supra ). 882 Probate Law and Practice;. ADOPTION OF INFANTS. General Remarks. Applications for the adoption of minors fall into three classes. First, where it is possible to obtain the consent of the parents. Second, where the care and custody of the child has been surrendered by the parents to an orphanage, chil- dren's home or society to care for children incorporated under the laws of this state. Third, where the child has been abandoned, and there is no legal guardian to give con- sent to its adoption. Practice Where Consent to Adoption Can be Obtained. Proceedings for the adoption of minors are initiated by pe- tition of the adopting parties (see form 342 infra). If the petition is made by husband and wife, both must join in the petition, which may be presented to the Orphans' Court either of the county where the child resides, or of the county where the petitioners reside. Annexed to the petition is the written consent of the parents of such child, acknowledged or proved as deeds ot land are required to be. If, however, either parent be dead, unknown, insane or habitually intemperate, the consent of the other is sufficient. If the parent or parents have granted custody and con- trol of the child to any orphanage or childrens' home or society incorporated under the laws of this state to care for children, or if such a society has legally acquired the custody and con- trol of such child, the written consent jaf such society under its common seal must be annexed. It is to be observed that only childrens' aid societies incorporated under the laws of this state are authorized to consent to the adoption of minors under their control. If the child be over the age of fourteen years, its consent, acknowledged or proved as deeds of land are required to be, must be annexed to the petition. The petition should be filed with the Surrogate before pre- senting the same to the court. When the petition is presented to the court, an order will be made appointing a day not less Adoption of Minors. 883 than ten nor more than thirty days from the filing of the petition for hearing the matter. Adoption proceedings are lieard in open court, and the testimony is taken as in other cases. It is necessary to produce both of the adopting parents, who are called as witnesses to verify by their testimony each allegation of the petition. It is the better practice, where possible, also to call the parent or parents of the child, and to examine them as to their reasons for consenting to its adoption. This, however, is not indispensable, if they have properly executed their consent. The presence of the child at the hearing is not indispensable, although customary. At least one witness should also be called to establish the good character of the adopting })arents. Practice Where Consent to Adoption Cannot be Obtained. Where a child has been abandoned and has no legal guardian who can consent to its adoption, the proceedings in regard to the filing and presentation of the petition are similar to those upon the adoption of a child whose parents have consented to the adoption, except that upon the presentation of the pe- tition to the court, the court will make its order fixing a day when it will appoint a next friend for such minor. Notice of the filing of the petition and the making of such order is given by publishing the same in two newspapers circulating in the county where such court is located, once a week for three weeks successively; and upon the day fixed by the order, upon proof of such publication, the court will appoint some suitable person as next friend for such minor, and will also fix a day, not less than ten nor more than thirty days thereafter, for hearing the petition. Upon the day fixed for hearing, the consent in writing by the next friend to the adoption of such minor, and also the consent of the child, if over fourteen years, acknowledged or proved as is required of deeds of land, is presented to the court. The i)etitioner is required to call witnesses to prove the abandonment of the child, after which the testimony of the 884 Probate Law and Practice. adopting parents and of witnesses to prove their good char- acter is taken. The presence of the child at the hearing is not indispensable, although customary. RULES OF THE ORPHANS' COURTS OF THE STATE OF NEW JERSEY. Promulgated December i, 1915, to Take Effect April i, 1916. I. PROBATE OF WILL OR ADMINISTRATION. 1. APPLICATION FOR PROBATE OR LETTERS OF ADMINISTRATION. The application for probate of a will, for letters of adminis- tration, for letters of administration with the will an- nexed, for substitutionary administration, or for substitution- ary administration with the will annexed, shall be in writing, verified by affidavit ; such application shall state the residence of the applicant, the names of the heirs and next of kin of the deceased, so far as the same are known, with their resi- dences or post-office addresses, and the manner or degree in which they severally stand related to him or her ; and shall also state the ages of any of said heirs or next of kin who may be minors ; which application shall be recorded by the Surrogate in a book to be kept by him for that purpose. 2. RENUNCIATION BY OR NOTICE TO NEXT OF KIN. Where application for administration, for administration with the will annexed, for substitutionary administration, or for substitutionary administration with the will annexed, is 885 886 Probate Law and Practice. made by any person other than the next of kin or party first en- titled, or by one of several equally entitled to letters of ad- ministration, the person making such application shall produce to the Surrogate the renunciation and request of the persons so entitled that letters be issued according to the application, or proof that at least ten days notice has been given to all of the next of kin or parties by law entitled to such administration who reside in this State, and that not less than ten nor more than sixty days' notice, as the Surrogate may by order direct, has been given to the said next of kin or parties by law entitled to such administration who shall reside without this State. Notice to non-residents of the State of New Jersey may be sent by mail, with the postage thereon prepaid, addressed to the last known residence of such next of kin or parties by law entitled to such administration ; which application and the renunciation and request, if any, shall be recorded in a book to be kept for that purpose. 3. ADMINISTRATION AFTER FORTY DAYS FROM DEATH. If the executor named in any last will shall not apply for the probate of said will and for letters testamentary thereon within forty days from the death of his testator, or if the next of kin of any person dying intestate shall not apply for administration within forty days from the death of such in- testate, the Surrogate may grant letters testamentary, or let- ters of administration, as the case may be, to any fit person who will accept the same. 4. NOTICE OF APPLICATION UNDER RULE THREE. In all cases where application for letters testamentary or letters of administration is made under the provisions of rule three, the applicant shall give at least ten days' notice to the executor if any and also to the heirs, widow, next of kin or persons entitled to administration who are residents of the State of New Jersey, and not less than ten nor more than sixty -days' notice, as the Surrogate may by order direct, to the executor if any and also to the heirs, widow, next of kin or persons entitled to administration who reside without the State Orphans' Court Rules. 887 of New Jersey, or to those of them whose residences or addresses he can ascertain, of his intention to make such ap- pHcation, which notices may be sent by mail with the postage thereon prepaid. Proof of service of the aforesaid notices shall be filed with the Surrogate. 5. AFFIDAVIT OF VALUE OF ESTATE. All applications to the Surrogate for letters of adminis- tration, administration with the will annexed, substitutionary administration or substitutionary administration with the will annexed, shall be accompanied by an affidavit of the value of the estate for the administration of which the application is made. 6. RESIDENTS PREFERRED OVER NON-RESI- DENTS. Where upon an application for letters of administration, administration with the will annexed, substitutionary admin- istration, or substitutionary administration with the will an- nexed, it shall appear that some of the next of kin or persons entitled to. administration are residents of the State of New- Jersey and that others of said next of kin or persons entitled to administration reside without the State of New Jersey, the Surrogate, in granting letters of administration, shall give preference to residents of the State of New Jersey. 7. PROCEEDINGS WHERE WILL IS DISCOVERED AFTER ADMINISTRATION GRANTED. Where administration has been granted of an estate, and afterwards a will shall be produced to the Surrogate, or where probate of a will has been granted, and afterwards a later will shall be produced, the Surrogate shall issue a cita- tion to all persons interested, returnable to the Orphans' Court, to show cause why probate of such will should not be granted ; and upon admitting to probate such will, the court shall require the administrator or prior executor to make final settlement of his account, and shall make such order in rela- tion to his commissions as shall be just and eciuitable. 888 Probate Law and Practice. SUBSTITUTIONARY ADMINISTRATION. 8 SUBSTITUTIONARY ADMINISTRATION AFTER FORTY DAYS FROM DEATH OF EXECUTOR OR ADMINISTRATOR. If any executor or administrator, administrator with the will annexed, substituted administrator, or substituted admin- istrator with the will annexed, shall die before fully ad- ministering the estate of his testator or intestate, and the next of kin, residuary legatees or persons by law entitled, shall not apply for substitutionary administration with the will annexed, or for substitutionary administration, as the case may re- quire, for forty days after the death of such executor or ad- ministrator, the Surrogate may grant letters of substitution- ary administration with the will annexed, or letters of sub- stitutionary administration, as the case may require, to any fit person who will accept the same. 9. NOTICE OF AMPLICATION UNDER RULE EIGHT. In all cases where application for letters of substitutionary administration is made under the provisions of rule eight the applicant shall give at least ten days' notice to the heirs, widow, next of kin, residuary legatees or persons by law en- titled to substitutionary administration with the will annexed, or substitutionary administration, as the case may be, who are residents of the State of New Jersey, and not less than ten nor more than sixty days' notice, as the Surrogate may by order direct, to the heirs, widow, next of kin, residuary legatees or persons by law entitled to such substitutionary administration with the will annexed, or substitutionary ad- ministration, as the case may be, who shall reside without the State of New Jersey, or to those of them whose residences or addresses he can ascertain, of his intention to make such application ; which notices may be sent by mail with the postage thereon prepaid. Proof of service of the aforesaid notices shall be filed with the Surrogate. OupiiAxs' Court Rules. 889 10. FORM OF LETTERS OF SUBSTFrUTIONARV ADMINISTRATION. To all to whom these presents shall come, greeting: Whereas, A. B., late of the County of E., in the State of New Jersey, departed this life intestate, of whose goods, chat- tels and credits administration was duly committed to C. D., and the said C. D., after taking upon himself the burden of said administration, departed this life (or was removed or discharged from the said office by , as the case may be). Therefore I, F. G. S., Jr.. Surrogate of the County of E.. do in the place and stead of the said C. D., hereby substitute and appoint E. F., administrator of all and singular the goods, chattels and credits of said intestate, who is duly authorized as such substituted administrator to admin- ister the same agreebly to law. 11. FORM OF LETTERS OF SUBSTITUTIONARY ADMINISTRATION WITH THE WTLL ANNEXED. To all to whom these presents shall come, greeting: Whereas, A. B., late of the County of E., in the State of New Jersey, died, having made and executed a last will and testament, which has been duly proved according to law be- fore the Surrogate of the County of E. ; and, whereas the said testator appointed C. D. executor thereof, who, after taking upon himself the burden of administration, departed this life (or was removed or discharged from his said office by , as the case may be). Therefore I. F. G. S. Jr., Surrogate of the County of E., do, in the place and stead of the said C. D., hereby substitute and appoint E. F. administrator of all and singular the goods, chattels and credits of the said testator, who is duly authorized as such substituted administrator to administer the same agreeably to said will. 12. FORM OF LETTERS TO BE CHANGED TO AC- CORD TO FACTS. If the appointment is in substitution of an administrator with the will annexed who has died, been removed, or dis- charged, the form is to be made to -accord with the fact. Sgo Probate Law and Practice. II. GUARDIANSHIP. 13. APPLICATION FOR LETTERS OF GUARDIAN- SHIP. Application for letters of guardianship shall be in writing, verified by affidavit ; such application shall state the age and residence of the minor, the names and residences of his near- est of kin, the names and residences of all persons standing in loco parentis to such minor, if any, and the names and resi- dences of the persons with whom he resides, and shall have annexed thereto an affidavit of the value of the personal es- tate of said minor and the amount of the income from any real estate belonging to him. In the case of applications by orphans over the age of fourteen the foregoing affidavit shall be made by some person having personal knowledge of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him. 14. NOTICE OF APPLICATION FOR GUARDIANSHIP. Where application for letters of guardianship of an orphan under fourteen or for guardianship upon the estate of a minor whose father is living, is made by any person other than the next of kin or party first entitled, or by one of several equally entitled to receive letters of guardianship, the person making such application shall produce to the Surrogate or Orphans' Court the renunciation and request of such persons so entitled and of the person or persons standing in loco parentis to said minor, if any, and also of the persons with whom said minor resides, that letters be issued according to the application, or proof that at least ten days' notice has been given to all of the next of kin or parties by law entitled to such guardianship, and to all persons standing in loco parentis to said minor, if any, and also to the persons with whom said minor resides, who resides in this State ; or that not less than ten nor more than sixty days' notice, as the court or Surrogate may by order direct, has been given to the said next of kin or parties by law entitled to such guard- ianship, and to any person standing in loco parentis to said minor, and to the persons with whom the said minor may re- Orphans' Court Rules. 891 side, who shall reside without this State. Notice to non-resi- dents of the State of New Jersey may be sent by mail, with the postage thereon prepaid, addressed to the last known resi- dence of such next of kin, person standing in loco parentis. person with whom said minor may reside, or persons by law entitled to such guardianship. The application and the re- nunciation and request, if any, shall be recorded by the Sur- rogate in a book to be kept for that purpose. 15. APPOINTMENT OF GUARDIAN FOR INFANT OVER FOURTEEN FOR WHOM GUARDIAN HAS BEEN APPOINTED WHILE UNDER FOURTEEN. In case any orphan, for whom, while under the age of four- teen years, a guardian has been appointed, desires, upon ar- riving at the age of fourteen years, to choose another guard- ian, application may be made to the Orphans' Court of the county wherein the original letters of guardianship were granted, which application shall be signed by the minor in the presence of the Surrogate, Deputy-Surrogate, or a special master in chancery of New Jersey, and shall be in conformity with the requirements of rule thirteen. The same notice of such application shall be given to the existing guardian, and also to the next of kin, persons stand- ing in loco parentis and persons with whom such minor may reside, as is prescribed in rule fourteen ; upon such applica- tion, the court shall inquire into the circumstances of the case, and shall take such action in respect to the appointment of a guardian, or guardians for such minor, as shall seem to be for his best interest and advantage. III. INQUIRY FOR ABSENT NEXT OF KIN. 16. NATURE OF INQUIRY FOR ABSENT NEXT OF KIN. Wherever it shall appear by any petition for letters of ad- ministration or guardianship that the residence or post-ofificc address of any next of kin or other person entitled to notice of such application is not known, the applicant, or his proctor, shall make diligent and careful inquiry therefor ; such inquiry 892 Probate Law and Practice. shall be made of the nearest relatives of the decedent or minor, if known or if not known, such inquiry shall be made of any person known to be connected with the said decedent or minor, by marriage or in business, or of any per- son who the applicant, or his proctor, making the inquiry, has reason to believe possesses knowledge of the residence or post-office address of such absent next of kin or person en- titled to notice of such application; such inquiries may be made in person or by letter, and shall state that application has been made for letters of administration upon the estate of the decedent (naming him), or for letters of guardianship of the minor (naming him), and that the next of kin or per- son entitled to notice, whose residence is sought to be ob- tained, is interested in such application, and that the object of the inquiry is to give him notice of such application, that he may appear and protect his interests, and, in the case of an application for guardianship, the interests of said minor. When such inquiry is made by letter a proper postage stamp for the return of an answer shall be enclosed. Proof of such inquiry shall be made by the affidavit of the applicant, or his proctor, that such inquiry has been made in good faith and without success. IV. SETTLEMENT OF ACCOUNTS. 17. VOUCHERS TO P.E LODGED \\'ITH SURROGATE. Executors, administrators, guardians and trustees who have noticed their accounts for settlement shall lodge with the Surrogate the vouchers and receipts for payments and dis- bursements claimed therein, at least twenty days previous to the day on which said account is noticed for settlement, which said vouchers shall be open to the inspection of all interested persons. The Surrogate shall not report any account to the Orphans' Court for allowance and settlement unless the said vouchers and receipts have been lodged with him in compli- ance with this rule. 18. NOTICE OF SETTLEMENT OF ACCOUNTS TO BE MAILED. In addition to the posting and publication of notices of set- tlement of the accounts of executors, administrators, guardians Orphans' Court Rules. 803 and trustees prescribed by law, one month's notice of the set- tlement of all accounts of executors, administrators, guardians and trustees, together with a statement as to whether counsel fees and commissions will be applied for by said accountant on the allowance of said account by the court, shall be given by said accountant to all persons interested therein, which notice may be sent by mail with the postage thereon prepaid. In case any person interested in the settlement of such account be a minor, such notice shall be mailed to the guardian of such minor, if any; if there be no guardian then to the parent or other person standing in loco parentis to said minor. Proof of such mailing shall be by affidavit filed in the office of the Sur- rogate on or before the day on which said account is noticed for settlement. 19. PETITION TO BE ANNEXED TO ACCOUNTS. All accounts of executors, administrators, guardians or trustees shall have annexed thereto a petition which shall l)e addressed to the Orphans' Court and which shall contain the names and addresses of all persons interested in said account- ing, and shall specify which if any of such persons in interest are minors. In case any of such persons in interest be minors the said petition shall give the names and addresses of the guardians of such minors if any, or if there be no guardian then the names and addresses of the parents or other persons standing in loco parentis to said minor ; said j)etition shall also contain a summary of the account and, in the case of a first accounting, shall recite the amount of the inventory, the amount shown by the account to have been collected in addition thereto, the amount of expeditures, and shall state the balance in the hands of the accountant. In the case of a second or other accounting, said petition shall recite the balance remaining in the hands of accountant as sliown in his last ])revious account, the amount received during the period covered by the account, the amount of disbursements shown In- the account, and the balance in the hands of the accountant. Such petition annexed to trustees' accounts shall also state the receipts and disbursements on account of corpus and income separately. The pctiticjn and account shall be verified l)v the 894 Probate Law and Practice. oath of the accountant, and shall pray for the allowance of said account, and also for the allowance of commissions and coun- sel fees if the accountant intends to apply therefor. 20. EXCEPTIONS TO BE IN WRITING AND SPECIFIC. When exceptions are made to the account of an executor, administrator, guardian or trustee, such exceptions shall be in writing; and where the objections are to disbursements, they shall state specifically the item or items and particulars objected to, and the reasons therefor. 21. STATEMENT OF ASSETS TO BE ANNEXED TO ACCOUNT. In the settlement of the accounts of executors, administra- tors, guardians or trustees, the accountant shall annex to the account a full statement or list of the securities, invest- ments and assets of which the balance of the estate in his hands consists, and a statement of all changes made in the securities since the filing of the inventory or since the last settlement. 22. NOTICE OF RE-SETTLEMENT OF ACCOUNTS. In proceedings for the re-settlement of the account of an executor, administrator, guardian or trustee, at least five days' notice of the intended application shall be given to such ex- ecutor, administrator, guardian or trustee. V. COMMISSIONS. 23. APPLICATION FOR COMMISSIONS WHERE ESTATE IS LARGE. Applications for commissions in all cases where the sums which shall come into the hands of executors, administrators or trustees shall exceed fifty thousand dollars or where, in the case of guardians, such sums shall exceed twenty thou- sand dollars, shall be accompanied by an affidavit stating fully the pains, trouble and risk of such applicant in settling such estate. Orphans' Court Rules. 895 24. NOTICE OF ADJUSTMENT OF COMMISSIONS. Upon the adjustment of commissions between executors, administrators, guardians or trustees, the Orphans" Court shall not determine the matter upon the application of some or one of them without proof that not less than five days' notice of such application has been given to the other or others. VI. INVESTMENT OF MONEYS. 25. EXECUTORS, &c., TO REPORT FAILURE TO INVEST. Executors, administrators, guardians or trustees required to retain money in their hands shall put it out at interest, or apply to the Orphans' Court for an order so to do ; and in case they shall not be able to find proper investment therefor they shall report the fact to the court within sixty days after they shall have received it, or after they shall be required to retain it or to invest it ; and in case of their neglect so to do they shall be accountable for interest thereon. VII. DISTRIBUTION. 26. PROOF OF NEXT OF KIN ON DISTRIBUTION. The Orphans' Court, before decreeing the distribution of the estate of any person dying intestate, shall require proof in writing, under oath, of the names of the wife and children, if any, or other next of kin of the intestate, and how and in what degree such other next of kin are related ; which proof mav 1)6 made by affidavit of the administrator, or of any one having knowledge of the family and next of kin of the de- ceased unless the court shall require further or other proof. 27. DISTRIBUTION IN CASE OF A WILL. All applications by executors, substitutionary administrators with the will annexed, or administrators with the will an- nexed, for a decree of distribution, shall be by verified peti- tion addressed to the Orphans' Court, which i)etition shall recite the grant of letters to ])etitioner, the names and ad- dresses of all persons interested, the allowance of petitioner's 58 896 Probate Law and Practice. account by the Orphans' Court and the balance in petitioner's hands for distribution, and shall pray for an order of dis- tribution in accordance with the terms of the will, a copy whereof shall be annexed to the said petition. 28. NOTICE OF APPLICATION. Five days' notice of any application for distribution under the provisions of rule twenty-seven shall be given by such executor, substitutionary administrator with the will annexed, or administrator with the will annexed, to all persons inter- ested therein who are residents of the State of New Jersey, and not less than hve nor more than sixty days' notice, as the court may by order direct, to all persons interested therein who reside without the State of New Jersey, which last men- tioned notice may be sent by mail with the postage thereon prepaid. VIII. DISCHARGE OF EXECUTORS, ADMINISTRA- TORS, GUARDIANS AND TRUSTEES. 29. NOTICE OF APPLICATION. An executor or administrator seeking to be discharged from the further duties of his office shall give to all the par- ties interested in the estate of which he is such executor or administrator, or to such of them as the court shall direct, at least thirty days' notice, in writing, of his intended applica- tion to the Orphans' Court for such discharge, unless the Orphans' Court, for good cause appearing shall otherwise order ; and where any of the said parties shall reside outside of this State, such notice may be given by mailing the same to their post-office addresses. Guardians seeking to be dis- charged from their trust shall give like notice in like manner to their wards, to the nearest of kin of their said wards, to any person standing in loco parentis to their said wards and also to the persons with whom their said wards may reside, or to such of them as the court shall direct. Trustees seeking to be discharged from their trust shall give like notice in like manner to their cestui que trust or cestuis que trustent. If a cestui que trust be a minor or nan compos mentis, notice shall Orphans' Court Rules. 897 Ije given to the guardian, if any. and if none, to the nearest of kin, persons standing i'.i loco parentis to said minor, if any, and also to the persons with whom said minor shall reside, or to such of them as the court shall direct. IX. SALE OF LANDS. 30. APPLICATION TO SELL LANDS IN COUNTIES OTHER THAN THAT IN WHICH LETTERS ARE GRANTED. Where applications for the sale of lands to pav dehts shall be made to the Orphans' Court of any county other than the county in which letters of administration or probate of the will shall have been granted, the executor or administrator making such application shall present to said Orphans' Court a certified copy of the will and of the letters testamentary issued^ thereon, or of the letters of administration, as the case may require, and also a certified copy of the inventory of the per- sonal estate of the testator or intestate: which copy of letters testamentary and will and inventory, or of letters of adminis- tration and inventory, shall be filed with the Surrogate of the county in which such api)lication is made. 31. PROSECUTION OF BOND OF HEIRS AND DEVISEES. Where the heirs of an intestate, or the heirs or devi.sees of a testator, shall have given bond to the executor or adminis- trator, with the approval of the court, upon the return of the rule to show cause for the sale of lands for the ])avment of debts, the court shall, before making any order for the prose- cution of the bond or for the sale of the lands, require proof of the service of a notice u[)on such lieirs or devisees and their sureties, if they be still living and rc^ident in ibis State, or. if dead, on their executors or administrators, if any they Iiavc- in this State, of the intended application for such order. 32. NOTICE BY CREDITOR OF APPLICATION FOR ORDER TO SELL LANDS TO PAY DEBTS. The notice to an executor or administrator of an applica- tion, by a creditor, requiring him to take proceedings to sell S98 Probate Law and Practice. lands to pay debts, shall be served on such executor or admin- istrator at least five days before the day therein named for making the said application ; and the Orphans' Court may, by citation or other process, require the executor or administra- tor to appear before it and testify as to the amount of the personal estate and debts of the deceased. 33. APPLICATION AND REPORTS TO BE UNDER OATH. All applications to the Orphans' Court for the sale of lands, all petitions by substitutionary administrators with the will annexed or administrators with the will annexed for con- firmation of sales of land, and all reports of such sales to said court shall be verified by the oath or affirmation of the party making the same. 34. AFFIDAVITS AS TO VALUE OF PROPERTY TO BE ANNEXED TO REPORTS OF SALES. Reports of sales and petitions for the confirmation of sales by substitutionary administrators with the will annexed or ad- ministrators with the will annexed, shall state the names and addresses of all parties in interest and shall have annexed thereto affidavits of at least two persons familiar with the value of property in the neighborhood where the lands so sold are located, giving the fair market value of the lands and premises so sold. 35. NOTICE OF INTENTION TO REPORT SALE FOR CONFIRMATION. Notice of the intention of any executor, administrator. guardian or trustee to make report of any sale to the Orphans' Court, or of any application by a substitutionary administrator with the will annexed or an administrator with the will an- nexed for the confirmation of a sale of lands made by him shall, unless the court shall otherwise direct, be given to all persons in interest. Five days' notice of such application shall be given to all persons in interest who are residents of the State of New Jersey, and not less than five nor more than sixty days' notice, as the court may by order direct, to all such Orphans' Court Rules. S99 persons in interest who shall reside without the State of Xew Jersey, which last mentioned notice nia\- he sent l)y mail with the postage thereon prepaid. X. SALE OF LANDS BY GUARDIANS. 36. BOND OF c;UARDIAX Ox\ SALE OF LAND. The Orphans' Court on granting an order to a guardian to sell land, or timher on the land of his ward, shall examine as to the sufSciency of the bond of the guardian previously given, and if. in its judgment, said bond is insuf^cient, it shall re- quire the guardian to give such additional bond for the faith- ful execution of his office as, in its judgment, shall be adequate. XI. PARTITION. 3;. NOTICE OF APPLICATION. The notice of application upon proceedings in partition, where there is a minor or minors not having a guardian, shall be served upon the father or mother, and if there be no father or mother, then on one or more of the nearest of kin of full age, if any residing in this State, of such minor or minors : and it shall be the duty of the court, in all such cases, to ap- point a guardian ad litem for every such minor. XII. DOWER. 38. NOTICE TO MINORS ON APPLICATION FOR DOWER. The notice of the intended apj)lication to the Orphans" Court for the appointment of commissioners to assign dower to a widow in any lands or real estate in which any minor or minors, residing in this State, and not having a guardian, may be interested, shall be served on the father or mother, and if there be no father or mother, then on one or more of the nearest of kin of full age, of the minor or minors, if there be any residing in this vState ; and if such a])plication is made by the mother of such minor or minors, then the notice shall be 900 Pkobatk Law axu I^ractice. served on one or more of the nearest of kin of the minor or minors, of the blood of the father, if any such there be resid- ing in this State, and if none, then on one or more of the nearest of kin on the side of the mother ; and it shall be the duty of the court, in all such cases, to appoint a guardian ad litem for such minor or minors. XIII. NOTICES. 39. FIVE DAYS' SERVICE OF RULES, NOTICES, &c. There shall be at least five days' service of all notices and rules to show cause and process, except where otherwise provided or where the court otherwise directs. 40. NOTICE OF ORDER OF PUBLICATION. The notice required to be given by sections 67 and lOO of the Orphans' Court Act shall be given by setting up and pub- lishing a notice stating that the order has been made, at what time (its date), on whose application, in what court and what directions are thereby given, and not by setting up and pub- lishing a copy of the order. XIV. CORPORATIONS AS TRUSTEES, &c. 41. CORPORATIONS REQUIRED TO DEPOSIT FUND WITH REGISTER BEFORE ACTING. No corporation entitled by law to execute trusts or to act as assignee, administrator, guardian, receiver or trustee shall be appointed to such office until it shall have created a fund to be specifically set apart for, and devoted to specially se- curing its liability in such capacities of trust and confidence, in accordance with the provisions of the act entitled "An Act con- cerning trust companies (Revision of 1899)" approved March twenty-fourth, one thousand eight hundred and ninety-nine (Laws of 1899, page 450 ; 4 C. S. page 5658, sec. 9), and shall have deposited with the Register of the Prerogative Court, ac- cording to the scheme prescribed by rules thirty-eight, forty- one and forty-two of that court securities which shall repre- sent the said fund. Orphans' Court Rulks. <-)oi 42. NO DEPOSIT REQUIRKD IF TRUST COMPANY GIVES SECURITY IN SAME MANNER AS NATURAL PERSON. Nothing in these rules contained shall require the deposit of any such fund when the trust company appointed gives se- curity in the manner prescribed by law in such behalf for natural persons, or in cases where the trust company shall have been appointed as executor or trustee by any will or deed. 43. AFFIDAA'IT. STATEMENT AND CERTIFICATE OF REGISTER TO ACCOMPANY APPLICATION FOR APPOINTMENT. Every application for the appointment of such corporation to act as such assignee, administrator, guardian, receiver or trustee shall be accompanied by an affidavit of the president, secretary or trust officer of said corporation setting forth the matters specihed in section 9 of the act referred to in rule forty-one and a copy of the latest published general state- ment of the resources and liabilities of the corporation, such statement in no case to be of a date more than six months previous to the application ; there shall also be appended to the application a certificate signed by the Register of the Prerogative Court, showing that the special fund required by said section 9 of the above mentioned act remains on deposit with him, in approved securities, stating the amount thereof. The said affidavit shall be filed with the Surrogate, and, with- in thirty days after such appointment, a copy thereof shall be transmitted by him to the Register of the Prerogative Court. Such corporation shall present to the Court or Surrogate on such application (but need not file) the certificate of the Com- missioner of Banking and Insurance issued under the pro- visions of section 5 of the above mentioned act. 44. BOND REQUIRED FROM CORPORAI^ION. Upon being a])]jointed to any such office as is mentioned in rule forty-one, the corporation shall give l)on(l, ])ut without surety, similar to the bond that a natural ])erson would be obliged to give if he or she were appointed to sucli office. 902 Probate Law and Practick. XV. APPOINTMENT OF TRUSTEES. 45. NOTICE OF APPLICATION. When any trustee, heretofore or hereafter appointed hy any will, shall neglect or refuse to act, or shall die before the execution and completion of the trust committed to him, and any interested person shall intend to apply to the Orphans' Cotirt of the county where the testator resided at the time of his death, for the appointment of a suitable person or suitable persons to execute such trust, the person intending to make such application shall give to all persons interested in the execution of such trust, or to such of them as the Court shall by its order direct, when they reside in this State, at least five days' notice in writing of such intended application ; when any of said parties shall reside out of this State, the notice shall be given by personal service, either within or without this State, or by mailing the same to said parties, at their re- spective post-ofifice addresses, at least thirty days before the day designated in the notice for making such application. If any cestui que trust be a minor or nou compos mentis, notice shall be given to his or her guardian, if any, and if none to his or her nearest of kin, to any person standing in loco parentis to said minor or non compos and also to the persons with whom said minor or non compos resides, or to such of them as the court shall by its order direct. XVI. APPOINTMENT OF GUARDIANS AD LITEM. 46. PRACTICE ON APPLICATION ON BEHALF OF INFANT OR INCOMPETENT. Whenever it shall be necessary, in any cause or proceed- ing in the Orphans' Court, that a guardian ad litem for any infant or incompetent party thereto should be appointed, a pe- tition may be presented, by the infant if above the age of four- teen years, or, if under that age, by his guardian aj^pointed by the Surrogate or Orphans' Court, his father, or some other friend in his behalf, praying such appointment. In the case of an incompetent party the petition shall be by his guardian appointed by the Orphans' Court or some next friend in his (3ri'haxs' Court RuLE^i. 903 behalf. Annexed to the petition there shall be an agreement, by the person petitioned for as guardian, to accept the appoint- • nient, and also an affidavit that the petition and agreement were duly signed by the persons purporting to sign them, and verifying the age of the infant. 47- WHERE NO APPLICATION IS MADE ON BEHALF OF INFANT OR INCOMPETENT. If no ai:)plication shall be made by or on behalf of the infant or incompetent party within five days after the service upon him of the citation or other authoritative command of the court to appear, &c., the Orphans' Court may, on applica- tion on behalf of the party instituting or prosecuting the \>vo- ceedings, by its order assign a guardian ad litem for said infant or incompetent party ; but ten days' notice of such api)li- cation must be given to the infant, if of the age of fourteen years and resident within this State, or, if under that age or not a resident in this State, to his guardian appointed by the Surrogate or Orphans' Court, if any there be, and if no such guardian, to the father of such infant, or, if no father, then to the mother, or, if no mother, to the person standing in loco parentis to the infant provided such guardian, father or mother. &c., be resident in this State, which notice may be served at the time of service of the process of citation or at any time there- after. If such guardian, father or mother, &c., be not resident in this State, such notice shall be given as the court may by order direct. In the case of an incompetent person, ten days' notice of such application shall be served upon him and also upon his guardian appointed by the Orphans' Court, if any there be. and if no such guardian, then upon such persons as the court may by order direct. XVII. AFFIDAVITS. 48. PROCTORS OR COUNSEL NOT TO TAKE AFFIDAVITS. No proctor or coun.sellor .shall take any affidavit for u>c in any proceeding before the C:)rphans' Court or Surrogate in which he or any firm of which he is a mcmljcr appears as proctor or counsel of record. 904 Probate Law and Practice. XVIII. APPEAL FROM SURROGATE. 49. PETITION OF APPEAL. In all cases of an appeal from any order or decree of the Surrogate, the party appealing shall file with the Surrogate a petition of appeal, addressed to the Surrogate, in which shall be briefly stated the order or decree complained of, the grounds of appeal and the names of all persons concerned; and a copy thereof shall, within ten days thereafter, unless the Orphans' Court shall in its discretion grant further time, be served upon the executor, administrator or guardian, in case of an appeal from the probate of a will or from an order granting letters of administration or guardianship, and in other cases upon the adverse party. 50. APPELLANT TO CAUSE ISSUE OF CITATION. The appellant shall, within ten days after filing any petition of appeal with the Surrogate, unless the Orphans' Court shall for good cause grant further time, cause the Surrogate to is- sue citations to all the persons concerned, named in said peti- tion of appeal, to appear before the Orphans' Court of the same county on a day therein to be named and shall cause said citation to be duly served ; and the said Orphans' Court shall at the time and place mentioned in said citation, or at such other time or place as it may then appoint, hear and determine the matter in controversy. 51. DISMISSAL OF APPEAL. If appellant shall fail to serve a copy of the petition of ap- peal as provided in rule forty-nine, or shall fail to cause cita- tion to be issued by the Surrogate as provided in rule fifty, or shall, after citations are issued, fail to cause the same to be duly served or fail to diligently prosecute his appeal, any party interested in the proceedings may thereupon apply to the Orphans' Court, upon five days' notice to the appellant, to dismiss the said appeal, and that court, may, in its discretion, dismiss the said appeal with costs. RULES OF THE PREROGATIVE COURT OF THE STATE OF NEW JERSEY. Promulgated December i, 1915, to Take Effect April i, 1916. I. OF PROCTORS. 1. SOLICITORS TO BE PROCTORS. All solicitors of the Court of Chancery shall be proctors of this court. II. OF PLEADINGS. 2. PETITIONS TO BE ADDRESSED. TO ORDINARY. All petitions shall be addressed to the Ordinary. 3. CHARACTER OF PAP^R AND TYPEWRITING. Every petition and other pleading, and all orders and ])apers of every nature intended to be filed in any proceeding shall be printed, or fairly and legibly written by pen, or by typewriter with what is known as a "black record ribbon," and the ])aper upon which said pleadings or orders are printed or written shall weigh at least seven jiounds to the ream of five hundred sheets. III. PROBATE OF WILL OR ADMINISTRATION. 4. APiMJCATIOX FOR PKOBATh: OK LETTERS OF ADMINISTR.ATION. 'i'hc applicat!(jn for probate of a will, for letters of adminis- tration, letters oi administration with the will annexed, 905 9o6 Probate Law and Practice. for substitutionary administration, or for substitutionary ad- ministration with the will, annexed, shall be in writing, verified by affidavit ; such application shall state the residence of the applicant, the names of the heirs and next of kin of the deceased, so far as the same are known, with their residences or post-office addresses, and the manner or degree in which they severally stand related to him or her ; and shall also state the ages of any of said heirs or next of kin who may be minors, which application shall be recorded by the Register in a book to be kept for that purpose. 5. RENUNCIATION BY OR NOTICE TO NEXT OF KIN. Where application for administration, for administration with the will annexed, for substitutionary administration, or for substitutionary administration with the will annexed is made by any person other than the next of kin or i)arty tirst enti.tled, or Iw one of several equally entitled to letters of administra- tion, the person making such application shall produce to the Court the renunciation and request of the persons so entitled that letters be issued according to the a]ii)lication. or proof that at least ten days' notice has been given to all of the next of kin or parties by law entitled to such administration who re- side in this State, and that not less than ten nor more than 6ixty days' notice, as the Court may by order direct, has been given to the said next of kin or parties by law entitled to such administration who shall reside without this State. Notice to non-residents of the State of New Jersey may be sent by mail, with the postage thereon prepaid, addressed to the last known residence of such next of kin or parties by law entitled to such administration ; which application, and the renunciation and request, if any, shall be recorded in a book to be kept for that purpose. 6. ADMINISTRATION AFTER FORTY DAYS FROM DEATH. If the executor named in any last will shall not apply for probate of said will and for letters testamentary thereon for forty days from the death of his testator, or the next of kin of any person dying intestate shall not apply for administra- Prerogativk Coi'RT RuLi'S. 907 tioii for forty days from the cleatli of the intestate, this Court may grant letters testamentary, or letters of administration, as the case may he. to any fit person who will accept the same. 7. NOTICE OF APPLICATION UXDKR RULK SIX. In all cases where application for letters testamentary or letters of administration is made under the provisions of rule six. the petitioner shall give at least ten days' notice to the executor, if any, and also to the heirs, widow, next of kin or persons entitled to administration who are residents of the State of New Jersey, and not less than ten nor more than sixty days' notice, as the Court may hy order direct, to the executor, if any. and also the heirs, widow, next of kin or persons entitled to administration who shall reside without the State of New Jersey, or to those of them whose residences or addresses he can ascertain, of his intention to make such application ; which notices may he sent hy mail with the postage thereon prepaid. Proof of service of the aforesaid notices shall he filed with the register of this court. 8. AFFIDAVIT OF VALUE OF ESTATE. Upon application to this Court for letters of administration, administration with the will annexed, suhstitutionary adminis- tration or suhstitutionary administration with the will annexed. the applicant shall file an affidavit of the value of the estate for administration of which the application is made. 9. RESIDENTS PREFERRED OVER NON-RESIDENTS. Where upon an ai)plication for letters of administration, administration with the will annexed, suhstitutionary ad- ministration, or suhstitutionary administration with the will annexed, it shall apj)ear that some of the next of kin or l>ersons entitled to administration are residents of the vState of New Jersey, and that others of said next of kin or persons entitled to administration reside without the State of New Jersey, this Court, in granting letters of administration, shall give preference to the residents of the State of New Jersev. 9o8 Probatk Law and Practice. 10. PROOF REQUIRED THAT NO CAVEAT HAS BEEN FILED OR DISPUTE HAS ARISEN. Probate of any will .shall not be granted by this Court, nor shall letters of administration l)e granted by it in any case, until proof be made to its satisfaction that no caveat against proving such will has been tiled and that no dispute has arisen as to the right of administration, in the ofiftce of the Surrogate of the county where the testator or intestate resided at the time of his death, or that notice has been given to all persons concerned of the application to this Court for the probate of .said will or for letters of administration. 11. PROCEEDINGS WHERE WILL IS DISCOVERED AFTER ADMINISTRATION GRANTED. Where administration of an estate has been granted by this Court, and afterwards a will shall 1)e produced to this Court, or where probate of a will shall have been granted in this Court and afterwards a later will shall be produced, the Regis- ter shall issue a citation to all persons interested, returnable to this Court, to show cause why probate of such will should not be granted ; and upon admitting to probate such will, the Court shall require the administrator or prior executor to make final settlement of his account, and shall make such order in relation to his commissions as shall be just and equitable. SUBSTITUTIONARY ADMINISTRATION. 12. SUBSTITUTIONARY ADMINISTRATION AFTER FORTY DAYS FROM DEATH OF EXECUTOR OR ADMINISTRATOR. In all cases where any will has been admitted to proljate by this Court or letters of administration, administration with the will annexed, substitutionary administration or substitutionary administration with the will annexed, has been granted by it, and the executor or administrator shall die before fully admin- istering the estate of his testator or intestate, and the next of kin, residuary legatee or persons by law entitled shall not apply for substitutionary administration with the will annexed or for substitutionary administration, as the case may require, for Prerogative Court Rules. 909 fortv days after the death of such executor, this Court may grant letters of suhstitutionary a(hninistration with the wiU annexed or letters of suhstitutionary administration, as the case may require, to any fit person who will accept the same. 13. NOTICE OF APPLICATION UNDER RULE TWELVE. In all cases where application for letters of substitutionary administration is made under the provisions of rule twelve, the petitioner shall give at least ten days' notice to the heirs, widow, next of kin. residuary legatees or persons hy law en- titled to suhstitutionarv administration with the will annexed or to substitutionary administration, as the case may be, who are residents of the State of New Jersey, and not less than ten nor more than sixty days' notice, as the Ordinary may by order direct, to the heirs, widow.' next of kin. residuary legatees or persons by law entitled to such sul)stitutionary administra- tion with the will annexed or to substitutionary administra- tion, as the case may be, who shall reside without the State of New Jersey, or to those of them whose residences or ad- dresses he can ascertain, of his intention to make such ap- ])lication, which notices may be sent by mail, with the postage thereon ])repaid. Proof of service of the aforesaid notices shall be filed with the Register of this Court. LETTERS TESTAMENTARY AND LETTERS OF AD- MINISTRATION. 14. FORM OF LETTERS OF SUBSTITUTIONARY AD- MINISTRATION. To all to whom these presents shall come, greeting: Whereas, A. B., late of the County of M., in the State of New Jersey, departed this life intestate, of whose goods, chat- tels and credits administration was duly committed to C. D. : and the said C. D., after taking upon himself the burden of said administration, departed this life, (or was removed (or discharged) from the said office by . as the case may be). Therefore T. E. R. W.. Ordinary or v'^urrogate- General and Judge of the Prerogative Court of the State of New Jersey, do in the place and stead of the said C. D., 9IO Probate Law and Practice. hereby substitute and appoint E. F., administrator of all and singular the goods, chattels and credits of said intestate, who is duly authorized as such substituted administrator to ad- minister the same agreebly to law. 15. FORM OF LETTERS OF SUBSTITUTIONARY ADMINISTRATION WITH THE WILL ANNEXED. To all to whom these presents shall come, greeting : Whereas A. B., late of the County of M.. in the State of New Jersey, died, having made and executed a last will and testament, which has been duly proved according to law be- fore the Ordinary of the State of New Jersey ; and. whereas, the said testator appointed C. D. executor thereof, who, after taking upon himself the burden of administration, departed this life (or was removed (or discharged) from his said office by , as the case may be). Therefore I, E. R. W., Ordinary or Surrogate-General and Judge of the Prerogative Court of the State of New Jersey, do in the place and stead of the said C. D.. hereby substitute and appoint E. F. administrator of all and singular the goods, chattels, and credits of the said testator, who is duly authorized as such substituted administrator to administer the same agreebly to said will. 16. FORM OF LETTERS TO BE CHANGED TO AC- CORD TO FACTS. If the appointment is in substitution of an administrator with the will annexed who has died, been removed, or dis- charged, the form is to be made to accord with the fact. 17. REGISTER TO SIGN LETTERS. Letters testamentary and letters of administration shall be signed by the Register of the Prerogative Court. IV. GUARDIANSHIP. 18. APPLICATION FOR LETTERS OF GUARDIAN- SHIP. Application for letters of guardianship shall be in writing, verified by affidavit ; such application shall state the age and Prerogative Court Rules. 911 residence of the minor, the names and residences of his near- est of kin, the names and residences of all persons standing in loco parentis to such minor, if any, and the names and resi- dences of the persons with whom he resides, and shall have annexed thereto an affidavit of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him. In the case of applications by orphans over the age of fourteen years, the foregoing affi- davit shall be made by some person having personal knowl- edge of the value of the personal estate of said minor and the amount of the income from any real estate belonging to him. 19. NOTICE OF APPLICATION FOR GUARDIANSHIP. W here application for letters of guardianship of an orphan under fourteen or guardianship upon the estate of a minor whose father is living is made by any person other than the next of kin or party first entitled, or by one of several equally entitled to receive letters of guardianship, the person making such application shall produce to this Court the renunciation and request of such persons so entitled, and of the person or persons standing in loco parentis to said minor, if any, and also of the persons with whom said minor resides, that letters be issued according to the application, or proof that at least ten days' notice has been given to all of the next of kin or parties by law entitled to such guardianship, and to all persons standing in loco parentis to said minor, if any, and also to the persons with whom said minor resides, who re- side in this State ; or that not less than ten nor more than sixty days" notice, as this Court may by order direct, has been given to the said next of kin or parties by law entitled to such guardianship, and to any ])erson standing in loco parentis to said minor, and to the persons with whom the said minor may reside, who shall reside without this State. Notice to non-residents of the State of New Jersey may be sent by mail with tiie postage thereon jircpaid, addressed to the last known residence of such next of kin. persons standing in loco parentis, persons with whom said minor mav reside or par- ties by law entitled to such guardianship. 'I'lie application 59 912 Probate Law and Practice. and the renunciation and request, if any, shall be recorded by the Register in a book to be kept for that purpose. 20. APPOINTMENT OF GUARDIAN FOR INFANT OVER FOURTEEN FOR WHOM A GUARDIAN HAS BEEN APPOINTED WHILE UNDER FOURTEEN. In case any orphan, for whom, while under the age of fourteen years, a guardian has been appointed by this Court, desires, upon arriving at the age of fourteen years, to choose another guardian, application may be made to this Court, which application shall be signed by the minor in the pres- ence of the Ordinary, a vice-ordinary, or a special master in chancery of New Jersey, and shall be in conformity with the requirement of rule eighteen. The same notice of such application shall be given to the existing guardian, and also to the next of kin, persons stand- ing in loco parentis and persons with whom such minor may reside, as is prescribed in rule nineteen ; upon such applica- tion, the Court shall inquire into the circumstances of the case, and shall take such action in respect to the appointment of a guardian, or guardians, for such minor as shall seem to be for his best interest and advantage. 21. PROOF REQUIRED THAT NO DISPUTE AS TO GUARDIANSHIP HAS ARISEN. Letters of guardianship shall not be granted by this Court until proof be made to its satisfaction that no dispute has arisen with respect to the right of guardianship in the office of the Surrogate of the county where the minor resides, or that such notice of the application to this Court for such let- ters of guardianship has been given to all persons concerned as is prescribed in rule nineteen. 22. REGISTER TO SIGN LETTERS. Letters of guardianship shall be signed by the Register of the Prerogative Court. PrKrogativk Court Rulks. 913 V. INQUIRY FOR ABSENT NEXT OF KIN. 23. NATURE OF INQUIRY FOR ABSENT NEXT OF KIN. Wherever it shall appear hy any petition for letters of ad- ministration or guardianship that the residence or post-office address of any next of kin or other i)ersons entitled to notice of such application shall not be known, the applicant, or his proctor, shall make diligent and careful inquiry therefor. Such inquiry shall be made of the nearest relatives of the de- cedent or minor, if known; or if not known, such inquiry shall be made of any person known to be connected with the said decedent or minor by marriage or in business, or of any person who the applicant, or his proctor, making the inquiry, has reason to believe possesses knowledge of the residence or post-office address of such absent next of kii\ or person entitled to notice of such application ; such inquiries may be made in person or by letter, and shall state that application has been made for letters of administration upon the estate of such decedent (naming him), or for letters of guardian- ship for such minor (naming himj, and that the next of kin or person entitled to notice, whose residence is sought to be obtained, is interested in such application, and that the ob- ject of the inquiry is to give him notice of such application, that he may appear and protect his interests, and, in the case, of an ap])lication for guardianship, the interests of said minor. When such inquiry is made by letter, a proper post- age stamp for the return of an answer shall be enclosed. Proof of such inquiry shall be made by the affidavit of the ai)plicant, or his proctor, that such inquiry has l)een made in good faith and without success. VI. SETTLEMENT OF ACCOUNTS. 24. VOUCHERS TO BE LODGED WITH REGISTER. Executors, administrators, guardians and trustees who have noticed their accounts for settlement in this Court shall lodge with the Register the vouchers and receipts for payments and disbursements claimed therein at least twenty days ])revious 914 Probate Law and Practice. to the day on which said account is noticed for settlement, Avhich said vouchers shall be open to the inspection of all interested persons. The Register shall not report any ac- count to this Court for allowance and settlement unless the said vouchers and receipts have been lodged with him in compliance with this rule. 25. NOTICE OF SETTLEMENT OF ACCOUNTS TO BE MAILED. In addition to the posting and publication of notices of set- tlement of the accounts of executors, administrators, guardians and trustees prescribed by law, one month's notice of the settle- ment of all accounts, of executors, administrators, guardians and trustees, together with a statement as to whether counsel fees and commissions will be applied for by said accountant on the allowance of said account by the Court, shall be given by said accountant to all persons interested therein, which no- tice may be sent by mail with the postage thereon prepaid. In case any person interested in the settlement of such ac- count be a minor, such notice shall be mailed to the guardian of such minor if any, if there be no guardian then to the parent or other person standing in loco parentis to said minor. Proof of such mailing shall be filed in the office of the Register of the Prerogative Court before the day on which the said account is noticed for settlement. 26. PETITION TO BE ANNEXED TO ACCOUNTS. All accounts of executors, administrators, guardians or trustees shall ha\e annexed thereto a petition, which shall be addressed to the Ordinary, and which shall contain the names and addresses of all persons interested in said accounting, and shall specify which if any of such persons in interest are minors. In case any of such persons in interest be minors the said petition shall give the names and addresses of the guardians of such minors if any, or if there be no guardian then the names and addresses of the parents or other persons standing in loco parentis to such minors ; said petition shall also contain a summary of the account and. in the case of a first accounting, shall recite the amount of the in- Preroc.ative Court Rules. 915 ventory. the amount shown hy the account to have Ijcen collected in addition thereto, the amount of expenditures and the balance in the hands of the accountant. In the case of a second or other accounting, said petition shall recite the bal- ance remaining; in the hands of accountant as shown in his last previous account, the amount received during the jieriod covered by the account, the amount of disbursements shown by the account, and the balance in the hands of accountant. Such petition annexed to trustees' accounts shall also state the receipts and disbursements on account of corpus and in- come separately. The petition and account shall be verified by the oath of the accountant, and shall pray for the allow- ance of said account, and also for the allowance of commis- sions and counsel fees, if accountant intends to apply therefor. 27. EXCEPTIONS TO BE IN WRITING AND SPBXIFIC. When exceptions are made to the account of an executor, administrator, guardian or trustee, such exceptions shall be in writing; and where the objections are to disbursements, they shall state specifically the item or items and particulars objected to, and the reasons therefor. 28. STATEMENT OF ASSETS TO BE ANNEXED TO ACCOUNT. In the settlement of the accounts of executors, administra- tors, guardians or trustees, the accountant shall annex to the account a full statement or list of the securities, investments and assets of which the balance of the estate in his hands consists, and a statement of all changes made in the securities since the filing of the inventory or since the last settlement. 29. NOTICE OF RESETTLEMENT ()F ACCOUNTS. In proceedings for the re-settlemcnl of the account of an executor, administrator, guardian or trustee, at least five days' notice of the intended apj^lication shall be given to the execu- tor, administrator, guardian or trustee. gi6 Pkobatk Law axd Pkactick. VII. COMMISSIONS. 30. APPLICATION FOR COMMISSIONS WHERE ESTATE IS LARGE. Application for commissions in all cases where the sums which shall come into the hands of executors, administrators or trustees shall exceed fifty thousand dollars, or where, in the case of guardians, such sums shall exceed twenty thou- sand dollars, shall be accompanied by an affidavit, stating fully the pains, trouble and risk of such applicant in settling such estate. 31. NOTICE OF ADJUSTMENT OF COMMISSIONS. Upon the adjustment of commissions between executors, administrators, guardians or trustees, this Court shall not de- termine the matter upon the application of some or one ot' them without proof that not less than five days' notice of such application has been given to the other or others. VIII. INVESTMENT OF MONEYS. 32. EXECUTORS, &c., TO REPORT FAILURE TO INVEST. Executors, administrators, guardians or trustees required to retain money in their hands shall put it out at interest, or apply to this Court for an order so to do ; and in case they shall not be able to find proper investment therefor, they shall report the fact to the Court within sixty days after they shall have received it, or after they shall be recjuired to retain it or to invest it ; and in case of their neglect so to do, they shall be accountable for interest thereon. IX. DISTRIBUTION. 33. PROOF OF NEXT OF KIN ON DISTRIBUTION. The Ordinary, ■ before decreeing the distribution of the estate of any person dying intestate, shall require proof in writing, under oath, of the names of the wife and children, if any, or other next of kin of the intestate, and how and in Prerogativk Court Rulks. 917 what degree such other next of kin are related ; which proof niav he made by affidavit of the administrator, or of anyone having knowledge of the family and next of kin of the de- ceased, unless the Court shall require further or other proof. 34. DISTRIBUTION IN CASE OF A WILL. All applications by executors, substitutionary administrators with the will annexed, or administrators with the will annexed, for a decree of distribution, shall be by verified petition ad- dressed to the Ordinary, which petition shall recite the grant of letters to petitioner, the names and addresses of all per- sons interested, the allowance of petitioner's account by this Court and the balance in petitioner's hands for distribution, and shall pray for an order of distribution in accordance with the terms of the will, a copy whereof shall be annexed to the said petition. 35. NOTICE OF APPLICATION. Five days' notice of any application for distribution under the provisions of rule thirty-four shall be given by such execu- tor, substituted administrator with the will annexed, or ad- ministrator with the will annexed, to all persons interested therein who are residents of the State of New Jersey, and not less than five nor more than sixty days' notice, as the Court may by order direct, to all persons interested therein who reside without the State of New Jersey, which last men- tioned notice may be sent by mail with the postage thereon prepaid. X. DISCHARGE OF EXECUTORS. ADMINISTRATORS, GUARDIANS AND TRUSTEES. 36. NOTICE OF APPLICATION. An executor or administrator seeking to be discharged from the further duties of his office shall give to all the jjarties interested in the estate of which he is e.xecutor or administrator, or to such of them as the Court shall direct, at least thirty days' notice, in writing, of his intended api)li- cation to the Court for such discharge, unless the Court pig PRiiROGATivE Court Rulks. for good cause appearing, shall otherwise order; and where any of the said parties shall reside outside of this State, such notice may be given by mailing the same to their post-office addresses. Guardians seeking to be discharged from their trust shall give like notice in like manner to their wards, to the nearest of kin of their wards, to any persons standing in loco parentis to their wards and to the ])ersons wdth whom their wards may reside, or to such of them as the Court shall direct : and trus- tees seeking to be discharged from their trust shall give like notice in like manner to their cestui que trust or cestuis que trustent. If the cestui que trust be a minor or }ion compos mentis, notice shall be given to his or her guardian, if any. and if none, to the nearest of kin, to any person standing in loco parentis to such minor or lunatic and to the persons with whom such minor or lunatic resides, or to such of them as the Court shall direct. XI. NOTICES. Z7. FIVE DAYS' SERVICE OF RULES, NOTICES, &c. There shall be at least live days' service of all notices and rules to show cause and process, except where otherwise pro- vided. 38. NOTICES OF MOTIONS. Notices of motions shall designate the place of hearing either as "the chancery chambers at " (naming a place other than Trenton), or the "State House at Trenton," according to where the motions shall be intended to be made, and they shall also state that the motion will be made before "the Ordinary" unless the case shall theretofore have been specially referred to a Vice Ordinary, in which case the no- tice shall state that the motion will be made before the Vice Ordinary to whom such reference shall have been made. Prkkogative Court Rules. 919 XII. CORPORATIONS AS TRUSTEES, &c. 39. CORPORATIONS TO DEPOSIT SECURITIES BE- FORE APPOINTMENT. No corporation entitled by law lo execute trusts or lo act is assignee, administrator, guardian, receiver or trustee shall be appointed to such office until it shall have created a fund to be specifically set apart for, and devoted to speciallv se- curing its liability in such capacities of trust and confidence, in accordance \vith the provisions of the act entitled "An act concerning trust companies (Revision of 1899)," approved March twenty-fourth, one thousand eight hundred and ninety- nine (Laws of 1899, page 450; 4 C. S. page 5658, Sec. 9), and shall have deposited with the Register of this Court se- curities which shall rejjresent the fund. 40. NO DEPOSIT REQUIRED IF TRUST CO. GIVES . SECURITY IN SAME MANNER AS NATURAL PERSON. Nothing in these rules contained shall require the deposit of any such fund when the trust company appointed gives security in the manner prescribed by law in such behalf for natural persons, or in cases where the trust company shall have been appointed as executor or trustee bv anv will or deed. 41. AFFIDAVIT, STATEMENT, AND CERTIFICATE TO ACCOMPANY APPLICATION FOR APPOINT- MENT. Every appHcation for the appointment of such cori)oration to act as such assignee, administrator, guardian, receiver or trustee shall be accompanied by an affidavit of the president, secretary or trust officer of said corporation, setting forth the matters specified in section 9 of the act referred to in rule thirty-nine, and a copy of the latest published general state- ment of the resources and liabilities of the corporation, such statement to be in no case of a date more than six months previous to the application ; there shall also be appended to the application a certificate signed by the Register of this 920 Probate Law and Practice. Court showing that the special fund required by said section nine of the above mentioned act, remains on deposit with him, in approved securities, stating the amount thereof. Such cor- poration shall present to the Ordinary on such application (but need not file) the certificate of the commissioner of banking and insurance issued under the provisions of section five of the above mentioned act. 42. CHARACTER OF SECURITIES TO BE DE- POSITED. The said securities shall be of the character of securities in which trust funds may, by law, be invested, and at the time of the deposit thereof, the president or cashier of the com- paii}- making such deposit shall make oath in writing, which shall be filed with the Register of this Court, as to the in- trinsic value of any property upon which such securities shall then be a lien. 43. MORTGAGES DEPOSITED TO BE ASSIGNED TO REGISTER. In case any securities deposited as aforesaid are bonds se- cured by mortgages upon real estate, of the character in which trust funds may by law be invested, said mortgages, together with the said bonds, shall be assigned to the Regis- ter in a manner to be approved by the Ordinary, but until de- fault by the trust company depositing the same occurs, by reason of which recourse may be had to said fund, said com- pany shall be entitled to the beneficial interest in and income from said bonds and mortgages so assigned, and the Register of this Court may execute a power of attorney in favor of said trust company, in a form to be approved by the Ordinary, authorizing said company to receive and retain for its own use the interest or income arising from said bonds or the mortgage securing the same. 44- REGISTER TO RECEIVE DEPOSIT OF SECURI- TIES. The Register of this Court shall receive the deposits of securities made under the requiremeets of the preceding rules. Prerogativk Court Rules. 921 and shall keep the same in such nianucr as the Ordinary may. from time to time, by order direct. 45. REGISTER TO FILE AFFID.W ITS. The Register shall hie together all affidavits contemplated by rule forty-one of this Court, rule forty-three of the Or- phans' Court and rule two hundred and fourteen of the Court of Chancery. 46. BOND REQUIRED FROM CORPORATION. Upon being appointed to any such office as is mentioned in rule thirty-nine, the corporation shall give bond, but with- out surety, similar to the bond that a natural person would be obliged to give if he or she were ap])ointed to such office. XIII. PRACTICE ON APPLICATION FOR DIVISION OF REAL ESTATE. 47. FORM AND CONTENTS OF PETITION. All applications to the Ordinary for the division of real estate shall l)e by petition, and the allegations of the said peti- tion shall be verified by affidavit. 48. NOTICE OF APPLICATION TO RESIDENTS. Four weeks' notice in w^riting of any intended application for the division of real estate shall be served on all parties interested in such real estate who shall not join in the said petition and shall reside in this State, or on the guardians or fathers of such of the said parties as are minors, and who reside in this State. 49. SERVICE OF NOTICE ON XOK-RESIDENTS. In case any of the ])arties concerned in such application shall reside out of this State, or cannot be found therein, the application shall be advertised for thirtv days, in such public newspaper or newsi)apcrs as the C^rdinar^• shall direct, before Commissioners shall be appointed to make division of the estate ; but in case notice shall be served on the parties with- out this State pursuant tg the provisions of rule forty-seven, 922 Probate Law and Practice. the publication as aforesaid shall be unnecessary ; and the order appointing commissioners to make such division shall specify the day and date on which they shall file their report in the Register's office. 50. OATH OF COMMISSIONERS. The commissioners appointed to make division of any real estate as aforesaid shall, before they proceed to make such division, be severally sworn or affirmed, as the case may re- quire, that they will honestly, faithfully and impartially exe- cute the trust reposed in them and will make division of the estate to the best of their skill, knowledge and judgment. 51. CONFIRMATION OF REPORT OF COMMIS- SIONERS. A report of a division of real estate, made to the Ordinary and filed with the Register as aforesaid, shall not be approved and made- conclusive until five days after such report shall have been so made to the Court. XIV. AFFIDAVITS AND DEPOSITIONS. 52. BEFORE WHOM AFFIDAVITS AND DEPOSI- TIONS MAY BE TAKEN. The Register of this Court, the Surrogate of each county and the masters of the Court of Chancery shall have full power and authority to take affidavits and depositions to be used in this Court ; and every affidavit and deposition which shall be made or taken before the Register, or before the Surrogate of any county in this State or a master of the Court of Chancery, shall and is hereby declared to be as good and effectual, to all intents and purposes, as if the same were made or taken before the Ordinary himself. 53. PROCTORS OR COUNSEL NOT TO TAKE AFFI- DAVITS. No proctor or counsellor shall take any affidavit for use in any proceeding in this Court in which proceeding he, or any firm of which he is a member, appears as proctor or counsel of record. Prerocativk Court Rulks. 923 XV. APPOINTMENT OF GUARDIANS AD LITEM. 54. PRACTICE ON APPLICATIOX OX BEHALF OF INFANT OR INCOMPETENT. Whenever it shall be necessary, in anv cause or proceed- ing in this Court, that a guardian (7^ litem for any infant or incompetent party thereto should be iippointed, a petition may be presented, by the infant if above the age of fourteen years, or, if under that age, by his guardian appointed by the Surrogate or Orphans' Court, his father, or some other friend, in his behalf, praying such appointment. In the case of an in- competent party the petition shall be by his guardian appointed by the Orphans' Court or some next friend in his behalf. An- nexed to the petition shall be an agreement, by the person petitioned for as guardian, to accept the appointment, and also an affidavit that the petition and agreement were duly signed by the persons purporting to sign them, and verifying the age of the infant. 55. WHERE NO APPLICATION IS MADE ON BE- ■ HALF OF INFANT OR INCOMPETENT. If no application shall be made by or on behalf of the infant or incompetent party within five days after the service upon him of the citation or other autlioritatixe command of the Court to appear, &c., this Court may, on ai)plication on behalf of the party instituting or prosecuting the proceedings, by its order assign a guardian ad litem for said infant or incom- petent party ; but ten days' notice of such application must be given to the infant, if of the age of fourteen years and resi- dent within this State, or, if under that age, or not a resident in this State, to his guardian appointed by the Surrogate or Orphans' Court, if any there be, and if no such guardian, to the father of such infant, or, if no father, then to the mother, or, if no mother, to the person standing in loen parentis to tlic infant provided such guardian, father or mother, (K:c., be resi- dent in this State, wliich notice mav be served at the time of service of the process of citation or at any time thereafter. If such guardian, father or mother, &c., be not resident in this State, such notice shall be given as the Court may l)v order 924 Probate Law and Practice. direct. In the case of an incompetent person, ten days' no- tice of such application shall be served upon him and also upon his guardian appointed by the Orphans' Court, if any there be, and if no such guardian, then upon such persons as the court may by order direct. XVI. OF THE VICE ORDINARIES. 56. GENERAL REFERENCE TO VICE ORDINARIES. Motions and applications in the Prerogative Court, includ- ing applications for the probate of wills and for the granting of administration or guardianship, may be made to the vice ordinaries ; and the same are hereby referred to them to hear and advise orders thereon without special reference. 57. REFERENCES OF CAUSES ON FINAL HEARING. The tinal hearing of causes in the Prerogative Court, in- cluding appeals from the Orphans' Court, may, at the dis- cretion of the Ordinary, be referred to the vice ordinaries upon motion and on notice, the same as references to vice chancellors are made in chancery ; and when so referred, the proceedings before the vice ordinaries shall, as nearly as may be, be the same as on references by the Chancellor to vice chancellors. XVII. APPEALS TO PREROGATIVE COURT. 58. HOW CONDUCTED. On Appeal to the Prerogative Court from the order, sen- tence or decree of the Orphans' Court, or from proceedings of any Surrogate, the proceedings in this Court shall be con- ducted by proctor and counsel, and by guardians ad litem of minors, according to the practice of the Court of Chancery, except as hereinafter specified. 59. NOTICE OF APPEAL. Notice of appeal from the order, sentence or decree of the Orphans' Court, or from proceedings of any Surrogate, to this Court, shall be filed with the Surrogate ; said notice shall Pri:roc.ativk Court Ruli'S. 925 state shortly the parts of the order or decree appealed from, and a copy thereof shall, within five days from the hlino^ thereof, unless the court shall in its discretion grant further time, be served upon the adverse party, or upon his proctor if he appeared by proctor in the court below. 60. PETITION OF APPEAL. In all cases of appeal to this Court from any order, sen- tence or decree of the Orphans' Court, or from the proceedings of any Surrogate, the party appealing shall, within thirty days after filing his notice of appeal with the Surrogate, unless this Court shall in its discretion grant further time, file his ]:)eti- lion of appeal with the Register of this Court, and shall within five days after filing the same serve a copy thereof on the adverse party, or upon his proctor if he appeared by proctor in the court below, or the appeal shall be considered as waived ; and any party interested in the proceedings in the court below may thereupon apply to this Court to dismiss the appeal with costs. 61. FORM AND CONTENTS OF PETITION OF APPEAL. The petition of appeal shall be addressed to this Court, shall briefly state the general nature of the proceedings in the court below, and shall specify the part or parts thereof complained of as erroneous, except where the whole sentence, order or decree is alleged to be erroneous, in wliich case it shall be sufficient to state that the same and every part thereof is erroneous. 62. PETITION OF APPEAL FROM DECREE ON ACCOUNT. Where the appeal is from the sentence or decree of the 0"phans' Court on the settlement of the account of an execu- tor, administrator, guardian or trustee, if the appellant wishes to review the decision of the Orphans' Court as to the allow- ance or rejection of any particular items of the account, such items shall be specified in the petition of a]ipcal, or the .allow- ance or disrillowance of any such items shall not be consid- 926 Probate Law and Practice. ered a sufficient ground for reversing or modifying the sen- tence or decree appealed from. The respondent, in his an- swer to the petition of appeal in such cases, may also specify any items in the account as to which he supposes the sentence or decree is erroneous as against him and in favor of the appellant; and upon the hearing of the parties upon such ap- peal, the sentence or decree of the Orphans' Court may be modified, as to any such items, in the same manner as if a cross-appeal had been brought by such respondent. 63. DEPOSIT ON APPEAL. In all cases of appeal from any order, sentence or decree of the Orphans' Court or from the proceedings of any Sur- rogate, the party appealing shall, within ten days after filing his petition of appeal in this Court, deposit with the Register one hundred dollars, to answer the costs of the appeal if the appellant shall not prosecute the same with efifect ; and in default thereof, the said appeal may be dismissed by this Court with costs. 64. APPELLANT TO FILE TRANSCRIPT. The party appealing shall cause a transcript of all the pro- ceedings before the Orphans" Court or Surrogate to be made, authenticated and returned to this Court within thirty days from the time of filing the notice of appeal in the court be- low, unless further time is allowed by this Court, and in de- fault thereof, the court may dismiss the appeal. 65. WHEN TRANSCRIPT REQUIRED TO BE PRINTED AND SERVED. In case of appeal to the Prerogative Court from a sentence or decree of the Orphans' Court, the party appealing shall cause the evidence which has been reduced to writing in the court below and all exhibits, decrees, orders, petitions, • .ac- counts and other paper necessary to the presentation of the question at issue, if they together exceed one hundred folios in length, to be printed, or typewritten if the court shall so order, and shall deliver a copy thereof to the Ordinary, and a copy to each opposing party, at least twenty days before Prerogativk Court Rulks. 927 the time of hearing the appeal ; and on laikire thereof, the appeal may he dismissed. 66. ANSWER TO PETITION OF APPEAL. The respondent shall file an answer to the petition of ap- peal within fifteen days after the service of a copy of said petition of appeal; and in default thereof, upon proof by aflfidavit of the service of the petition of appeal upon re- spondent, or his proctor if he has appeared, either in this Court or the court below, by a proctor of this Court, the ap- pellant may have an order of course that the appeal be heard ex parte as against such respondent. 67. APPOINTMENT OF GUARDIAN AD LITEM FOR INFANT PARTY. Where any respondent is a minor, if he does not procure a guardian ad litem upon the appeal to be appointed within five days after the service upon him of the notice of appeal, the appellant may apply to this Court ex parte for the ap- pointment of such guardian, which application shall be pur- suant to the provisions of rule fifty-four. 68. NOTICE OF MOTION TO DISMISS APPEAL. No motion to dismiss an appeal in this Court shall be heard unless five days' notice of such motion has been given, or unless moved in the presence of the appellant or his proctor. 60 928 Probate Law and Practice;. MORTALITY TABLES. Present value at four per cent, interest of an annuity of $i during life, first payment to be made at the end of the year; also showing the widow's percentage of the net proceeds arising from the sale of land in which she is entitled to dower, her age at the time of sale being given. AGK. Present value of -.$1 per annum. " | Widow's percentage of sale. AGE. Present value of fl ' per annum. | t Widow's percentage of sale. AGE. Present value of $1 per annum. Widow's percentage of sale. V, 19.0283 1 25.3711 43 14.7494 .19.66.39 71 5.9928 7.9904 16 18.9417 25.25.56 .44 14.. 5025 19. 3367 72 5.6849 7.5799 17 18.8.515 25.1353 45 14.2477 18.WJ69 73 5.3829 7.1772 18 18.7.574 25.0099 46 13.9849 18.6465 74 5.0862 6.7816 19 18.6596 24.8795 •17 13.7144 18.2859 75 4.7938 6.3917 ■20 18.5.579 24.7439 48 13.4362 17.9149 76 4.5051 6.0068 21 \ 18.4520 24.6027 49 13.1507 17.5343 77 4.2198 5.6257 ,^2 . .,, 18.3420 24.4.560 50 12.8583 17.1444 7S 3.9363 5.2484 23 '' 18.2277 24.3036 51 12.5595 16.7460 79 3.6564 4.87.52 24 . ■ 18.1089 24.14.52 52 12.2546 16.3395 ■80 . !tfR79e ;; 4.5061 2.5 17.9854 23.9805 53 11.9440 15.92S3 81 .^.lo83 4.1444 26 17.8568 23.8091 54 11.6280 15.5040 82" 2.8420' ' 3.7893 27 , 17.7233 23.6311 55 11.3072 15.0763 83 2;. 57.96 3.4395 28 17.5846 23.4461 56 10.9820 14.6427 84 ■2.3184 3.0&12 .29 . J7.4404 23.2539 57 10.6530 14.2040 85 2.0574 2 7432 ' 30 '■ = ■•17.2900 23.0541 .58 10.3207 13.7609 86 1.7989 2.d9S5 31 ; 17.13.51 22.8468 .59 9,9855 .13.3140 87 1.5478 2.0637 .32 16,9735 22.6313 60 9.6481 12.8641 88 1.3096 1.7461 33 ' ■ 1G.8056 22.4075 61 ■ 9.3092 12A123 89 1.0847 1.4463 34 16:6316 22.17.55 62 8.9695 11.9593 90 0.8673 1.1564 35 16.4.510 21.9347 63 8.6296 11.5061 91 0.6536 0.8715 3© 16.2634 21.6845 64 8.2901 11.0535 92 0.4539 0.6052 37 16.0691 21.4255 65 7.9318 10.6024 93 0.2907 0.3876 38 15.8676 21.1568 66 7.61.56 10.1541 94 0.1374 0.183" 39 15.6591 20.8788 67 7.2822 9.7096 40 15.4431 20.5908 68 6.9524 9.2699 41 15.2196 20.2928 69 6.6272 8.8363 42 14.9884 19.9845 70 6.3070 8.4093 ]yl()RTALiTv Tablks. 929 Present value of $1 per annum, to be received during the life of a person whose age is given; also showing the widow's per- centage of the net proceeds arising from the sale of land in . which she is entitled to dower, her age at the time of the sale being given. Calculated by the Carlisle Table of Mortality, and interest at six per cent. C of !fl , or No. liase. a ZJ ^ c 2 u SO OS a AOK. 3 r- D = 35 >a ft = «£ S? t. a 0I « i> Sft>> " 1°, AGK. 5 — t- « 3 5 C) ^ w aj a ft S! '-' * £ ft >> " .= ir, $14,126 $28.2r.2 44 $11,551 $23,102 1 73 $5,170 $10,340" 16 14.067 28.134 .45 11.428 22.856 74 4.944 9.888 ]7 14.012 28.024 40 11.296 22.. 592 75 4.760 9.520 18 13.9.-.6 27.912 47 11.1.54 22.308 76 4.579 • 9.1.58 19 13.897 27.794 48 10.998 21.996 77 4.410 S.820 20 13.83) 27.670 49 10.823 21.646 78 4.238 8.476 •21 13.769 27.r,.38 50 10.631 21.262 i 79 4.040 s.oso- •'2 13.697 27.394 .51 10.422 20.844 80 3.8.58 7. 716 23 13.621 27.242 52 10.208 20.416 i 81 3.6.56 7.312 24 13.-)41 27^082 :73 2.5.146 : 64 7.502,. 15.004 1 93 2.440 4.880 ?,C 12.46.-) 24.9,30 65 7.281 14.562 94 2.492 4.9W 37 12. 3 -.4 24.706 ' 66 7.049 14.098 95 2.. 522 5.044 .38 12.2.39 24.478 i 67 6.803 13.606 96 ■ 2.486 4.972' 39 12.120 24.240 68 6., 546 13.002 97 2.368 4.736 40 12.002 24.004 i 69 6.277 12.554 ; 98 2.227 4.4.54 41 11.890 23.780 ! 70 5.998 11.996 ! 99 2.004 4.0O8 42 11.779 23.558 ; 71 5.704 11.408 i 100 l.,596 3.192 43 11.668 23.3.36 , 72 5.424 10.848 10! 1.175 2.3.-|0 Rule for Computing the Value of the Life Estate or Annuity. Calculate the inlcrcsL at six per cent., fur one year, upun the .sum to the income of which the per.SQii is entitled ; multiply this interest by the number of years' purchase set opppsitc the person's age in the table, and the product is the gross value of the life estate of such person iu said sum. Example. Suppose a widow's age is 2p, and she is entitled to dower in real estate -worth $350.75; one-third of this is $116.91 2-3; interest on $116.91, one year, at six i)er cent., is $7.01; the number of years' pur- chase, which an annuity of $1 is worth, at the age of y], as appears b\ the table, is 12 years and 354.1000 parts of a year, which, multiplied by $7.01, the income for one year, gives $86.60 and a fraction, as the gro.s's. \alue of her right of dower. 930 Probate Law and Practicf.. Showing the present value of a life-right in the income of $ioo, at every age, calculating the interest at five and at six per cent., according to Dr. Wigglesworth's Table of Mortality. Age 1 a a ! ^ 1 c. p. o f X S OS Age Age Age 49.01 51.50 24 68.08 72.31 48 50.02 W.24 72 31.64 3.J.9-. 1 64.39 67.61 25 67.87 72.14 49 58.25 63.50 73 30.32 34.. 51 2 68.13 71.51 26 67.62 71.92 50 57.44 62.72 74 29.04 33.11 3 70.78 74.30 27 67.30 71.63 51 56.60 61.90 75 27.76 31.70 4 72.55 76.19 28 66.98 71.34 52 55.73 61.05 ; 76 26.42 30.23 5 73.34 77.06 29 66.66 71.06 53 54.83 60.16 77 25.09 28.76 6 73.56 77.32 30 66.35 70.78 54 53.89 59.23 78 23.78 27.30 7 73.73 77.55 31 66.04 70.51 55 52.91 58.25 79 22.52 25.89 8 73.72 77. .59 32 65.74 70.25 56 51.88 57.23 80 21.33 24.56 9 73.53 77.44 33 65.45 69.99 57 50.82 56.15 81 20.08 23.16 10 73.23 77.17 34 65.17 69.75 58 49.70 55.08 82 18.88 21.80 11 72.69 76.65 35 64.89 69.52 59 48.53 53.83 83 17.84 20.63 12 72.10 76.07 36 64.51 69.17 60 47.31 52.58 84 17.11 19.81 13 71.48 75.47 37 64.13 68.83 61 46.03 51.25 85 16.90 19.60 14 70.84 74.82 38 63.75 68.50 62 44.68 49.^ 86 15.53 18.03 15 70.16 74.14 39 63.37 68.16 63 43.27 48.36 87 14.33 16.66 16 69.88 73.89 40 62.99 67.84 64 41.78 46.78 88 13.48 15.69 17 69.64 73.67 41 62.63 67.52 65 40.21 45.10 89 13.09 15.25 18 69.41 73.46 42 62.26 67.21 66 39.07 43.90 90 14.03 16.39 19 69.18 73.27 43 61.91 66.91 67 37.90 42.66 91 12.41 14.53 20 68.96 73.07 44 61.57 66.63 68 36.70 41.39 92 10.49 12.31 21 68.75 72.89 45 61.19 66.31 69 35.48 40.08 93 8.58 10.10 22 68.51 72.68 46 60.49 65.65 70 34.22 38.74 94 6.75 7.96 23 68.29 72.49 47 .59.77 64.96 ^71 32.95 37.36 95 5.19 6.13 This table exhibits the value of a life-right in the income of $ioo. supposing the rate of interest to be five or six per cent. Thus, the value of the life-right of a person aged 50, interest being six per cent.. is 62.72 per cent. Subtracting this from $100, leaves the present value of the reversion 37.28 per cent. Hence, if the estate was worth $10,000, the present value of the life-right would be $6,272, and the present value of the reversion $3,728. Mortality Tables. 931 Showing the value of a widow's dower in the income of $100, at every age, calculating the interest at five and six per cent., according to Dr. Wigglesworth's Table of Mortality. Age a ^ 1 B. Age 1 > s i Age 1 a. 3 1 u 1 4) ■ "=• i: >'• ■ - -11 Age & a a, c; u, u C. JK 00 16.34 17.17 1 24 22.69 24.10 vt 19.67 21.41 72 10.55 11.98 1 21.46 22.54 25 22.62 24.05 ! 49 19.42 21.17 73 ! 10.11 11.. 50 2 22.71 23.84 26 22.54 23.97 5C 19.15 20.91 ! 74 9.68 11.04 3 23.59 24.77 27 22.43 23.88 51 18.87 20.63 75 9.25 10.. 57 i 24.18 25.40 28 22.33 23.78 52 18.58 20.35 76 8.81 10.08 24.45 25.69 29 22.22 23.69 53 18.28 20.05 1 77 8.36 9.59 6 24.52 25.77 30 22.12 23.59 i ^ 17.96 19.74 '78 7.93 9.10 7 24.58 25.85 31 22.01 23.50 55 17.e4 19.42 79 7.51 8.03 8 24.57 25.86 32 21.91 23.42 50 17.29 19.08 80 7.11 8.19 9 24.51 25.81 33 21.82 23.33 57 16.94 18.72 : 81 6.69 7.72 10 24.41 25.72 34 21.72 23.25 58 16.57 18.34 82 6.29 7.27 11 24.23 25.55 35 •21.63 23.17 59 16.18 17.94 83 5.95 6.88 12 24.03 25.36 36 21.50 23.06 60 15.77 17.53 |84 5.70 6.60 13 23.83 25.16 37 21.38 22.94 61 15.34 17.08 I 8» 5.63 6.53 14 23.61 24.94 38 21.25 22.83 62 14.89 16.61 ( 86 5.18 6.01 15 23.39 24.71 39 21.12 22.72 6:i 14.42 16.12 87 4.78 5.55 16 23.29 24.63 40 21.00 22.61 I 04 13.93 15.59 88 4.49 5.23 17 23.21 24.56 41 20.88 22.51 i 65 13.40 15.03 89 4.36 5.08 18 23.14 24.49 42 20.75 22.40 i 66 13.02 14.63 90 4.68 5.46 19 23.06 24.42 43 20.64 22.30 67 12.63 14.22 91 4.14 4.84 20 22.99 24.36 44 20.52 22.21 68 12.23 13.80 92 3.50 4.10 21 22.92 24.30 45 20.40 22.10 69 11.83 13.36 1 93 2.86 3.37 22 22.84 24.23 ' 40 20.16 21.88 70 11.41 12.91 94 2.25 2.6-. 23 22.76 24.16 47 19.92 21.65 71 10.98 12.45 95 1.73 2.04 This table exhibits the value of a widow's dower in the income of $100. It is exactly one-third of the value given by preceding table. Thus, if a widow has a right of dower in an estate worth $3,000, her age being 40 years, and the rate of interest five per cent., we should find by the table the present value of her life right to be worth 21 per cent. ; hence we get the present value of her dower, $630. We get nearly the same result from preceding table, where the life-right is 62.99 per cent, on her third part of $3,000, or $1,000 set off to her for dower, making its present value $629.90. 932 Prolsativ Law and Practice. .-. VALUE OF THE Table Showing the Present Value of the Right of Dower of a Her In the following table, as given by Mr. Bowditch, the age of the husband like that of the wife, begins with i6 years, and embraces all the even numbers to the age of 90 years, mclusive ; but with respect to the husband, the ages 16. 18, 20, 24, 28, 78. 82, 86, 88 and 90 are here omitted, in order to reduce the table to the width of the page. The ages near to the two extremes are those which will be most rarely wanted in such a table. 1 •• AGK OF i'HI^ HUSBAND. . Si <1 22 26. 30 ' 1 32 34 36 3S 40 42 44 46 1 48 50 •52 .54' ' ' 56 < 16:3.68 4 .'10 4.58 4.85 5.14 5.43 5.73 6.06 6.42 6.81 7.25; 7.74 8.42 9.18 9.93 10.69 16 1813^57 3.99 4.51 4.76 5.03 5.29 5.65 5.99 6.35 6.73 7.081 7.57 8.21 I 8.96| 9.71 10.51 1« 20 3!45 3.88 3.77 4.38 4.64 4.92 4.74 505 5.00 5.49 5.33 5.86 5.69 6.22 6.03 6.60 6.43 6.90' 7.38 8.00 7.79 8.74| 9.49 10.30 ~ 2U ■li 3 33 4.25 4.46 G.72 7.19 ' 8.52 9.27 10.09 22 54,3.23 2613.12 3.65 4.U 4.32 4.57 4.85 5.17 5.521 5.85 6.18 6.54 6.99 7.58' 8.30 9.05 9.86 24 3.53 3.97 4.18 4.42 4.70 5.01 5.35, 5.66 5.98 6.36 6.79 7.37|i 8.08 8.83 9.62 20 2SJJ3.01 302.00 3.41 3.83 ;4.03 4.26 4.54 4.84 5.17 5.47 5.78 6.17 6.59 7.15 1 7.85 8.60 9.37 28 3.28 3.15 3.69 3.88 3.55 3.73 4.10 3.94 4.38 4.21 4.66 4.48 4.99 4.80 5.28 5.09 5.58 5.38 5.96 5.74 6.38 6.16 6.93 6.70 7.61 8.35 9.11 30 32I2-.79 7.36 8.0s 8.84 32 :Mi2.68 3.02 3.40 ,3.57 3.78 4.03 4.30 4.60, 4.88 5.17 5.51 5.92 6.45!| 7.10 7.80 8.56 34 36,2. S6 2.89 3.25 3.41 3.61 3.85 4.11 4.40 4.66 4.94 5.26 5.66 6.18il 6.83 7.51 8.26 30 382.44 2.76 3.10 3.25 3.44 3.67 3.92 4.19i ' 4.44 4.70 5.00 5.39 5.90; 6.53 7.21 7.95 38 40i2.32 2.62 2.48 2.95 3.09 2.79 '2.93 3.27 3.10 3.49 3.72 3.30 3.52 3.98 3.76 ; 4.22^ 4.46 3.99' 4.22 4.74 4.48 5.11 4.83 5.61 5.31 ]! 6.22 1 6.89 7.62 40 4212.20 1: 5.90 6.56 7.27 42 44 '2. 07 2.34 2.63 2.76 2.92 3.113.32 3.54 3.75 3.98 4.22 4.55 4.99: 5.57 6.21 6.91 I44 461.94 2.21 2.47 2.59 2.73 2.92 3.12 3.32 3.50 3^.71 3.96 4.26 4.67; 1 5.22 5.84 6.53 l46 48!l.85 2. 10!2.3l' 2.42 2.54 2.76 2.91 3.10 i 3.25 3.44 3.71 3.97 4.35II 4.85 5.45 6.10 ;48 aO|l.71 1.922.15 ;2.24 2.35 2.56 1.7411.95 2.06 2.18 2.31 2.71 2.45 2.87 2.60 j 3.00 1 2.76 3.17 2.90 3.49 3.18 3.75 3.46 4.03 3. 78 1! 4-48 i>.05 5.64 ;50 521.54 !j 4.12 4.63 5.28 52 54 [1.40 1.58,1.77,;i.S7 1.97 2.08 2.21 2.. 34 2.48 2.63 2.81 3.05 3.37ii 3.77 4.21 4.78 54 56 11. ,30 1.44 1.61 1.70 1.79 1.89 l!99 2.10 2.22 2.35 2.50 2.72 3.00 3.36 3.80 4.30 56 .'JS 1.17 1.321.48 1.561.64 1.72 1.81 1.90 2;oo 2.11 2.24 2.39 ; 2.59;! 2.87 3.27 3.78 l58 CC jl.03 !0.91 1.17 1.32 11.404. 48 1.56 l.O3il.l0'll.23 1..3O1.37 1.65 1.45 1.74 1.54 ; 1.84 1.63 1.95 1.73 2.07 1.85 2.20 1.99 2.3£ 2.17 '1 2.57 2.89 3.31 60 62 *il 2.38 2.64 2.97 «H |0.82 0.92il. 031 1.09 1.161.23 1.30 1.37 1.44 1.51 1.61 : 1.75 1.93 1 2.15 2.41 2.70 64 0.22 0.251,0.27 0.29,0.32 ;o.34 iO.36 1 0..3C 0.32 0.34 0.3" 0.40 , 0.42 I 0.45 0.50 84 840.r 0.18 0.2l''0.23 0.24 0.25 I0.27 I0.29 0.3C 0.32 0.34 1 0.3" 0.40 0.42 i 0.45 0.50 84 86 0.14 0.16 0.18 0.19 0.20 0.21 0.22 0.23 0.2;: 0.2£ 0.2- 0.29 0.32 0.36 O.40 0.45 86 SSjO.lC 0.15,0.17 0.18 0.19 0.20 0.21 0.21 0.22 0.22 ! 0.2s 0.24 0.26 0.30 0.35 0.4188 90 0.110.13 0.15 0.16 0.17 0.18 0.19 0.20 0.21 0.21 0.2: 0.22 0.23 0.25 0.29 0.35 90 .Moin'ALiTv Taulk^ 933 RIGHT OF DOWER. Married Woman in an Estate Worth $ioo, Provided She Survives Husband.* The table is to be entered at the top with the age of the husband, and at the side with the age of the wife; under the former is tlie present vakie of the dower right in an estate worth $ioo. Thus — if the age of tlie husband be 50 years, and tliat of the wife 32 years, the present vahie of the dower in $100 is $6.70; so that if the estate be worth $10,000, the present vahie of the dower right would be $670. •By the Carlisle Tables. PAKT VII. Forms of Procedure. '^t'-^ FORMS. I. PROBATE OF WILLS AND GRANT OF LETTERS TESTAMENTARY BY SURROGATE. Form I. Application for Probate. [See Orphans' Court Act, Sections 13, 14 and 15, pages 196 and JOi. supra; and Orphans' Court Rule i. page 201, supra.] MssEx County Surrogate's Court. In the matter of the probate of"^ the alleged will of John Doe, V()n Petition for Probate, deceased. J Pctiiion. To F. G. S., Jr., Surrogate of the County of Essex: The petition of A. B., who resides at No. . . ., .... Street, in the .... of in the County of and State of respectfully shows that : 1. John Doe, late of the of in the County of Essex and State of New Jersey, departed this life on the day of , 19. .. and more than ten days ago, having first duly made and executed a pai)er writing purporting to be his last will and testament, bearing date the . . . day of , 19.., wherein yotir ])etitioner, is named as the sole executor thereof. 2. The said John Doe left him surviving as his next of kin and heirs at law, a widow, Jane Doe, who resides at and whose post-office address is No , .... Street, in the .... of , and State of and two children, to wit : William Doe and John Doe, both of wliom reside at and whose I)OSt-office address is Xo vStreet, in the .... of , in the Count}- of and State of All of the above-named next of kin and heirs at law are of 937 938 Pkobate Law and Practice. full age, with the exception of John Doe who is a minor of the age of .... years. 3. No caveat against the probate of the will of the said John Doe has been filed. Your petitioner therefore prays that the said w^riting be admitted to probate as and for the last will and testament of said John Doe, deceased, and that letters testamentary thereon be granted to your petitioner. Dated Newark, N. J., A. B. , ••••. I9--- State oe New Jersey, '•! ss. County of Essex. A. B., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this^ . . . .day of ig. . ., a.t> A. B. Newark, N. J., before me. J J. C. F., Notary Public of N. J. Form 2. Proof of Will by Deposition of Subscribing Witness. Essex County Surrogate's Court In the matter of the probate of^ the alleged will of John Doe, >On Petition for Probate, deceased. Deposition of Sithscribiiuj IVitness. State oe New Jersey c County of Essex. ^ 1 A. B., one of the witnesses to the annexed writing purport- ing to be the last will and testament of John Doe, deceased, being duly sworn according to law upon his oath deposes and Probate of Wills. 939 says that he saw John Doe, the said testator, sign and seal the said annexed writing and heard him pubHsh, pronounce and declare the same to be his last will and testament. Deponent further says that at the time of the doing thereof the said testator was over the age of twenty-one years, of sound and disposing mind and memory and not under any restraint, so far as this deponent knows and as he verily believes ; and that the other sub- scribing witness to the said will was present at the same time with deponent when the said will was signed l)y the said testator and by him published and declared as and for his last will and testament as aforesaid, and that the said and deponent both subscribed their names to said will as witnesses at the request of and in the presence of the said testator and in the presence of each other. Subscribed and sworn to this day of , 19. . ., at Newark, N. J., before me, F. G. S., Jr., vSurrogate. This deposition must be taken before the surrogate. A. B. Form 3. Proof of Will by Proof of Signature of Testator and Subscribing Witness. Essex County Surrogate's Court. In the matter of the probate of^ the alleged will of John Doe, >On Petition for Probate, deceased. J Proof of Signature of Testator. State oe New Jersey, County of Essex. '' I ss. A. B.. of full age, being duly sworn uj)on his oath accord- ing to law deposes and says that he has examined the annexed writing ]nir])orting to be the last will of John Doe, deceased, .940 Probate Law and Practice. and particularly the signature of John Doe appended thereto. Deponent further says that he was well acquainted with one John Doe who died in the of in the County of and State of on or al)Out the day of , 19...., and that he is famihar with Ins liand-writing, having often seen him write; and deponent further says that he is of opinion and verily Ijelieves that the said signature is the proper hand-writing of the said John Doe, with whom de- ponent was so acquainted, .and:that the same was written hy him. ! . :, I. . ' Subscribed and sworn to this~^ day of , 19. . ., at Newark, N. ]., before me, F. G. S., Jr., Surrogate. >- A. Essex Couxtn' Surrogate's Court. In the matter of the probate of^ the alleged will of John Doe, >On Petition for Probate, deceased. J Proof of Signature of -''^■- . Subscribing Witness. State oe New Tersey, ) County of Essex. J C. D., of full age, being duly sworn upon his oath deposes and says that he has examined the annexed writing purport- ing to be the last will of John Doe, deceased, and ]^articularlv the signature X. Y.. appended thereto as an attesting witness. Deponent furtlier says that he was well acquainted with one X. Y., who died since (date of execu- tion of will), and that he is familiar with his handwriting, having often seen him write, and that deponent is of opinion and verily lielieves that the said signature is the proper hand- ^writing of the said X. Y., with whom deponent was so ac- irjuainted, and that the same was written by him. Probate op Wills. 941 > C. D. Subscribed and sworn to this^ day of , 19. . ., at Xewark. N. J.. l:)efore me, F. O. S.. Jr., Surrogate. Annex a like deposition proving the signature of the other subscribing witness. These depositions must be taken before the surrog^ate. Form 4. Order for Probate. [See Orphans' Court Act. sections i.^, 14 and 15, pages 196 and 201. supra, and Orphans' Cotirt Rule i. page 201, supra.] Essex County Sukkog.ate's CoLMrr. In the matter of tiie probate of^ the alleged will of John Doe, >On Petition for Probate, deceased. J Order for Pmhatc. On reading and tiling the ])etition of A. B., for ])robate of the last will and testament of John Doe. deceased, bearing date the .... day of T9. . . , and for letters testamentary thereon, and the Surrogate having inquired into tlie circumstances and taken proof, and being satisfied of the genuineness of the will produced, the validity of its execu- tion and the competency of the testator, and it further ap- ])earing that the said testator died more tlian ten davs ago, and that no caveat has been filed against the i)robate of said will : It is on this day of , A.D., 19. . .. okDERKi) and adjudged that the instrument ofifered for probate in this matter be and the same hereby is established as the last will and testament of John Doc, deceased, and that the same be and hereby is admitted to j^robate. And it is further or^lered that letters testamentary be issued tliereon to A. B., the executor named in said will, upon In's duly qualif}ing as such. F. G. S., Jr., Surrogate. 942 Probate Law and Practice. Form 5. Oath of Executor on Grant of Letters Testamentary. State of New Jersey, ") County oe Essex. j A. B., the executor in the annexed writing named, being duly sworn according to law upon his oath, deposes and says, that the annexed writing contains the true last will and testa- ment of , the testator therein named, so far as he knows, and as he verily believes ; that he will, as execu- tor thereof, well and truly perform the same by paying first the debts of said testator, and then the legacies therein speci- fied, so far as the goods, chattels and credits of deceased will thereunto extend ; and that he will make and exhibit into the Surrogate's office of the County of Essex a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, that have or shall come to his knowledge or possession, or to the possession of any other person for his use, and that he will render a just and true account, when thereunto lawfully required. Subscribed and sworn to this"^ day of 19. . ., at Newark, N. J., before me, F. G. S., Jr., Surrogate. This affidavit must be taken before the surrogate or deputy- surrogate. A. B. Form 6. Bond of Non-Resident Executor. [See Orphans' Court Act, section 51, page 311 supra.] Know aee men by these presents, that we A. B.. C. D. and E. F., all of the of in the County of Essex and the State of New Jersey, are held and firmly bound unto the Ordinary of the State of New Jersey in the sum of dollars, lawful money of the United States, to be paid to the said Ordinary as aforesaid, his successors or assigns, to which payment well and truly to be made, we bind ourselves Pkobatk of Wills. 943 our heirs, executors and administrators, jointl}- and severally, firmly by these presents. Sealed with our seals and dated the day of , one thousand nine hundred and Whereas, the said A. B.. the executor named in the will of John Doe, late of the of in the County of , and State of , who resides out of the State of New Jersey, to wit., in the City, County and State of New York, has applied to the Surrogate of the County of Essex for the probate of said will and letters testamentary thereon. Now, the condition of this obligation is such that if the above bounden A. B., executor as aforesaid, shall faithfully perform the duties devolving upon him as such executor, ac- cording to law, and shall make a just and true account of his administration within twelve calendar months from the date of this obligation, and all the rest and residue of the goods, chattels and credits which shall be found remaining in his hands upon the account of the said administration, the same being first examined and allowed by the Orphans' Court of the county or other competent authority, shall deliver and pay unto such person or persons respectively, as is, are, or shall, by law be entitled to receive the same, then this obligation to be void or else to remain in full force and virtue. Signed, sealed and delivered in the presence of X. Y. A. B. [L. s.] }- CD. [l. s.l E. F. [L.S.J The within bond is approved as to form and sureties this day of 19. . . . F. G. S..- Surrogate. Add justification of sureties as in Form 7. This bond is not necessary if the will provides that no secur- ity shall be required of the person named as executor therein. Orphans' Court Act, section 51, page 311. supra. Form 7. Justification of Sureties on Bond. Statk of Nkw Jkrskv, I County of Iv^srx. j '^'^' ...., beiuij- dulv sworn accorrling to law upon his oath, 61 c)44 Probate Law and Practice. deposes and says that he resides a^ No , Street, in the of , in the County of and State of New Jersey. That he is a freeholder in the State of New Jersey, and the sole owner in his own right of the land and premises No , Street, in the of , in the County of , and State of New Jersey. That the value of said land and premises is .... dollars, and that they are encumbered by mortgage (or jndginent) to the amount of dollars, and that he is worth in real estate, over and above all liabilities of any kind whatsoever, the sum of .... dollars. Subscribed and sworn to this" day of 19. . ., at Newark, N. J., before me, J. C. F., Notary Pul)lic of N. J. Form 8. Power of Attorney from Non-Resident Executor, etc. [See P. L. 1912. page 551, section i, page 208. supra.] Essex County Surrogate's Court. In the matter of the estate John Doe, deceased. ■'1 Power of Attorney from Nou- Residcnt Executor, etc. Know all men v>v these presents, That I, Jane Doe. residing at Number , Street, in the of in the County of , and State of pursuant to the provisions of an Act entitled "A supplement to an Act, entitled 'an Act respecting the Orphans' Court and relating to the powers and duties of the Ordinary and the Orphans' Court and Surrogates (Revision of 1898). approved June 14th, 1898,'" which Act was approved April ist. 1912. being Chapter 213 of the Laws of 191 2, do hereby make, consti- tute and appoint F. G. S., Jr., Surrogate of the County of PROBATii: OF Wills. 045 r^ssex, in the State of New Jerse}'. and his successors in office, my true and lawful attorney upon whom may he served all original process in any action at law or in equity against the aforesaid estate of John Doe, deceased, whereof 1 have heen duly appointed the And I do further agree that any original process against the aforesaid estate of John Doe. deceased served upon my at- torney herein appointed, shall he of the same force and eftect as if duly served upon me within the State of New Jersey. In Witness Whereof, I have hereunto set my hand and seal, this day of , in the year of our I^ord, one thousand nine hundred and Signed, sealed and delivered in 1 ^ _ ^, . > lane Doe. the presence of I Form 8^. Acknowledgement. State of New Jersey, ) County of Essex. ( ' Be it remembered, That on this day of , 19. ... , hefore me, the subscriber, a person- ally appeared Jane Doe, who I am satisfied is the person in the foregoing Power of Attorney named, and I having first made known to her the contents thereof, she did thereupon acknowledge that she signed, sealed and delivered the afore- said Power of Attorney as her voluntary act and deed for the uses and ]nirposes therein expressed. A. P.. C, Master in Chancery of N. I. Form 9. Letters Testamentary. [See Orphans' Court Act, sectit)n 17, 3 Comp. Stat., 3K18.] Essex County Surrogate's Court. State of New Jersey, [ County of Essex. T"' I, , vSurrcjgate oi the County (jf do hereby certif}' tlic annexed to be a true copy of the last will and Icsta- 946 Probate Law and Practice. ment of , late of the County of , deceased, and that , the executors therein named, proved the same before me, and are duly authorized to take upon them- selves the administration of the estate of the testator, agree- ably to the said will. Witness my hand and seal of office the day of , in the year of our Lord one thousand nine hundred and F. G. S., Jr., Surrogate. Form 10. Petition of Co-Executor for Letters Testamentary After Probate of Will. Essex County Surrogate's Court. In the matter of the"^ On Petition for Letters Testa- estate of John Doe, > mentary. deceased. J Petition. To F. G. S. Jr., Surrogate of the County of Essex. The petition of William Jones, of No Street, in the of , in the County of and State of New Jersey, one of the executors named in the last will and testament of John Doe, deceased, respectfully shows that: 1. Your petitioner is one of the executors named in the last will and testament of John Doe, late of the County of Essex and State of New Jersey, who lately departed this life leaving- a last will and testament wherein your petitioner and William Doe were named as executors thereof. 2. The said will of John Doe, deceased, was duly admitted to probate upon the application of William Doe, one of the executors therein named, by the Surrogate of the County of Essex, on the .... day of 19. . , and letters testamentary thereon duly issued to the said William Doe, one of the execu- tors therein named ; but your petitioner has made no applica- tion for. nor have letters testamentary upon said will been issued to him. Probate of Wills. 947 Your petitioner therefore prays that letters testamentary upon the will of the said John Doe niav he issued to him. Dated, Newark, X. J., ••••. 19--- State of New Jeksev, CouNTv of Essex. William Doe. J William Doe, heing duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named and that the matters and things therein contained are true to the best of his knowledge and belief. Subscribed and sworn to this' day of . ^r 1 XT T u f r William Doe. 19. . . ., at Newark, N. ]., before me, J. C. F., Notary Public of N. j. No notice of this apj^lication is necessary, Form II. Order Granting Letters Testamentary to Co-Executor After Probate of Will. • Essex Countv Surrogate's Court. In the matter of the"^ estate of John Doe, > On Petition for Letters Testa- deceased, mentarv Order Craiitiiuj Letters Testaiiieiitary. Upon reading and filing the petition of \\'illiam Jones, whereby it appears that he is one of the executors named in the last will and testament of John Doe, late of the Countv of Essex and State of New Jersey, who departed this life leaving a last will and testament wherein the said William Jones, the I)etitioner herein, and William Doe were named as executors 948 Probate Law and Practice. thereof. And it further appearing that said will was duly iidmitted to probate by the Surrogate of the said County of Essex on the day of 19. • • , upon the application of William Doe, one of the executors therein named, and letters testamentary, were thereupon duly issued to him, and it appearing that the said William Jones, the petitioner herein, has not heretofore applied for nor have letters testamentary upon the will of the said John Doe been issued to him. It is thereupon on this day of , 19... ordered that letters testamentary upon the aforesaid will of John Doe, deceased, be issued to the said William Jones upon his qualifying as such executor. F. G. S., Jr., Surrogate. For form of qualification of executor sec Form 5. Form 12. Petition for Probate of Will and Grant of Adminis- tration With the Will Annexed, in Case of Death or Renun- ciation of Executor Before Letters Testamentary Issued, or in Case Executor Neglects to Prove Will. [See Orphans' Court Act, section 27, page 270, supra, and Orphans' Court Rules i, 2, 3, 4 and 5, pages 258 to 261, supra.] Essex County Surrogate's Court. In the matter of the^ On Application for Probate of Will estate of John Doe, > and Letters of Administration With deceased. J the Will Annexed. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of James Doe, w^ho resides at Number , Street, in the of , in the County of Essex and State of New Jersey, respectfully shows that : I. John Doe, late of the .... of , in the County of Essex and State of New Jersey, died on the day of Pkobatk of Wills. 949 19. . . . possessed of goods, chattels, rights and credits of the value, as nearly as your petitioner can ascertain, of dollars, and having hrst duly made and executed a paper writing jjurporting to l^e his last will and testament, and hearing date the day of 19. . . . in and hy which he appointed X. Y., of the of in the County of and State of the sole executor thereof. 2. The said X. Y., has duly renounced his said ofifice of execu- tor {or has predeceased tJie said testator; or, the said X. Y., executor as aforesaid, has not proved the said zvill, although more than forty days Jiave elapsed since the death of said testator) . 3. The said testator died more than ten days ago, and no caveat has been filed against proving the aforesaid will. 4. The said John Doe left him surviving, as his only next of kin and heirs at law, three children, to wit : James Doe, your ]jetitioner, and Richard Doe and William Doe. all of whom reside at, and whose post office addresses are Number ........ Street, in the of , in the County of and State of ; the residuary legatees named in said will are your petitioner, James Doe, Richard Doe, William Doe and Jane Williams ; all of the foregoing are of full age with the exception of the said Richard Doe who is a minor of the age of twenty years. 5. Due notice of this application has been given to all persons in interest (or, all persons entitled to administration upon the estate of the said John Doe, deceased, have duly renounced their right of administration and requested the appointment of your petitioner). Your petitioner therefore prays that the said writing be admitted to probate as and for the last will and testament of the said John Doe, deceased, and that letters of administration with the said will annexed be issued to him. Dated Newark, N. J., Tame;s Doe. , ,i9-- Statk of New Jerskv, | County of Essex. j James Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in (he foregoing pe- 950 Pkouate; Law and Practice. tition named, and that the matters and things therein contained are true to the best of his knowledge and beUef. Deponent further says that the value of the estate for administration of which this application is made will not exceed the sum of dollars. Subscribed and sworn to this^ day of , ^ _. ^ XT 1 XT T 1 r r James Doe;. 19. . . ., at Newark, N. J., before f me, J. C. F., Notary Public of N. J. J •Orphans' Court I'iules 2, 3 a;id 4, require ten days' notice of the above application to be given to all persons entitled to ad- ministration unless they all renounce. For form of notice, see Form 36; for form of renunciation see Form 35. Orphans' Court Rule 3 requires that where an executor neglects to apply for letters testamentary for forty days after the death of the testator, ten days' notice of the application for letters of ad- ministration shall be given; for proof of service of notice see Form 38. For administration with the will annexed after probate of will see Form 52. Form 13. Renunciation of Executorship. [See Orphans' Court Act, section 27, page 270, supra.] Essex Countv Surrogate's Court. In the matter of the probate of"^ the alleged will of John Doe, >On Petition for Probate, deceased. J Reiiiiiiciation of Executor. To AL,lv TO WHOM IT MAY CONCERN. Whereas, John Doe, late of the of in the County of , and State of New Jersey, died on or about the day of , 19. . . , leaving a last will and testament dated the day of 19 wherein Probatk oi* Wills. 951 and whereby he appointed me the sole executor thereof. Now be it known that 1 hereby renounce the said executor- ship and refuse to take upon myself the burden of the same. In Witness Whereof, I have hereunto set my hand and seal this day of 19. . . Signed in the presence of I ^ Form 14. Order Granting Probate of Will and Letters of Ad- ministration With the Will Annexed. [See Orphans' Court Act, section 27, page 270, supra, and Orphans" Court Rule i, page 258. supra, and 2, page 258, supra.] Essex County Surrogate's Court. In the matter of the^ estate of John Doe, > On Petition, deceased. J Order. It appearing from the i)etition of James Doe, filed herein, that John Doe, late of the of , in the County of Essex and State of New Jersey, died on or about the day of , 19. . ., and more than ten days ago, having first duly made and executed a paper writing purporting to be his last will and testament, bearing date of the day of , 19. . . ., in and by which he appointed X Y., of the of , in the County of , and State of , the sole executor thereof ; and it further appearing that the said X. Y., has duly renounced his said office of execu- tor (or, has predeceased the said testator; or, has not proved the said zmll or applied for letters testamentary thereon, although more than forty days have elapsed since the death of the said testator), and due notice of this application having l)een given to the residuary legatees named in the will of said testator (or, all of the residuary legatees named in said will 95-^ Probate Law and Practice. and persons entitled to letters of administration zvitli the will annexed having duly renounced their said right and requested the appointment of your petitioner) ; and the Surrogate having inquired into the circumstances, taken proof, and being satis- fied of the genuineness of the will produced, the validity of its execution, and the competency of the testator, and no caveat against the probate of said will having been filed, and the said James Doe being, in the judgment of the court, a fit person to administer the estate of the said testator, and it appearing that the personal estate of the said testator will not exceed in value the sum of dollars. It is on this day of ... .iimiaf. 19. . . , ordered ad- judged and decreed that the instrument offered for probate in this matter is the last will and testament of the said John Doe, deceased, and that the same be and is hereby admitted to pro- bate, and it is further ordered that letters of administration with the will annexed be issued thereon to the said James Doe upon the giving by him of a bond to the Ordinary in the sum of dollars, with sureties according to law approved by the Surrogate. F. G. S., Jr., Surrogate. For form of bond see Form i s. Form 15. Bond of Administrator c. t. a. [See Orphans' Court Act. section 47, page 310, supra.] Know ale men bv these presents, that we, William Doe of the of , in the Coimty of and State of New Jersey, as principal, and A. B., of the of , in the County of and State of and C. B., of the of in the County of and State of , as sureties, are held and firmly bound unto the Ordinary of the State of New Jersey in the sum of dollars, lawful money of said State, to be paid to the said Ordinary, his successors or assigns. To which payment well and truly to be made, we bind ourselves, our heirs, execu- Probate of Wills. 953 tors and aciniiiustrators, jointly and severally, tirmlv by these presents. Sealed with our seals, and dated the day of . . , in the year of our Lord, one thousand nine hundred and The Condition of This Obligation is Such, that if the above bounden William Doe, administrator with the will an- nexed of all and singular the goods, chattels and credits of John Doe, deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of the said administrator, or into the hands or possession of any other person or persons for the said administrator, and the same so made do exhibit or cause to be exhibited into the Registry of the Prerogative Court in the Secretary's Ofiftce of this State, or into the Surrogate's Ofifice of the County of Essex, at or before the expiration of three calendar months from the date of the above written obligation, and the same goods, chattels and credits, and all other goods, chattels and credits of the said deceased at the time of his death, which at any time after shall come into the hands or possession of the said administrator or into the hands or possession of any other person or persons for the said administrator, do well and truly administer according to law and the provisions of said will; and further do make or cause to be made a just and true account of his administration within twelve calendar months from the date of the above written obligation; and all the rest and residue of the said goods, chattels and credits, which shall be found remaining upon the account of the said administration, the same being first examined and allowed by the Judges of the Orphans' Court of the County, or other competent authority, shall deliver and pay unto such person or persons respectively, as is, are or shall be by law and the provisions of said will entitled to receive the same, then the above obligation to be void and of none effect, or else to remain in full force and virtue. Sealed and Delivered'^ William l)(.r (l. s.) in the i)resence of > A. B. (l. S.) X. Y. J C. 1;. (L. s.) For form of justification of sureties, see Form 7. c^54 Probate Law and Practice. Form 1 6. Oath of Administrator With the Will Annexed. State of New Jersey, ) County of Essex. j A. B., being duly sworn according to law upon his oath, deposes and says that the foregoing writing contains the true last will and testament of John Doe, deceased, the testator therein named, as far as he knows and as he verily believes ; that he will as such administrator well and truly perform the same, lirst by paying the debts of said deceased, and then the legacies therein specified as far as the goods, chattels and credits of said deceased will thereunto extend, and the law charge him ; that he will make and exhibit into the Surrogate's Ofifice of the County of Essex a true and perfect inventory of all and singular the said goods, chattels and credits, as far as the same have or shall come to his possession or knowledge, or to the possession of any other person or persons to his use, to his knowledge : and that he will well and truly account when thereunto lawfully reciuired. And that said testator died on the day of , 19. . . -^ Subscribed and sworn to this day of , 19. . . ., at Newark, N. J., before ^ A. B. me. J J. C. F., Jr., Surrogate. This affidavit must he taken before the Surrogate. Form 17. Letters of Administration With the Will Annexed. [See Orphans' Court Act. section 35, 3 Comp. Stat., page 3825.] Essex County Surrogate's Court. State of New Jersey, County of Essex. ' To all to whom these presents shall come, greeting: Whereas, late of the County of , in the State of , departed this life, having made and exe- Probate of Wills. 955 cuted a last \vill and testament, which has been duly proved, according to law, before the Surrogate of the County of ; and whereas the said testator failed to appoint any executor thereof (or the executor named therein has re- ywunced the trust imposed upon him by said zi'ill. or as the case may be): therefore. I. F. G. S.. jr.. Surrogate of the County of Essex, do hereby appoint administrator of all and singular the goods. chattels and credits of the said deceased, who is duly authorized to administer the same agreeably to said will. In witness whereof, I have hereunto set my hand and seal of office, this day of in the year of our Lord, one thousand nine hundred and F. G. S., Jr., Surrogate. FOREIGN WILLS. Form 18. Petition for Probate of Foreign Will. [See Orphans' Court Act. section 23, page 211, supra; and Orphans' Court Rule -I. page 258, supra.] Essex County Surrogate's Court. In the matter of the probate of a copy of the will of John Doe, deceased, admitted to probate in tlie State of New York. J Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of A. B., of the of in the Coun- ty of and State of respectfully shows that: I. John Doe, late of the City, County and State of New York, dej)arted this life on the (l;iv of 19. . . , having first duly made and executed a jiaper writing purport- ing to be his last will and testament ; <-uul your petitioner, A. B., is the sole executor therein named. 95^ Probate Law and Practice. 2. The aforesaid will of the said John Doe, deceased, was on the day of , 19. . . , duly admitted to probate by the Surrogate of the said County of New York, and a copy of the record of said will and of the certificate of probate thereof, duly certified and attested as a true copy by the said Surrogate of the said County of New York, and duly exemplified and authenticated accord- ing to the act of Congress in such case made and provided, is hereunto annexed. 3. The said John Doe left him surviving as his next of kin and heirs at law, two children, to wit : William Doe, and John Doe, both of whom reside at and whose post-office addresses are No Street, in the of in the County of .... and State of The said William Doe is of full age and the said John Doe is a minor of the age of fourteen years who resides with his brother William at the aforesaid address. 4. The said John Doe died possessed of personal property within the said County of Essex of the value of dollars, and seized of real estate within the State of New^ Jersey of the value of dollars, the incorne whereof amounts to dollars annually (and the said John Doc in and by his said tc/// cvpressly provided that the executor therein named should not be required to give security for the faithful performance of Jiis duties as such executor). Your petitioner therefore prays that the aforesaid will of the said John Doe be admitted to probate in this state, and that letters testamentary thereon be issued to him. Dated Newark. N. J., A. B. State of New Jersev County of Essex. ■■} A. B., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things contained therein are true to the l^est of his knowledge and belief. Probate of Wills. 957 Subscribed and sworn to this"> day of I 19 at Newark, N. J.. l)efore ( A. B. me. J. C. F., Xotarv rul)lic of X. T- Form 19. Order Granting Probate of Foreign Will. [See Orphans' Court Act. section 23. page 211. supra.] Essex County Surrogate's Col^rt. In the matter of the probate of a"^ copy of the will of Tohn Doe, .^ t^ • • ^ ' J t, .. y • .1 r ^ •'i'' 1 etition. deceased, probated m the State of New York. J Order Granting Probate of Foreign Will. It appearing from the verified i^etition filed herein by A. B. ' that John Doe, late of the City, County and State of New York, died on or about the day of , 19. . ., having first duly made and executed a paper writing purport- ing to be his last will and testament, wherein A. B.. the said petitioner, was appointed executor thereof, and it further appearing that the .said John Doe, deceased, was not at the time of his death a resident of this state, but was a resident of the City, County and State of New York, and that the aforesaid writing was duly admitted to jirobate by the Surro- gate of the said County of New York, as and for the last will of the said John Doe. deceased; And it further appearing that a copy oi the record of such will and the certificate of the said probate thereof, certified and attested as a true copy by the Surrogate of the said County of New York, by whom the said will was admitted to probate as aforesaid, and exemplified and authenticated according to the act of Congress, has been filed in this court, and it appearing 958 ^ Probate Law and Practice:. by the aforesaid record of probate that said will was duly executed in accordance with the laws of this state. It is thereupon, on this day of , 19..., ordered and adjudged that the aforesaid will of the said John Doe be and the same hereby is admitted to probate in this State, and it is further ordered that letters testamentary be issued thereon to the said A. B., the executor in said will named. F. G. S., Jr., Surrogate. If the executor is a non-resident he will be recjuired to give bonds unless such requirement be waived by the will ; for form of bond see Form 6. If the application for probate be made by some person other than the executor named in the will, ten days' notice of such application must be given to the executor and persons entitled to administration thereon. WHEN DOUBTS ARISE ON FACE OF WILL. Form 20. Adjudication That Doubts Arise on the Face of a Will. [See Orphans' Court Act. section 13, page 196. supra.] EssKx CouNTv Surrogate's Court. In the matter of the probate of^ the alleged will of John Doe, >On Petition for Probate. deceased. J Adjudication that Doubts Arise on the Face of the Will. , the executor named in a certain paper writing, bearing date of the day of 19. . . . and purporting to be the last will and testament of John Doe. late of the of in the County of Essex and State of New Jersey, deceased, having filed his petition herein praying that the said paper writing be admitted to probate as the last will and testament of the said John Doe, deceased, Probatk of Wills. , 959 and it appearing upon an inspection of said paper writing that the tignres $1000. appearing upon the tenth hue on the third page thereof have been crossed out and the figures $2000. sub- stituted therefor by interhning the same, and there being no note or memorandum in said paper writing to show whether or not the aforesaid changes in said will were made by the said testator, or by another at his request, before the execution of said paper writing. It is thereupon on this day of , 19. . . , pur- suant to the statute in such case made and provided, adjudged that doubts arise ui)on the face of the aforesaid will. F. G. S., Jr., Surrogate. Form 21. Citation Where Doubts Arise on the Face of a Will. [See Orphans' Court Act, Section 13, page 196. supra.] Essex County ORPifAxs' Court. State of New Jersey County of Essex. > ss. The State of New Jersey. To Jane Doe, William Doe. Henry Doe '■ '^ _ and Charles Doe, Greeting: William Doe, the executor named in a paper writing pur- porting to be the last will and testament of John Doe, deceased, having duly presented his petition to the Surrogate of the County of Essex for the probate of the aforesaid paper writing, and the Surrogate having adjudicated that doubts arise upon the face of the aforesaid paper writing. You are therefore cited and commanded to personally be and aj)pear before the Orphans' Cotirt, to be holden at the Court House, in the City of Newark, in and for the County of Essex, on , the day of , 19. . ., at ten o'clock in the forenoon, at which time the court will hear and determine the matters in controversy. 62 960 Probate Law and Practice. Witness W. P. M., Judge of our said Orphans' Court at Newark aforesaid, this day of , one thousand nine hundred and F. G. S., Jr., Surrogate and Clerk. This citation must be served by the sherifif. Form 22. Decree Admitting Will to Probate When Doubts Arise on the Face of the Will. [See Orphans' Court Act. section 13. page 196, supra.] Essex Count v Orphans' Court. In the matter of the probate of^ the alleged will of John Doe, VOn Petition for Probate of deceased. j Will. Decree for Probate. This matter being opened to the court by of counsel with proponent, and it appearing that heretofore a certain paper writing, bearing date of the day of , 19. . ., purporting to be the last will and testament of John Doe, deceased, was duly offered for probate before the vSurrogate of the County of Essex aforesaid by , the executor therein named ; and tiie said Surrogate having duly adjudicated that doubts arise on the face of the said will and citations to all persons concerned to appear in this court having been thereupon duly issued and returned duly served ; and the matter now coming on to be heard ; and the court having taken testimony and heard the allegations of the parties herein and being satisfied that the aforesaid paper writing was duly executed by the said John Doe as and for his last will and testament, and that the said John Doe, at the time of executing the said paper writing, was in all respects compe- tent to execute the same and was not under any restraint or undue influence ; and the court being satisfied that the said John Doe after the execution of said paper Avriting crossed out the figures $1000. appearing upon the tenth line on the third Probate of Wills. 961 page of said paper writing and sul)stituted therefore the figures $2000. ]))• interlining the same. It is thereupon on this dav of , 19. . . , on motion of of counsel with the proponent, ordered, adjudged and decreed that the said paper writing, with the exception of the figures $2000. interlined as aforesaid, and with the figures $1000. crossed out as aforesaid restored there- to, be and the same hereby is established as the last will and testament of the said John Doe, deceased, and that the same be and hereby is admitted to probate, and it is further ordered that letters testamentary be issued upon the aforesaid will to , the executor therein named, upon his duly qualifying as such. And it is further ordered that a counsel fee of dollars be allowed to of counsel wath proponent, and that said counsel fee, together with the costs of this matter to be taxed, be paid by , executor as aforesaid, from the estate of the said John Doe. deceased. W. P. M., J- WHERE CAVEAT FILED AGAINST PROBATE OF WILL. Form 23. Caveat Against Probate o£ Will. [See Orplians' Court Act, section 13, i)age 196, supra.] Essex County Surrogate's Court. In the matter of the probate of the ") alleged will of John Doe, deceased, j Caveat Against Probate of JVill. To F. C. S., Jr., Surrogate of the County of Essex: I, William Doe, one of the children and next of kin of John Doe, late of , who died on the day of , 19..., do hereby caveat and protest against admitting to probate any paper purporting to be the last will and testament of the said John Doe, until examination and decree thereon by the Orphans' Court of said Count v of PvSsex. Dated Newark, N. J.. ^9- •• William Doc. 962 Probate Law and Practice. Form 24. Citation on Caveat. [See Orphans' Court Act, section 13. page 196. supra.] Essex County Orphans' Court. State of New Jersey County oe Essex '\ss. The State of New Jersey, f[L. S.] To William Doe, Greeting: \\'e cite and command you. that you personally be and appear before the Orphans' Court, to be holden at the Court House, in the City of Newark, in and for the County of Essex, on the day of , 19. . ., at ten o'clock in the forenoon, to answer unto the caveat of William Doe against admitting to probate any paper writing purporting to be the last will and testament of John Doe, deceased, and to abide the judgment of the said court in the premises. Witness, W. P. M., Judge of our said Orphans' Court at Newark aforesaid, this day of one thousand nine hundred and ^ F. G. S., Jr., Surrogate and Clerk. This citation must be served by the sheriff. Torm 25. Order of Orphans' Court Admitting Will to Probate on Caveat. [See Orphans' Court Act, section 13, page 196, supra.] Essex County Orphans' Court. In the matter of the probate of) a paper purporting to be the '• ^, ^. .. - td , , f t- I I !5 vOn Petition tor Probate, last will and testament of John Doe, deceased. Order Granting Probate. This matter being opened to the court by A. B., proctor for proponent, and it appearing that John Jones, the executor Probatk of Wills. q().v named in the last will and testament of John Doe. late of the County of Essex, deceased, duly presented the said ])aper to the Surrogate of the County of Essex aforesaid for probate, and it appearing that a caveat against the probate of said will had been duly tiled with the said Surrogate, and citations having been issued to all persons in interest and returned duly served, and the matter coming on to l)e heard, and the court having taken testimon)- and examined into the matter. and being of the opinion that the said paper writing was duly executed by the said John Doe as and for his last will and testament in manner and form prescribed by the statute in such case made and provided, that said John Doe at the time of making said w'ill was of sound and disposing mind, memory and understanding, and that said will was not the product of undue influence. It is thereupon, on this day of 19. . . . ORDERED^ ADJUDGED and DECREED that the aforesaid paper writing be and the same hereby is established as the last will and testament of the said John Doe, deceased, and that the same be admitted to probate, and it is further ordered that letters testamentary thereon be issued to the said John Jones, the executor in said will named upon his duly r|ualifying as such. And it is further ordered that a counsel fee of dollars be allowed to A. B., proctor for proponent, and the court being satisfied that the caveator herein had reasonable cause for contesting the validity of the said will, it is further ordered that a counsel fee of dollars be allowed to C. D., proctor for the caveator, the aforesaid counsel fees to be paid by the said John Jones, the executor named in said will, out of the estate of the said testator. W. P. M., Judge. 964 Probate Law and Practice. Form 26. Order of Orphans' Court Denying Probate of Will on Caveat. [See OrpliaiTs' Court Act. section 13. page 196. supra.] Essex County Orphans' Court. On Petition for Probate. In the matter of the probate of" a paper purporting to be the la.st will and testament of John Doe, deceased. Order Dcnyiug Probate. This matter being oj^ened to the court by A. B.. proctor for proponent, and it appearing that John Jones, the executor named in a paper writing purporting to be the last will and testament of John Doe, late of the County of Essex, deceased, duly presented the said paper to the Surrogate of the County of Essex aforesaid for probate, and it appearing that a caveat against the probate of said paper writing had been duly filed with the said Surrogate, and citations having been issued to all persons in interest and returned duly served, and the matter coming on to be heard, and the court having taken testimony and examined into the matter and being of the opinion that the said John Doe at the time of executing said paper writ- ing was not of sound and disposing mind, memory and under- standing ( or, that the aforesaid paper zvritiug executed by the said John Doe zvas the product of undue influence, exer- cised ovr him by one X. Y., or that the aforesaid paper zvriting purporting to be the last tvill and testament of the said John Doe, deceased, was not executed in nninner and form as recpiired by the statute in such case made and provided). It is thereupon, on this day of , 19. . ., ORDERED, adjudged and decreed that the aforesaid paper writ- ing offered for probate in this matter is not the last will and testament of the said John Doe, deceased and that probate of the same is hereby denied, and it is further ordered that a counsel fee of dollars be allowed to A. B., proctor for proponent, and that a counsel fee of dollars be allowed to X. Y., proctor for the caveator, said counsel fees to be paid from the estate of the said John Doe, deceased. W. P. M., Judge. Pkobatic of Wills. 965 TRIAL BEFORE A JURY OF DISPUTES CONCERNING PROBATE OF WILLS. Form 27. Petition for Certificate for Trial before a Jury of Dis- pute Concerning Probate of Will. [See Orphans' Court Act, section 18. page 226. supra.] Essex Couxtv Okpiiaxs" Court. In the matter of the probate of^ ^ ^. • -n , , ,, , -,1 r T 1 T^ I C)n Caveat against Jrrobate the alleged will of ohn Doe. > . .-,.,, ° - (of Will, deceased. J Petition. To THE Orphans' Court of the County of Essex: The petition of A. B., of the of in the Coun- ty of and State of , respectfully shows that: 1. John Doe, late of the of in the County of Essex and State of New Jersey, died on the day of , 19 .... and more than ten days ago, leaving a paper writing purporting to be his last will and testament, bearing date of the day of 19. . . , wherein he ap- ])ointed }Our petitioner the sole executor thereof. 2. Your petitioner, on the day of , 19. . ., and more than ten days after the death of the said John Doe, presented the said writing to the Surrogate of the said County of Essex for probate, but C. D., one of the children and next of kin of the said John Doe, having filed his caveat against the probate thereof, probate of said will was refused by the said Surrogate. 3. The said Surrogate has duly issued citations to all persons concerned to appear before this court to show cause why said will should not be admitted to probate, which have been returned duly served. 4. The issues involved in this proceeding involve only pure questions of fact, and your ])etitioner desires that they niav be determined by a jury. Your petitioner therefore prays thai the (|uestions involved in such controversy may be certified into the Circuit Court of the County of Essex for trial before a jury, pursuant to the statute in such case made and provided. c)66 Probatk Law and Practice. Dated Newark N. J., ^ -g , , I9--- State oe New Jersey, County of Essex. SEY, ) X. J A. B., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing pe- tition named and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this"^ day of , 19. . . ., at Newark, N. J., before V A. B. me, J. C. F., Notary Public of N. J. Form 28. Certificate for Trial Before a Jury. [See Orphans' Court Act. section 18, page 226, supra.] Essex County Orphans' Court.. In the matter of the probate of^ the alleged will of John Doe, >On Caveat against Probate deceased. J of Will. • Certificate for Trial Before a Jury. A. B., the above-named proponent, having presented a paper writing, bearing date of the day of , 19. • •, and purporting to be the last will and testament of John Doe, deceased, to the Surrogate of the County of Essex for probate, and C. D., having filed a caveat against the probate thereof and the Surrogate having issued citations to all persons concerned to appear before this court to show cause why the said will should not be admitted to probate, which citations Probate of \\'ills. 967 have been returned duly served ; and the matters in contro- versy and the said parties now being before the court, and the said A. B. having presented his petition praying that the ques- tions involved in such controversy be certified into the Circuit Court for trial before a jury: It is thereupon, on this day of , 19. . ., on motion of .of counsel with proponents, ordered that the following questions involved in this case be and the same hereby are certified into the Circuit Court of said County of Essex for trial before a jury pursuant to the statute in such case made and provided, to wit : first. \\'hether the paper writing presented to the Surro- gate of said County of Essex for probate as and for the last will of John Doe, deceased, was duly signed, witnessed, pub- lished and declared by the said John Doe as and for his last will and testament, according to the statute in such case made and provided. Second. Whether the said John Doe, at the time of making and executing his alleged will as aforesaid, was of sound and disposing mind and memory. Third. Whether the said alleged will of the said John Doe, deceased, was the result of undue influence, imposition or fraud, exercised upon the said John Doe by any of the legatees or devisees in said will named, or by any other person or persons. Fourth. Whether certain marks and lines appearing upon said instrument were the act of the said John Doe, and. if so, whether they were intended by him as a cancellation of said will. fifth. Whether the said paper writing is the last will and testament of the said John Doe, deceased. W. P. M., Judge. 968 Probate Law and Practice. Form 29. Order Framing Issue. [See Orphans' Court Act, section 18, page 226, supra.] Essex County Circuit Court. AMlliam Doe,"^ vs. >On Appeal from Prol)ate of Will. James Doe. J Order Framing Issue. James Doe, the above-named appellee having presented a paper writing purporting to be the last will and testament of John Doe, deceased, to the Surrogate of the County of Essex for probate, and the said Surrogate, on the day of , A.D., 19. . . ., having made and entered an order admitting said instrument to probate as and for the last will and testament of said John Doe, deceased, and further ordered that letters testamentary be issued to said appellee, James Doe, on said last mentioned date ; and the said appellant, William Doe, having on the day of A.D., 19 filed with the Surrogate of said County a petition of appeal from the said order of said Surrogate granting probate of said alleged last will and testament of said John Doe, deceased, and the said Surrogate having cited all persons concerned as next of kin, heirs at law, devises or legatees to appear before the Orphans' Court of the County of Essex to answer the matter of said appeal from the order of the said Surrogate admitting to probate said alleged last will of said John Doe, deceased ; and the said Orphans' Court of the said County of Essex having upon the petition of the said W'illiam Doe, by its order made on the day of 19. • ■ ,. ordered that certain questions be certified into the Circuit Court of the said County of Essex, for trial before a jury, to wit : First. Whether the said paper writing presented to the Surrogate of said County of Essex for probate, and by him ordered to be admitted to probate, as and for the last will and testament of John Doe, deceased, was duly signed, witnessed, published and declared by the said John Doe as and for his last will and testament according to the statute in such case made and provided. Probatk of W'iij.s. 969 Second. Whether at the time of making and executing his alleged last will and testament said John Doe was of sound and disposing mind and memory, and as such capal)le of disposing of his estate by will. Third. Whether the said alleged will of the said John Doe, deceased, was the result of undue influence, imposition or fraud upon the said John Doe, deceased, by James Doe, sole bene- ficiary under said alleged will, or by any other person or persons. Fourth. Whether the said paper writing is the last will and testament of said John Doe, deceased. It is on this day of , nineteen hundred and ...... on motion of and Attorneys for William Doe, ordered that a trial by jury be had to determine the follow- ing questions, to wit : First. Whether the said paper writing presented to the Surrogate of the County of Essex for probate, and by him ordered to be admitted to probate as and for the last will and testament of John Doe, deceased, wa-s duly signed, witnessed, published and declared by the said John Doe as and for his last will and testament according to the statute in such case made and provided. Second. Whether at the time of making and executing his alleged last will and testament the said John Doe was of sound and disposing mind and memory, and as such capable of dis- posing of his estate by will. Third. Whether the said alleged will of the said John Doe. deceased, was the result of undue influence, imposition or fraud upon the said John Doe, deceased, by James Doe, sole bene- ficiary under said alleged will, or by any other person or persons. Fourth. Whether the said pa|)er writing is the last will and testament of said John Doe, deceased. And it is further ordered that a venire issue according to law and the ])ractice of this court for the empaneling of said jury. Let the foregoing order be entered. N. Y. D., Judge. 970 Probate Law and Practick. Form 30. Certificate of Judge of Circuit Court. [See Orphans' Court Act, section ly. page 227, supra.] Essex County Circuit Court. A. B., Proponent,^ vs. >On Caveat Against Probate of Will C. D. Caveator. J of John Doe. deceased. Certificate uf Trial in Circuit Court. To the ORPIIAN^' Court of the County oe Essex. I, F. A., Judge of the Circuit Court of the County of Essex, do hereby certify and return to the Orphans' Court of said county, that a certificate certifying the above-stated mat- ter into the said Circuit Court for trial before a jury having been filed with the clerk of said Circuit Court, I, as Judge holding such court, did frame an issue which is filed in the office of the clerk of said court and a true coi)y whereof is hereunto annexed, and 'that the issue so framed was dulv tried before me at the term of said Circuit Court at Newark, by a jury duly empaneled and sworn to speak the truth, and that thereu])on witnesses were sworn and exam- ined, that the testimony of such witnesses was taken down stenographically and reduced to writing as required by .V. B., the above-named proponent, -and that all exceptions which were taken to the admission or rejection of testimony were entered upon the record, which said testimony and the said exceptions entered as aforesaid are hereunto annexed, and that a true copy of the charge delivered by me to the jury, to- gether with the exceptions taken thereto by counsel for C. D., the above-named caveator, and a certified copy of the costs taxed and a statement of the expenses of said trial are also hereunto annexed, and I further certify that the said jury did certify and return their verdict as follows : First. That the paper writing, presented to the Surrogate of said County of Essex for probate as and for the last will of John Doe, deceased, was duly signed, witnessed, published and declared by the said John Doe as and for his last will and Pkobatk of W'ilIvS. 971 testament accordiiig- to the statute in such case made and provided. Second. That the said Jolin Doe, at the time of making and executing his alleged will as aforesaid, was of sound and disposing mind and memory. lliird. That the said alleged will of the said John Doe. deceased, was not the result of undue influence, imposition or fraud exercised upon the said John Doe hv anv of the leg- atees or devisees in said will named, or hy any other person or persons. Fourth. That the marks and lines appearing upon the said instrument were not the act of the said John Doe, hut were placed upon said will aftev the execution thereof 1)\- a ])erson or persons unknown. Fifth. That the said paper writing is the last will and testament of the said John Doe, deceased. All of which I hereby certify and return, according to the statute in such case made and provided this dav of , I9--.. F. A., Judge. Form 31. Decree of Orphans' Court on Case Certified to Circuit Court for Trial. [.See Orplians' C()urt .\ct, section 19, page 229, su|)ra.l Essex Countv Orphans' Court. In the matter of the j^rohatc of^ the alleged \vill of John Doe. > On Caveat against Probate deceased. J of \\'ill. Order Adinittimi Will to J'rohaic. Whereas, ui)on tiie ap])licalion of \. T... the ;ili()\e-nanu-d ])ro|)onent. this court certified into i\\v Circuit Court in and for the said Countv of b'ssex for tri.'il before a iur\ u]iOn I'etition for Probate. Doe, deceased. J Petition. To F. G. S.. Jr., Surrogate of the County of Essex: The petition of John Jones who resides at Number , Street, in the of in the County of and State of n^spectfully shows that : 1. On the day of 19 John Doe, late of the County of Essex, deceased, who departed this life on the day of , 19. . . , made and executed his last will and testament and your petitioner, as he is informed and verily Ijelieves, was therein named as the executor thereof. 2. The said will was prepared by and executed in the presence of A. B., a member of the Bar of this State ; the wit- nesses to said will were the said A. B., and C. D., a clerk in the office of the said A. B. .\fter the execution of said will the .same was placed by the said John Doe in the custody of the said A. B., and 1)y him ])laced in a safe in his office with other ]japcrs of a similar character. 3. Ujjon the death of the said John Doe application was made to the said A. B. for the said will, to the end that the same might be offered for orobatc before the v^urrogate of 974 Probate Law and Practice. the County of Essex, but the said A. B., after a diUgent, care- ful and exhaustive search for the paper in his safe, was unable to find the said will. He did, however, find among the files of his office a carbon copy of said will, which he had caused to be made at the time when he prepared said will. 4. The will so executed by John Doe as aforesaid was in the following terms : (Here insert contents of alleged lost mill). 5. The names of the heirs and next of kin of the said John Doe, deceased, so far as the same are known, with their residences, or post-office addresses, and the manner or degree in which they severally stand related to said John Doe, deceased, are as follows : Jane Doe, the widow of said testator, who resides at No , Street, in the of in the County of and State of ; William Doe, Henry Doe, and James Doe, children of said John Doe, who reside at No , Street, in the of , in the County of and State of ; all of the above-named heirs and nearest of kin of the said John Doe, deceased, are of full age, with the exception of James Doe, who is a minor of the age of sixteen years. Your petitioner therefore prays that this court may establish that the said John Doe did in his lifetime duly execute a last will and testament in the manner and form hereinabove set set forth which has been lost ;, and that the same be admitted to probate as the last will and testament of the said John Doe. deceased. Dated Newark, N. J., ic). . JoTTx Jones. State oe New Jersey, County of Essex. John Jones, being duly sworn upon his oath according to law, deposes and says that he is the petitioner in the fore- going petition named and that the matters and things thereni contained are true to the best of his knowledge and belief. Probate of Wills. 975 > John Jones. Subscribed and sworn to this'^ day of 19. . . ., at Newark, N. J., before nie, J. C. F., Notary Public of X. J. ^ State of New Jersey, ) County of Essex. j ^^' A. B., being duly sworn upon his oath according to law, deposes and says as follows : I am a member of the Bar of the State of New Jersey, having been admitted to practice therein on the day of , 19... I was well acquainted with John Doe late of the County of Essex, deceased, having known him for vears. I well recollect his coming to my office on or about the day of , 19. . .. and giving me directions to prepare his last will and testament. I recall preparing the same and directing that a carbon copy of the same be made, such being the practice of my office. On the day of 19 John Doe came to my office and executed the said paper writing by signing the same in the presence of myself and C. D., a clerk in my office, first declaring the same to be his last will and testament and requesting that we sign the same as witnesses. John Doe thereupon signed the will in the presence of myself and the said C. D., who thereupon signed the same as a witness in the presence of the said John Doe and myself, and I then in the presence of the said John Doe and the said A. B.. also signed said will as a witness after which the said John Doe requested me to keep the said will for him and I thereupon placed the same in my safe with other papers of the same character. After the death of John Dc^c. upon inquiry being made of me in regard to said will, I was unable to find the same among the papers in my safe, and I thereupon caused a thorough and exhaustive search to be made for it, but without success. T did, however, find the carbon cojjv of the said will which 1 63 9/6 Probate Law and Practice. caused to be made at the time of the preparation of the original. I have examined the foregoing petition, and the^ will therein set forth is a true copy of the aforesaid carbon copy of the will of the said John Doe, deceased, now in my possession as afore- said and of the will- as executed by the said John Doe. deceased. Subscribed and sworn to this"' day of , 19 . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. The further proceedings are the same as in case of a caveat. A. B. Form 33. Order of Orphans' Court Admitting to Probate Lost Will. [See In re Cassidy. 80 \. J. Eq.. 163, page 243. supra.] Essex County Orphans' Court. In the matter of the probate of^ the alleged lost will of John > On Petition for Probate. Doe, deceased. J Order Admitting Lost Will to Probate. This matter being opened to the court by X. Y.. proctor for the petitioner, and it appearing that on the day of , 19 ...., John Jones presented to the Surro- gate of the County of Essex a petition alleging that John Doe, of the said County of Essex, departed this Hfe on the day of ,19 ..., having tirst made and executed a paper writing purporting to be his last will and testament, which was inadvertently lost, and praying that the said will as set up in said petition be admitted to probate as the last will and testament of the said John Doe, deceased. And cita- tions to all persons concerned having been duly issued by the Probate of Wills. '^)7'/ Surrogate of the said County of Essex and returned duly served and the matter coming on to be heard, and the court having taken testimony and examined into the matter and being satisfied that the said John Doe, deceased, did on the day of , 19 . . . , execute a paper writing pur- porting to be his last will and testament ; that said paper writ- ing was duly executed by the said John Doe, deceased as and for his last will and testament in compliance with the terms of the statute in such case made and provided ; that the said John Doe at the time of executing said will was of sound and disposing mind, memory and understanding and not under un- due influence, and that the said ])aper writing was, after the execution thereof, inadvertently lost. It is thereupon on this day of , 19 ..., ORDERED, ADJUDGED AND DECREED that the Said John Doe did in his lifetime duly execute a last will and testament in manner and "form as follows : {Here insert zvill as set up in the petition). And it is further ordered, adjudged and decreed that the will of the "said John Doe, deceased, as hereinabove set forth, be and the same hereby is admitted to probate and that letters testamentary be issued upon the aforesaid will to John Jones, the executor therein named, upon his duly qualifying as such. W. P. M., Judge. LETTERS OF ADMINISTRATION. I. UPON APPLICATION OF NEXT OF KIN. Form 34. Petition for Letters of Administration. [See Orphans' Court Act, sections J6 and 27, i)a,uts 251 and 262, supra; and Orphans' Court Rule i, page 258, supra.] KSSEX CoUN'l\- SuRK()C.A'l'i;"s CoUKT. In the matter oi the estate of 1 On Tetilion for Letters of John Doe, deceased. j Administration. J'elitlon. 97^^ Probate; Law and Pkactice. To F. G. S., Jr., Surrogate of the County of Essex : The petition of WiUiam Doe, who resides at Number , Street, in the of , in the County of , and State of , respectfully shows that : 1. Your petitioner is one of the sons of John Doe, late of the of , in the County of Essex and State of New Jersey, who died on the .... day of nineteen hun- dred and , intestate, leaving him surviving as his only next of kin and heirs at law three children, to wit; William Doe, your petitioner, Richard Doe and James Doe, all of whom reside at, and whose post-office addresses are number Street, in the of , in the County of and State of ; that all of the aforesaid next of kin are of full age, with the exception of James Doe, who is a minor of the age of years. 2. All of the aforesaid next of kin entitled to administration upon the estate of the said intestate have duly renounced their right to administration thereon, and have requested the appoint- ment of your petitioner ( or due notice of this application has been, given to all of the aforesaid next of kin of the said in- testate entitled to adjninistration upon his estate.) 3. The said John Doe died possessed of personal property the value whereof, so far as your petitioner can ascertain, will not exceed the sum of dollars. Your petitioner therefore prays that letters of administration of the goods, chattels, rights and credits of whicli the said John Doe died possessed may be granted to him. Dated Newark. N. J., „, -^ •^ Wili.tam Doe. 19 ••• State of New Jersey. ' y ss CorxTv OF Essex. '■! William Doe, the petitioner in the foregoing petition named, being duly sworn according to law upon his oath, deposes and says that the matters and things therein contained are true to the best of his knowledge and belief. Deponent further says that the value of the estate for administration of which this Letters of Administration. 979 npplicatioii is made will not exceed in value the sum of Dollars. Subscribed and sworn to this"^ day of , 19 . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. > William Doe. Form 35. Renunciation of Right to Administration and Request for Appointment of Administrator. [See Orplians' Court Rule 2, page 25S, supra.] Essex County Surrogate's Couki".. In the matter of the esta lohn Doe, deceased. ue of I > On 3 Arl Petition for Letters of Administration. Kciiitiu'iation of Xc.vt of Kin. I, Richard Doe, one of the children of John Doe, late of the of , in the County of and State of , who died on the day of I9- • • , in- testate, hereby renounce all' right and claim to administration of the goods and chattels of the said John Doe, and request that administration upon the said estate be granted to William Doe, the petitioner therefor. Dated Newark, N. J., Richard Doe. , , i9---. Form 36. Notice of Application for Letters of Administration. [See (Orphans' Court Rules 2, page 258, supra, and 4. page 260, supra.] Essex Countn- Surrogate's Coitrt. In the matter of the estate of 1 On Petition for J^etters of j Administration. Notice of AppUcat'wii. John Doe, deceased. Probate Law and Practice. To Richard Doe, next of kin of John Doe, deceased: You are hereby notified that on , the day of , 19 . . ., at ID a. m., I shall apply to the Surrogate of the County of Essex, at his office in the Court House, in the City of Newark, for letters of administration of the goods, chattels and credits of John Doe, late of the of in the County of , and State of , who died on of about the day of , 19 . . ., intestate. Dated Newark, N. T-, t t^ James Doe. , , 19 ■"> For form of proof of service see Form 38. Form 37. Order Directing Service of Notice Upon Non-Resident Next of Kin. [See Orphans' Court Rule 4. page 260, supra.] Essex County Surrogate's Court. In the matter of the estate John Doe, deceased. | "", .7^- "7 ^• •> ' -'of Admmistration. IOn Application for Letters Order Directing Service of Notice. William Doe having duly presented his application for letters of administration upon the estate of John Doe, late of the County of Essex, deceased and it appearing therefrom that William Doe, a brother of the said intestate, resides at Num- ber , Street, in the City of Chicago and State of Illinois and that Mary Williams, a sister of said intestate, resides at Number . . . . , Street, in the City of St. Louis and State of Missouri. It is on this day of , one thousand nine hundred and , ordered that days' notice of the aforesaid application for letters of administration be given the above-named persons entitled thereto, which notice may be served liy mailing a true copy thereof addressed to each LrrxEKs OF Admix i>TKATiO-\. 9S1 ot the aforesaid persons, at their aforesaid respective ad- dresses, with the i)Ostage thereon prepaid. F. G. S., Jr.. Surrogate. When any of the next of kin are non-residents Orphans' Court Rule 9 provides that they shall be given such notice of the application for admini.stration as the Surrogate shall by order direct. Form 38. Proof of Service of Notice, Etc. [See Orphans' Court Rule 4. page 260, supra.] Essex County Surrogate's Court. In the matter of the estate of | John Doe, deceased. j Proof of Service. State of New Jersey, ) S CO County of Essex, j James Doe, being duly sworn upon his oath according to law, deposes and says that on the day of ' . . , 19 . . . , he served the foregoing notice upon Richard Doe, to whom it is addressed, by delivering to him personally a true copv thereof {or by leaving a true copy thereof at Number , Street, in the City of , his usual residence or place of abode, with a person of the age of fourteen years and up- zvards). Subscribed and sworn to this' day of 19. . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. James Doe. Form 39. Proof of Mailing Notice. [See Orphans' Court I On Petition for Letters of John Doe, deceased. I » 1 • • ^ Administration. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of X. Y., who resides at Number . . . ., Street, in the of ....;..., in the County of and State of , respectfully shows that : 1. Your petitioner is a creditor of John Doe, late of the of , in the County of Essex, and State of New 'Jersey, who died intestate on or about the day of , 19. . ., possessed of goods, chattels, rights and credits to the value of dollars, as nearly as your petitioner can ascertain. 2. The said John Doe left him surviving as his only next of kin and heirs at law, a widow, Jane Doe, who resides at and whose post-office address is number , Street. in the of , in the County of and State of , and two children, to wit : William Doe and Rich- ard Doe, both of whom reside at and whose post-office addresses are number . . . . , Street, in the of , in the County of and State of ; all of the above-named next of kin of said intestate are of full age, with the exception of Richard Doe,- who is a minor years of age. 3. None of the aforesaid next of kin and heirs at law of the said intestate have applied for administration upon his estate, although more than forty days have elapsed since the death of said John Doe, {or the said JoJui Doe left no relations justly entitled to the administration of his personal estate, so far as your petitioner can ascertain, after i}iqiiiry pursuant to the rules of this court, as by an affidavit hereunto annexed ivill more fully and at large appear.) 4. At the time of his death, the said John Doe was indebted to your petitioner in the sum of dollars upon a claim which, by the laws of this State, survived against the personal representatives of the said John Doe. Letters of Admixistkation, 987 Your petitioner therefore prays that letters of administra- tion upon the estate of the said John Doe may l)e granted to him, or to some other fit person. Dated Newark. X. J. X. Y. , 19 ••• E\v Jersey, ) V Essex. j State of Xew County or ^ X. Y., being duly sworn upon his oath according to law. deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. De- ponent further says that the value of the estate for adminis- tration of which this application is made will not exceed in value the sum of dollars. X. Y. Subscribed and sworn to this day of , 19. . . ., at Newark, N. J., before me, J. C. F., ' . Notary Public of N. J. P'or i)etition for letters of administration with the will annexed in case the executor neglects to- prove will, or apply for letters testamentary, see Form 12. for notice of application see Form 46 for proof of service Form 38. Form 45. Proof of Inquiry for Absent Next of Kin. I Scr Drijlians' Cmirl Rule 16, page 891, supra.] Essex County St.RkooArE's Court. In the matter of the estate of ") On Application for Letters John Doe, deceased. j of .\dministration. Proof of Inqiilrx for .Ihsriit Next of Kill. g ss. County of Essex. j William Doe, being dul)' sworn according to law, upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. De- ponent further says that the value of the estate for administra- tion of which this application is made will not exceed in value the sum of dollars. Subscribed and sworn to"^ before me this day of S- William DoE. , 19. . ., at Newark, N. J- J J. C. F., Notary Public of N. J. For form of notice of ajiplication for letters of adminis- tration, see Form 36. For form of renunciation of right to administer, see Form 35, for proof of service of notice Form 38. Form 49. Order Appointing Substitutionary Administrator. [Sec 2 Comp. Stat., p. 2259, sees. 2-a and 2-b, pages 275 and 276, supra, and Orphans' Court Rules i, 2 and 5. pages 258 and 259. supra.] Essex County Surrogate's Court. In the matter of the estate of ") On Petition for Letters of John Doe, deceased. J Substitutionary Adminis- tration. Order Appointing Substitu- tionary Administrator. Letters of Administration. 993, It appearing from the petition of A. B., of the of , in the County of Essex and State of New jersey. that John Doe, late of the County of Essex, deceased, (hed on the day of Nineteen Hundred and . . . . , intestate, and that X. Y. was thereafter chily apjxnnted 1)}" the Surrogate of the said County of Essex as administrator of the goods, chattels and credits of said intestate. And it further appearing that the administrator so ap])()inted as aforesaid, after ta-king upon himself the hurden of said ad- ministration, departed this life leaving certain property and assets of the estate of the said John Doe unadministered, which said unadministered estate does not exceed in value the sum: of dollars. Aiid it further appearing that all of the next of kin en- titled to administration upon said estate have renounced in writing their riglit to administration and requested that sub- stitutionary admiftistration upon the same be granted to said petitioner ( or that due notice of this application has been given to tJie next of kin or parties by lazv entitled to adminis- tration upon the estate of the said intestate). It is thereupon on this .... day of , Nineteen hun- dred and , ordered that letters of substitutionary ad- ministration upon the goods, chattels and credits of said intes- tate be granted to the said A. B. upon his entering into bond to the Ordinary in the sum of Dollars, with sureties to be approved by the Surrogate. F. G. S., Jr., Surrogate. For form of bond see Form 42. Form 50. Oath of Substitutionary Administrator. State of New Jersey, ) CouNTv OF Essex. j A. B., the substitutionary administrator of the estate of Jolm Doe, deceased, being duly sworn according to law upon his oath, says that he will well and truly administer all and singular 994 Probate Law and Practice. the goods and chattels, rights and credits which were of the said deceased at the time of his death, and remain unadmin- istered, that have or shall come to his possession or knowledge, or to the possession of any other person or j)ersons for his use, and that he will make and exhihit into the Surrogate's office of the County of Essex a true and perfect inventory of all and singular the said goods and chattels, rights and credits, and render a just and true account of his administration when thereunto lawfully required. 1 >- A. B. Subscribed and sworn to this day of , (^ 19 . . . , at Newark, N. J., before me. F. G. S., Surrogate. This affidavit can only be taken before the*Surrogate. Form 51. Letters of Substitutionary Administration. [See 2 Comp. Stat., page 2259, sections 2-a and 2-b, pages 275 and 276. supra, and Orphans' Court Rules i. 2 and 5, pages 258 and 259. supra, and Orphans' Court Rule 10, page 889, supra.] Essex County Surrogate's Court. State of New Jersey, County of Essex. 5EY, ) To ALE TO WHOM THESE PRESENTS SHALL COME, GREETING: Whereas, A. B., late of the County of Essex, in the State of New Jersey, departed this life intestate, of whose goods, chattels and credits administration was duly committed to C. D. ; and the said C. D., after taking upon himself the burden of said administration, departed this life (or icas removed or discharged from the said office by . . . as the case may be). Therefore, I,'F. G. S., Jr., Surrogate of the County of Essex, do in the place and stead of the said C. D., hereby substitute and appoint E. F., administrator of all and singular the goods ■chattels and credits of said intestate, who is dulv authorized as Letters of Administration. 995 such substituted administrator tu adiuiiiistcr the same agree- ably to law. In Witness Whereof, 1 have hereunto set mv liand [1.. s.] and seal of office, this day of , A. D., Nineteen Hundred and SUBSTITUTIONARY ADMINISTRATION C. T. A. Form 52. Petition for Letters of Substitutionary Administration With the Will Annexed. [See 2 Comp. Stat., page 2259, section 2b. page 275, supra, and Orphans' Court Rules i, 2, and 5, pages 258 and 259, supra.] Essex County Surrogate's Court. On Petition for Letters of Substitutionary Adminis- In the matter of the estate of John Doe, deceased. tration With the Will An- nexed. Petition. To F. G. S., Jr., Surrogate of the County of Essex : The petition of William Doe who resides at Number , Street, in the of in the County of and vState of respectfully shows that : 1. John Doe, late of the of in the Countv of Essex and State of New Jersey, died on the day of , 19. . ., leaving a last will and testament in and by w^hich he appointed X. Y., of the of , in the County of and State of , the sole executor thereof; the said"will was duly proved before the Surrogate of the said County of Essex on the day of 19. . ., and by him duly recorded in his oiifice, and letters testa- mentary thereon issued to the said X. Y., as such executor. 2. 'J'he said X. Y., after taking upon himself the Inirdcn of administration, died {or 7cas removed, or as the case ina\ be), on the day of , 19. . . , leaving certain property and assets of the estate of the said John Doe unadministered. 996 Probate Law and Practice. the value whereof does not exceed, as your petitioner is in- formed and verily believes, the sum of dollars. 3. The names of the next of kin and heirs at law of said testator, so far as the same are known, with their residences or post-office addresses and the manner or degree in which they severally stand related to him are as follows, to wit : William Doe, your petitioner, Richard Doe and James Doe, children of said testator ; your petitioner and Richard Doe are of full age; the said James Doe is a minor of the age of fifteen years; all of the aforesaid reside at, and their post-office ad- dresses are Number Street, in the of , in the County of and State of The residuary legatees named in the will of the said John Doe are your petitioner, Richard Doe, James Doe and Mary Williams. 4. All of said residuary legatees and persons entitled to ad- ministration upon the estate of the said John Doe have duly renounced their right of administration and requested the appointment of your petitioner, {or due notice of this applica- tion lias been gii'cn to all persons entitled to administration upon the estate of the said John Doc, deceased) . Your petitioner therefore prays that letters of substitution- ary administration with the will of the said John Doe, de- ceased, annexed may be granted to him. Dated Newark, N. J., William Doe. i9--- State oe New Jersey County oe Essex EY, I > ss. William Doe, being duly sworn upon liis* oath according to law, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Deponent further says that the value of the estate for ad- ministration of which this application is made will not exceed in value the sum of dollars. LettivRS of xA.dministration. 997 William Dok. vSubscribed and sworn to this day of , 19..., before me at Newark, N. ]., J.C. F., Notary Public of N. j. For administration with the will annexed see Form 12. Form of notice of application see Form 36, for proof of service Form 38. for renunciation Form 35. Form 53. Order Appointing Substitutionary Administrator With the Will Annexed. [See 2 Comp. Stat., page _'_'5y, sccticm _'1), page 275, supra, and Orphans' Court Rules i. 2 and 5, pages 258 and 259, supra.] Essex County Surrogate's Court. T ., ,. r ,, 4. . rl On petition for Letters of In the matter of the estate of ^ , . . » , . . T , T^ J J >bubstitutionarvAdministra- |onn Uoe, deceased. ( . J tion c. t. a. Order Appo'nitiiui Substituted Adiiiiuistrator e. f. a. It appearing from the petition of William Doe that John Doe, late of the of in the County of Essex and State of New Jersey, heretofore departed this life leaving a last will and testament wherein and whereby he appointed X. Y., of the of , in the County of and State of , the executor thereof; that said will was duly proved before the Surrogate of the said County of Essex and duly recorded in his office, and that letters testa- mentary thereon were duly issued by said Surrogate to the said X. Y., as such executor. And it further ap])earing that the said X. Y., after having taken upon himself the burden of administration died, on the day of 19- . • , (or zvas removed, or as tJie ease may be), leaving certain property and assets of the estate of the said John Doe unadministered, and that the value of the property so remaining unadministered wifl not exceed in value the sum of dollars. 998 Probate Law and Practice. And it further appearing that all persons entitled to adminis- tration upon the estate of the said John Doe, deceased, have duly renounced their right of administration and requested the appointment of said petitioner (or that due notice of this appli- cation has been given to all persons entitled to administration upon the estate of the said John Doe, deceased). It is thereupon on this day of , Nineteen Hundred and , ordered that letters of substitutionary administration with the will of the said John Doe, deceased, annexed be issued to the said William Doe upon his entering into bond to the Ordinary according to law in the sum of dollars, with sureties to be approved by the Surrogate. F. G. S., Jr., For form of bond see Form 55. Surrogate. Form 54. Oath of Substitutionary Administrator c. t. a. State of New Jersey, ") ^SSEX. j CouNTv oE Essex. A. B., being duly sworn according to law upon his oath, deposes and says that he will, as substituted administrator with the will annexed of John Doe, deceased, well and truly adminis- ter upon all and singular the goods, chattels and credits of said testator which shall come to his possession or knowledge, or to the possession of any other person or persons for his use, agreeably to said will, first by paying the debts of said deceased, and then the legacies in said will specified as far as the goods, chattels and credits of said deceased will thereunto extend aiid the law charge him; that he will make and exhibit into the Surrogate's Office of the County of Essex a true and perfect inventory of all and singular the said goods, chattels and credits, as far as the same have or shall come to his possession or knowledge, or to the possession of any other person or persons, to his use, to his knowledge. And that he will well and truly account when thereunto lawfully required. Lettkrs of Administration. 999 Subscribed and sworn to be-^ fore me at Newark. X. J-. this > A. B. day of ^9- • • J F. G. S., Jr., Surrogate. This affidavit must be taken before the Surrogate. Form 55. Bond of Substituted Administrator With the Will Annexed. [See _' Comp. Stat., page 2259. section _'a, page 25S, .supra, and Or- phans' Court Act. section 47. page 282, supra.] Know all mex by these presents, That We, A. B., C. D. and E. F., all of the of , in the County of Essex and State of New Jersey, are held and firmly bound unto the Ordinary of the State of New Jersey, in the sum of dollars, lawful money of the United States, to be paid to the said Ordinary as aforesaid, his successors, or as- signs, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated the day of , one thousand nine hundred and The condition of this obligation is such, that whereas James Doe, the executor named in the will of John Doe, has lately died, leaving assets of the estate of the said John Doe, deceased, unadministered, and whereas the Surrogate of the County of Essex has appointed A. B., substituted administrator with the will of the said John Doe, deceased, annexed. Now, therefore, if the said A. B. shall well and faithfully perform the duties devolving upon him as such administrator according to law, and shall make a just and true account of his administration within twelve calendar months from the date of this oljligation, and all the rest and residue of the goods, chattels ruid credits which shall be found remaining in his hands upon the account of the said administration, the same being first examined and allowed by the Orphans' Court of the County or other comjietent authority, shall deliver and looo pROiiATE Law and Practice. pay unto such person or persons, respectively, as is, are or shall by law be entitled to receive the same, then this obligation to be void or else to remain in full force and virtue. Signed, sealed and delivered ^ in the presence of : > Add justification of sureties as in Form 7. A. B. (L. s.) CD. VL. S.) E.F. (L. S.) Form 56. Letters of Substitutionary Administration With the Will Annexed. [See Orphans' Court Rule 11, page 889, supra.] Essex County Surrogate's Court. State of New Jersey, ) County of Essex, j To all to whom these presents shall come, greeting: Whereas, A. B., late of the County of Essex, in the State of New Jersey, died, having made and executed a last will and testament, which has been duly proved according to law before the Surrogate of the County of Essex; and whereas, the said testator appointed C. D. executor thereof, who, after taking upon himself the burden of administration, departed this life {or was removed or discharged from his said office by , or as the case may be) ; Therefore, I, F. G. S., Jr., Surrogate of the County of Essex, do, in the place and stead of the said C. D., hereby substitute and appoint E. F. administrator of all and singular the goods, chattels and credits of the said testator, who is duly authorized as such substituted administrator to administer the same agreeably to said will. In Witness Whereof. I have hereunto set my hand (l. s.) and seal of office, this day of A. D., Nineteen Hundred and J. G. S., Jr., Surrogate. Letters of Aomixistkatiox. iooi IV. ADMINISTRATION ON ESTATE OF NONRESIDENT. Form 57. Application by Administrator of Non-Resident De- cedent for Letters of Administration. [Sec (Jrplians' Court Act. section 29. page j;.'. sujira. and Orphans' Court Rules i and 2. pages 258 and 259. supra.] Essex Countv Sukkoc.xtic's Court. . , ,^ On Petition lor Adniinis- in the matter of the estate ot I . -. ,^ . T , „ , , > tration ui)on bstate 01 John Doe, deceased. \ ^^ t^ • , J Aon-Kesidcnt. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of X. Y., who resides at No Street, in the of , in the County of and State of , respectfully shows that : 1. John Doe, late of the City, County and State of New York, died on the day of 19. . • , intestate, leaving him surviving, as his only next of kin and heirs at law, two children, to wit: William Doe and Richard Doe, both of whom reside at, and whose post-ofifice addresses are number . . . . , Street, in the of in the County of and State of ; William Doe is of full age, and Richard Doe is a minor of the age of eighteen years. 2. Letters of administration ui)on the estate of the said John Doe, deceased, were duly granted to your petitioner by the Surrogate of the said County of New York, as by an exempli- fied copy of said letters hereunto annexed will more fully appear. 3. The said John Doe died possessed of personal property situate within the said County of Essex, to wit: tlie sum (jf dollars, on deposit with tlie v^avings insti- tution, in the City of Newark, in the County of l{ssex afore- said, to the credit of the said John Doe, deceased. I002 Probate Law and Practice. Your petitioner therefore prays that letters of administration upon the estate of the said John Doe, deceased, may be granted to him. Dated Newark, N. J., X. Y. , , I9--- State oe New Jersey^ 'EY, ) County of Essex. X. Y., being duly sworn upon his oath according to law, deposes and says that he is the petitioner in the foreoing pe- tition named and that the matters and things therein contained are true to the best of his knowledge and belief. Deponent further says that the value of the estate for administration of which this application is made will not exceed the sum of dollars. Subscrilied and sworn to"^ before me, at Newark, N. ].,> X. \. this dav of ^9- •') J. C. F.,' Notary Public of N. J. Form 59. Application by Creditor of Non-Resident Decedent for Letters of Administration. [See Orphans' Court Act, section 29, page 252, supra, and Orphans' Court Rules i and 2, pages 258 and 259, supra.] Essex County Surrogate's Court. ") On Petition for Adminis- In the matter of the estate of I ^ ,. t^ ^ ^ r at ^ , ^ , , >tration upon Estate of J\ on- John Doe, deceased. J j^^^.^^^^^ Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of X. Y., who resides at Number . . . . , Street, in the of , in the County of and State of New Jersey, respectfully shows that : Letters of Administration'. 1003 1. John Doe. late of the City. County and State of New York, died, as your petitioner has been informed and verily believes, on or about the day of 19. . . , and more than sixty days ago, intestate. 2. The said John Doe left him surviving, as his only next of kin and heirs at law, two children, to wit: William Doe and Richard Doe, both of whom reside at, and whose post-office addresses are Number Street, in the of ......... in the County of and State of ; the said William Doe is of full age and the said Richard Doe is a minor of the age of fourteen years. 3. Said intestate was not a resident of this state, and died ])Ossessed of personal property situate within the aforesaid County of Essex, to wit : the sum of dollars, on deposit with the Savings Institution, in the City of Newark, in the County of Essex aforesaid, to the credit of the said John Doe. 4. William Doe has been appointed by the Surrogate of the said County of New York administrator of the estate of the said John Doe within the State of New York, but no application has been made by the said administrator for letters of adminis- tration in this State upon the estate of the said John Doe. although more than sixty days have elapsed since the death of the said John Doe. 3. Your petitioner has a legal claim against the said John Doe, which by the laws of this state survives against the personal representatives of such decedent, which debt con- sists of a note for dollars, made by the said John Doe to the order of your petitioner, dated January i, 191 5 and ])ayable three months after date. Your petitioner therefore prays that the surrogate shall direct what notice of this application be given and that letters of administration upon the estate of the said John Doe be granted to him, or to such other fit person as the said surrogate may select. Dated Newark. N. J., X. Y. ^9--- I004 Probate Law and Practice. State of New Jersey County of Essex. > ^^. X. Y., ha'mg duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing pe- tition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. De- ponent further says that the value of the estate for which this application is made will not exceed the sum of dollars. Subscribed and sworn to this"^ day of , I -^ Y 19 . . ., at Newark, N. J., before | me. J. C. F., Notary Public of N. J. For form of order of Surrogate directing notice to be given see Form 60, for proof of service see Form 38, for proof ot mailing see Form 39. Form 58. Ordef Appointing Administrator of Non-Resident De- cedent upon Application of Foreign Administrator. Essex County vSurrogate's Court. . , ."^ On Petition for Adminis- In the matter of the estate of I . -r^ ^ ^ i ^ , ^ , , >tration upon Estate of ohn Doe, deceased. ,, t^ • , J Aon-Resulent. Order Grantiiuj . Idiniiii.s-tration. Upon reading and filing the petition of X. Y., of the City, County and State of New York, whereby it a^jpears that John Doe, late of the City of New York aforesaid, died on the day of , 19..., intestate, and the Surrogate being satisfied that the said John Doe was a resident of the State of New York and' that letters of administration upon his estate were duly granted to the said X. Y., the petitioner herein, by the Surrogate of the said County of New York, and that said intestate died possessed of personal property within this state of the value of dollars. It is thereupon, on this day of 19..., ORDERED that letters of administration upon the estate of the LETTRRS of Ad.M I N 1 S TRATION. IOO5 said John Doe, deceased, be granted to the said X. V.. upon his giving a bond to the Ordinary in the sum of dollars, with sureties to be approved by the Surrogate. F. G. S., Jr., Surrogate For form of bond see Form 42. Form 60. Order Prescribing Notice to be Given to Executor or Administrator of Non-Resident Intestate, on Application by a Creditor for Letters of Administration. [See Orplians' Court Act, section 29, i)age J52. supra.] Essex Couxtv Sukroc.xte's Court. In the matter of the estate of ") On Petition for Letters of John Doe, deceased. j Administration. Ordtv. On reading and tiling the petition of X. Y., wherein it appears that John Doe, a resident of the City, County and State of New- York, died intestate, leaving personal property within the County of Essex, in the State of New Jersey, and it further appearing that William Doe, the administrator of the estate of the said intestate, appointed by the Surrogate of the said County of New York, has neglected for the space of sixty days after the death of such decedent to make application within this state for letters of administration upon the estate of the said decedent; that X. Y., the petitioner herein, has a debt against such decedent which, by the laws of this state, survives against his personal representatives and that said petitioner prays that administration upon the estate of the said John Doe be granted to him, or to such other fit person as the said Surrogate may select. It is thereupon, on this day of k;. . . . ordered that .... days notice of said ]jetitioner's application for letters fjf administration upon the estate of the said John Doe, deceased, be given to the administrator of the estate of the said John Doe aj)pointcd by the Surrogate of the said County ioo6 Probate Law and Practice. of New York, as aforesaid, l)v niailino^ such notice (or such notice as the Surrogate max direct.) F. G. S., Jr., Surrogate. For form of notice see Form 36, for proof of service see Form 38, for proof of mailing- Form 39. Form 61. Order Granting Letters of Administration to a Creditor upon the Estate of a Non-Resident Decedent. [See Orphans' Court Act, section 29, page 252, supra.] Essex County Surrogate's Court. T- , . , ,^ On Petition for Lettc-s of in the matter 01 the estate of I ... . . -r^ _ , -r-- , , >-Aammistration upon instate |olm Doe, deceased. r ^^ ^ ■ ^ J of Aon-Kesident. Order Granting Letters. On reading and filing the petition of X. Y., whereby it appears that John Doe, a resident of the State of New York, departed this life intestate, leaving personal property within the County of Essex and State of New^ Jersey ; and it further appearing that William Doe, the administrator of the estate of the said intestate, appointed by the Surrogate of the County of New York, in said State of New York, has neglected for the space of sixty days after the death of such decedent to make application within this state for letters of administration upon the estate of the said decedent ; and it further appearing that X. Y., the petitioner herein, has a debt against such decedent which by the laws of this state survives against the personal representatives of such decedent, and that due notice of this application has been given to William Doe, the adminis- trator appointed upon the estate of the said John Doe by the Surrogate of the said County of New York as aforesaid, pur- suant to the order of the Surrogate made herein, and the Surro- gate having inquired into the matter and being of the opinion that L. R. is a fit person to be intrusted with the administration of said estate. Letters of Admin is iratiox. I(X)7 It is thereupon, on this day of I9- • • • ordered that letters of administration of the goods and chattels, rights and credits of the said John Doe within this state be granted to the said L. R. upon his giving bond to the Ordinary in the sum of dollars, with sureties to be a])proved by the said Surrogate. F. G. S., Jr., Surrogate. For form of Bond see Form 42. V. DISPUTED ADMINISTRATION. Form 62. Caveat Against Granting Administration. Essex County Surrogate's Court. In the matter of the estate of 1 John Doe, deceased. Caveat. To F. G. S.. Jr.. Surrogate of Essex County: Take notice, that I, William Doe, a lawful child and one of the next of kin of John Doe, late of the .of in the County of Essex and State of New Jersey, who died in- testate on the day of 19. . • , claim adminis- tration of the estate of the said John Doe, deceased, and do hereby caveat and protest against granting letters of adminis- tration upon the estate of the said John Doc until the dispute respecting niv right and claim thereto shall be determined by the C )r])hans' Court of said county. Dated Newark, N. J., Wh.i.iam Doe. ,, 19. Form 63. Citation on Caveat against Granting Administration. [Sec Orphans' Court Act. section 26, page 251. supra.] Essex County, ss. — The State of New Jersey, to X. Y.. Greeting : [e. s.] You are hereby cited and warned to be and appear before the Orphans' Court to be held at Newark, in 65 Tfxj8 Probate Law and Practice. and for the County of Essex, on , the day of , 19. . ., to answer unto the caveat of William Doe against granting administration upon the estate of John Doe, deceased, at which time and place the said court will hear and determine the matter. Witness W. P. M., Esq., judge of our said Orphans' Court at Newark, aforesaid, the day of A. D. nine- teen hundred and F. G. S., Jr., Surrogate and Clerk. This citation must be served by the Sheriff. Form 64. Citation in Case of Disputed Administration, [See Orphans' Court Act, section 26, page 251, supra.] State of New Jersey, County of Essex. The State of New Jersey to James Doe, Greeting: A dispute having arisen as to the right of adminis- [l. s.] tration upon the estate of John Doe, late of , deceased, you are hereby cited and warned to appear before the Orphans' Court to be holden at Newark in and for the County of Essex on the day of , 19. . ., at 10 a. m., at which time and place the said court will hear and determine the matter in controversy. Witness W. P. M., Esq., judge of our said Orphans' Court, at Newark, this day of , 19. . . F. G. S., Jr., Surrogate and Clerk. A dispute may arise as to the right of administration either by the filing of a caveat by contestant or by his filing a cross petition for letters. This citation must be served by the SheriiT. Release of Sureties. 1009 MISCELLANEOUS PROCEEDINGS IN CONNEC- TION WITH BONDS OF EXECUTORS, AD- MINISTRATORS, ETC. I. RELEASE OF SURETIES. Form 65. Application of Surety to be Released from Further Liability on Bond. [See Orphans' Court Act, section 144, page 333, supra.] Essex County Orphans' Court. Ill the matter of the estate of | On Petition of Surety for John Jones, deceased. j Relief. Petition. To THE Orphans' Court of the County of Essex : The petition of A. B., of the of , in the County of and State of , respectfully shows that : He is one of the sureties of William Doe. the administra- tor of the estate of John Jones, deceased, appointed hy the Surrogate of the Comity of Essex on the day of 19. . . , and desires to he released from responsihility on account of the future acts and defaults of the said William Doe as such administrator. Your petitioner therefore prays that this court may direct that a citation be issued directed to the said William Doe, as such administrator, requiring him to appear before this court, at a time and place to be therein specified, to state and settle his account of the estate that has come into his hands, and of the claims presented to him against the same, and to give new sureties in the usual form for the discharge of his duties as required by the statute in such case made and ])rovi(led. Dated Newark, N. T-, * -r, A. B. i9--- State of New Jkrsen', | County of Essex. | A. B., being duly sworn according to law upon his oath deposes and says that he is the petitioner in the foregoing pe- loio Probate Law and Practice. tition named, and that the matters and things therein contained are true to the best of his knowledge and beHef. Subscribed and sworn to this"^ day of , 1 9 .... at Newark. N. J., before me. J. C. F., Notary PubHc of N. J A. B. Form 66. Citation to Administrator, Etc., to Account and Give New Bond. [See Orphans' Court Act, section 144, page 333. supra.] Essex County Orpfians' Court. State of New County of Es Jersey, ) ■^ } ss. SSEX. j The State of New Jersev TO WiEEiAM Doe, Adminis- [L. S.] TRATOR of the EsTATE OF John Jones, Deceased. Greeting : You are hereby cited and commanded personally to be and appear before the Orphans' Court to be holden at the Court- house in the City of Newark, in and for the County of Essex. on the day of , one thousand nine hundred and , at ten o'clock in the forenoon, to state and settle your account of the estate of the said John Jones, deceased, which has come into your hands as administrator of said estate, and the claims presented to you against the same, and to give new sureties in the usual form for the discharge of your duties as such administrator, as required by the statute in such case made and provided. Release of Sureties. ioii Witness, W. P. M.. Judge of our said Orphans" Court, at Newark, aforesaid, this day of one thousand nine hundred and F. G. S., Jr., Surrogate and Clerk. Form 67. Order Releasing Surety from Further Liability. [See Orphans' Court Act, section 144, page i^^. supra.] In the matter of the estate of | On Petition of Suretv for John Doe, deceased. j Relief. Order Releasing Surety. Application having been made b\- A. B., one of the sureties of William Doe, administrator of the estate of John Jones, deceased, duly appointed by the Surrogate of the County of Essex, to be released from further responsibility on account of the future acts and defaults of the said William Doe as such administrator, and it appearing that on the day of , 19- • ■> this court ordered that a citation issue to the said \\illiam Doe directing him to state and settle his account as such administrator and give new sureties in the usual form for the discharge of his duties as such administrator, which citation has been duly issued and served; and the said William Doe having appeared and stated and settled his account and given new sureties to the satisfaction of this court ; It is thereupon, on this day of , 19. . . ordered that the said A. B., surety as aforesaid, shall not be liable on his aforesaid bond for any act, default or misconduct of the said William Doe, as such administrator, subsequent to the date of this order. W. P. M., Judge. Form 68. Petition for Discharge of Sureties After Adminis- tration Completed. [See Orphans' Court .Act, section 145, page 334, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition of Sureties for John Doe, deceased. j Discharge. Petition. IOI2 Probate Law and Practice. To THE Orphans' Court of the County of Essex : The petition of A. B. and C. D. respectfully shows that : 1. They are the sureties or bondsmen upon the bond of William Doe given by him as administrator of the estate of the said John Doe, deceased, and filed in the office of the Surrogate of the County of Essex. 2. The said William Doe has duly stated and settled his final account as such administrator in the office of the Surrogate of said County of Essex, and said account was on the day of , 19. . . , duly allowed by this court. 3. After the allowance by this court of the said account, a final decree of distribution was made by this court and filed in the office of the Surrogate of the said County of Essex on the day of , 19. . . , and more than three months ago, and no appeal from such order of distribution is pending. 4. The entire estate of the said John Doe, deceased, which came into the hands of the said William Doe, administrator as aforesaid, has been duly distributed according to law, as will appear from refunding bonds filed in the office of the Surro- gate of this county. 5. The next of kin and persons entitled to participate in the distribution of the estate of the said John Doe, deceased, are as follows : Jane Doe, widow, who resides at Number . . . . , Street, in the of in the County of and State of . ; Peter Doe, brother, who resides at Number , Street, in the of , in the County of and State of ; and James Doe, brother, who resides at Number Street, in the of , in the County of and State of All of the aforesaid next of kin are of full age with the exception of Peter Doe, who is a minor of the age of fifteen years, and Jane Doe aforesaid has been duly ap- pointed the guardian of the said Peter Doe by the Surrogate of the County of Essex aforesaid. Your petitioners therefore pray that an order may be made discharging them from any and every liability by reason of their having become sureties upon the bond of the said William Doe, .administrator as aforesaid. Release of Sureties. 1013 Dated Newark, N. T-, A. B. , , i9--- C.D. F New Jersey, ") rv OF Essex. j State of A. B. and C. D., being severally duly sworn according to law upon their oaths, depose and say that they are the petitioners in the foregoing petition named and that the matters and things therein contained are true to the best of their knowledge and belief. Subscribed and sworn to^ this day of , 19 . . . , > A. B. at Newark, N. J., before me. J C. D. J. C. F., Notary Public of N. J. The statute provides that such notice of this application as the court may prescribe shall be given to all persons inter- ested. For form of order prescribing notice see Form 60. A very convenient method of proceeding, however, is by rule to show cause, the form of which follows : Form 69. Rule to Show Cause Why Sureties Should Not be Discharged. [See Orphans' Court .■\ct, section 145. page 334, supra.] Essex County Orphans' Court. Tn the matter of the estate of ) On Petition of vSureties for John Doe, deceased. J Discharge. Order to Show Cause. It appearing from the petition of .\. B. and C. D. that they are the sureties upon the bond of William Doe, administrator of the estate of John Doe, late of the County of Essex, de- ceased, and that the account of the said William Doe has been duly allowed by this court, and that thereafter a final decree of distribution of the surplus of the said estate was by this I0I4 Probate Law and Practice. court made more than three months ago, and that no appeal from such order of distribution is pending; and that the said A. B. and C. D., pray to be released from further lia- bility as sureties upon the bond of William Doe, administra- tor as aforesaid. And it further appearing that the next of kin and persons by law entitled to distribution of the surplus of the estate of the said John Doe, deceased, are Jane Doe, James Doe and Peter Doe; that the said Jane Doe and Peter Doe are resi- dents of this State ; that the said Peter Doe is a minor and that Jane Doe has been duly appointed his guardian by the Surrogate of the County of Essex and that James Doe resides in the City of London, in the Kingdom of Great Britain. It is thereupon on this day of One Thou- sand nine hundred and , ORDERED that the said Jane Doe, Peter Doe and James Doe show cause before this court on the day of , one thousand nine hundred and. . . . , why the said A. B. and C. D. should not be discharged from any and every liability by reason of their having become the sureties of the said William Doe as aforesaid, and it is further ordered that this order be served within days from the date thereof in manner and form following: upon such of the aforesaid next of kih as may be residents of this State, by serving a true but uncertitied copy of the same upon them either personally or by leaving a copy thereof at their resi- dence or usual place of abode with a person above the age of fourteen years ; upon Peter Doe, a minor as aforesaid, by serving a true but uncertified copy of the same upon Jane Doe, his guardian as aforesaid, personally, or by leaving a true but uncertified copy thereof at her residence or usual place of abode with a person above the age of fourteen years ; and upon James Doe by mailing a true but uncertified copy of this order to him by registered mail, addressed to him at his last known address in the City of London, with the postage thereon prepaid. W. P. M., Judge. Release of Sureties. loi Form 70. Order Discharging Sureties. [See Orpiiaiis' Court Act, section 145. page 334. supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition of Sureties for John Doe, deceased. j Discharge. ) On Pc J Dischc Order Discharging Sureties. AppHcation having been made by A. B. and C. D., the sureties upon the bond of W'ilHam Doe, administrator of the estate of John Doe, deceased, and it appearing that the said William Doe has duly stated and settled his final account as such administrator in the office of the Surrogate of the Coun- ty of Essex; that said account was duly allowed by this court, and that after the allowance by this court of the said account a final decree of distribution of the surplus of said estate was made by this court, which said final decree of distribution was filed in the office of the Surrogate of this County on the day of , 19. . ., and it appearing that more than three months have elapsed since the filing of the aforesaid final decree of distribution, and that no appeal from said decree of distribution is pending, and that the rule to show cause made herein on the day of 19. . ., has been duly served in manner and form as therein directed, and proof having been made to the satisfaction of the court that the entire estate in the hands of the said William Doe as such administrator has been distributed according to law. It is thereupon, on this day of , one thou- sand nine hundred and , (jrdkrku that the said A. B. and C. D. be and they are hereby discharged from any and every liability by reason of their having become sureties upon the bond of the said Willim Doe as aforesaid. W. P. i\I.. Judge. ioi6 Probate Law and Practice. II. PROCEEDINGS BY SURETY TO REQUIRE PRINCIPAL TO GIVE SEPARATE SECURITY. Form 71. Petition of Surety for Order Requiring Administrator, Etc., to Account and Give Separate Security. [See Orphans' Court Act. section 143. page S33- supra.] Essex Countv Orphans' Court. In the matter of the estate of ) On Petition of Surety for John Doe, deceased. j Relief. Petition. To THE Orphans' Court of the County of Essex : The petition of X. Y., of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is the surety upon the bond of William Doe, administrator of the estate of John Doe, deceased; the said William Doe, administrator as aforesaid, on the .... day of , 19. . ., loaned dollars of the funds of the said estate to one R. S., of , who is the brother-in- law of said administrator, taking as security therefor the promissory note of the said R. S., payable to the said estate in one year from the date thereof. 2. The said R. S., is, as your petitioner believes, insolvent, and the funds so loaned to him are in danger of being lost to said estate. 3. Petitioner believes that the said William Doe is wasting and mismanaging the said estate, whereby he may become liable to loss and damage. Your petitioner therefore prays that the said \\'illiam Doe may be ordered to render an account of his administration to petitioner, and to give separate security to petitioner for the true payment of the balance remaining in his hands to the creditors and representatives of the said John Doe, deceased, according to the form of the statute in such case made and provided. Dated Newark, N. J., X. Y. , , i9--- Relief of Sureties. loi State of N: lEvv Jersey, | DF Essex. j County of "" ' ' X. Y., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing pe- tition named, and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this" day of X Y 19 . . ., at Newark, X. J., before ^ me, J. C. F., Notary Public of N. J. Form 72. Order Requiring Administrator to Show Cause Why He Should Not Account to Surety. [See Orphans' Court Act. section 143. page zzi' supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition of Sureties for John Doe, deceased. j Relief. Order to Sliozc Cause. Application having been made to this court in writing by X. Y., the surety in the bond of William Doe, administrator of the estate of John Doe, deceased, setting forth under oath that he believes that the said William Doe is wasting and mismanaging the said estate, whereby the said X. Y. may become liable to loss and damage. It is thereupon, on this day of , 19. . . , or- dered, that the said William Doe do show cause on the day of , 19. . ., at 10 a. m., before this court at the Court House in the City of Newark, why he should not ren- der an account of his administration to the said X. Y., and give separate security to him according to the form of the statute in such case made and provided. W. P. M., Judge. ioi8 Probate Law and Practice;. Form 73. Order Requiring Administrator to Account to His Surety. [See Orphans' Court Act, section 143, page m, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition of Surety for John Doe, deceased. j Relief. Order lo Account. It appearing from the petition of X. Y., hied herein, that the said X. Y. is the surety on the bond of William Doe, ad- ministrator of the estate of John Doe, deceased, and it appear- ing that on the day of , 19..., this court ordered that said William Doe show cause before this court on the day of , 19 .... , why he should not render an account of his administration to the said X. Y., and give separate security to him, and the matter now coming on to be heard, and the court having examined into the matter and being satisfied that the said W^illiam Doe has wasted arid mis- managed the said estate, whereby the said X. Y., may become liable to loss or damage, and that due notice of this appli- cation has been given to the said William Doe by service upon him of the rule to show cause heretofore made herein. It is, on this day of , 19. . ., ordered that the said William Doe on or before the day of , 19..., render an account of his administration to the said X. Y., his surety as aforesaid. W. P. M., Judge. Form 74. Order Directing Administrator to Give Separate Se- curity to His Surety. [See Orphans' Court Act, section 143, page 333, supra.] Essex Countv Orphans' Court. In the matter of the estate of ) On Petition of Surety for John Doe, deceased. j Relief. Order Requiring Administrator to Give Separate Security. Relief of Sureties. 1019 it appearing from the account rendered by William Doe, administrator of the estate of John Doe, deceased, to X. Y., his surety, pursuant to an order of this court made on the day of 19. . ., that the said William Doe has wasted and mismanaged the said estate, whereby the said X. Y., mav become liable to loss or damage. It is thereupon, on this day of , 19..., ordered, and the said William Doe is hereby directed on or before the day of 19. . . , to give separate se- curity in the sum of dollars to the said X. Y., his surety as aforesaid, for the true payment of the balance remain- ing in his hands to the creditors and representatives of the said John Doe, deceased. \\'. P. AI., Judge. Form 75. Form of Bond Given by Administrator to His Surety. [See Orphans' Court Act, section 143, page 3^, supra.] Know all men by these presents, that we, William Doe, A. B., and C. D., all of the of , in the County of and State of New Jersey, are held and firmly bound unto X. Y., of the of , in the County of and State of Xew Jersey, in the sum of dollars, lawful money of the United States, to be paid to the said X. Y., his executors, administrators or assigns, to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals and dated the day of , one thousand nine hundred and 'i1ie condition of this obligation is such that whereas the said William Doe, administrator of the estate of John Doe, deceased, has been ordered by the Orphans' Court of the County of Essex to give separate security to the said X. Y., his surety in the administration bond heretofore given by the said William Doe; now, therefore, if the said William Doe shall true payment make of the balance of the estate of the said John Doe, deceased, remaining in his hands, to the cred- itors and representatives of the said John Doe, deceased, then ]02(j Probate; Law and Practice. this obligation to be void, otherwise to remain in fvill force and effect. ^. , , , , . ^ William. Doe. [e. s.] Signed and sealed ui , r> r ' t , ^ r r ^^- B- l^- S-] the presence of ' r^ t^ r -, ^ ) CD. [l. s.] Add justification of sureties as in Form 7. III. REDUCTION OF BONDS. Form 76. Petition for Reduction of Bond of Administrator Etc. [See P. L. 191 1, page 95, page 321, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for "Reduction John Doe, deceased. j of Bond. Petition. To THE Orphans' Court of the County of Essex. The petition of William Doe, of the of , in the County of Essex and State of New Jersey, respectfully shows that : 1. On the day of , 19. . . , he was duly ap- pointed by the Surrogate of the County of Essex aforesaid ad- ministrator of the estate of John Doe, deceased, and thereupon entered into bond as such administrator in the sum of dollars. 2. On the day of , 19. . ., the intermediate account of your petitioner as such administrator was duly allowed by this court, whereby it appears that the balance of said estate remaining in his hands amounts to. dollars. and that the bond given by your petitioner upon the grant of letters to him as aforesaid is larger than is necessary for the proper protection of the property and assets of the said estate. 3. The persons interested in the estate of the said John Doe, deceased, are as follows : Jane Doe, widow, who resides at Number . . . . , , Street, in the of , in the County of and State of ; Henry Doe, a son. Reduction of Bonds. ' 102 1 who resides at Number . . . ., Street, in the ol in the County of and State of , and your petitioner, who is also a son of deceased. 4. Due notice of this application has been given to all of the aforesaid persons interested in the estate of said John Doe, deceased (or all of the above-named persons interested in the estate of the said John Doe, deceased, hare duly consented hereto, as by their consent hereon endorsed will more fully appear). Your petitioner therefore prays that this court may order that he give a new bond as such administrator, in such sum as the court may determine as sufficient for the proper protection of the property and assets of said estate remaining in his hands. Dated Xewark, N. J., William Doe. i9--- State of New Jersey, County of Essex. '' 1 ss. William Doe, being dulv sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. Subscribed and sworn to this'^ day of , 19. . .. at Newark, N. J., before [ me, J. C. F., Notary Public of N. J. Wii.LLv.M Doe. J Form 77. Order Reducing Bond of Administrator, Etc. [See P. L. 191 1, page 95, page 321, supra.] Essex Countn' Orphans' Court. In the matter of the estc T , T-x 1 1 I C)n Petition. John iJoe, deceased. tate of ) Order Rcdiiciiui . Idiiiinistrator's Bond. I022 ■ Probate Law and Practice. It appearing from the petition of William Doe, filed herein, that he is the administrator of the estate of John Doe, late of the County of Essex, deceased, and that on the day of , 19. ... he entered into bond to the Ordinary in the sum of dollars, conditioned for the faithful per- formance of his duties as such administrator, and that on the day of , 19. . . , the intermediate account of such administrator was allowed by the court, whereby it appears that the balance remaining in his hands amounts to the sum of dollars. And it further appearing that due notice of this application has been given to all persons interested in the said estate ( or that all persons interested in the said estate have duly con- sented hereto) and the court being satisfied that the bond heretofore given by such administrator is in a larger sum than is necessary for the proper protection of said estate. It is thereupon, on this day of 19. • •, ORDERED that the said William Doe, administrator as afore- said, give a new bond to the Ordinary of the State of New Jersey, in the sum of dollars, conditioned for the faithful performance of his duties as such administrator, as prescribed by law. W. P. M., Judge. Form 78. Order Discharging Sureties Upon Filing of Reduced Bond. [See P. L. 191 1, page 95, page 321. supra.] Essex County Orphans' Court. In the matter of the estate tate of ) T , T^ , , , On Petition. John Doe, deceased. Discharge of Original Sureties. It appearing that by an order of this court, made on the day of , 19. . . , William Doe, administrator of the estate of John Doe, deceased, was ordered to give a new Reduction of Bonds. 1023 bond as such administrator, in the sum of dollars. conditioned for the faithful performance of his duties as such administrator, and the said William Doe having duly filed a bond as directed by the aforesaid order of this court, with con- ditions and sureties approved by this court. It is thereupon, on this day of nineteen hundred and , ordered that and , the sureties upon the original bond filed by William Doe as such administrator, be and they are hereby discharged from all liability thereunder from and after the date of this order. W. P. M., Judge. Form 78a. Petition for the Deposit of Securities on Reduction of Bond. [See Orphans' Court Act, section 52, as amended by P. L. 1915. page 40, page 319. supra.] Essex County Surrogate's Court. In the matter of the estate of ") On Petition for the Deposit John Doe, deceased. J of Securities. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of William Doe, of the of , in the County of and State of respectfully shows that : 1. John Doe, late of the City of Newark, in the County of Essex and State of New^ Jersey, died on the day of , 19. . ., intestate, and your petitioner is about to make application for letters of administration ui)on the estate of the said John Doe, deceased, to this court. 2. The .said John Doe died possessed of the sum of twenty thousand dollars ($20,000.) on deposit in various banking institutions and certain stocks, notes and bonds and mortgages of the value of approximately one hundred thousand dollars ($100,000.). as set forth in a schedule hereunto annexed* and made a jjart liereof; the income of said estate amounts to api)roximately five thousand dollars ($5,000.) per annum. Your j)etitioner therefore i)rays that this court mav bv order direct that the securities named in the schedule hereto annexed 66 1024 Probate Law and Practice. be deposited with the Trust Company, subject to the control of this court and that the amount of the bond required from your petitioner as administrator of the estate of the said John Doe, deceased, be fixed by this court with respect to the vahie of the remainder only of the said estate. Dated William Doe. , I9--- State oe New Jersev County oe Essex ' 1 ss. William Doe, of full age, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters therein con- tained are true to the best of his knowledge and belief. William Doe. J Subscribed and sworn to this^ day of , I 19 . . ., at before j me, J. C. F., Notary Public of N. J. Schedule. [Here insert list of all securities zvliich it is intended to de- posit, stating their character and value.) Form 78b. Order Directing Deposit of Securities and Fixing Amount of Bond. Essex County Surrogate's Court. In the matter of the estate of ) On Petition for the De- John Doe, deceased. j posit of Securities. Order. Upon reading and filing the petition of William Doe, filed herein, whereby it appears that the said John Doe died pos- sessed of cash to the amount of Twenty thousand dollars Reduction of Bonds. 102 < $20,000. ) and securities to the amount of One hundred thou- sand dollars ($100,000.) and that the income from said estate amounts to approximately Five thousand dollars ($5,000.) per vear, and it appearing that the value of said estate is so great that this court deems it inexpedient to require security in the full amount prescrihed by law. It is thereupon on this day of One thou- sand nine hundred and okdicked that the securities named in the schedule annexed to the ])etition filed herein be deposited with Trust Company (or Sariugs Bank, or Saz'ijigs Institution), subject to the control of this court, pursuant to the statute in such case made and provided. And it is further ordered that the amount of the bond required from the said William Doe as administrator of the estate of the said John Doe, deceased, be and the same is hereby fixed in the sum of Sixtv thousand dollars ($60,000.). F. G. S., Jr., Surrogate. Form 78c. Certificate of Deposit of Securities. To F. G. S., Jr., Surrogate of the County of Essex. This is to certify that in accordance with your order made on the day of , 19. . . , William Doe, the ad- ministrator of the estate of John Doe, deceased on the day of , 19. . . , deposited with the Trust Company, as custodian, the following securities : {Here insert schedule of securities in the same manner as in the schedule annexed to the petition.) and that the aforesaid securities are held by the said 'JVust Company, subject to the control of the Surrogate's Court of the County of Essex, pursuant to the aforesaid order of that court. Form 78d. Petition by Administrator to Obtain Possession of Securities Deposited. c Essex County Surrogate's Court. In the matter of the estate' of ") r)n I'etition to Obtain v'^e- John Doe, deceased. j cinilies Deposited. Petition. I026 Probate Law and Practice. To F. G. S., Jr., Surrogate of the County of Essex: The petition of WilHam Doe, of the of , in the County of and State of , .respectfully shows that : 1. Your petitioner is the administrator of the estate of John Doe, deceased, and by an order of this court made on the day of , 19..., he was directed to deposit certain securities belonging to the said estate with the Trust Company, a corporation of the State of New Jersey and the bond of your petitioner was thereupon fixed at the sum of sixty thousand dollars ($60,000.). 2. The securities named in the aforesaid order of this court were duly deposited by your petitioner in the aforesaid Trust Company, as required by said order. 3. Your petitioner has in his possession ten bonds of the City of Newark, valued at the sum of eleven thousand dollars ($11,000.), which he purchased with a portion of the cash left by the said intestate, which said l^onds were not included among those deposited by your petitioner, as aforesaid. 4. Among the securities deposited with the said Trust Company are ten certain bonds of the Town of Montclair, valued at the sum of ten thousand dollars ($10,000), which said bonds are about to mature and which your petitioner desires to obtain possession of for the purpose of presenting the same for payment. Your petitioner therefore prays that an order may be made •directing and authorizing the aforesaid Trust Company to deliver to your petitioner the said ten bonds of the Town of Montclair of the value of ten thousand dollars ($10,000.), upon the deposit with the said Trust Company of the aforesaid ten bonds of the City of Newark of a value of eleven thousand dollars ($11,000.). Dated , WiLLiAisr DoK. T«). . . State of New Jersey County oe Essex '' 1 ss. William Doe, of full age, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the William Doe. Reduction- of Bonds. 1027 foregoing })etitioii named and that the matters therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this' day of 19 • • •, cat , before me, J. C. F., Notary Public of X. J. If the administrator desires for any purpose to obtain })osses- sion of securities deposited and has no securities in his hands with which to replace those deposited, the petitioner should recite the balance of the estate in his hands at the time of making the application and the court will require that before making the order authorizing the delivery to him of the secur- ities that the administrator enter into additional bond sufficient to cover the balance of the estate in his hands and the value of the securities he seeks to obtain possession of. Form 78e. Order Directing Depositary to Deliver Securities to Administrator. Essex Countv Orphans' Court. In the matter of the estate of | On Petition to Obtain Se- John Doe, deceased. J curities Deposited. Order Directing Depositary to Deliver Securities to Administrator. Upon reading and tiling the petition of William Doe. ad- ministrator of the estate of John Doe, deceased, whereby it appears that it is necessary for the proper management of the estate of the said John Doe, deceased, that the said adminis- trator obtain possession of ten certain bonds of the Town of Montclair of the value of ten thousand dollars ($10,000.) and that the said administrator desires to deposit with the said Trust C(Miipany ten certain bonds of the City of Newark of the value of eleven thousand dollars I028 Probativ Law and Practice. ($11,000.), in lieu of the aforesaid bonds of the Town of Montclair now on deposit in the said Trust Company. It is thereupon on this day of , 19. . ., ORDERED that the said WilHam Doc, administrator as afore- said deposit with the said Trust Company the said ten bonds of the City of Newark and that the said Trust Company thereupon deHver to the said William Doe, administrator as aforesaid, the aforesaid ten bonds of the Town of Montclair now held by it pursuant to the order of this court made on the day of , 19 J- G. S., Jr., Surrogate. IV. SECURITY BY EXECUTORS. Form 79. Petition for Order Requiring Executor to Give Security. [See Orphans' Court Act, section 140, page 312, supra.] Essex County Orphans' Court. In the matter of the estate of John Doe, deceased. On Petition for Order Re- >> quiring Executor to Give Security. Petition. The petition of James Doe, of the of , in the County of and State of , one of the legatees in the last will and testament of John Doe, deceased, respect- fully shows that : 1. John Doe, late of the county of Essex, died on the day of , 19. . ., having first duly executed his last will and testament, which was duly admitted to probate by the Surrogate of the County of Essex, and letters testa- mentary thereon issued to William Doe, the executor therein named. 2. On the day of , 19. . . . the said William Doe, executor as aforesaid, loaned to one X. Y. the sum of Security by Executors. 1029 dollars, taking from him his promissory note, pay- able on demand, and the said William Doe, executor as aforer said, has deposited funds of the estate in his personal bank account, thereby mingling the same with his own funds ; and vour petitioner believes that the property of the said estate of the said John Doe in the hands of the said William Doe, executor as aforesaid, is insecure and in danger of being wasted. Your petitioner therefore prays that this court may require the said William Doe, executor as aforesaid, to give security to the Ordinary of this state by bond, with such sureties and in such amount as this court shall deem proper, conditioned for the faithful performance by said executor of his duty under the will of the said testator. Dated, Newark, N. J., ^^^^^ ^^^ , I9--- State of New Jersey, County oe Essex. 3EY, j James Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing ])etition named and that the matters and things contained there- in are true to the best of his knowledge and belief. Subscribed and sworn to this" day of 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of X. J. James Doe. Form 80. Rule Requiring Executor to Show Cause Why He Should Not Give Security. [See Orphans' Court Act, section 140, page 312. supra.] Essex County Orphans' Court. 7 ^. ., r .1 4^ ^ ^f^ On Petition for Order Re- in the matter of the estate 01 , , ^^ , , >- quiring Executor to dive ohn Doe, deceased. ,, Security. Rule to Shozi' Cause. 1030 Probate Law and Practice. James Doe, one of the legatees named in the last will and testament of John Doe, late of the County of Essex, deceased, having filed his petition alleging that the property of the estate of the said John Doe in the hands of William Doe, the executor of the last will and testament of the said John Doe, deceased, is unsafe, insecure and in danger of being wasted, and praying that the said William Doe be required to give security as such executor. It is, on this day of , 19. • ., ordered that William Doe, executor of the last will and testament of John Doe, deceased, show cause before the Orphans' Court of the County of Essex, on the day of , 19. . ., at ten o'clock in the forenoon, in the Court-House in the City of Newark, why he should not be required to give security to the Ordinary of this state by bond, with such sureties and in such amount as the said court shall deem proper, con- ditioned for the faithful performance by him of his duties as executor of the last will and testament of John Doe, deceased. And it is further ordered that a true but uncertified copy of this rule be served upon the said William Doe within days from the date thereof. W. P. M., Judge. Form 81. Order Requiring Executor to Give Security. [See Orplians' Court Act, section 140, page 312, supra.] Essex County Orphans' Court. . , .^ On Petition for Order Re- in the matter of the estate of . . -^^ ^ ^ n- ^ , ^ , , yquinng Executor to Give John Doe, deceased. i, •^ J Security. Order Requiring Bxecutor to Give Security. The rule to show cause in this matter having been duly served upon William Doe, the executor of the last will of John Doe, deceased, and it having been proved to the satis- faction of the Orphans' Court that the property of the estate Security by Executors. 103 i of John Doe, deceased, in the hands of the said W'iHiani Doe, executor as aforesaid, is unsafe, insecure and in danger of being wasted. It is thereupon, on this day of , 19. . . . or- dered that the said \\'ilhani Doe, executor of the last will of John Doe, deceased, be and he hereby is required to give se- curity to the Ordinary of this state in the sum of dol- lars, by bond, with sureties to be approved by this court, con- ditioned for the faithful performance by the said \\'illiam Doe of his duty under the will of the said testator. W. P. M., Judge. For form of bond bv Executor see Form 6. V. PROCEEDINGS TO REQUIRE EXECUTOR TO GIVE BOND TO CO-EXECUTOR. Form 82. Petition by Executor for Order Requiring Co-Executor to Give Him Bond for Faithful Performance of Trust. [See Orphans' Court Act, section 138, page 422, supra.] Essex County Orphans' Court. In the matter of the estate of "I On Petition of Co-Execu- John Doe, deceased. j tor For Relief. Petition. To THE Orphans' Court of the County of Essex : The petition of William Doe, of the of in the County of and State of , respectfully shows that : I. John Doe, late of the County of Essex, deceased, died on the day of , 19. . ., leaving a last will and testament, wherein and whereby he appointed one James' Smith and your petitioner the executors thereof, and on the day of , 19. . . , the said will was duly admitted to probate by the Surrogate of the County of Essex, and letters testamentary thereon issued to the said James Smith and your petitioner, the executors therein named, and the said 1032 Probate Law and Practice. James Smith and your petitioner have been acting as executors under the will of the said John Doe, deceased, since the^grant of letters to them as aforesaid. 2. On the day of , 19. ., the said James Smith took from the safe-deposit box in the Trust Company, where a portion of the assets of the estate of the said John Doe, deceased, are kept, certain jewelry, the property of the said estate, valued at the sum of dollars, and sold the same for the sum of dollars, and, as your petitioner is informed, appropriated the money to his own use. 3. Your petitioner fears that he may become liable to the estate of the said John Doe, deceased, by reason of the mis- conduct of the said James Smith, his co-executor, and prays that : This court may order the said James Smith to give a bond to your petitioner conditioned to indemnify him from all loss that may happen to him by the neglect, default or breach of trust of his said co-executor, or a Hke bond to the Ordinary conditioned for the faithful performance of his duties as such executor, and foY the payment and delivery to the person that may be entitled to receive the same of any money or property that may come to his hands as such executor. Dated Newark, N. J., William Doe. : i9--- State of New Jersey, ) County of Essbx. j William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- tained therein are true to the best of his knowledge and belief. Subscribed and sworn to this"^ day of , 1^ 19 . . ., at , before me, J. C. F., Notary Public of N. J. William Doe. Security nv Executors. 1033 Twenty days notice of this application must be given to the co-executor. For form of notice, see Form 209a. For proof of service, see Form 38. Form 83. Order to Show Cause Why Executor Should Not Give Security to Co-Executor. [See Orphans' Court Act, section 138, page 422, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition of Co-Execu- John Doe, deceased. J tor For Relief. Rule to Sho-ii' Cause. ^^■ilHam Doe, of the of in the County of and State of one of the executors of the last will and testament of John Doe, deceased, having presented his petition to this court, alleging that Janies Smith, his co- executor, has wasted and mismanaged the funds of the estate of the said John Doe, whereby the said William Doe is liable to suffer loss as such co-executor, and praying that this court may order the said James Smith, his co-executor as aforesaid, to give bonds to the said William Doe to secure him against loss by reason of the neglect, default, or breach of trust of the said James Smith, his co-executor as aforesaid, or to give bond, to the Ordinary conditioned for the faithful performance of his duty as such executor. It is thereupon, on this day of 19..., ordered that the said James Smith show cause before this court on the day of , 19. . . . why lie should not give bond to William Doe, his co-executor as aforesaid, to secure him from all loss that may happen to him by the neglect, default or breach of trust by the said James Smith, or to give bond to the Ordinary conditioned for the faithful ])erformancc of his duties as such executor. And it is further ordered that a true but uncertified copy of this order be served uj)on the said James v^mith within days from the date hereof, personally or by leaving the same 1034 Probate Law and Practice. at his residence or usual place of abode with a ]:)erson over the age of fourteen years. W. P. M., Judge. For proof of service, see Form 38. Form 84. Order Requiring Co-Executor to Give Bond. [See Orphans' Court Act, section 138, page 422, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition of Co-Execu- John Doe, deceased. j tor For Relief. Order Directing Co-B.veciitor to Give Security. William Doe having presented his petition herein alleging that James Smith, his co-executor, has wasted and mismanaged the estate of the said John Doe, deceased, whereby the said William Doe may become liable to the said estate as co-executor with the said James Smith, and praying relief in the premises, and it appearing that the rule to show cause made herein has been duly served, and the court having examined into the mat- ter and heard the examination of witnesses, and being satisfied that the said James Smith has wasted and mismanaged the estate of the said John Doe, deceased, whereby loss may accrue to the said estate and to the said William Doe, his co-executor. It is thereupon, on this day of , 19. . • , ordered that the said James Smith, within days from the date hereof, enter into bond to the Ordinary in the sum of dollars with two or more sufficient sureties, con- ditioned for the faithful performance of his duties as execu- tor, and for the payment and delivery of any money or prop- erty that heretofore has or hereafter may come to his hands as such executor, to the person that may be entitled to receive the same, which bond shall be approved by this court as to sureties and condition thereof. W. P. M., Judge. For bond of executor, see Form 6. Prosecution of Bonds. 1035 VI. PROSECUTION OF BONDS. Form 85. Petition by Next of Kin for Leave to Sue on Adminis- tration Bond at Law. [See Orplians" Court Act. section 187, page 326, supra.] New Iersev Prerogative Court. In the matter of the estate of ) Petition for Leave to John Doe, deceased. J Prosecute Bond. Petition. To E. R. W'.. Ordinary of the State of New Jersev : The petition of William Doe, of the of in the County of and State of respectfully shows that : I. Your petitioner is one of the next of kin of John Doe, late of the said County of Essex deceased, who died intestate. Letters of administration upon the estate of the said John Doe, deceased, were duly granted hy the Surrogate of the said County of Essex on the day of , 19. . ., to Henry Doe, who took upon himself the burden of administer- ing the estate of the said John Doe. IL Upon the grant of letters to him, the said Henry Doe, administrator as aforesaid, gave bond to the Ordinary of the State of New Jersey in the penal sum of dollars, with A. B., and C. D., as sureties, which bond was duly filed in the office of the Surrogate of the said County of Essex, and is con- ditioned according to law, as by a copy thereof, annexed to this petition and made a part thereof, will more fully appear. HL On the .... day of , 19. . ., the said Henry Doe, administrator as aforesaid, presented to the Orphans' Court of the said County of Essex his final account, showing a balance in his hands for distribution of dollars, which was duly allowed by the said court on the day last mentioned, at which time the said Orphans' Court made its decree ordering a distribution of the estate of said deceased, as bv the said decree, a copy of which is hereto annexed, will more fully aj)poar. IV. Your petitioner, as one of the next of kin of the said John Doc. deceased, is entitled to share in the suri)lus of the- 1036 Probate Law and Practice. said estate, and has duly tendered to the said Henry Doe, ad- ministrator as aforesaid, a proper refunding bond therefor, as required by law, but the said Henry Doe, administrator as aforesaid, has refused to pay to said petitioner the distributive share of said estate to which he is entitled or any part thereof. Your petitioner therefore prays that an order may be made permitting him to prosecute the bond given by the said Henry Doe, administrator as aforesaid, by an action at law thereon in a court of record of this state to recover the value of the prop- erty so received by said administrator and not duly adminis- tered by him. Dated Newark, N. J., William Doe. , , I9--- State oe New Jersey County oe Essex Ev, ■) William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things contained there- in are true to the best of his knowledge and belief. William Doe. Subscribed and sworn to this"^ day of , 19. . ., at Newark, N. J-, before me, J. C. F., Notary Public of N. J. Annex a copy of the bond and of the decree of distribution. Form 86. Petition of Creditor for Leave to Sue on Administra- tion Bond. [See Orphans' Court Act, section 187. page 326. supra.] New Jersey Prerogative Court. In the matter of the estate of ) On Petition for Leave to John Doe, deceased. j Prosecute Bond. Petition. Prosecution of Bonds. 1037 To E. R. \\'.. Ordinar}- of the State of New Jersey: The petition of W'ilHam Smith, of the City of Newark, in the County of Essex and State of New Jersey, respectfully shows that : 1. John Doe, late of the County of Essex, deceased, died in- testate, on or ahout the day of I9- • • , and letters of administration upon his estate were dul}' issued hy the Surrogate of the said County of Essex to \\'illiam Doe, on the day of , 19. . . , who duly entered into bond to the Ordinary in the sum of dollars, which bond is hied in the office of the Surrogate of the said Countv of Essex, and is conditioned according to law as by a copy there- of hereunto annexed and made a part hereof will more fully appear. 2. On the day of , 19. . . , \Mlliam Doe, the administrator aforesaid, filed in the office of the Surrogate of the County of Essex an inventory of the personal estate of said deceased, amounting to the sum of dollars; but the said William Doe, administrator as aforesaid, has not exhibited an account of his administration, although your petitioner has caused a citation to be issued out of the Orphans' Court of the said County of Essex to compel him so to do. 3. On the day of , 19. . ., and during the lifetime of the said John Doe, deceased, your petitioner loaned him the sum of dollars upon his note payable upon demand. The said John Doe did not repay to your petitioner any portion of the said sum so loaned him by your petitioner as aforesaid. After the death of the said John Doe, your petitioner duly presented his claim upon said note to the said William Doe, administrator of the said John Doe as aforesaid, but the said William Doe has wholly failed and neglected to pay the sum so due upon said note to your petitioner, "or any part therecjf ; l)y reason whereof the bond given by the said William Doe, administrator as aforesaid, has become forfeited, and your petitioner has been aggrieved by such forfeiture. Your petitioner therefore prays that ;ui order may be made permitting him to prosecute the said bond given by the said William l^oe, administrator as aforesaid, by an action at law thereon in a court of record in tliis state to recover the value 1038 Probate Law and Practice. of the property so received by said administrator and not duly administered by him. Dated Newark, N. T-, William Smith. , , i9--- State oe New County of E Iersev, ) ssEx. J WilHam Smith, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this^ day of 19. . . , at Newark, N. J., before me, J. C. F., Notary Public of N. J. Annex copy of bond. ' y William Smith. Form 87. Order for Leave to Prosecute Administration Bond. [See Orphans' Court Act, section 187, page 326, supra.] New Jersev Prerogative Court. In the matter of the estate of | On Petition for Leave to John Doe, deceased. J Prosecute Bond. Order to Prosecute Bond. Upon reading and filing the petition of William Doe. where- by it appears that he is one of the next of kin of John Doe, late of the County of Essex and State of New Jersey, deceased, and that letters of administration upon the estate of the said John Doe were duly granted to Henry Doe by the Surrogate of the said County of Essex, and that the said Henry Doe took upon himself the burden of the administra- tion of said estate, and filed his final account with the Surro- gate of the County of Essex, which was duly allowed by the Orphans' Court of the said County of Essex, whereby it Prosecution of Bonds. 1039 appears that there is a balance in his hands for distribution amounting to the sum of dollars. And it further appearing that the said Orphans' Court of the County of Essex decreed a distribution of the estate of said deceased, and that the said William Doe is entitled to a share of the proceeds of said estate, but that the said Henry Doe, administrator as aforesaid, has refused and neglected to pay to the said William Doe the distributive share in said estate to which he is entitled as aforesaid, although the said William Doe has duly tendered to the said Henry Doc, administrator as aforesaid, a proper refunding bond therefor as required by law. It is thereupon, on this day of , 19. . ., on motion of proctor of said petitioner, ordered, that the said William Doe be, and he is hereby permitted to prosecute an action at law in the name of the Ordinary in a court of record of this state upon the bond given by the said Henry Doe. administrator as aforesaid, and now on file in the office of the Surrogate of the County of Essex, at the expense of the said William Doe, and that the moneys recovered in such action be paid into this court, to be applied towards making good the damages sustained by the non-performance of the condition of said bond in such manner as this court shall by its decree direct. And it is further ordered that said petitioner forthwith enter into bond to the Ordinary in the sum of dollars, conditioned to save the Ordinary harmless against all loss or liability for any costs or charges that may be incurred by said prosecution, which said bond shall be approved as to the form and security thereof by the r)rdinary and tiled with the reg- ister of this court. E. R. W., Ordinarv. Form 88. Bond to Ordinary for Costs of Suit. Know .m.i, mkx i;n- 'iifi'.sk, i'ki-;si",n ts That we, William Doc of the City of Newark in the County of Essex and State of New |ersey. as ])rincipal. and A H of ^7 I040 Probate Law and Practice. the of in the County of and St^ate of New Jersey, and C. D., of the of , in the County of and State of , as sureties, are held and firmly bound unto the Ordinary of the State of New Jersey in the sum of dollars lawful money of the United States of America, to be paid to the said Ordinary, his successors in office and assigns, to which payment well and truly to be made we do bind ourselves and each of our heirs, executors and administrators jointly and severally firmly by these presents. Sealed with our seals and dated this day of , in the year of our Lord, one thousand nine hundred and Whereas by an order of the Ordinary of the State of New Jersey, made on the day of ,.19. . ., upon the petition of William Doe. it was ordered that the said William Doe be permitted to prosecute an action at law in the name of the Ordinary on a certain administration bond given by Henry Doe as principal, with and as sureties in the matter of the administration of the estate of John Doe. deceased, and dated the day of , 19. . . , at the expense of the said William Doe. Now therefore, the condition of this obligation is such that if the said William Doe, A. B., or C. D., or any of them shall fully pay and satisfy all legal costs and charges that may be incurred by or on behalf of said Ordinary in the prose- cution of the action at law about to be brought as aforesaid upon said administration bond, and shall indemnify and save harmless the said Ordinary and his successors from any costs or charges that may be incurred by the prosecution of said bond and from any and all loss and liability for or on account thereof, then this obligation to be void, otherwise to remain in full force. Signed, sealed and delivered in the presence of William Doe [^. s.] A.B. [L- s.] CD. [L. s.] Add justification of sureties as in Form 7. Prosecution of Bonds. 1041 Form 89. Petition to Assess Damages on a Judgment at Law on an Administrator's Bond. New Jersev Prerogative Court. ^ , . , .^ On Petition for Assessment In the matter ot the estate ot . ._, .... ^ , ^.^ , , ' > ot Damages on Adnimis- ohn Doe, deceased. • t^ , ■' I tration Bond. Petition. To E. R. W., Ordinary of the State of New Jersey: The petition of WiUiam Doe of the of in the County of and State of New Jersey, respectfully shows that : 1. He is one of the children and next of kin of John Doe, late of the County of Essex, deceased, who died intestate. In pusuance of the order of this court in the above entitled matter made on the day of , 19. . . , your pe- titioner caused an action to be brought in the Circuit Court of the County of {or as the case may be) in the name of the Ordinary of the State of New Jersey against Henry Doe, as principal, and and , as sureties on the bond in said order mentioned given by them and conditioned for the faithful administration of the estate of the said John Doe, deceased. 2. Judgment final in said suit was entered against said defendants for the sum of dollars, the penalty of said bond, with costs, which were taxed at the sum of dollars, as will appear by a copy of the record of said judgment hereto annexed and made a part hereof. 3. On the day of the , the Orphans' Court of the County of Essex by its decree made upon the settlement and allowance of the account of the said administrator of the personal estate of the said deceased, ascertained and de- termined that there was a balance of said estate in the hands of said administrator for distribution among the next of kin of the said deceased, amounting to dollars, as will more fully appear from a co])y of said order hereunto annexed; and the costs of your j^etitioner in certain proceedings brought by him to compel the said Henry Doe, administrator as afore- I042 Probate Law and Practice. said, to render the aforesaid account in the Orphans' Court have been taxed by the clerk of said court at the sum of dollars and cents, as appears in the copy there- of hereunto annexed and made a part hereof. 4. The said money so ascertained and determined by said Orphans' Court to be distributed among the next of kin of deceased by the said administrator is still unpaid ; by reason whereof the obligors in said bond are liable for the payment thereof, and that sum should be assessed as damages in this suit upon said bond against them, together with all costs incurred in said suit upon said bond, and a proper and reason- able counsel fee to the counsel of your petitioner in said suit and the proceedings in relation thereto. Your petitioner therefore prays that damages be assessed according to law and the practice of this court upon said judgment by reason of the breaches of the said bond, a copy whereof is hereto annexed and made a part hereof, and that he may have such other or further relief in the premises as he may be entitled to. Dated Newark, N. J., ,,, ^^ •^ William Doe. , , i9--- State of New Jers?;y County of Essex ' j ^.y. William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named and that the matters and things contained therein are true to the best of his knowledge and belief. > William Doe. Subscribed and sworn to this^ day of , 19. ... at Newark, N. J., before me, F. G. S., Jr., Notary Public of N. J. Annex copy of decree on account, copy of decree of distri- bution and copy of judgment roll in suit on bond. Prosecution of Bonds. 1043 Form 90. Order to Show Cause Why Damages Should Not be Assessed on Administration Bond. New Tersev Prerogative Court. ^ , . , ,^ On Petition tor Assessnicnt In the matter ot the estate 01 I . „ .... ^ , ,-^ , , r ot Damages on Admmis- ohn Uoe, deceased. • iT 1 •^ J tration Bond. Order to Sliozv Caiisc. Upon reading and tiling the duly verified petition of William Doe for an assessment of the damages sustained by reason of the breaches of the bond given by Henry Doe as principal and and as sureties for the due administration of the estate of John Doe, deceased, by the said Henry Doe as the administrator thereof, upon a final judgment recovered upon said bond in the Circuit Court of the County of Essex, and praying for such other relief as he may be entitled to in the premises. It is on this day of , 19. . ., on motion of proctor of the said petitioner, ordered that the said and , obligors upon said bond and defend- ants in the suit thereon, show cause, if any they have, before the Ordinary of the State of New Jersey at the State-House in the City of Trenton on the day of , at the hour of ten o'clock A. AL, or as soon thereafter as counsel can be heard, why the damages on the aforesaid judgment by reason of the several breaches of the said bond should not be assessed against them at the sum of dollars, or at such other sum as may be equitable and just, beside pe- titioner's costs and a reasonable counsel fee to his proctor here- in and why the said petitioner should not have such other relief as he may be entitled to, and it is further ordered that a cojjy of this order ]je served upon the said and within days from the date hereof. E. R. W., Ordinary. 1044 Probate Law and Practice. Form 91. Order of Reference on Petition to Assess Damages on Administration Bond. New Jersey Prerogative Court. _ , . , .^ On Petition for Assessment In the matter 01 the estate 01 I , ^ .... ^ , -r^ , , > of Damas^es on Admmis- Tohn Doe, deceased. • tV , J tration Bond. Order of Reference. Upon reading and fihng the petition of WilHam Doe for the assessment of the damages sustained by reason of the breaches of a certain bond given by Henry Doe as principal and and as sureties for the due ad- ministration of the estate of John Doe, deceased, by the said Henry Doe, as administrator thereof, upon a final judgment recovered upon said bond in the Circuit Court of the County of Essex, and praying for such other relief as he may be en- titled to. It is, on this day of , 19. . . , ordered that it be referred to , one of the masters in chancery of this state, to ascertain the amount of the damages sustained by reason of the breaches of the bond aforesaid, and to make his report thereof to the Ordinary with all convenient speed. E. R. W., Ordinarv. Form 92. Master's Report. New Jersev Prerogative Court. ^ , , , A On Petition for Assessment in the matter of the estate of ^ „ a 1 • ■ ^ , ^ , , /^ of Damages on Admmis- |ohn Doe, deceased. • tV 1 I tration Bond. Master's Report. In pursuance of an order of the Ordinary of the State of New Jersey made in this matter on the day of 19..., whereby it was referred to the subscriber, one of the masters in chancery of New Jersey, to ascertain the amount of damages if any sustained by reason of the breaches of a Prosecution of Bonds. 104; certain bond given by Henry Doe, as administrator of the estate of John Doe, deceased, with and as sureties thereon, I hereby report that I have been attended by proctor of the petitioner, and by proctor of the re- spondent, and in their presence have examined the matters so as aforesaid referred to me. And I further report that the proctor for the petitioner produced before me {here state the character of the exhibits produced in their order) and I find from the exhibits so pro- duced and from the depositions taken before me, which are h.ereto annexed, and do hereby report, that on the day o^ > I9---. there remained in the hands of Henry Doe, administrator of the said John Doe, deceased, the sum of dollars, for which amount the said Henry Doe, ad- ministrator as aforesaid, and and sureties, were liable upon the bond given by them to the Ordinary ; and I further report that the interest on said sum of money last aforesaid to the date of this report is dollars, and that the sum of dollars is the damages sustained by reason of the breaches of said bond. Respectfully submitted, this day of , 19. . .. R. S.. Master in Chancery of New Jersey. Form 93. Order to Confirm Report Nisi. New Jersey Prerogative Court. In the matter of the estate of) ^n Petition for Assessment John Doe, deceased. f ""^ Damages on .\dminis- j tration Bond. Order to Coiifinii Report Nisi. Upon reading and filing a report made in this matter by one of the masters in chancery of this state on the day of , 19. . . It is, on this day of , 19. . ., ordered that said report shall stand in all things confirmed unless 1046 Probate Law and Practice. and (the respondents) shall within ten days after serv- ice upon them of a copy of this order, show cause to the con- trary. E. R. W., Ordinary. Form 94. Exceptions to Report. New J Erse V Prerogative Court. In the matter of the estate of On Petition for Assessment ■ of Damages on Adminis- Tohn Doe, deceased. ^ . ,j , -' I tration Bond. Exceptions to Report. Exceptions taken by .... and respondents in this mat- ter, to the report made therein on the .... day of 19. . ., by , one of the masters in chancery of New Jersey : I. Exception is taken to said report because the said master has therein reported (set up the zvords of the report) whereas he should have reported (insert the matter ivhich exceptant contends the master should Jiave reported). In all of which particulars the report of the said master is erroneous, and the exceptant appeals therefrom to the judg- ment of the Ordinary. {Signature of Proctor). Form 95. Order Confirming Master's Report and Establishing Amount of Damages. New Jersey Prerogative Court. -^ On Petition for Assessment In the matter of the estate of I . ^-^ a j • • > of Damages on Admmis- Tohn Doe, deceased. ^ . -o , I tration Bond. Order Confirming Master's Report. It appearing that by an order made on the .... day of 19. . ., it was referred to one of the masters of this Prosecution of Bonds. 1047 court, to ascertain and report the aniount of damages sus- tained by reason of the breaches of a certain bond given bv Henry Doe, administrator of the estate of John Doe, deceased, for the faithful performance of his duty as such administra- tor ; that exceptions to said report were duly filed ; and the mat- ter coming on to be heard upon the said report and the excep- tions thereto, and the Ordinary having considered the same. It is, on this day of , 19. . . , ordered that the said report do stand in all things confirmed, and it is further ordered and adjudged that the damages upon the final judg- ment entered in the Essex County Circuit Court on the tlay of , 19. . ., upon the aforesaid administration bond by reason of the breaches of the said bond, be and they are hereby assessed in said suit of the Ordinary of the State of New Jersey against the said and (defendants) at the sum of dollars, besides costs on final judgment in the said Essex County Circuit Court to be taxed, and the costs of the proceedings in this court, also to be taxed, and that an execution issue forthwith out of the said Essex County Circuit Court according to the practice of said court, to make said damages and said costs in the said Essex County Circuit Court and in this court. And it is further ordered that in the costs in this court there shall be taxed a counsel fee of dollars, which is hereby allowed to , proctor of petitioner, and that the said sum of dollars damages aforesaid, together with interest thereon and costs as aforesaid when collected, shall be distributed and paid over in the following manner and to the following persons, to wit : To , j^roctor, for counsel fee, the sum of dollars, and that the balance of said sum amounting to the sum of dollars be distributed among and ( the distributees of intestate) pursuant to the order of distribution made by the Orphans' Court of the County of Essex on the day of , 19. . ., and that without further application to this ^■^wrt. E. R. W., Ordinary 1048 Probatk Law and Practice. Form 96. Assessment of Damages on Administration Bond. New Jersev Prerogative Court. ^ , , , -^ On Petition for Assessment In the matter 01 the estate ot . „ a , • ■ ^ , „ , , )^ 01 Uamag-es on Admmis- ohn Doe, aeceased. • -rT , J tration Bond. Assessment of Damages. \\'illiam Doe, having duly filed his petition for the assess- ment of damages against and , upon a certain judgment entered against tliem in the Circuit Court of the County of Essex by reason of certain breaches of the bond given by Henry Doe, the administrator of the estate of John Doe, deceased, and the rule to show cause made herein having been duly served upon the said and and the court having taken testimony and considered the matter and having heard and considered the arguments of counsel, and it appearing to the court that there is due from Henry Doe, administrator of the estate of the said John Doe, deceased, a balance of the estate of said deceased, amounting, as ascer- tained by the decree of the Orphans' Court of the County of Essex made on the day of , to the sum of .... dollars, and that said sum is still unpaid (Jiere insert any other matters going to make up the damages) and it appearing that the said sum is the amount of the damages sustained by the jjetitioner and others interested by reason of the breaches of the conditions of the said bond given by Henry Doe, ad- ministrator as aforesaid. It is on this .... day of , 19. . ., on motion of , proctor for petitioner, ordered, that the damages upon the judgment entered in the Circuit Court of the County of Essex upon the day of , 19. ., upon the aforesaid administration bond by reason of the breaches of the said bond be, and they are hereby assessed at the sum of dollars, besides costs in this proceeding to be taxed, and that execution issue forthwith upon said judgment out of the said Circuit Court according to the practice of said court, to make such damages and said costs in the said Circuit Court and in this court. Prosecution of Bonds. 1049 And it is further ordered that a counsel fee of dollars be allowed to , proctor for petitioner and that the aforesaid sum of dollars damages aforesaid and interest thereon when collected, shall be distributed and paid over in the following manner and to the following persons, to wit : to , proctor, for counsel fee, the sum of dollars. To and , the distributees of said intestate equally one part thereof amounting to the sum of dollars to each of said persons pur- suant to the order of the Orphans' Court of the County of Essex made on the day of , 19. . . , and that without further application to this court. E. R. W., Ordinary. Form 97. Certificate to Prerogative Court by Surrogate That No Caveat Has Been Filed. [See Prerogative Court Rule 10, page 13, supra.] Essex County Surrogate's Court. State of New Jersey County of Essex «"' } ... I, F. G. S., Jr., Surrogate of the County of Essex, hereby certify that no caveat against proving any paper writing as the last Will and Testament of John Doe, deceased, has been filed in this office (or that no dispute has arisen in respect to the right of guardianship of Jane Doe, a minor), (or that no dispute has arisen as to the right of administration upon the estate of John Doe, deceased). In Testimony Whereof, I have here- unto set my hand and affixed my official (l. s.) seal of office, this day of , One thousand nine liundred and F. G. S., Jr., Surrogate and Clerk of the Surrogate's Court. 1050 Probate Law and Practice. INVENTORIES. I. OF EXECUTORS AND ADMINISTRATORS. Form 98. Appointment of Appraisers by Executor or Adminis- trator and Approval of the Surrogate. [See Orphans' Court Act, section 59, page 361, supra.] Essex County Surrogate's Court. In the matter of the estate of ) John Doe, deceased. Appointment of Appraisers. I, Jane Doe, the executrix of the estate of John Doe, deceased, hereby appoint WilHam Jones and John Smith, two discreet and impartial persons, to make a just appraisement of the goods and chattels, rights and credits, moneys and effects of the said John Doe, deceased. Dated Newark, N. J., ^^^^ I^^^ , , i9--- The appointment of the above-named appraisers is hereby approved this day of , 19. . . . F. G. S., Jr., Surrogate. This form is used in all cases except where it is desired to set off $200 for the benefit of the family of decedent, in which case the appraisers must be appointed by the Surrogate — see Forms 102 and 103. Form 99. Inventory and Appraisement by Executor or Adminis- trator. [See Orphans' Court Act, sections 57 and 58, page 360, supra.] Essex County Surrogate's Office. In the matter of the estate of ") John Doe, deceased. Inventory and Appraisement. Inventories. 1051 An inventory and appraisement of the goods and chattels. rights and credits, moneys and effects of John Doe, of deceased, made by \\'ilHani Doe, executor, and bv A. B. and C. D., appraisers. Household Furniture and Chattels. Parlor. I Piano $100 GO 4 Pictures at $5 each 20 00 4 Chairs at $5 each 20 00 etc., (enmnerating specifically the furniture in each room). Moneys, Choses in Action, Securities, ETC. Cash money at residence $100 00 Cash money on deposit in Savings Bank -QO 00 Bond and mortgage dated made by J- R. on lands in to secure the sum of $1,000, payable one year from date with in- terest at 5 per cent i .000 00 Note of X. Y. for $500, dated and payable from date :;oo 00 Account against C. D 100 00 Total $2,340 00 Dated Newark, N. J., 19- •• William Doe, Executor. A. B. CD. Appraisers. Form 100. Oath of Executor, Etc., to Inventory. [See Orphans' Court .Act. section 62. pa^c 361. supra.] State of New Jkpsev, | County of Essex. ( William Doc, being duly sworn according to law upon his oath, deposes and says that he is the executor of the last will 1052 Probate Law and Practice. and testament of John Doe, deceased, in the foregoing in- ventory named, and that the foregoing is a true and perfect inventory of all and singular the goods and chattels, rights and credits, moneys and efifects of the said John Doe, de- ceased, so far as the same have come to his possession or knowledge. Subscribed and sworn to this"^ day of , y William Doe. 19. . ., before me, J J. C. F., Notary Public of N. J. This affidavit may be taken before any official authorized to administer an oath. Form loi. Oath of Appraisers to Inventory. [See Orphans' Court Act, section 62, page 361, supra.] State oe New Jersey County oe Essex. ' > ss. A. B., being duly sworn according to law upon his oath, deposes and says that he is one of the appraisers in the fore- going inventory named ; that the goods and chattels, rights, credits and effects in said inventory specified were by him appraised at their just and true respective values according to the best of his judgment, and that C. D., the other appraiser in said inventory named, was present at the same time with deponent and consented to the said valuation and appraisement. Subscribed and sworn to this^ day of X A. B. 19. . ., before me, J J. C. F., Notary Public of N. J. This affidavit may be taken before any official authorized to administer an oath. Inventories. 1053. II. WHERE EXEMPTION FOR FAMILY IS SET OFF. Form 102. Petition for Appointment of Appraisers by Surrogate. [See Orphans' Court Act, section 59, page 361, supra, and section 60, page 366, supra.] Essex County Surrogate's Court. ]n the matter of the estate of | On AppHcation for Ap- John Doe, deceased. j pointment of Appraisers. Petition for Appointment of Ap- praisers. To F. G. S., Jr., Surrogate of the County of Essex: The petition of William Doe respectfully shows that : He is the executor named in the last will and testament of John Doe, late of the Coimty of Essex, deceased, who lately died leaving a family residing in this state ; and it is desired to set ofif for the benefit of the family of the said John Doe, deceased, goods and chattels of the estate of the said John Doe, deceased, to the amount of two hundred dollars. Your petitioner therefore prays that two discreet and judici- ous persons of the said County of Essex, not interested in the estate of the said decedent and not of kin to his widow and children, be appointed to make an inventory and appraise- ment of the goods and chattels, moneys and efYects whereof the said John Doe died seized, pursuant to the statute in such case made and provided. Dated Newark, N. J., ' Willi.xm Doe. , , i9--- State of New Jersey, ;ey, ") County of Essex. '' William Doe being duly sworn according to law upon his oath deposes and says that he is the petitioner in the fore- going petition named and that the matters and things therein contained are true to the best of his knowledge and l)elief. Subscribed and sworn to this"^ this day of , 19. . ., > William Doe. before me, J J. C. F., Notary I'uIjHc of N. J. 1054 Probate Law and Practice. Form 103. Appointment of Appraisers by Surrogate. [See Orphans' Court Act, section 59, page 361, supra, and section 60, page 366, supra.] Essex County Surrogate's Court. In the matter of the estate of ) On Application for Ap- John Doe, deceased. j pointment of Appraisers. Appointment of Appraisers by Surrogate. Upon the application of William Doe, executor of the last will and testament of John Doe, late of , deceased, who lately died leaving a family residing in this State ; I, F. G. S., Jr., Surrogate of the County of Essex in the State of New Jersey, do hereby appoint A. B. and C. D., two discreet and judicious persons of said County of Essex, not interested in the estate of said deceased and not of kin to his widow or children, to make an inventory and appraisement of the goods and chattels, moneys and efifects whereof such decedent died possessed, pursuant to the statute in such case made and provided. In witness whereof, I have hereunto set my hand and seal of office this day of , nineteen hundred and F. G. 3., Jr., Surrogate. It is only necessary that the appraisers be appointed by the surrogate in case it is desired to set oft' two hundred dollars of the personal estate of a decedent for the use of his family. Form 104. Oath of Appraisers. [See Orphans' Court Act, section 60, page 366, supra.] State of New Jersey County oe Essex 'I ss. A. B., and C. D., of full age, being duly sworn upon their oaths, depose, and each for himself says that they are the ap- Inventories. 1055 praisers appointed by the Surrogate as aforesaid, and each for himself says that he will faithfully, honestly and impartially appraise the goods and chattels, moneys and effects whereof the said John Doe died seized according to the true and in- trinsic value tiiereof without reference to what the same might be supposed to bring at a sale by vendue. A. B. CD. Subscribed and sworn to this^ day of , > 19. . ., before me, J J. C. F., Notary Public of N. J. This affidavit is only necessary in a case where it is desired to set off $200. of decedent's estate for the benefit of his family. It may be taken before any official authorized to administer an oath. Form 105. List of Goods Selected for Family. [See Orphans' Court Act, section 60, page 366, supra.] The following is a list of the goods and chattels, moneys and eft'ects of the estate of John Doe, the decedent in the fore- going inventory named, and selected therefrom by me, Jane Doe, the widow of the said John Doe, deceased, for the use of the family of the said decedent. (Here enumerate the goods selected, describing them as in the inventory, and giving their appraised value.) T.\NE Doe. Form 106. Oath of Executor, Etc., Verifying List of Goods Selected for Use of Family. [See Orphans' Court .^ct, section 62. page 368. supra.] State of New Jersey, ) > ss. County of Essex. ( William Doe. being duly sworn according to law u|)on his oath, deposes and says that he is the executor in the foregoing 68 1056 Probate Law and Practice. inventory named, and that the goods and chattels in the fore- going hst named and specified are the goods, chattels or prop- erty of John Doe, the decedent in said inventory named, se- lected from said inventory by Jane Doe, widow of the said John Doe, deceased, for the benefit of the family of said de- cedent. Subscribed and sworn to this^ day of , > William Doe. 19. . ., before me, j J. C. F., Notary Public of N. J. This affidavit may be taken before any official authorized to administer an oath. III. GUARDIANS' INVENTORIES. Form 107. Inventory by Guardian. [See Orphans' Court Act, section 63. page 364, supra.] Essex County Surrogate's Ofeice. In the matter of the estate of ) John Doe, a minor. Inventory of Guardian. The inventory of William Doe of all the estate, real and personal, which he has received or taken possession of as guardian of John Doe, a minor. Personal Property. Bond and mortgage given by A. B. and C. B., his wife on lands in the City of Newark $1,000 00 Cash in savings institution 1,000 00 lO shares of the capital stock of the D. L., & W., R. R 5,000 00 Real Estate. House and lot known as No , St., in the of , valued at 5,ooo 00 Inventories. 1057 Unimproved tract of land 50x100 ft., known as Nos , , St.. in the City of i,ooo 00 Total $13,000 00 \\'iLLiA.\[ Doe, Guardian. State of New Jersev County of Essex William Doe. being duly sworn according to law ui^on his oath, deposes and says that he is the guardian of John Doe,, a minor, and that the foregoing is a true and perfect inventory of all the estate, real and personal, which he has received or taken possession of as guardian of the said John Doe, a minor,, as aforesaid. Subscribed and sworn to this 1 day of I 19. . ., at Newark, N. J., before me. William Doe. J. C. F., Notary Public of N. J. IV. PROCEEDINGS TO COMPEL FILING OF INVENTORY. Form 108. Petition Requesting Surrogate to Report Failure to File Inventory. [See Orphans' Court .\ct. section 58, page 362, supra. P. L. 191 1. page 734, page 362, supra.] Essex County Surkog.\te"s Court. In the matter of the estate of ") John Doe, deceased. / ^" Petition, etc. To F. G. S., Jr., Surrogate of the County of Essex: The petition of Jane Doe of the of in the County of and State of respectfullv shows that : 1058 Probate Law and Practice. 1. Your petitioner is the widow of John Doe, late of the County of Essex, deceased. On the day of , 19..., the will of the said John Doe was duly admitted to probate by the Surrogate of the said County of Essex and letters testamentary thereon issued to William Smith, the executor therein named. Your petitioner is one of the legatees named in the aforesaid will of John Doe, deceased. 2. The said William Smith has failed and neglected to file an inventory of the estate of the said John Doe, deceased, which has come into his hands, although more than three months have elapsed since the issue to him of the letters testamentary as aforesaid. Your petitioner therefore prays that the Surrogate may report to the Orphans' Court the neglect of the said William Smith, executor as aforesaid, to file his inventory within the time limited by law. Dated Newark, N. T- t t> Jane Doe. , , i9--- State of New Jersey, County oe Essex. Jane Doe, being duly sworn according to law upon her oath, •deposes and says that she is the petitioner in the foregoing petition named and that the matters and things therein set forth are true to the best of her knowledge and belief. Subscribed and sworn to this"^ ,,^-^ °, ■;;■ ;■ ''"."' > Jane Doe. 1-9. . ., at Newark, N. J., before '^ me, J. C. F., Notary Public of N. J. Form 109. Report by Surrogate of Failure of Executor, Etc., to File Inventory. [See Orphans" Court Act, section 58, page 362. supra. P. L.. 191 1. page 734, page 362, supra.] Essex County Orphans' Court. Inventories. 1059 i On Petition, etc. in the matter of the estate John Doe, deceased. Report by Siirrocjatc of Failure of Executor, etc., to File I)i- ventory. To the Orphans" Court of the County of Essex : I, F. G. S., Jr., Surrogate of the County of Essex, do hereby report, pursuant to the request of Jane Doe, widow of John Doe, deceased, late of the County of Essex, that W'ilHam Smith, the executor of the last will and testament of the said John Doe, deceased, has failed and neglected to tile an in- ventory of the assets of the said John Doe, deceased, which have come into his hands as such executor, for more than three months after letters testamentary issued to * him as aforesaid. Respectfully submitted this day of , ly. . . F. G. S.,Jr., Surrogate. Form no. Order of Orphans' Court Directing Surrogate to Cite Executor, Etc., to File inventory. [See Orphans' Court Act, section 58, page 362, supra. P. L. 191 1. page 734, page 362. supra.] Essex County Orphans' Court. tate of ) „ „ . . vOn Petition, etc. In the matter of the estc John Doe, deceased. Order Directing Surrogate to Cite Executor to File luvoi- tory. It appearing from the report of F. G. S., Jr., Surrogate of the County of Essex, made upon the application of Jane Doe, widow of John Doe, late of the County of Essex, deceased, that William Smith, the executor of the last will and testa- ment of the said John Doe, deceased, has failed and neglected to flic an inventory of the assets of the estate of the said io6o Pkobatk Law and Practice;. John Doe, deceased, which have come into his hands, although more than three months have elapsed since the grant of let- ters testamentary to him as aforesaid, and no reason appear- ing or being alleged to the contrary. It is thereupon, on this day of , One thou- sand nine hundred and , orde;red that the Surrogate of the County of Essex cite the said William Smith to render an inventory of the personal estate of the said John Doe, deceased, which has come into his hands as such executor. W. P. M., Judge. Form III. Citation to File Inventory. [See Orphans' Court Act, section 58, page 362. supra, and il)., section 64, page 365, supra.] Essex County Orphans' Court. State oe New Jersey, ") County of Essex, j The State of New Jersey, To William Doe, Administrator of the estate of [L. S.] John Doe. deceased. Greeting: We cite and command you, that you file an inventory of the goods, chattels and credits of John Doe, deceased, and tmless you shall so do, that you personally be and appear before the Orphans' Court,' to be held at the Court House, in the City of Newark, in and for the County of Essex, on the .... day of , 19. . . , at ten o'clock in the forenoon, to show cause, if any you have, why you have not filed said inventory, and to abide the judgment of the said court in the premises. Witness, W. P. M., Judge of our said Orphans' Court at Newark aforesaid, this day of one thousand nine hundred and F. G. S., Jr., Surrogate and Clerk. This citation must be served by Sheriff. Barring Creditors. io6i BARRING CREDITORS. Form 112. Rule to Limit Creditors. [See Orphans' Court Act, section d"], page 558, supra.] Essex County Surrogate's Court. r tlie matter of the estate of 1 • John Doe, deceased. j Ride to Limit Creditors. Upon appHcation of William Doe, executor of the last will and testament of John Doe, deceased. It is on this day of , 19. . ., ordered that the said William Doe, executor as aforesaid, give public no- tice to the creditors of the estate of the said John Doe, de- ceased, to bring in their debts, demands and claims against his estate under oath, within nine months from the date here- of, by setting up such notice in five of the most public places in said county for two months, and also by advertising the same at least once in each week for the like time in one of the newspapef^ of this state; and it is further ordered that the aforesaid notice shall be given and advertised within twenty days after the date of this order. F. G. S., Jr., Surrogate. Form 113. Notice to Creditors to Present Claims against Estate. [See Orphans' Court Act, section 67. page 558, supra; and Orphans' Court Rule 40, page 559, supra.] Pursuant to the order of F. G. S., Jr., Surrogate of the County of Essex, made on the day of , 19. . . , on the application of William Doe, executor of the estate of John Doe, deceased, notice is hereby given to the creditors of said deceased to exhibit to the subscriber executor as afore- said their debts and demands against the said estate, under oath, within nine months from the date of the aforesaid io62 Probate Law and Practice. order, or they will be forever barred of their actions therebr against the said subscriber. Dated Newark, N. J., William Doe, , iQ. . . Executor ■■ ' ( This notice must be posted in five of the most public plates in the county and also published for two months, at least orice in each week, in a newspaper circulating in said county. Tee aforesaid posting and publishing must be done within 20 days from the date of the order to limit creditors. For proof of publication see Form 114; for proof of post- ing Form 115. Form 114. Proof of Publication of Notice. [See Orphans' Court Act, section 70. page 565. supra.] State oe New Jersey County oe Essex ERSEY, ) > SS. SEX. J X. Y., being duly sworn according to law upon his oath, de- poses and says. that he is the publisher of the , one of the newspapers qf this State, printed and published at and that the foregoing notice was printed and published in the said newspaper for two months, at least once in each week, the first publication being on the day of , 19. . ., and the last on the day of , 19. . . Subscribed and sworn to this^ day of ...,^ X. Y. 19. . ., before me, J J. C. F., Notary Public of N. J. Form 115. Proof of Posting Notices. [See Orphans' Court Act, section 70, page 565, supra.] State oe New Jersey, County of Essex. '' "t A. B., being duly sworn upon his oath according to law, de- poses and says that on the day of , 19. . ., he Barring Creditors. 1063 posted true copies of the foregoing notice in live of the most public places in the said County of Essex, to wit: {insert here list of places zclicre notice zuas posted). Svibscribed and sworn to this day of , A. B. 19. . ., before me, J. C. F., Notary Public of X. J. Form 116. Oath of Creditor Verifying Claim. [See Orphans' Court Act. section 68, page 559, supra.] State of New Jersey, i ss. County of Essex. A. B., being duly sworn upon his oath according to law, de- poses and says that he is the creditor in the foregoing claim mentioned, that the goods and merchandise therein enumer- ated were delivered to, and services therein mentioned were performed for John Doe, late of , deceased at the times and at the prices in the foregoing claim named ; and deponent further says that no part of the foregoing claim has been paid but that the whole sum of dollars therein named is justly due and owing to him. Subscribed and sworn to this^ day of \ A. B. 19. . ., before me, J J. C. F., Notary Public of N. J. Form 117: Notice by Executor, Etc., that Claim Presented is Disputed. [See Orphans' Court Act. section 71, page 536, supra.] To X. Y. : You are hereby notified that I dispute your claim, amount- ing to dollars, against the estate of John Doe, de- 1064 Probate Law and Practice. ceased, presented by you to me as executor of said estate. Dated Xewark. X. J.. , , 19. • . William Doe. Executor. Form 118. Decree Barring Creditors. [See Orphans' Court Act. section 70. page 564. supra.] Essex County Surrogate's Court. In the matter of the estate John Doe, deceased. Decree Barring Creditors. It appearing that, by an order made by the Surrogate of the County of Essex on the day of I9- • • , Wil- liam Doe, executor of the estate of John Doe, deceased, was ordered to give public notice to the creditors of the estate of the said John Doe, deceased, to bring in their debts, demands and claims against his estate under oath within nine months from the date of said order by setting up such notice in five of the most public places in said county for two months, and also by advertising the same at least once in each week in one of the newspapers of this state, for the same time and that said notice should be given and advertised within twenty days after the date of said order. And it further appearing that the time in such order lim- ited has expired, and it being proved to the satisfaction of the Surrogate that said notice has been set up and advertised as directed. It is thereupon on this day of , 19. . . , ordered that all creditors of the said John Doe who have not brought in their claims within the time in said order directed shall be barred from any action therefor against the aforesaid Wil- liam Doe as such executor. F. G. S., Jr., Surrogate. Barring Creditors. 1065 RELIEF OF BARRED CREDITORS. Form 119. Petition by Barred Creditor for Order Authorizing Suit on Refunding Bond. [See Orphans' Court Act, section 78, page 580, supra.] Essex County Orpii.ans' Court. *^ On Petition' of Barred In the matter of the estate of I Creditor for Order Author- John Doe. deceased. izing Suit on Refunding Bond. Petition. To the Orphans' Court of the County of Essex. The petition of X. Y., of the of in the County of , and State of , respectfully shows that : 1. Your petitioner is a creditor of the estate of John Doe, deceased, who died on or about the day of , 19. . ., leaving a last will and testament wherein and whereby he appointed William Doe executor thereof. The said will was on the day of , 19. . . , duly admitted to pro- bate and letters testaiuentary thereon issued to the said Wil- liam Doe by the Surrogate of the County of Essex. 2. On the day of , 19. . . , a decree was made by the Surrogate of the said County of Essex, barring all creditors whose claims against the estate of the said John Doe, deceased, were not proved within the time limited by an order of the said Surrogate made on the day of , 19... 3. Your petitioner has a claim amounting to dollars against the estate of the said John Doe, deceased, for moneys loaned by your petitioner to the said John Doe in his lifetime, but your petitioner did not bring in or prove his claim against said estate within the time limited in said order, and his claim has been barred by said decree. 4. The said John Doe, in and by his last will and testa- ment, gave and bequeathed unto one R. S., the sum of dollars, and William Doe, executor as aforesaid, has paid io66 Probate Law and Practice. the said legacy to the said R. S., and has taken from him a refunding bond, which has been duly filed in the office of the Surrogate of the said County of Essex. Your petitioner therefore prays that an order may be made authorizing him to bring suit upon such refunding bond in the name of the said William Doe, the executor therein named, for the recovery of the aforesaid claim. Dated Newark, N. J., X. Y. ,, 19. State oe New Jersev County oe Essex :SEV, ) > ss. X. I X. Y., being duly sworn according to law upon his oath. deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. X. Y. Subscribed and sworn to this"^ day of , 19. . ., at Newark, N. J., before me, ^ F. R. S., Notary Public of N. J. Five days' notice of this application should be given to the executor and to the legatee. For form of notice see Form 214 ; for proof of service Form 38. Form 120. Order Authorizing Barred Creditor to Sue on Re- funding Bond. [See Orphans' Court Act, section 78, page 580, supra.] Essex County Orphans' Court. \On Petition of Barred Creditor for Order Author- John Doe, deceased. Bond. Order Aitthoricing Suit on Refunding Bond. Barring Creditors. 1067 It appearing from the petition of X. Y., lilcd herein, that the said X. Y.. is a ereditor of the said estate of John Doe. de- ceased, and that his said claim or demand has been barred by a decree of the Surrogate of said County of Essex barring the creditors of the aforesaid estate from their actions against VVilHam Doe, tiie executor of said estate; and it further appearing that WiUiam Doe. the executor of the last will and testament of the said John Doe. deceased, has paid to R. S., a legacy given him in and by the will of the said John Doe. deceased, and has taken from such legatee a refunding bond which has been hied in the office of the Surrogate of the aforesaid County of Essex; and it further appearing that due notice of this application has been given to \\'illiam Doe. executor as aforesaid, and to R. S.. the aforesaid legatee, and no reason appearing or being alleged to the contrary. It is thereupon on this dav of 19. . . . ordered that the said X. Y.. be and he hereby is authorized to bring suit in the name of William Doe, executor of said John Doe, deceased, upon the refunding bond given by R. S.. as aforesaid, to recover the proportion of his debt which ought to be paid out of the legacy or distributive share for which said bond was given. W. P. M., Judge. Form 121. Petition for Relief by Barred Creditor in Case Executor Neglects to Account or Obtain Decree for Distribu- tion. [See Orphans' Court Act. section 80, page 582, supra.] Essex County Orphans' Court. In the matter of the estate of ) On I*ctition of Barred John Doe, deceased. j Creditor For Relief. Petition. To the Orjjhans' Court of the County of Essex: The petition of X. Y.. who resides at N^umber wStreet in the of , in the County of and State of , respectfully shows, that : io68 Probata Law and Practice. 1. Your petitioner is a creditor of the estate of John Doe, late of the County of Essex, deceased, who died on or about the day of , I9- • • , intestate. On the day of 19. • •, the Surrogate of the said County of Essex duly appointed William Doe administrator of the estate of the said John Doe deceased who has duly taken upon him- self the burden of administering the said estate. 2. On the day of , 19 a decree was made by the Surrogate of the said County of Essex barring all creditors whose claims against the estate of the said John Doe, deceased, were not presented to the said William Doe. administrator as aforesaid, within the time limited by an order of the said Surrogate made on the day of , 19. . . 3. Your petitioner has a claim amounting to dol- lars against the said estate of John Doe, deceased, for moneys loaned by your petitioner to the said John Doe in his life- time, which claim your petitioner did not bring in or prove against said estate within the time limited in said order, and his said claim has been barred by said decree. 4. The said William Doe, administrator as aforesaid, has duly filed his account as such administrator, which said ac- count was allowed by this court on the day of , 19. . ., whereby it appears that there is a balance remaining in the hands of the said Administrator amounting to the sum of dollars for distribution among the next of kin of the said John Doe, deceased ; but the said administrator has failed and neglected for more than three months after the final settlement of his account as aforesaid to apply for a decree of distribution thereon. 5. On the day of , 19..., and after his claim was barred by the decree of the Surrogate as aforesaid, your petitioner presented his said claim to the said William Doe, administrator as aforesaid, but he has wholly failed and neglected either to pay the same, or to notify your petitioner that his said claim is disputed. Your petitioner therefore prays that this court may in- vestigate this matter and the circumstances of the case and the condition of the estate, and may order your petitioner's said debt to be paid out of the assets remaining in the hands of Barring Creditors. 1069 the aforesaid executor, and that your petitioner may have such other reHef in the premises as may 1)e just. Dated Newark. X. J., X. Y. - i9--- State of New Jersey County of Essex ""• \ ss. X. Y., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing pe- tition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. y X. Y. Subscribed and sworn to this~^ day of , 19. . .. at Newark, N. J., before me, J. C. F., Notary Public of N. J. Five days' notice of this application must be given to the administrator. For form of Notice see Form 214; for proof of service Form 38. Form 122. Order Directing Administrator to Pay Claim of Barred Creditor from Undistributed Surplus Estate. [See Orplians' Court Act, section 80, page 582, .supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition of Barred John Doe, deceased. j Creditor For Relief. Order Directing Payment of Claim of Barred Creditor. It appearing from the duly verified petition of X. Y., filed herein, that the said X. Y., is a creditor of the estate of John Doe, deceased, and that there is due him on his said claim the sum of dollars, "and that his said claim or demand has been barred by a decree of the Surrogate of the County of 10/0 Probate; Law and Practice. Essex, barring the creditors of the aforesaid estate from their actions for their claims therefor against William Doe, the ad- ministrator of the said estate, and it further appearing that the final account of the said William Doe, administrator as afore- said, was duly allowed by this court on the day of , 19. . ., whereby it appears that there remains in the hands of said administrator the sum of dollars to be distributed according to law, and that the said William Doe. administrator as aforesaid, has neglected to apply for a decree of distribution thereof, although more than three months has elapsed since the allowance by this court of his final account as aforesaid. And it further appearing that the said X. Y. has duly pre- sented to the said William Doe, administrator as aforesaid, his aforesaid claim against the estate of said John Doe, de- ceased, after the same was barred by the decree of the Surro- gate, as aforesaid, but that the said William Doe, adminis- trator as aforesaid, wholly refused and neglected to pay said claim, and that said claim is uncontested. And it further appearing that due notice of this application has been given to W'illiam Doe, administrator as aforesaid, and to and , the next of kin of the aforesaid intestate. And the court having investigated the circumstances of the case and the condition of the estate, and being satisfied that after the payment of all claims brought in and proved against the said estate there remain sufficient assets in the hands of the administrator to satisfy the petitioner's aforesaid claim, and that the delay of said administrator in applying for a decree of distribution of said estate was unreasonable and without sufficient cause. It is thereupon, on this day of , one thousand nine hundred and ORDERED that the said William Doe, administrator of the estate of the said John Doe, deceased, as aforesaid, pay from the assets of said estate in his hands the sum of dollars due and owing to X. Y., the pe- titioner herein, from such estate as aforesaid, and it is further ordered that the costs of this application be paid by the said W^illiam Doe, administrator as ' aforesaid, out of his own estate. W. P. M., Judge. Barring Creditors. 1071 Form 123. Petition of Barred Creditor for Payment of His Claim from Assets Unaccounted for. ^ [See Orphans' Court Act, section 70. page 577. supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition of Barred John Doe, deceased. J Creditor For Relief. Petition. To the Orphans" Court of the County of Essex. The petition of X. Y., of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is a creditor of the estate of John Doe, late of , deceased, who died on or about the day of , 19. . . ., leaving a last will and testament, wherein and whereby he appointed William Doe, executor thereof : the said will was, on the day of , 19..., duly admitted to probate and letters testamentary thereon issued to the said William Doe by the Surrogate of the County of Essex. 2. On the day of , 19. ... a decree was made by the Surrogate of the County of Essex barring all creditors whose claims against the said estate of John Doe, deceased, were not proved within the time limited by an order of the said Surrogate, made on the day of , 19. . . Your petitioner has a claim amounting to dollars against the said estate of John Doe, deceased, for moneys loaned by your petitioner to the said John Doe in his lifetime, but did not bring in or prove his claim against said estate within the time limited in said order, and his said claim has been Ijarred by said decree. 3. The said William Doe, executor as aforesaid, has duly settled his final account as such Executor and the same was o" tli^' day of , 19 duly allowed by this court, and the said executor has duly distributed the balance in his hands as shown by said account to the persons entitled thereto. 69 1072 Probate Law and Practice. 4. Your petitioner has found some other estate of said testa- tor not accounted for by the said executor, to wit : a deposit in the Savings Institution, in the of , made by the said testator in his hfetime and standing in his name, which amounts to the sum of dollars. Your petitioner therefore prays that he may have his afore- said debt, demand or claim against the said estate paid from the portion of said estate not accounted for as aforesaid. Dated Newark, N. J., ' X. Y. , , i9--- State oe New Jersey, County oe Essex. '1 X. Y., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledsre and belief. y X. Y. Sul)scribed and sworn to this"^ day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. Five days' notice of this application must be given to the executor. For form of notice" see Form 214, for proof of service Form 38. Form 124. Order Directing Executor to Pay Claim o£ Barred Creditor from Estate Not Accounted for. [See Orphans' Court Act, section 70, page 577, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition of Barred John Doe, deceased. ( Creditor For Relief. Order for Payment of Claim of Barred Creditor. Proceedings for Discovery. id /o It appearing from the petition of X. Y., tiled herein, that the said X. Y., is a creditor of the estate of John Doe, de- ceased, and that there is due him on his said claim the sum of dollars, and that his said claim or demand has heen barred by a decree of the Surrogate of the said County of Essex barring the creditors of the aforesaid estate from their actions therefor against William Doe, the executor of said estate ; and it further appearing that William Doe. the execu- tor of the aforesaid estate, has duly settled his hnal account as such executor and the same has been duly allowed by this court, and that X. Y., the petitioner herein, has found some other estate not accounted for by said executor, to wit : the sum of dollars on deposit in the Savings Institution, in the of in the name of the said John Doe, deceased, which dei)osit was made by him during his lifetime. And it further appearing that due notice of this application has been given to William Doe, executor as aforesaid, and that the aforesaid claim of the said X. Y., is not disputed, and that no other creditors have been barred of their debts, demands or claims. It is thereupon, on this day of , one thou- sand nine hundred and , ordered that the said William Doe, executor of the last will and testament of John Doe, deceased, as aforesaid, forthwith reduce to possession the aforesaid deposit in the aforesaid Savings Institution, the same being assets of the said estate not ac- counted for by him, and from such assets, when collected by him, pay to the said X. Y., the sum of dollars due and owing to him from said estate as aforesaid. W. P. iM., Judge. PROCEEDINGS FOR DISCOVERY. I. EXAMINATION INTO CONDITION OF ESTATE. Form 125. Petition for Discovery. [Sec (Jrplians' C'nuri .Act, section i3y, page 357, supra.] Essex County Orimi.xns' Court. I074 Probate Law and Practice;. In the matter of the estate of ) On Petition for Discovery John Doe, deceased. j and Relief. Petitio}i. To the Orphans' Court of the County of Essex: The Petition of WilHam Doe, of the of , in the County of and State of respectfully shows as follows : 1. He is one of the children of John Doe, late of , who recently died intestate ; James Doe, the brother of your petitioner, has been duly appointed by the Surrogate of the County of Essex administrator of the estate of your petitioner's father, the ^aid John Doe, and your petitioner as a child of the said intestate is interested in the estate in the hands of the said James Doe, administrator as aforesaid. 2. The said James Doe, administrator as aforesaid, on the day of , 19. . ., loaned dollars of the funds of the said estate to one X. Y., of who is the brother-in-law of the said administrator, taking as security therefor the promissory note of the said X. Y., payable to the said estate, in one year from the date thereof. 3. Petitioner shows that the said X. Y., is insolvent and unable to repay the moneys so loaned to him as aforesaid and that the security so taken by the said administrator for the said moneys of the said estate, loaned by him as aforesaid, is insufficient, and that such security so taken by him was improper and inadequate, and that, in loaning the moneys of the said estate upon such improper and inadequate security, the said James Doe, administrator as aforesaid, has wasted and misapplied the estate entrusted to him as such adminis- trator. Your petitioner therefore prays that the said James Doe may by an order of this court be compelled to make discovery of the condition of the said estate by the production of books, papers, securities and documents relating thereto, and that this court may take such proceedings for the protection of the said estate as to the court shall seem for the best interest of the said estate. Dated Newark, N. J., William Doiv. ' i9--- Proceedings for Discovery. 1075 State of New County of E Jersey, ) SSEX. j William Doe, Ijeing duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters an.d things con- tained therein are true to the best of his knowledge and belief. Subscribed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. T- William Doe. Form 126. Order to Show Cause on Petition for Discovery. [See Orphans' Court Act. section 139, page 357, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Discovery ): John Doe, deceased. j and Relief. Order to Sliozv Cause. Upon reading and filing the verified petition of William Doe, a person interested in the estate of John Doe, deceased, alleging that James Doe, the administrator of the estate of the said John Doe, deceased, has wasted and misapplied the estate entrusted to him, and asking the aid of this court. It is thereupon, on this day of 19. . , ordered that the said James Doe, administrator as aforesaid, show cause before this court on the day of 19..., at ten o'clock in the forenoon, why he should not make discovery of the condition of the estate of the said johni Doe, deceased. And it is further ordered that true but unccrtitied copies of' Ihis order and of the j^etition herein be served upon the said" James Doe personally, or by leaving the same at his residence 10/6 Probate Law and Practice. or usual place of abode, with a member of his family over the age of fourteen years, within days from the date hereof. W. P. M., Judge. For proof of service see Form 38. Form 127. Order for Discovery. [See Orphans' Court Act, section 139, page 357, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Discovery John Doe, deceased. j and Relief. Order for Discovery. William Doe, one of the next of kin of John Doe, late of the County of Essex, deceased, having filed his petition herein alleging that James Doe, the administrator of the estate of the said John Doe, deceased, has wasted and misapplied the estate entrusted to him, and this court having on the day of , 19. . ., made its order requiring the said James Doe to show cause on the day of , 19. . . , why he should not make discovery of the condition of the said estate, which order to show cause has been duly served upon the said James Doe, and the matter coming on to be heard on the day last aforesaid, and the court having examined into the matter, and no cause having been shown Avhy the said James Doe, administrator as aforesaid, should not make discovery as to the condition of the estate of the said John Doe, deceased. It is thereupon, on this day of , 19. . • , ordered that the said James Doe, administrator as aforesaid, appear personally before this court on the day of , 19. . ., at ten o'clock in the forenoon, at the Court- House in the City of Newark, to make discovery of the con- dition of the said estate, at which time he is hereby directed to produce all books, papers, securities and documents of whatsoever character, nature and description in his hands or tmder his control, relating to the estate of the said John Doe, deceased, and to abide the judgment and decree of the court in the premises. Proceedings for Discovery. 1077 And it is further ordered that true l)Ut uncertified copies of this order and of the petition herein be served upon the said James Doe personally or by leaving the same at his residence or usual place of abode with a person over the age of fourteen 3'ears within days from the date hereof. W. P. M., Judge. For proof of service see Form 38. II. DISCOVERY OF ASSETS OF ESTATE. Form 128. Petition by Administrator, Etc., for Discovery of Assets. [See 3 Comp. Stat., page 3866, section 139a, page 358, supra.] Essex County Orphans' Court. ^ , ^^ On Petition of Adminis- In the matter of the estate of I , ^. ^ , ^ , , >trator for Discovery ot John Doe, deceased. j Assets. Petition. The petition of William Doe, of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is the administrator of the estate of John Doe, late of the County of Essex, deceased. During his life- time, the said John Doe, as your petitioner verily believes, loaned to one James Smith a certain diamond ring of the value of dollars, but did not take any memorandum from the said James Smith evidencing the loan of the said diamond ring. 2. The said James Smith has the aforesaid diamond ring in his possession, but denies that the same is the property of the estate of the said John Doe, deceased and on the contrary alleges that the same was presented to him by the said John Doe in his life-time. 3. Your petitioner is informed that one Henry Jones has knowledge concerning the circumstances under which the said James Smith obtained possession of the aforesaid ring 1078 Probate Law and Practice. from the said John Doe, deceased, although the said Plenry Jones denies having such knowledge. Your petitioner therefore prays that the said James Smith may he required to appear before this court, and make dis- covery as to his possession of any i)ersonal property of the estate of the said John Doe, deceased, and that the said Henry Jones may be required to appear before this court and make discovery as to his knowledge of the circumstances under which the said James Smith obtained possession of the afore- said ring from the said John Doe. deceased. Dated Newark, N. J., William Doe. , , i9--- State of New Jersey County oe Essex "'■ J ... William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this'^ 19.. me, ^, ^ , ' ^T " V 1! ' f ' " ' ^ William Doe. , at Newark, N. ., before ( J J- C. F., Notary Public of N. J. Form 129. Order for Discovery of Assets. [See 3 Comp. Stat., page 3866, section 139a, page 358, supra.] Essex County Orphans' Court. T , , , -^ On Petition of Adminis- In the matter of the estate of .■ t-x- e T , T^ , , >trator tor Discovery of lohn Doe, deceased. ( . J Assets. Order for Discovery. William Doe, of the of in the County of and State of , administrator of the estate of John Doe, deceased, having filed his petition herein, whereby Proceedings for Discovery. 1079 it appears that he believes that James Smith has in his posses- sion personal property of the estate of the said John Doe. deceased, and that Henry Jones has knowledge of the exist- ence or whereabouts of personal property of the estate of the said John Doe, deceased. It is thereupon on this day of , 19..., ordered that the said James Smith appear before this court on the day of , 19. . ., and make discovery of his possession of any personal property of the said John Doe, deceased, and that on the day last aforesaid, the said Henry Jones also appear and make discovery of his knowledge of the existence or whereabouts of any personal property of the said John Doe, deceased. It is further ordered that a true but uncertitied copy of the aforesaid order and of the petition herein be served upon the said James Smith and Henry Jones, respectively, personally, or by leaving the same at their residence or usual place of abode with some person over the age of fourteen years, within days from the date hereof. W. P. M., Judge. For proof of service see Form 38. Form 130. Order Directing that Assets of Estate be Delivered to Administrator. [See 3 Comp. Stat., page 3866, section 139a, page 358, supra.] Essex County Orphans' Court. ^ , . , .~^ On Petition of Adminis- In the matter of the estate 01 r -r^- r T , „ , , Vtrator for Discovery of ohn Doe, deceased. ( , I Assets. Order. William Doe, of the of , in the County of and State of the administrator of the estate of John Doe, late of the County of Essex, deceased, having filed his jjetition herein alleging that during his lifetime the said John Doe loaned to one James Smith, a certain diamond ring, the ])roperty of the said John Doe, and that the said James Smith claims that the said diamond ring was given him by the said io8o Probate Law and Practice. John Doe, deceased, and not loaned as aforesaid, and praying the aid of the court in the premises, and the rule to show cause made herein having been duly served, and the court having taken testimony and considered the matter and being satisfied that the said John Doe in his life time loaned to the said James Smith the diamond ring aforesaid, and that the same is the property of the estate of the said John Doe, deceased. It is thereupon, on this day of , 19. . . , ordered that the said James Smith deliver the aforesaid diamond ring to William Doe, the administrator of the estate of the said John Doe, deceased, within days from the date hereof to the end that the said ring may be administered upon as part of the assets of the estate of the said John Doe, deceased. W. P. M., Judge. III. DISCOVERY OF WILLS. Form 131. Petition for Discovery of Will. [See P. L. 191 1, page 96, page 189, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Discovery John Doe, deceased. j of Will. Petition. To the Orphans' Court of the County of Essex: The petition of William Doe, of the of , in the County of and State of New Jersey, respectfully shows that : 1. Your petitioner is the son and one of the next of kin of John Doe, late of the County of Essex, deceased, who de- parted this life on the day of , 19. . . , leaving. as your petitioner is informed and verily believes, a last will and testament. 2. On or about the day of , 19. . . , and after the death of the said John Doe, petitioner's brother. James Doe, as your petitioner is informed and verily believes, took a Proceedings for Discovery. io8i paper writing which your petitioner heHeves to Ije the last will and testament of the said John Doe. deceased, from a box in which the said John Doe, deceased, kqpt his personal papers: and the said James Doe has the aforesaid paper writing in his possession, or has knowledge of the existence or whereabouts of the same. 3. The said James Doe, though often requested by your petitioner so to do, refuses and neglects to i)roduce the afore- said ftvill of the said John Doe, deceased, to the Surrogate of the County of Essex for probate, or to give your petitioner any information as to its whereabouts. Your petitioner therefore prays that this court may by order require the said James Doe to appear before it and make dis- covery as to his possession of, or knowledge of the existence or whereabouts of any paper writing purporting to be the last will and testament of the said John Doe, deceased. Dated Newark, N. J., ' William Doe. , , I9--- Sta-te of New Jersey, ") County of Essex. J William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- tained therein are true to the best of his knowledge and belief. Subscribed and sworn to this^ day of , [ 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. >- William Doe. J Form 132. Order for Discovery of Will. [See P. L. 191 1, i)age 96, page 189, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Discovery John Doe, deceased. j of Will. Order for Discovery. io82 Probate Law and Practice. It appearing from the petition of William Doe, tiled herein, that the said petitioner is one of the sons and next of kin of John Doe, late of the County of Essex, deceased; and that James Doe has in his possession, or has knowledge of the existence or whereabouts of a paper writing purporting to be the last will and testament of the said John Doe, deceased, and refuses and neglects to produce the same to the Surrogate of the County of Essex for probate. It is thereupon, on this day of , i*». • • , ORDERED that the said James Doe appear before this court on the day of , 19. • • , and make discovery as to his possession of or knowledge of the existence or whereabouts of any paper writing purporting to be the last will and testa- ment of the said John Doe, deceased. And it is further ordered that a true but uncertified copy of this order be served upon the said James Doe within days from the date hereof personally or by leaving the same at his residence or usual place of abode with a person over the age of fourteen years. For form of proof of service see Form 38. W. P. AI., Judge. Form 133. Order to Produce Will. [See P. L. 1911, page 96, page 189, supra.] Essex County Orphans' Court. bate of I On Petiti( j of Will. In the matter of the estate of ) On Petition for Discovery John Doe, deceased. Order to Produce Will. This matter having been opened to the court by , of counsel with the petitioner herein, and it appearing that on the day of , 19. . ., it was ordered that James Doe appear before this court on the day of , 19. . ., and make discovery as to his possession of or knowledge of the existence or whereabouts of any paper writing purporting to be the last will and testament of John Doe, late Sale of Lands for Debts. 1083 of the County of Essex, deceased : and the matter coming on to be heard, and the court having taken testimony and heard arguments of counsel, and being satisfied that the said James Doe has in his possession, or under his control, a paper writing purporting to be the last will and testament of the said John Doe, deceased, which he has refused or neglected to produce to the Surrogate of the said County of Essex for probate. It is thereupon on this day of , 19..., ORDERED that the said James Doe lodge the said paper writing purporting to be the last will and testament of the said John Doe. deceased, which is in his possession, or under his control, with the Surrogate of the County of Essex for probate, within days of the ser*'ice upon him of a true but uncertified copy of this order. W. P. M., Judge. For form of proof of service see Form 38. SALE OF LANDS FOR PAYMENT OF DEBTS. I. ON PETITION OF EXECUTOR OR ADMINISTRATOR. Form 134. Petition for Sale of Lands to Pay Debts. [See Orphans' Court Act, section 82, page 470, supra; and Orphans' Court Rule 33. page 509. supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of , in the County of Essex and State of New Jersey, respectfully shows, that : • I. On the day of 19. . . , he was duly ap- ] jointed, by the Surrogate of the County of Essex, adminis- trator of the estate of John Doc, deceased, and he has dis- 1084 Probate Law and Practice. covered and believes that the personal estate of his aforesaid intestate is insufficient to pay his debts, and herewith exhibits under oath a true account of the personal estate and debts of his said intestate, so far as he can discover the same, which account is hereunto annexed. 2. The said John Doe died seized of four certain tracts of lands in the of , in the County of and State of New Jersey, to wit: (Describe the lands); said lands consist of four vacant building lots which are valued. as nearly as your petitioner can ascertain, at the sum of dollars each. Your petitioner therefore requests the aid of the court in the premises and prays that an order nlay be made in manner and form as required by law requiring all persons interested in such lands, tenements, hereditaments and real estate to appear before this court to show cause why so much of the above described lands, tenements, hereditaments and real estate whereof the said John Doe, deceased, died seized, as aforesaid, should not be sold as will be sufficient to pay the residue of the debts of said intestate. Dated Newark, N. J., ' William Doe. , , I9--- State of New Jersey, County of Essex. i William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. William Doe. Subscril^ed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. The following is a true account of the personal estate and debts, of the aforesaid John Doe, deceased, so far as your Sale of Lands for Debts. 1085 petitioner, administrator of the estate of the said John Doe, deceased, has been able to discover : To amount of personal property as shown by inventory filed in the Surrogate's office of the County of Essex .$1,000. Loss on sale of said personal propertv 100. Total value of personal property $900. The following claims have been presented to the administrator. H. S., undertaker $300. W. H. C, ph3^sican i;o. Y. Z., claim on note made by decedent in his lifetime 2,000. $2,450. State of New Jersey, County of Essex. ^^^' ] ss. X. j William Doe, being duly sworn according to law upon his oath, deposes and says that he is the administrator of the estate of John Doe, deceased, and that the foregoing is a true account of the personal estate and' of the debts of the decedent, so far as he can discover the same. Subscribed and sworn to this"^ day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. > William Doe. Form 135. Order to Show Cause Why Lands Should Not be Sold to Pay Debts. [vSee Orphans' Court Act, section 82, page 473, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Order to SJwzv Cause. ■ io86 Probate Law and Practice. William Doe, administrator of the estate of John Doe, deceased, having exhibited under oath a true account of the personal estate and debts of said intestate, whereby it appears that the personal estate of the said John Doe, deceased, is in- sufficient to pay his debts and requesting the aid of the court in the premises. It is thereupon on this day of 19. . . , or- dered that all persons interested in the lands, tenements, her- editaments and real estate of the said John Doe, deceased, ap- pear before this court at the Court House in the city of New- ark on the day of , 19. . ., at 10 a. m., to show cause, why so much of the said lands, tenements, heredita- ments and real estate of the said John Doe, deceased, should not be sold as will be sufficient to pay his debts. It is further ordered that this order be published in the one of the newspapers of this state for six weeks at least once in each week. W. P. M., F. G. S., Judge. Surrogate. The foregoing order must be set up at three of the most public places in said county for six weeks successively and be published at least once in each week for the same time in one or more of the newspapers of this State, as the said court may direct. For form of proof of posting order see Form 115. For form of proof of advertisement in newspaper see Form 114. Form 136. Decree for Sale. [See Orphans' Court Act, section 83, page 476, supra, and section 91, page 502, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Sale of John Doe, deceased. f Lands to Pay Debts. Decree for Sale. The order to show cause made in this matter on the day of IQ---, having been advertised and pubhshed according to law, and the court having heard and examined Sale of Lands for Debts. 1087 the allegations and proofs of William Doe, administrator of the estate of John Doe, deceased, and of the parties interested herein and it appearing upon a full examination into the matter that the personal estate of John Doe, the said intestate, is not sufficient to pay his debts, and that the said William Doe, ad- ministrator as aforesaid, has applied all of the personal estate that has come to his hands to the payment of said debts, and that there is a deficiency amounting to the sum of dollars ; It is thereupon, on this day of I9- • • . or- dered that the said William Doe, administrator as aforesaid, sell the following tracts of land whereof the said John Doe died seized, to wit: (insert description of lands) to raise the aforesaid sum of dollars for the payment of the debts of the said decedent, and that after niaking such sale the said William Doe report the same to this court for its ap- proval and confirmation ; And it is further ordered that before selling the aforesaid lands the said William Doe, administrator as aforesaid, shall first enter into bond to the ordinary with condition according to the statute in such case made and provided, in the. sum of dollars, with two or more sufficient sureties, to be Approved by this court. W. P. M., Judge. For form of report of sale see Forms 157 and 161. For decree confirming sale see Forms 159 and 162. For deed by Administrator see Forms 160 and 163. For form of bond see Form 137. Form 137. Bond by Executor or Administrator Ordered to Sell Lands. [See Orphans' Court Act, section 91, page 503, supra.] Know all men by these presents that we, A. B., C. D., and E. F., all of the of in the County of and State of New Jersey, are held and firmly bound unto the <^)rdinary of the State of New Jersey in the sum of dollars lawful nKjnc\- of the United States, to be ])aid to the 70 io88 Probate Law and Practice. said Ordinary as aforesaid, his successors or assigns to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally tirmly by these presents. Sealed with our seals and dated the day of , one thousand, nine hundred and The condition of this obligation is such that if the above- bounden A. B., executor of the last will and testament of X. Y., deceased {or administrator of all and singular the -goods, chattels, and credits of X. Y., deceased, as the case may be) shall well and truly administer the moneys arising from the sales of any lands, tenements or real estate of the said X. Y., directed by the order of the Or- phans' Court of the County of to be sold according to law, and further do make or cause to be made a just and true account of his administration, within twelve months from the date of the above obligation, and the surplus of money which shall be found remaining upon the account of such sale or sales (the same being first examined and allowed by the Orphans' Court of the county, or other competent authority) shall distribute and pay unto such person or persons respectively as is, are or shall be by law en- titled to received the same, . then the above obligation to be void and of none effect, otherwise to l)e and remain in full force and virtue. Signed, sealed and delivered in ^ A. B. (l. s.) the presence of > CD. (l. s.) E.F. (l. s.) Add justification of sureties as in Form 7. II. PROCEEDINGS BY HEIR AT LAW TO PREVENT SALE. Form 138. Petition by Heir to Fix Amount of Bond to Prevent Sale of Lands. [See Orphans' Court Act, section 89, page 474, supra.] Essex County Orphans' Court. Sale of Lands for Debts. 1089 In the matter of the estate of | ( )n Petition for Sale of John Doe, deceased j Lands to I 'ay Del)ts. Petition by Heir at Laze for Order Fixing Amount of Bond to prevent Sale. The petition of James Doe. of the of in the County of and State of , respectfully shows that : 1. Your petitioner is one of the heirs at law of John Doe, late of the County of Essex, deceased. On the day of , 19..., William Doe, the administrator of the aforesaid John Doe, duly presented to this court his petition alleging that the personal estate of the said John Doe was not sufficient to pay his debts, and praying relief in the ])remises, and such proceedings were had thereon that this court on the day last aforesaid made its order re(|uiring all persons inter- ested in the lands of the aforesaid John Doe, deceased, to show cause before this court on the day of , 19. . . why so much of the lands of said John Doe, deceased, should not be sold as would be sufficient to- pay his debts. 2. Your petitioner, as one of the heirs at law of the said John Doe, deceased, desires to enter into bond as provided by law for the payment to the said administrator of so much money as may be required to pay the residue of the debts of the said John Doe, deceased, and the just expenses and allow- ances incurred in the settlement of his estate which shall remain after the personal estate shall be appplied thereto, and to idem- nify and save harmless the said administrator from any dam- ages or costs to which he may individually be lawfully subjected Ijy reason of any delay incident to this proceeding. Your petitioner therefore prays that this court may by its order fix the amount of and sureties re(iuired upon a bond to be entered into by your petitioner, pursuant to the provisions of the act in such case made and ])rovided. Dated Newark, N. J., James Doe. , I9--- State of New Jersey, County of Essex. Ev, ) James Doe, being duly sworn according to law upon his oath, deposes and says that he is the ])etitioner in the fore- lOQO Probate Law and Practice. going petition named, and that the matters and things con- tained therein are true to the best of his knowledge and belief. Subscribed and sworn to this"^ day of , I 19. . ., at Newark. N. J., before me. J. C. F., Notary Public of N. T- Tames Doe. Form 139. Order Fixing Amount of Bond to be Given by Heir at Law. [See Orphans' Court Act, section 89, page 474. supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Order Fixing Aiiioitnf of Bond to be Given hy Heir at Law. This court, having on the day of 19. . ., ordered that cause be shown before this court on the day of , 19. . ., why the lands and real estate of John Doe, late of the County of Essex deceased, should not be sold for the payment of his debts: and at the time fixed for the hearing upon the said order James Doe, one of the heirs at law of the said John Doe, deceased, having presented his petition herein, reciting that he desires to enter into bond as provided by law for the payment to William Doe, the administrator of the estate of the said John Doe, deceased, of so much money as may be recjuired to pay the residtie of the debts of the said John Doe, deceased ; and the court having inquired into the matter. It is thereupon, on this day of , 19.... ordered that the said Tames Doe enter into bond with the said Sale of Laxds for Debts. 109 i William Doe. administrator as aforesaid, within davs from the date hereof, in the sum of dollars, with two or more sufficient sureties, conditioned for the payment to the said \\'illiam Doe, administrator as aforesaid, of so much money as may be required to pay the residue of the debts of the said John Doe, deceased, and the just expenses and allow- ances incurred in the settlement of his estate, which shall remain after the personal estate shall be applied thereto, and to indemnify and save harmless the said administrator from any damages or costs to which he may individually be law- fully subjected by reason of any delay incident to this j^ro- ceeding which bond shall be approved by this court as to the form and sureties thereof. W. P. ^I., Judge. For form of bond^ see Form 140. Form 140. Bond by Heir for Payment of Debts. [See Orphans' Court Act, section 89, page 474, supra.] Know all men by these presents, that we. A. B., heir at law of John Doe, deceased, and C. D. and E. F.. all of the of , in the County of Essex and State of New Jersey, are held and firmly bound unto X. Y., the adminis- trator of the estate of John Doe, deceased, in the sum of dollars to be i)aid to him or to his successors in office, or to his representatives or assigns, to which payment well and truly to be made, we bind ourselves and each of our heirs, executors and administrators, jointly and severally, firmly by these pres- ents. Sealed with our seals and dated this day of one thousand nine hundred and Whereas, by an order made by the Orphans' Court of the County of Essex on the day of 19. . . , it was ordered that cause be shown before said court on the (lay of , 19. . ., why lands and real estate of John Doe, deceased, should not be sold for the payment of his debts, and whereas, A. B. is one of the heirs at law of the said John Doe, deceased (or one of the devisees iiiider the last will of the said 1092 Probate Law and Practice. John Doc, deceased), and desires to prevent the sale of said lands. Now the condition of this obligation is such, that if the said A. B. shall pay to the said administrator so much money as may be required to pay the residue of the debts of the said John Doe, deceased, and the just expenses and allowances for the settlement of his estate which shall remain after the per- sonal estate shall be applied thereto, and shall indemnify and save harmless the said X. Y., administrator as aforesaid, from any damages or costs to which he may individually be law- fully subjected by reason of the delay caused by the giving of this bond, then this obligation to be void and of no effect, other- wise to remain in full force and virtue. Signed, sealed and delivered ^ A. B. [l. S.] in the presence of > C. D. [e. s.] j . E. F. [L. s.] Add justification of sureties as in Form 7. Form 141. Order Approving Bond of Heir at Law and Adjourn- ing Hearing. [See Orphans' Court Act, section 89. page 474, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. - j Lands to Pay Debts. Order Approving Bond and Adjourning Hearing. This court, having on the day of , 19. . ., ordered that cause be shown before it on the day of , 19. . ., why the lands and real estate of John Doe, deceased, should not be sold for the payment of his debts, and James Doe, one of the heirs at law of the said John Doe, deceased, having presented his petition praying that this court would fix the amount of and sureties required upon a bond to be entered into by the said James Doe for the payment of so much monev as mav be required to pav the residue of the Sale of Lands for Debts. 1093 debts of the said John Doe, deceased, which shall remain after the personal estate be applied thereto, and the court having by Its order made on the day of I9- • ■ , ordered that the said James Doe enter into bond with the said William Doe, administrator as aforesaid, in the sum of dollars, and the said James Doe having presented to the court for its approval a bond conditioned for the payment to the said Wil- liam Doe, administrator as aforesaid, of so much money as may be required to pay the residue of the debts of the said John Doe, deceased, and the just expenses and allowances for the settlement of his estate, which shall remain after the personal estate shall have been applied thereto, and to indemnify and save harmless the said administrator from any damages or costs to which he may be individually subjected by reason of the delay ; and the court having examined into the matter and approved the amount, form and sureties of the said bond. It is thereupon, on this day of , 19. . . , ordered, that the said bond be, and the same is hereby approved as to the amount, form and sureties thereof, and that the hearing of the said rule to show cause and all proceedings thereunder stand adjourned until the amount of the aforesaid deficiency can be ascertained. W. P. M., Judge. Form 142. Demand on Heir at Law to Pay Administrator Moneys Required to Pay Residue of Debts, and Notice of Appli- cation for Prosecution of Bond. [See Orphans' Court Act, section 89, page 474, supra; and Orphans' Court Rule 31, page 475, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. /hvitiiiui on Ilcir. To A. B., heir at law of John Doe, deceased, and C. 1). and \\. F., sureties : You are hereby ncjtilied that all of the ])ers()nal estate of John Doe, deceased, has been a])plie(l to ihe paxnicnt of his 1094 Probate Law and Practice. debts and the just expenses and allowances for the settlement of his estate, and that the residue of the aforesaid debts, ex- penses and allowances which remain after the personal estate has been applied thereto amounts to dollars, and I hereby demand the payment of the aforesaid sum of dollars required to pay the aforesaid residue pursuant to the condition of a bond made and entered into by you to me and bearing date on the day of , 19. . . You are further notified that if you refuse or neglect to pay to me the aforesaid residue of such debts, expenses and allow- ances I shall, on the day of , 19. . ., apply to the Orphans' Court of the County of Essex for an order au- thorizing me to prosecute the bond given by you to me as aforesaid or directing me to sell sufficient of the lands whereof the said John Doe died seized, to pay the residue of the debts, expenses and allowances as aforesaid. Dated Newark, N.J., X. Y. , , I9--- This notice must be served at least five days before the day named upon which the application will be made. Notice of the application must also be given to the sureties on the bond. For form of notice see Form 214; for proof of service Form 38. Form 143. Petition by Administrator Where Heir Neglects to Pay Moneys Required to Pay Residue of Debts o£ Intestate. [See Orphans' Court Act, section 89, page 474, supra, and Orphans' Court Rule 31, page 475, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Petition for Order to Prosecute Bond of Heir at Lazv. To the Orphans' Court of the County of Essex: The petition of William Doe, of the of , in the County of and vState of , respectfully shows that : Sale of Lands for Debts. 1095 1. Your petitioner is the ci,dministrator of the estate of John Doe, late of the County of Essex deceased, and by an order of this court made on the day of , 19. . . , it was ordered that cause be shown before this court on the day of , 19. . ., why so much of the lands and the real estate of the said John Doe, deceased, should not be sold as will be sufificient for the payment of his debts. 2. On the day in the aforesaid order named, James Doe, one of the heirs at law (or devisees) of the said John Doe, deceased, appeared before this court and entered into bond to your pe- titioner in the sum of dollars with C. D. and E. F. as sureties, conditioned for the payment to your petitioner of so much money as might be required to pay the residue of the debts of the said John Doe, deceased, and the just expenses and allowances for the settlement of his estate which should remain after the personal estate should be applied thereto, and this court thereupon, on the day of 19. . . , duly approved said bond as to the amount, form and sureties thereof, and ordered that the hearing of the said rule to show cause stand adjourned until the amount of said deficiency should be ascertained. * 3. Your petitioner has duly applied to the payment of the aforesaid debts, expenses and allowances all of the personal property of the said John Doe, deceased, which has come to his possession or knowledge, but the said personal property was not sufficient to pay all the aforesaid debts, expenses and allow- ances, and there remains unpaid a residue thereof amounting to dollars. 4. On the day of 19. . ., your petitioner made demand upon the said James Doe, C. D., and E. F., his sureties as aforesaid, for the payment of the aforesaid residue, but they have refused and neglected to pay the same or any I)art thereof. 5. Due notice of this application has been given to the said James Doe, the said heir at law ; and to C. D. and E. F., the sureties U])on tlic bond given by him as aforesaid. Your ])ctitioner therefore i)rays that this court may order that the said bond given by James Doe, with C. D. and E. F. as sureties as aforesaid, be prosecuted for the jjurpose of raising 1096 Probate Law and Practice. the aforesaid sum of dollars necessary to pay the residue of the aforesaid debts of the said intestate, or that this court may make such order for the sale of the lands and real estate whereof the said John Doe died seized as might have been made if the said bond had not been given. Dated Newark, N. J., William Doe. , , ig--- Stattj of New Jersey County oe Essex =''^' I ... William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- tained therein are true, to the best of his knowledge and belief. Subscribed and sworn to this^ ic. . .. at Newark, N. J., before ^''^^'^^ 'I William Doe. me, J. C. F., Notary Public of N. J. Form 144. Order for Prosecution of Bond or for Sale of Lands in Default of Payment by Heirs or Devisees. [See Orphans' Court Act, section 89, page 474, supra, and Orphans' Court Rule 31. page 475, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Order for Prosecution of Bond of Heir at Lazv. This court having, by an order made on the day of , 19. . . , ordered that cause be shown before it on the day of , 19. . . , why the lands and real estate of John Doe, deceased, should not be sold for the payment of his debts, and on the day in said order named, James Doe, one of the next of kin of the said John Doe, deceased, having Sale of Lands for Debts. 1097 appeared before this court and entered into bond to William Doe, the administrator of the estate of the said John Doe, deceased, with C. D. and E. F. as sureties, conditioned for the payment to the said administrator of so much money as might be required to pay the residue of the debts of the said John Doe and the just expenses and allowances of the settle- ment of his estate, which should remain after the personal estate should be applied thereto. And this court having, by its order made on the day of , 19. . ., duly approved the said bond, and directed that the proceedings under the aforesaid rule to show cause stand adjourned until the amount of such deficiency should be ascertained, and it further appearing from the petition of Wil- liam Doe, filed herein, that said deficiency has been ascertained to amount to the sum of dollars, and that the said William Doe has duly demanded from the said James Doe, and from C. D. and E. F., his sureties as aforesaid, the payment of the said sum of dollars required to pay the residue of the aforesaid debts, expenses and allowances, but that they have refused and neglected to pay the same or any part thereof : and it appearing that due notice of this application has been given to James Doe, heir at law, and to C. D. and E. F., his sureties as aforesaid. It is thereupon, on this day of , 19..., ordered that the said bond be prosecuted in any court of compe- tent jurisdiction by the said W^illiam Doe, administrator as aforesaid, for the purpose of raising the aforesaid sum of dollars to pay the aforesaid residue of the debts of the said John Doe, deceased (or that the said JVilliatH Doc. administrator as aforesaid, sell the folloiving described tracts of land ivhereof the said John Doe died seiccd, to zuit (insert description of land) for the payment of the aforesaid residue of the debts of the said John Doe, deceased, and that after making such sale, the said IVilliam Doe report the same to this court for its approval and consideration, and it is further ordered that before selling the aforesaid lands, the said Wil- liam Doe, administrator as aforesaid, first enter into bond to the Ordinary 7i'ith condition prescribed by the statute in such 1098 Probate Law and Practice. case made and provided, in the sum of dollars. with tzvo or more sureties to be approved by this court). W. P. M., Judge. III. ON PETITION OF JUDGMENT CREDITOR. Form 145. Notice by Judgment Creditor to Administrator to Sell Lands to Pay Debts. [See Orphans' Court Act, section 97. page 471, supra; and Orphans' Court Rule 32. page 472, supra.] Essex County Orphans' Court. _ , . , ^> On Petition of Tudsjment In the matter of the estate of „ ■ . ^ ^^ , . ^ ^r , „ , , > Creditor for bale ot Lands ohn Doe, deceased. . t-. t^ 1 ■> ' j to Pay Debts. Notice to Administrator. To William Doe, administrator of the estate of John Doe, deceased : You are hereby notified that I require you to take proceed- ings according to law to have sufficient of the lands whereof the said John Doe, deceased, died seized sold to satisfy an execution issued upon a judgment obtained by me against you as administrator of the estate of the said John Doe,' deceased, in the Supreme Court of the State of New Jersey for dollars damages and costs, which said execution has been re- turned wholly unsatisfied for want of personal estate to be levied on and sold. And you are further notified that if you neglect or refuse to take such proceedings for the space of one month after serv- ice of this notice upon you, I shall on the day of , 19. . ., at 10 a. m., apply to the Orphans' Court of the County of Essex at the Court House in the City of Newark, for an order directing that such sale be made. Dated Newark, N. J., X. Y. , , I9--- For form of proof of service see Form 38. Sale of Lands for Debts. 1099 Form 146. Petition of Judgment Creditor for Sale of Lands of Decedent to Pay Debts. [See Orphans' Court Act, section 97. page 471, supra, and Orphans' Court Rule 32, page 472, supra.] Essex County Orphans' Court. .- , f"^ On Petition of ludgment In the matter ot the estate of „ ,. o ,1 V , ^ , „ , , > Creditor to bell Lands to ohn Uoe, deceased. \ ^ „ , J Pay Debts. Pctihoii. To the Orphans' Court of the County of Essex: The petition of X. Y., of the of in the County of and State of rcs{)ectfully shows that : 1. On the day of , 19. . . , your petitioner recovered a judgment in the Supreme Court of the State of New Jersey for dollars damages and costs against William Doe, administrator of the estate of John Doe, deceased, as such administrator ; and execution upon said judgment was duly issued and returned wholly unsatisfied for want of personal estate of the said John Doe, deceased, to be levied on and sold. 2. The said John Doe died seized of certain lands and real estate within the said County of Essex, described as follows: (describe the lands). 3. On the day of , 19. . ., your petitioner duly required the said William Doe, administrator as aforesaid, by notice in writing served upon him on the day last above mentioned, to take proceedings to obtain a sale of the aforesaid lands according to law ; but the said W' illiam Doe has neg- lected and refused to take such proceedings, although more than one month has elapsed since he was required so to do as aforesaid. Your petitioner therefore prays that this court may make an order in the name of William Doe, administrator as aforesaid, requiring all persons interested in the lands tenements, here- ditaments and real estate of the said John Doe. deceased, to show cause before this court whv the aforesaid lands of the iioo Probate; Law and Practice. said John Doe, deceased, should not be sold to pay his debts, and that such further proceedings may be had as are pre- scribed by law in relation to the sale «^f real estate where the personal estate is insufficient to pay debts. Dated Newark, N. J., X. Y. State ov New Jersey County of Essex '\ss. X. Y., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this"^ dav of U). . ., at Newark, N. J., before me. J. C. F., Notary Public of N. J. y X. Y. Orphans' Court Rule ^2, provides that five days notice of an application of this character shall be given to the executor or administrator. The petitioner may, however, take a rule requiring such executor or administrator to show cause why the prayer of the petition should not be granted, which rule may be served in such manner as the court may direct, or he may incorporate such notice in his demand upon the adminis- trator to take proceedings for the sale of lands as in Form 145. Form 147. Order to Show Cause Why Lands Should Not be Sold to Pay Debts, on Application of a Judgment Creditor. [See Orphans' Court Act, section 97. page 471. supra, and Orphans' Court Rule 32, page 472, supra.] Essex County Orphans' Court. T .1 ., r ^1 , ^ A On Petition of Judgment In the matter of the estate of „ ,. ^ ,, -' ^'^ T 1 -Tk J J r Creditor to Sell Lands to John Doe, deceased. f ^ .^ , J Pay Debts. Order to Slwzv Cause. Sale of Lands for Debts. iioi Apj)lication having been made to this court bv X. Y.. a judgment creditor of the estate of John Doe, deceased, for the sale of the lands of said decedent to pay his debts, and it ap- pearing that the said X. Y., has obtained a judgment against William Doe. administrator of the estate of the said John Doc. tleceased, as such administrator, and that the execution issued on the same remains wholly unsatisfied for want of personal estate to be levied on and sold, and that said decedent died seized of certain real estate. And if further appearing that the said William Doe, adminis- trator as aforesaid, has neglected and refused to take pro- ceedings to obtain a sale of the said real estate whereof the said John Doe died seized for the space of one month after being required by the aforesaid X. Y. so to do, and it appearing that due notice of said application has been given to W'illiam Doe, administrator as aforesaid. And the Court having examined into the circumstances of the case, and it appearing to the satisfaction of the court that the whole of the aforesaid judgment of the said X. Y. remains unpaid and that the personal estate of the said John Doe is insufficient to pay the said judgment. It is thereupon, on this day of , 19. . . , or- dered that all persons interested in the lands, tenements and real estate of the said John Doe, deceased, appear before this court at the Court House in the city of Newark on the day of , 19. . . , at 10 a. m., to show cause why so much of the said lands, tenements and real estate of the said John Doe, deceased, should not be sold as will be sufficient to pay his debts. It is further ordered that this order be published in the one of the newspapers of this state for six weeks at least once in each week. ^' ' ''' F. 0. S., Jr., W. P. M., Surrogate. Judge. 1102 Probate Law and Practice;. Form 148. Citation to Administrator to Testify on Application for Sale of Lands by Creditor. [See Orphans' Court Rule 32, page 472, supra.] Essex County Orphans' Court. State of New Jersey, County of Essex. ■1 The State of New Jersey to William Doe, adminis- [l. s.] trator of the estate of John Doe, deceased: You are hereby cited and warned to be and appear before the Orphans' Court of the County of Essex at the Court House in the city of Newark, on the day of , 19. . . , at 10 a. m., to testify as to the amount of the personal estate and debts of the said John Doe. deceased, in the matter of the application of X. Y., a judgment creditor of the estate of the said John Doe, for the sale of lands of said de- cedent to pay his debts and to further abide the judgment of the court in the premises. Witness W. P. M., Esquire, judge of said Orphans' Court at the City of Newark this day of , 19. . . F. G. S., Jr., Surrogate. The object of this citation is to bring tlie executor or ad- ministrator into court on the return of the rule to show cause to testify as to the amount of the personal estate of decedent and of the debts presented to him. The subsequent proceedings are the same as in a case where the rule to show cause is granted upon the application of the executor or administrator. IV. PROCEEDINGS FOR SALE OF LAND IN COUNTY OTHER THAN THAT WHERE DECEDENT RESIDED. Form 149. Petition for Order for Sale of Lands Situate in Coun- ty Other than that in which Decedent Resided. [See Orphans' Court Act. section 84, page 480. supra.] Hudson County Orphans' Court. Sale of Lands for Debts. 1103 }On Petition for Sale of Lands Situate in County Other than that in which Decedent Resided. Petition. To the Orphans' Court of the County of Hudson. The petition of WilHam Doe. of the of in the County of and State of respectfully shows that : 1. Your petitioner is the administrator of the estate of John Doe, late of the County of Essex, deceased, who died seized of certain lands and premises in the County of Hudson aforesaid, described as follows: (Here insert description of lands). 2. On the day of , 19..., the Orphans' Court of the County of Essex made its order whereby it appears that the personal estate of the said John Doe, deceased, is in- sufficient to pay his debts, and wherein the said William Doe. administrator as aforesaid, was ordered to sell certain lands of the said John Doe, deceased, (among others the above described lands) for the payment of his debts, as will more fully and at large appear by an authenticated copy of such order hereunto annexed and made a part hereof. Your petitioner therefore prays that this court may make an order directing him to sell the above described lands of the said John Doe, deceased, situate in the County of Hudson as afore- said. Dated Newark, N. J., William Doe. - - I9--- State of New Tersev, ) y ss County of Essex. j William Doe, being duly sworn according to law upon his oath, deposes and .says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. J 104 Probate Law and Practice. Subscribed and sworn to this^ m'"^?^^;-,' •;■;■■> wiluamdoe. 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. There should be annexed to this petition a certified copy of the order for sale. Form 150. Order for Sale of Lands in County Other Than That in Which Decedent Resided. [See Orphans' Court Act, section 84, page 480, supra.] Hudson County Orphans' Court. "^ On Petition for Sale of In the matter of the estate of i Lands in County Other John Doe, deceased. | than that in which De- cedent Resided. Order for Sale of Lands. It appearing from the petition of W'illiam Doe, and an authenticated copy of an order of the Orphans' Court of the County of Essex, filed herein, that the said William Doe is administrator of the estate of John Doe, deceased; that the personal estate of the said John Doe, deceased, is insufficient to pay his debts ; and that the said Orphans' Court of the County of Essex, on the day of , one thou- sand nine hundred and ordered the said William Doe, administrator as aforesaid, to sell certain lands whereof the said John Doe died seized, in said order particularly de- scribed, including, among others, certain lands situate in the County of Hudson, hereinafter described, for the payment of the debts of the said John Doe, deceased. It is thereupon, on this day of one thou- sand nine hundred and , Ordered that the said Wil- liam Doe, administrator as aforesaid, sell the following de- .scribed lands in the County of Hudson, whereof the afore- said John Doe died seized, to wit : ( Here Insert description of Sale of Lands for Debts. 1105 lands), for the payment of the debts of said decedent, and that after making such sale, the said William Doe report the same to this court for its approval and confirmation. And it is further ordered that the said William Doe enter into bond to the Ordinary in the sum of dollars, with condition prescribed by law, with two or more sufficient siu-e- ties to be approved by this court. G. C. T., Judge. For form of bond see Form 137. V. PROCEEDINGS ON SALE OF LAND AT PUBLIC SALE. Form 151. Advertisement of Sale of Lands by Executor, Admin- istrator or Guardian. [See P. L. 191-2, page 131, page 506, supra.] By virtue of an order of the Orphans' Court of the County of Essex made on the day of , 19. . . the sub- scriber, the guardian of William Doe. a minor, will on the day of ......... 19. ., at . . o'clock in the afternoon, sell at public vendue, upon the premises, all that tract of land and premises situate (describe the lauds ordered sold by the same description as in the order). Dated Newark, N. J.. Richard Doe. , , 19. . . Guardian. This notice of sale must be set up for the p'eriod of four weeks l)efore the time appointed for such sale in five or more public places in the comity, one whereof must be in the town- .ship, ward or city where such real estate is situate, and must also be published at least four weeks successively once a week next preceding the time appointed for selling, in two news- papers printed and published in the coimty in which the lands are situate, of which one must be printed and published either at the county seat of said county, or at the largest municipality of said count V. I io6 Probate Law and Practice. '■ \ ss. Form 152. Proof of Advertisement of Sale in Newspaper. [See P. L. 191.^. page 131, page 506, supra.] State of New Jersey, County of Essex. R. S., of full age, being duly sworn upon his oath, deposes and says that he is the publisher of a news- paper printed and published at the of , in the County of and State of New Jersey, and that the foregoing notice of sale was published in said newspaper on the day of 19- • , and continued to be pub- lished therein for four weeks successively once in each week. the last publication thereof being on the day of , 19.... Sul>scribed and sworn to this"^ day of , 19. ... at Newark, N. J., before ine. X. Y., Notary Public of N. J. R. S. Form 153. Proof of Posting Notice of Sale. [See P. L. 1912, page 131, page 506. supra.] State of New Jersey, County of Essex. Richard Doe. of full age. being duly sworn upon his oath. deposes and says that on the day of 19. . . . he set up the foregoing advertisement of sale at the following places: (Jiere describe the places zvlierc the notice zvas set up). the same being five public places in the County of Essex and State of New Jersey, one whereof was at , in the township (ward or city) of in said county, in which township (or zvard or city) the real estate described in said advertisement of sale is situate. Subscriljed and sworn to this' ,f^yf ;:-;--kT"^ Richard Doe. i(). . ., at Newark. N. J., before me, . J. C. F., Notarv Public of N. T- Sale of Lands for Debts. 1107 Form 154. Notice of Intention to Present Report of Sale. [See Orphans' Court Rule 35. page 510. supra.] Essex Couxtv Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Notice of Intention to Make Report of Sale. To Mary Doe and James Doe : You are hereby notified that pursuant to an order of the Orphans' Court of the County of Essex, I have sold the fol- lowing described lands of the estate of John Doe, deceased^ for the payment of his debts, to , for the sum of .... dollars, the said lands so sold by me being situated (Jicrc briefly describe the lands), and that on the day of , 19.., I shall present my report of such sale to the said Orphans' Court, and apply for an order confirming the same. Richard Doe, Administrator of the estate of John Doe, deceased. Dated Newark, N. J. , , I9--- For proof of service, see Form 38. This notice is necessary unless the consent of all persons in interest is endorsed upon the report. This notice must be served on residents of this state five days before its return and upon non-residents not less than five or more than sixty days as the court may by order direct. Form 155. Petition for Order Designating Method of Service Upon Non-Resident Parties in Interest. [.See Orphans' Court Rule 35, page 510, supra.] Essex County Orphans' Court. iio8 Probate; Law and Practice. In the matter of the estate of | On Petition for Sale of John Doe, deceased. ( Lands to Pay Debts. Petition for Order Designating Method of Service upon Non-Residents. To the Orphans' Court of the County of Essex : The petition of Wilham Doe of the of in the County of and State of respectfully shows that : 1. Your petitioner is the executor of the last will and tes- tament of John Doe, late of the County of Essex, rleceased, and on the day of , 19. . , pursuant to an order of this court made on the day of , 19. • , sold certain lands of the said John Doe for the payment of his debts. 2. Your petitioner is about to make report of the aforesaid sale to this court for confirmation and has ascertained that certain persons in interest reside without the state of New Jersey, to wit : James Doe, who resides at No , Street, in the City of St. Louis, in the state of Missouri ; and Edith Doe, who resides at No , Street in the City of St. Petersburg, in the State of Florida. The said Edith Doe is an infant of the age of eighteen years, who resides with her grandmother, Mary Doe. No guardian has been appointed for the said Edith Doe so far as your petitioner has been able to ascertain. Your petitioner therefore prays that this court may by order direct what notice of the presentation to this court of your petitioners' aforesaid report of sale shall be given to the said persons in interest. Dated Newark, N. J., ^^^^^^^^^ ^^^ , i9--- State of New Jersey, County oe Essex. - J William Doe, being duly sworn according to law upon his oath deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Sale of Lands for Debts. 1109 Subscribed and sworn to this"^ dav of „. ^ ^ ^. ' I X- T 1 r r ^^ JLIJAM DOK. 19.., at Aewark, A. j.. betore ( me, J. C. F., Notary Public of N. ]. J Form 156. Order Designating Method of Service upon Non- Resident Parties in Interest. [See Orphans' Court Rule 35, page 510, supra. J Essex County Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe, deceased. J Lands. Order] Dcs{g)iatiii(j Metliod of Service Upon Non-Residcnts. It appearing from the petition of William Doe filed herein that he is the executor of the last will and testament of John Doe, deceased ; that pursuant to an order of this court made on the day of , 19. . . , he has sold certain lands of the said John Doe, deceased, for the payment of his debts and that he is about to make report of said sale to this court for confirmation, and it further appearing that James Doe, who resides at No Street, in the City of St. Louis in the State of Missouri and Edith Doe, who resides at No , Street in the City of St. Petersburg, in the State of Florida, are interested herein and that the said Edith Doe is a minor of the age of eighteen years and resides with her grandmother, Mary Doe, at the aforesaid address, and it ajjpearing that no guardian has been appointed for the said Edith Doe. It is on this day of nineteen hundred and , Ordered that the said William Doe, executor as afore- said, give at least thirty days' notice of his aforesaid applica- tion, to the said James Doe by mailing a copy of said notice addressed to him at his aforesaid residence or usual place of abode with the j^ostage thereon ])repaid. and that he give like notice to the said Edith D(je by mailing a copy of said notice mo Probate Law and Practice. addressed to the said Edith Doe and also one addressed to Mary Doe with whom she resides addressed to them at their aforesaid residence or usual place of abode with the postage thereon prepaid. W. P. M., Judge. Form 157. Report of Sale of Lands Made by an Executor, Ad- ministrator or Guardian, at Public Sale. [See Orphans' Court Act, section 85, page 509, supra, and Orphans' Court Rules 34 and 35, page 510, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Report of Sale. To the Orphans' Court of the County of Essex : In pursuance of an order of this court made in the above entitled matter on the day of 19. . . , direct- ing the subscriber, the administrator of the estate of John Doe. deceased, to sell certain lands of the said John Doe, deceased, for the payment of his debts, which lands are described as follows: {Here insert description of lands). I do hereby report that I did give notice that the said lands and premises would be exposed for sale at public vendue on the day of , 19. . . , at .... o'clock in the afternoon, upon the said premises, by public notices, signed by myself, and set up at five or more public places in the County of Essex, one whereof was in the Township of {or ivard, if in a city), in which the said real estate is situate, at least four weeks before the time appointed for the sale of the same, and also by publishing said notice in the ........ and , two of the newspapers printed and published in the said County of Essex, in which the said real estate is situ- ated, of which one was a newspaper published at the City of Newark, County of Essex and State of New Jersey, being the county seat of {or largest municipality in) the said County of Sale of Lands for Debts. iiii Essex, for four weeks successively, once in each week next preceding the time appointed for the said sale. And I further report that at the time and place so appointed and advertised. I did publicly adjourn the said sale until the day of , 19. . , at the hour of in the forenoon, 'and at the time and place to which the said sale was adjourned, as aforesaid, did expose the said lands and premises to sale at public vendue to the highest bidder, and then and there bidding for the same the sum of dollars, and no one else bidding so much or more for the same, the said tract of land and premises was thereupon struck off and sold by me to the said , at the price aforesaid. I do further report that the persons interested in the said lands so sold by me as aforesaid are as follows, to wh : Mary Doe, a sister of intestate, who resides at Number Street, in the of , in the County of , and State of and James Doe, a brother of intestate, who resides at Number Street, in the City of , in the County of and State of All of the aforesaid persons in interest are of full age with the exception of the aforesaid James Doe, who is a minor of the age of . . years and who resides with his sister. Mary Doe, at her above named residence and due notice of my inten^ tion to present this report has been given to all of the aforesaid persons in interest, ( or all of the said persons in interest have consented to the confirmation of said sale as by their consents hereunto annexed ivill more fully appear). Respectfully .submitted this day of 19. . . Richard Doe, Administrator of the Estate of John Doe, deceased. State of New Jersey, County of Essex. 1 Richard Doe, being duly sworn according to law upon his oath, deposes and says that he is the administrator in the fore- going report named, and that the matters and things therein contained are true to the best of his knowledge and belief. 1 1 12 Probate Law and Practice. Richard Doe. Subscribed and sworn to this^ day of 19... at Newark, N. J., before me. J. C. F., Notary Public of N. J. For form of notice of application, see Form 154, supra. '1 Form 158. Affidavit of Value of Lands Sold by Order of Court. [See Orphans' Court Rule 34, pdge 510, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Affidavit of Value of Lands. State of New Jersey, - 3 County of Essex. A. B., being duly sworn according to law upon his oath deposes and says that he now is and for .... years last past has been in the real estate business in the of \ . ., in the County of Essex aforesaid and that he has inspected the property described in the foregoing report. Your deponent further says that he is familiar with the value of property in the neighborhood wherein the aforesaid lands are located, and that in his opinion the sum of dollars is the fair market value of the aforesaid lands. Subscribed and sworn to this' day of (^ ^ g 19. ., at , N. J., before me, Q. R. Z. Notary Public of N. J. The affidavits of at least two persons familiar with the value of property in the neighborhood where the lands sold are located are required. Sale of Lands for Debts. 1113 Form 159. Order Confirming Public Sale of Lands by Executor, Administrator or Guardian. [See Orphans' Court Act. section 85. page 509. supra, and Orphans' Court Rules 34 and 35, page 510, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. J Lands to Pay Debts. Order Confirming Sale of Lands. Upon reading and tiHng a report bearing date the day of , 19. . ., made in the above stated matter by Richarci Roe, administrator of the estate of John Doe, de- ceased, of the sale of lands made by him piu'suant to an order of this court made on the day of , 19. . ., which lands are described as follows: {Here insert description of lands as in report of sale). And it appearing by said report that the said administrator duly advertised the time and place of said sale according to law and did at the time and place so advertised sell the same at public vendue to the highest bidder ; and that bidding therefor the sum of dollars, and being the highest bidder for the same, the said premises were then and there struck off and sold to the said And it further appearing that due notice of his intention to make the aforesaid report was given by the said adminis- trator to all persons in interest {or that all persons in interest have dnlx consented to the confirmation of said sale as by the consents annexed to the report of sale filed herein ivill more fully appear), and no cause being shown or appearing against confirming the said sale. It is thereupon, on this day of one thou- sand nine hundred and Ordered, Adjudged and De- creed that the said sale be and the same hereby is confirmed as valid and efifectual in law ; and it is further ordered that the said Richard Doe, administrator as aforesaid, execute good and sufficient conveyances in tiie law to the said 1 1 14 Probate Law and Practice. for the said land so purchased by him as aforesaid, upon his complying with the conditions of said sale. W. P. M,, Judge. For form of deed see Form i6o. Form i6o. Deed for Land Sold by Executor or Administrator at Public Sale. [See Orphans' Court Act, section 94, page 514, supra.] This indenture, made on the day of , in the year of our Lord, one thousand nine hundred and , between William Doe of the of , in the County of , and State of the administrator of the estate of John Doe, late of the County of Essex, deceased, party of the hrst part, and James Smith, of the of in the County of and State of , party of the second part : WITNESSETH, That the said party of the first part, by virtue of an order of the Orphans' Court of the County of Essex, in the State of New Jersey, made on the day of , in the year of otu' Lord, one thotisand nine hun- dred and , of the term of in said year, having first advertised the same according to law. did sell the lands hereinafter described at public vendue to the said party of the second part, he being the highest bidder therefor. for the sum of dollars, and did report the said sale to the said Orphans' Court which by its order made on the day of in the year of our Lord, one thousand nine hundred and did confirm the aforesaid sale, and did order and direct the said party of the first part to execute a good and sufficient conveyance in the law to the said party of the second part for the same. Now This Indenture Witnesseth, That the said party of the first part, administrator, as aforesaid, in consideration of the sum of Dollars, to him paid by the said party of the second part, the receipt whereof is hereby acknowl- edged, does grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns. "all that certain tract Sale of Lands for Debts. 1115 or parcel of land and i)reniises, hereinafter particularly de- scribed, situate, lying- and being in the of in the County of , and State of {here insert de- scription of lands). Together with the hereditaments and appurtenances thereunto belonging; to have and to hold unto the said party of the second part, his heirs and assigns to the only proper use of the said party of the second part, his heirs and assigns forever, according to the form of the statute in such case made and provided. In Witness \\'herEof, the said party of the first part as such administrator as aforesaid, hath hereunto set his hand and seal the day and year first above written. Signed. Sealed and Delivered "| William Doe. in the presence of j Administrator of the Estate of John Doe. deceased. Annex acknowledgment as in Form 8a. VI. PROCEEDINGS ON SALE OF LAND AT PRIVATE SALE. Form 161. Report of Sale of Land at Private Sale by Executor, Administrator or Guardian. [See Orphans' Court Act, section 85. page 509, supra; 4 Comp. Stat., page 4686, section 31. page 505, supra; and Orphans' Court Rules 34 and 35, page 510. supra.] Essex Countv Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. ( Lands to Pay Debts. ) On P( i Lands Report of Sale. To the Orphans' Court of the County of Essex: In inirsuance of an order of this court made in the above entitled matter on the day of 19. . . , direct- ing the subscriber, tlie administrator of the estate of John Doe. deceased, to sell certain lands of the said John Doe, deceased, for the payment of his debts, which lands are described as follows: (Here insert dcscriplion of lands). Jii6 Probate Law and Practice. I do hereby report that I have entered into a contract with one John Jones for the sale of said lands to him for the sum of dollars, subject to the confirmation of said sale by this court, and I further report that the persons interested in the said lands so sold by me as aforesaid are as follows, to with : Mary Doe, a sister of intestate, who resides at Number . . . . , Street, in the City of , in the County of and State of and James Doe, a brother of said intestate, who resides at Number . ';:'v'," V Street, in the City of in the County of and State of The said Alary Doe is of full age and the said James Doe is a minor of the age of i6 years and resides with his sister Mary Doe, who stands in loco parentis to him, at her aforesaid address. Due notice of my intention to make this report has l^een duly given to all of the aforesaid persons interested, (or all of the said persons in inter- est haz'e consented to the confirmation of said sale, as by their consents hereunto aniie.ved will more fully appear.) Respectfully sul)mitted this day of , 19. . .. Richard Doe. State of New Jersey, ) County of Essex. j Richard Doe, being duly sworn according to law upon liis oath, deposes and says that he is the person in the foregoing report named and that the matters and things therein contained are true to the l)est of his knowledge and belief. Richard Doe. Subscribed and sworn to this" day of , 19.., at Newark, N. J., before | me, j F. R. S., Notary Public of N. J. There should be annexed to this report the affidavits of two persons familiar with the value of the property, see Form 158, supra. Five days notice of the presentation of this report must be given to all persons in interest who are residents of this state, unless their consent to the sale is indorsed on the report and Sale of Lands for Debts. 1117 not less than five nor more than sixty days' notice upon non- residents as the court may by order direct. For form of notice see Form 154, for petition and order directing service on non-residents see Forms 155 and 156. Form 162. Order Confirming Sale of Lands at Private Sale by Executor, Administrator or Guardian. [See Orphans' Court Act, section 85, page 509, supra; 4 Comp. Stat., page 4686, section 31, page 505, supra; and Orphans' Court Rules 34 and 35. page 510, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Sale of John Doe. deceased. j Lands to Pay Debts. Order Confirming Sale of Lands. Upon reading and filing a report bearing date the day of , 19.., made in the above stated matter by Richard Doe, administrator of the estate of John Doe, de- ceased, of the sale of lands by said administrator pursuant to an order of this court made on the day of , 19. ., which said lands are described as follows: {Here insert description of lands as in report of sale.) And it appearing by said report that the said administrator has entered into contract with one John Jones for the sale of said lands for the sum of dollars, subject to the con- firmation thereof by this court, and it appearing that due notice of his intention to make the aforesaid report to this court was given by the said administrator to all persons in interest (or that all persons in interest have consented to the confirma- tion of said sale, as b\ their conscnis thereto anne.xed zvilL more fully appear) ; and the court ])eing satisfied that the price for which the aforesaid lands were sold by the said administrator was a fair ])ricc. and that the said sale is not injurious to the interests of the parties concerned herein, and no cause l)eing shown or appearing against confirming such sale. iii8 Probate Law and Practice. It is thereupon, on this day of , One thou- sand nine hundred and , Ordered, Adjudged, and Decreed, that the said sale be and the same hereby is con- firmed as valid and effectual in law ; and it is further ordered that the said Richard Doe, administrator as aforesaid, execute good and sufficient conveyances in the law to the said John Jones for the lands so purchased by him as aforesaid, upon his complying with the conditions of said sale. W. P. M., Judge. For form of Deed, see Form 163. Form 163. Deed of Administrator for Land Sold at Private Sale. [See Orphans' Court Act, section 94, page 514, supra. ]^ This Indenture, Made the day of in the year of Our Lord, one thousand nine hundred and , between William Doe, of the of , in the County of and State of , the administrator of the estate of John Doe, late of the County of Essex, de- ceased, party of the First Part ; and James Smith, of the of , in the County of and State of party of the Second Part ; Witnesseth, That whereas the said party of the first part, by virtue of an order of the Orphans' Court of the County of Essex, in the State of New Jersey, made on the day of , in the year of Our Lord one thousand nine hundred and , of the term of in said year, did sell the land hereinafter described, to the said party of the sec- ond part, at private sale, for the sum of Dollars, and did report the said sale to the said Orphans' Court, which, by its order made on the day of , in the year of Our Lord, one thousand nine hundred and did duly confirm the said sale and did direct the said party of the first part to execute a good and sufficient conveyance in the law to the said party of the second part for the same. Now This Indenture Witnesseth, That the said party of the first part, administrator as aforesaid, in consideration of the sum of dollars to him paid by the said party of the second part, the receipt whereof is hereby acknowledged. Sale of Lands for Debts. i 1 19 does grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns, all that certain tract or parcel of land and premises, hereinafter particularly described, situate, lying and being in the of , in the County of and State of (Insert description of laiids as in order.) Together with the hereditaments and appurtenances there- unto belonging ; to have and to hold unto the said party of the second part, his heirs and assigns to the only proper use of the said party of the second part, his heirs and assigns for- ever, according to the form of the statute in such case made and provided. In Witness Whereof, the said party of the first part, as such administrator as aforesaid, hath hereunto set his hand and seal the day and year first above written. Signed, sealed and delivered | William Doe (L. S.) in the presence of i- Administrator of the estate of X. Y. J John Doe, deceased. State of New Jersey, | County of Essex, j Be It Remembered, That on this day of , in the year of Our Lord one thousand nine hundred and . . . ., before me, the subscriber, a Master in Chancery, of New Jer- sey, personally appeared William Doe, the administrator of the estate of John Doe, late of the County of Essex, deceased, who, I am satisfied is the grantor in the within Deed of Con- veyance named ; and I, having first made known to him the contents thereof, he did thereupon acknowledge that he signed, sealed and delivered the same as his voluntary act and deed, for the uses and purposes therein expressed. X. Y., Master in Chancery of N. J. 72 1 120 Probate Law and Practice. VII. PROCEEDINGS BY JUDGMENT CREDITOR OF HEIR FOR PAYMENT OF JUDGMENT FROM SURPLUS PROCEEDS OF SALE. Form 164. Petition of Judgment Creditor of Heir for Payment of Judgment from Surplus Proceeds of Sale of Lands to Pay Debts. [See Orphans' Court Act, section 96, page 518, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Sale of John Doe, deceased. j Lands to Pay Debts. Petition of Judgment Cred- itor for Payment of Judg- ment from Surplus Pro- ceeds. To the Orphans' Court of the County of Essex: The petition of William Roe, of the of , in the County of and State of respectfully shows that : 1. James Doe, the administrator of the estate of John Doe, late of the County of Essex aforesaid, deceased, was, by an order of this court made on the day of , 19. . ., ordered to sell certain lands in said order particularly described whereof the said John Doe died seized, for the payment of the debts of the said John Doe, deceased ; and the said James Doe has duly sold the said lands in pursuance of the aforesaid order of this court. 2. The said James Doe, administrator as aforesaid, has stated and settled his final account as such administrator in the office of the Surrogate of the County of Essex, and the said account was duly allowed by this court by its decree made on the day of ^9- ■ • , and on such settlement of the accounts of the said James Doe, administrator as afore- said, a surplus amounting to the sum of dollars re- mains from the sale of said lands in the hands of the afore- said administrator, after the payment of the debts of the said John Doe, deceased, to be distributed among the heirs of such intestate. Sale of Lands for Debts. 1121 3- <^)'i the day of 19. . .. your pctitioner reco\ered a judgment in the Supreme Court of New Jersey for dollars damages and costs against Henry Doe, one of the heirs at law of the said John Doe, deceased, who, as such heir, is entitled to a portion of the aforesaid surplus from the sale of the lands of the said John Doe, deceased, as aforesaid. No part of your petitioner's aforesaid judgment has been paid, but the whole thereof is still due and owing. Your petitioner therefore prays that an order may be made directing James Doe. administrator as aforesaid, to pay your petitioner's aforesaid judgment out of the share of the said Henry Doe in said surplus, to which said Henry Doe is so entitled, against which the same is a lien, in the same order of priority as if said share of the said Henry Doe in said lands had been owned by him in severalty and the same had l)een sold under execution. Dated Newark, N. J., William Roe. > 9 ly... State of New Jerssjy, | County of Essex. j William Roe. being duly sworn according to law u])on his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things contained therein arc true to the best of his knowledge and belief. WirjjAM Roe. Subscribed and sworn to this day of , 19.., at Newark, N. J., before me, J. C. F., Notary Public of N. J. Five days' notice of this application should be gi\cn {o the administrator and to the judgment debtor. For form of notice sec l^'orm 214. for proof of service I'orm 38. 1 122 Probate Law and Practice. Form 165. Order Directing Payment of Judgment Against Heir of Intestate from Surplus Proceeds of Sale of Lands for Pay- ment of Debts. [See Orphans' Court Act, section 96, page 518, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Sale of Lands to Pay John Doe, deceased. f Debts. Order Directing Payment of Judgment from Sur- plus Proceeds. It appearing from the petition of WilUam Roe, filed herein, that lands of John Doe, late of the of , in the County of have been sold by James Doe, adminis- trator of the estate of the said John Doe, deceased, by order of this court made on the .... day of , 19. . . , for the payment of the debts of the said John Doe, deceased, and it further appearing from the final account of said James Doe, as such administrator, which account was duly allowed by this court by its decree made on the day of , 19. • • , that there remains in the hands of the said James Doe, ad- ministrator as aforesaid, after the payment of the debts of the said John Doe, deceased, a surplus of the proceeds of sale amounting to the sum of dollars, to be distributed among the heirs of such decedent; and it further appearing that William Roe, the petitioner herein, on the day of , 19. - ., recovered a judgment in the Supreme Court of New Jersey for . dollars damages and costs against Henry Doe, one of the heirs at law of the said John Doe, deceased, who, as such heir, is entitled to a portion of the aforesaid surplus from the aforesaid sale of the lands of said decedent, and that no portion of said judgment has been paid, but that the whole thereof remains due and owing, and due notice of this application having been given to the said Henry Doe, heir at law, and James Doe, administrator as aforesaid, and no reason appearing or being alleged to the contrary. It is thereupon, on this day of , 19. . , or- dered that James Doe, administrator as aforesaid, pay to FULFII^LMENT OF DECEDEXT's CONTRACT. II23 the said William Roe, the petitioner herein, his aforesaid judg- ment out of the proceeds of the sale of such share of the afore- said estate against which the same would be a lien, had such share been owned in severalty by the aforesaid James Doe. and in the same order of priority as if sold under execution. W. P. M., Judge. MISCELLANEOUS PROCEEDINGS RESPECTING LANDS. I. FULFILLMENT OF CONTRACT OF DECEDENT. Foem 166. Petition for Fulfillment of Contract of Decedent for Sale of Lands. [See Orphans' Court Act, section 154, page 427, supra, and P. L. 1915, p. 41, page 428, supra.] Essex County Orphans' Court. In the matter of the estate ofl O" Petition for Fulfillment John Doe, deceased. Y f ^^''^''''' °^ Decedent J for Sale of Lands. Pet il ion. To the Orphans" Court of the County of Essex : The petition of X. Y., of the of in the County of and State of respectfully shows that : 1. John Doe, late of said County (jf Essex, deceased, in his lifetime, to wit, on or about the day of 19. . ., made an agreement for the sale and conveyance to your petitioner of the following described lands, tenements and hereditaments within this county and state, to wit: {Describe the lands). 2. On the day of , 19. . .. petitioner ])ai(l to the said John Doe the sum of dollars, beini;- the i)ur- chase price of the aforesaid premises, and he was thereupon placed in the possession of such lands, tenements, and heredit- aments by the said John Doe, (or the said .1 ohu Doe made a 1124 Pkouatl; Law axd Practice. contract in zcriting for the sale or conveyance to yonr pe- titioner of certain lands 7vithiii this state, icliich contract is of tJie tenor follozving, to i^'it: {Insert the contract.)) 3. The said John Doe died on the day of 19.., intestate, without having conveyed the aforesaid lands, to your petitioner, and letters of administration upon his estate have been duly granted by the Surrogate of the County of Essex to William Doe. Your petitioner therefore prays that this court may decree the fulfillment of the said contract, and order the said William Doe. administrator as aforesaid, to make a good and sufficient deed of conveyance to the said X. Y., according to the form of the statute in such case made and provided. Dated Newark, N. J. X. Y. , I9--- State of New Jersey RSEV, ") County oe Essex. X. Y.. being duly sworn according t(j law upon his oath. deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. Sul)scribed and sworn to this^ day of IQ. ... at Newark. N. J., before me. J. C. F., Notarv Public of N. J ^ X. Y Form 167. Order Fixing Time for Hearing and Directing Notice. [See P. L. 1915, page 41. page 428, supra.] Essex County Orphans' Court. ^ . , . 1 On Petition for Fulfillment In the matter of the estate of . ^ ^ ^ , t-. , ^ r , T^ , , r of Contract of Decedent lohn Doe, deceased. . ^ 1 c r j J for Sale of Lands. Order Fixing Day for Hearing. FULFILLMKXT OF DECEDEXT's CoXTRACT. I 1 25 L'pon reading and tiling the petition of X. Y. for the fulfill- ment of a certain contract in writing for the conveyance of certain lands in said petition particularly described between the said X. Y. and John Doe, late of the County of Essex, deceased, and praying that William Doe, the administrator of the estate of the said John Doe, deceased, may be directed to fulfill the aforesaid contract and to make a good and suflficient deed of conveyance for the said land to the said X. Y\ It is thereupon on this day of one thou- sand nine hundred and , ordered that the day of , 19. . . , at ten o'clock in the fore- noon, at the Court House in the City of N^ewark. be and the same herebv is fixed as the time and place to hear the afore- said application of the said X. Y., and it is further ordered that notice of said application be published in two newspapers published in the County of Essex and posted for the time and in the manner as advertisements for the sale of lands by a Sheriff under execution are by law required to be set up and published. W. P. M., Judge- Form 168. Notice of Application for the Fulfillment of Contract of Decedent for Sale of Lands. [See P. L. 1915. page 41, page 428. supra.] Pursuant to an order of the Orphans' Court of the County of Essex made on the day of • ly. . . . , notice is hereby given that the day of , 19. . . ., at 10 a. m., at the Court House in the City of Newark, has been fixed by said court for the hearing of the application of the subscriber for an order for the fulfillment of a written contract made and entered into by John Doe, late of said County of Essex, deceased, in his lifetime, for the sale to the subscriber of a certain tract of land, to wit: {Describe the land). Dated Newark, N. J.. X. Y. - ....".., i9..- The above notice must l)c set up and published in the same manner as advertisements for the sale of lands bv a sheriff TI26 Probate Law and Practice. under execution are required to be set up and published. For form of proof of publishing and posting, see Forms 152 and 153. Form 169. Decree for Fulfillment of Contract of Decedent for Sale of Lands. [See Orphans' Court Act, section 154. page 427. supra, and P. L. 1915, p. 41, page 428, supra.] Essex County Orphans' Court. T . ^, - ^, ,^ On Petition for Fulfillment in the matter ot the estate of ^ ^ r t^ , T , r^ J J roi Contract of Decedent )ohn Doe, deceased. ( . ^ , J for bale of Lands. Decree for FitlfiUiiiciit of Contract. A petition having been presented to this court by X. Y., praying for the fulfillment of an agreement made by John Doe, late of , deceased, who departed this life on the day of , 19. . ., for the sale and conveyance of certain lands, tenements, and hereditaments within this State to the said X. Y., and it appearing that by its order made on the day of , 19. . ., this court fixed the day of , 19. . . , at 10 a. m., at the Court House in the City of Newark as the time and place for hearing this matter and it further appearing that notice of said application and of the time and place fixed for hearing the same was duly given for at least two months prior to the day fixed by this court for hearing this matter as aforesaid by adver- tisements set up and published in the same manlier as advertise- ments for the sale of lands by a sherifif under execution are required to be set up and published, and on the day last afore- said the court having heard the allegations and objections of the parties interested and it being duly proved to the satis- faction of the court that the said John Doe, late of , deceased, in his lifetime, to wit, on the day of 19. . ., made an agreement for the sale or conveyance of certain lands, tenements and hereditaments within this state to X. Y.. Sale of Lands r.v Administrator c. t. a. 1127 to wit, [hiscrt description of livuis) ; that the purchase price of said lands was duly paid therefor by the said X. Y., and that the said purchaser was placed in the possession of such lands, tenements and hereditaments by the said John Doe, deceased, and that the application for this order was made within five years from the making of such agreement, {or that the said John Doe, late of ,, deceased, in his lifetime, to icif, on the day of , ^9- -, made a certain contract in li'riting for the sale or conveyance to X. Y., of certain lands within this State ivhich contract is in the tenor follozi'iiu/. to zcit: [insert the contract), and that the application for this order -was made -within fi-c'e years from the date of such co)i- tract), and no sufhcient cause appearing to the contrary. It is thereupon on this day of , 19. . , or- dered, adjudged and decreed that the aforesaid contract ( or agreement) be fultilled, and that the said William Doe, ad- ministrator as aforesaid, make a good and sufhcient deed of conveyance to the said X. Y. of the lands herein above de- scribed, (or and it is further ordered that upon the purchase money of said lands, tenements and hereditaments being paid by the said X. Y., to the said William Doe, administrator of the said John Doe, deceased, in manner follonnng, that is to say (as required in the contract), that the said William Doe, ad- ministrator of the estate of the said John Doe, deceased, make a good and sufficient deed of conveyance to the said X. Y., for the above-described lands) according to the statute in such case made and provided. W. P. Al., Judge. II. SALE OF LANDS BY ADMINISTRATOR WITH THE WILL ANNEXED UNDER POWER OF SALE CON- TAINED IN WILL. Form 170. Petition of Administrator for Approval of Sale. [See 2 Comp. Stat., page 2263, section 14, page 446, supra; and Orphans' Court Rules 33, 34, and 35, page 446, supra.] Essex County Ori^hans' Court. 1128 Probate Law and Practice. -N In tlie matter of the estate of Tolm Doe, deceased. On Petition for Approval of Sale of Lands by Ad- ministrate Annexed. ministrator with the \Vill Petition. To the Orphans' Court of the County of Essex : The petition of X. Y., of the of in the County of and State of , respectfully shows that : 1. John Doe, late of the of in the County of and State of , departed this life, leaving a last will and testament, wherein he constituted and appointed William Doe sole executor thereof, which will was duly ad- mitted to probate on the day of , 19. . , and letters testamentary thereon duly issued to the said William Doe, the executor therein named, by the Surrogate of the County of Essex. 2. The said John Doe, in and by his said will invested the said William Doe, executor as aforesaid, with power and au- thority to sell and convey any and all the lands of which said testator died seized, in manner and form as follows: (here insert pozuer of sale as contained in 7vill). 3. On the day of 19. . , the said William Doe, executor as aforesaid, died, and on the day of 19. ., letters of substitutionary administration with the will of the said John Doe, deceased, annexed, were duly issued by the Surrogate of the said County of Essex to your petitioner, who thereupon duly entered into bond to the Ordi- nary in the sum of dollars, with sureties appjroved by said Surrogate and with condition prescribed by law. 4. The said John Doe died seized of a certain tract of land in the of in the County of Essex and State of New Jersey, to wit: {describe the land ivhich the adtninis- trator desires to sell) which said land consists of a vacant building lot (or otherwise as the case may he). 5. A. B. has recently offered your petitioner the sum of dollars in cash for the premises hereinbefore described, and has made a deposit of dollars on account of the Sale of Laxds by Admixistrator c. t. a. 1129 same, and your petitioner, after making diligent inquiry among persons acquainted with the vahie of real estate in that vicinity, and being advised that the said sum of .... dollars offered by the said A. B., as aforesaid, is a fair and full price for said premises, has accepted the same, subject to the approval of this court. 6. The names of all persons interested in the above de- scribed lands are as follows: Mary Doe, the widow of said testator, who resides at No Street, in the City of in the County of and State of and the following named children of the said testator, to wit : Henry Doe. who resides at No. ... Street, in the City of in the County of , and State of and James Doe. who resides at No Street, in the of , in the County of and State of All of the aforesaid persons in interest are of full age, and have been duly served with notice of this application ( or have con- sented to the aforesaid sale, as by their consent hereunto an- nexed zinll more fully appear). 7. The personal property of the estate of the said John Doe. deceased, now in the hands of your petitioner as such adminis- trator amounts in value to the sum of dollars. Your petitioner therefore submits the terms of the proposed sale of said lands to this court for its approval, and prays that an order may be made authorizing him as substitutionary administrator with the will annexed of the said John Doe, deceased, to execute a deed of conveyance to the said A. B. for the above described premises for the above-named con- sideration. Dated Newark, N. J. V \- '9-- State ov New Jersen', ) County of Essex. | X. \ ., being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things contained there- in are true to the best of his knowledge and belief. 1 130 Probate Law and Practice. Deponent further says that the value of the estate of the said John Doe, deceased, now in his hands will not exceed the sum of dollars. X. Y. Subscribed and sworn to this"" day of , 19..., at Newark, N. J., before me, J. C. F., Notary Public of N. J. Annexed to this petition should be the affidavits of two real estate agents giving the value of the property to be sold (see Form 158, supra). Orphans' Court Rule 35 requires that at least five days notice of applications of this character be given to all persons in interest residents of New Jersey, and not less than five nor more than sixty days notice, as the court may by order direct, to non-residents, which last notice may be sent by mail. For form of notice see Form 154, for form of petition and order directing methods of service on non-residents, see Forms 155 and 156. Form 171. Order Confirming Sale of Lands by Administrator With the Will Annexed. [See 2 Comp. Stat., page 2263, section 14, page 446, supra; and Orphans' Court Rules 33, 34, and 35, page 446, supra.] Essex County Orphans' Court. -\ In the matter of the estate of John Doe, deceased. On Petition for Approval of Sale of Lands by Ad- ministrator with the Will Annexed. Order Confirming Sale. A petition having been presented to this court by William Doe, substitutionary administrator with the will annexed of John Doe, deceased, submitting a sale made by the said Wil- ham Doe of certain lands of the said John Doe, deceased, hereinafter described, to this court for its approval and it Sale of Lands by Administrator c. t. a. 1131 appearing that due notice of this application lias been given to all persons interested in said lands {or that all persons in- terested in said lands have duly consented to the sale thereof as by their consent annexed to the petition filed herein will more fully appear), and this court being satisfied with the terms of said sale, and that the sum of dollars offered for said lands is a full and fair price for the same. It is thereupon, on this day of , 19. ., or- dered that the aforesaid sale of the lands and premises in said petition described, to wit : (describe the lands as in the peti- tion ) made by the said William Doe, administrator as afore- said, to A. B., for the sum of .... dollars, be and the same is hereby approved and confirmed pursuant to the statute in such case made and provided. And the court having examine/1 into the amount of the bond given by said administrator, and being of the opinion that it is not sufficient to secure the proceeds of the sale of the afore- said lands, it is further ordered that the said William Doe. administrator as aforesaid give additional security as such administrator by entering into bond to the Ordinary in the sum of dollars, with two or more sureties, with condi- tion according to law, which said bond shall be approved by this court. W. P. M., Judge. For form of bond see Form 15. Form 172. Deed by Substituted Administrator c. t. a. [vSee 2 Comp. Stat., page 2263, section 14. page 446, supra; and Orphans' Court Rules 33, 34 and 35. page 446, supra.] This Indenture made the day of in the year of Our Lord, one thousand nine hundred and be- tween W. G. C, of the of in the Countv of and State of Substituted Administrator with the Will Annexed of P. C, late of the of in the County of and State of deceased, party of the first i)art. and A. C. B., of the of in the County of , and State of , party of the second part ; 1 132 Probate Law and Practice. WITNESSETH — That Whereas, the said P. C, in and by his last will and testament bearing date of the day of , one thousand nine hundred and , duly ad- mitted to probate by the Surrogate of the County of on the day of one thousand nine hundred and , did appoint his wife, S. J. C, the executrix thereof, and did therein and thereby authorize and empower the aforesaid executrix to sell and convey in fee simple at public or private sale any parcel, for such price as she should deem expedient, of the real estate of which the said P. C. might die seized, wheresoever situate ; And Whereas, the said S. J. C, executrix as aforesaid, on the day of one thousand nine hundred and , after taking upon herself the burden of administering the said will, died, leaving certain property and assets of the estate of the said P. C. unadministered, and on the day of , by an order of the Surrogate of the County of Essex the said W. G. C, party of the first part, was duly appointed substitutionary administrator with the will of the said P. C, deceased, annexed, in the place and stead of the said S. J. C. ; ■ And Whereas, the said W. G. C, party of the first part, sold the lands hereinafter described to the said A. C. B., party of the second part, for the sum of dollars ; And Whereas, the said W. G. C, party of the first part, duly submitted the terms of said sale to the Orphans' Court of the County of Essex, which by its order made on the day of , one thousand nine hundred and , did approve and confirm the said sale pursuant to the statute in such case made and provided. Now This Indenture WitnessETh, that the said W. G. C, administrator as aforesaid, the said party of the first part, in consideration of the said sum of dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed and confirmed and by these pres- ents does grant, bargain, sell, alien, remise, release, convey and confirm unto the said party of the second part, his heirs and assigns forever, all that certain tract or parcel of land and Exchange of Lands. 1 133 premises hereinafter particularly described situate, lying and being in the City of- Newark, in the County of Essex, and State of New Jersey {here insert description of premises) : Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise ap- pertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, which the said testator had in his lifetime and at the time of his decease," and which the said party of the first part has,*in and to the above granted premises and every part or parcel thereof, with the appurtenances thereto. To Have and to Hold all and singular the above granted premises together with the appurtenances and every part there- of unto the said party of the second part, his heirs and assigns forever, according to the form of the statute in such case made and provided. And the Said Party of the First Part, for himself, his heirs, executors and administrators, does covenant, promise and agree to and with the party of the second part that he has not made, done or suffered any act. matter or thing what- soever as such substituted administrator with the will of the said P. C. deceased, annexed, as aforesaid, whereby the above granted premises or any part thereof are or may be impeached. charged or encumbered in any manner wliatsoever. In Witness Whereof the said party of the first part has hereunto set his hand and seal the day and year first above ^vritten. \V. G. C. [l. s.] Signed, sealed and delivered iiH Sul)stituted Administrator the presence of Lwith the Will Annexed of X. Y. J P. C. Decea.sed. Annex acknowledgment as in Form 8a. III. EXCHANGE OF LANDS BY EXECUTORS. Form 173. Petition for Order Authorizing Exchange of Lands. [.See I'. I,. 1912. (jagc 466, pa«c 437. sui^ra.] Essex Coitnt\- Orimians' Court. 1 134 Probate Law and Practice;. - , , , -"^ On Petition for Order In the matter oi the estate of „ ,, . t- i , r r , ^ , , yConnrmmff Exchangre of lohn Doe, deceased. I t i J Lands. Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of , in the County of Essex and State of New Jersey, respectfully shows, as follows : 1. Your petitioner is the executor of the last will and testa- ment of John Doe, late of the of a , in the County of Essex, and State of New Jersey, deceased. On the day of , 19.., the said will was duly admitted to probate by the Surrogate of the County of Essex, and let- ters testamentary thereon duly issued to your petitioner. 2. The said John Doe in and by his aforesaid will author- ized and empowered your petitioner to sell any and all of the lands whereof the said John Doe died seized, and to retain the proceeds from the sale of such lands and to expend the income arising therefrom for the support of James Doe, the infant son of said testator. 3. The only land whereof the said John Doe died seized is a certain tract of land in the City of Newark, in the County- of Essex aforesaid, bounded and described as follows: (Here insert description of land) ; said lands are worth, as your petitioner is reliably informed, the sum of dollars and consist of acres, are unencumbered, but unimproved and wholly unproductive of revenue, and your petitioner is without funds with which to pay the taxes thereon, or to pro- vide for the maintenance of testator's infant son as directed by his said will. 4. Your petitioner has been and is wholly unable to pro- cure a purchaser for said lands, or any part thereof, the said lands being so situate as to be valuable only in the hands of some person who would cut streets through the same and otherwise develop the same as a single tract ; and your peti- tioner is without funds to enter upon an enterprise of this character. 5. One James Smith, of the of in the County of and State of has ofifered to ex- Exchange of Lands. i 135 change certain lands owned by him in the City of Newark, in the County of Essex aforesaid, for the lands whereof the said John Doe died seized as aforesaid, the lands so owned by the said James Smith being described as follows : (Here insert description of lands). The above described lands are unencumbered, and are situ- ate in an attractive residential portion of the City of Newark aforesaid, and there are built thereon .... dwelling houses. which produce an annual net income of dollars, and are worth, as your petitioner, after a careful investigation of the matter, verily believes, the sum of dollars ; and your petitioner, believing that it would be to the advantage of the estate of the said John Doe. deceased, that the lands whereof the said John Doe died seized be disposed of by an exchange for the above described lands owned by lames Smith, as aforesaid, has entered into a contract with the said James Smith for such exchange, subject to the approval of this court. 6. The persons interested in this proceeding are , of the of in the County of . . . . . . and State of : of the of in the County of and State of and of the of in the County of and State of legatees and devisees named in the said last will and testament of John Doe, deceased : all of the foregoing are of full age. except who is a minor and resides with his father , at the above named address. Your petitioner therefore prays that this court may make its order approving and confirming such exchange and direct- ing the conveyance of the said lands whereof the said John Doe died seized to the said James Smith, upon the conveyance by him to your petitioner, executor as aforesaid, of the above described lands so owned by him. Dated Newark, N. J., Wiixiam Dok. , , I9--- State of New Jersey, ") County of Essex, j William Doe, being duly sworn according to law upon his 7Z 1136 Probate Law and Practice. oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are trne to the best of his knowledge and behef. Subscribed and sworn to this'^ day of , 19.., at Newark, N. J., before me. William Doe. J. C. F., Notary Public of N. J. Affidavits of two real estate agents as to the value of each of the two tracts of land should be annexed to the petition. See Form 158. Notice of this application should be given to all persons in interest, or the petitioner should obtain a rule requiring all persons in interest to show cause why such ex- change should not be made, which rule may be served in such manner as the court may direct. Form 174. Rule to Show Cause on Petition of Executor for Order Authorizing Exchange of Land. [See P. L. 1912, page 466, page 437, supra.] Essex County Orphans' Court. T ,, .. r ^t <- *. i^ ^" Petition for Order In the matter of the estate of ^ - . ^ , T 1 T> J , yConnrmmg Exchange of |ohn Doe, deceased. I t 1 J Lands. Rule to Show Cause. William Doe having presented his petition whereby it ap- pears that he is the executor of the last will and testament of John Doe, late of the County of Essex, deceased, and that in and by his aforesaid will the said John Doe authorized the said William Doe, as such executor, to sell any and all of the lands whereof the said John Doe died seized, and to retain the proceeds thereof upon certain trusts in said will created, and declaring and alleging that it would be to the advantage of the estate of the said John Doe, deceased, that certain lands whereof the said John Doe, deceased, died seized, be ex- Exchange of Lands. i 137 changed for lands owned by James Smith, which lands of the said John Doe. deceased, are bonnded and described as follows: {here insert description of lands). And it further appearing that the said William Doe. ex- ecutor as aforesaid, has entered into a contract with said James Smith for the exchange of the aforesaid lands of the said John Doe, deceased, for the said lands owned by the said James Smith, which said lands are described as follows: ^Iierc insert description of lands). And it further appearing that and and are the persons interested under the provisions of the will of the said John Doe, deceased. It is thereupon, on this day of 19. . , ordered that the aforesaid and and show cause before this court, on the day of- 19. ., at ten a. m., at the Court House in the City of Newark. why the aforesaid contract made by William Doe, executor as aforesaid, for the exchange of the above-described lands whereof the said John Doe died seized, as aforesaid, for the lands of James Smith, hereinbefore described, should not be confirmed. It is further ordered that a true but uncertified copy of this order and of the petition herein be served upon the said and and personally or by leaving a copy thereof at each of their residences or usual places of abode with some person over the age of fourteen years, within . . days from the date hereof. W\ V.M.. Judge. Form 175. Order Confirming Exchange of Land by Executor. [Sec P. I,. 1012, page 466, page 437, supra.] Essex County Orphans' Court. T , .1 ,, r ^1 ^ , rl On Petition for ( )r(ler In the matter of the estate of I _, . T i,„ 7>> 1 , >-Confirnnng Exchange of )ohn Doe, deceased. \ ^ ^ ^ J Lands. Order Confirming/ li.vchanfjc of Lands. 1 138 Probate Law and Practice. It appearing by the duly verified petition of William Doe, filed herein, that he is the executor of the last will and testa- ment of John Doe, deceased, and that in and by his said will the said John Doe conferred upon the said William Doe power and authority to sell any and all of the lands whereof the said John Doe died seized, and it appearing that the only lands whereof the said John Doe died seized consist of a tract of .... acres of unimproved lands, in the City of Newark, in the County of Essex aforesaid, and in said petition more par- ticularly described, and that the petitioner herein has been unable to sell the same, and is thus prevented from carrying out the terms of the will of the said John Doe. deceased. And it further appearing that the said petitioner has entered into a contract with one James Smith to exchange the afore- said lands, whereof the said John Doe died seized for certain lands owned by the said James Smith, in the of in the County of and State of New Jersey, and in said petition more particularly described, which said lands are pro- ductive of revenue, and it appearing that the rule to show cause made herein has been duly served and the court having ex- amined into the matter, and, after due consideration of the facts and circumstances of the case, being satisfied that it will be to the advantage of the estate of the said John Doe, de- ce'ased, that the aforesaid lands whereof the said testator died seized be disposed of by an exchange for the aforesaid lands owned by James Smith aforesaid. It is thereupon, on this day of , one thousand nine hundred and Ordered. Adjudged and Decreed. that the aforesaid contract entered into by the said William Doe, executor as aforesaid, with the said James Smith, for the exchange of lands as aforesaid, be and the same hereby is ap- proved and confirmed, and that the said William Doe, executor of the last will and testament of the said John Doe, deceased, convey the said lands whereof the said John Doe died seized to the said James Smith, which said lands are described as follows : {Here insert description of lands) upon the con- veyance by the said James Smith to the said W^illiam Doe, ex- Insolvent Estates. 1139 editor as aforesaid, of the following described lands: (Here insert dcscrif'tioii of lands). W. P. M., fudge. INSOLVENT ESTATES. Form 176. Application of Administrator Representing Estate to be Insolvent. [See Orphans' Court Act, section loo, page 584, supra.] Essex County Orphans' Coukt. In the matter of the estate of | On Petition for Decree of j Inso! Petitiun. John Doe, deceased. ( Insolvency. To the Orphans' Court of the County of Essex: The petition of William Doe, of the of , ., in the County of and State of , respectfully shows that : • Your petitioner is the administrator of the estate of John Doe, late of , deceased ; and according to the best of your petitioner's knowledge and belief the personal and real estate of the said John Doe, deceased, is insufficient to pay his debts. Your petitioner therefore prays that this court may, in pursuance to the statute in such case made and pro\ided, direct him to give public notice to the creditors of the aforesaid estate of John Doe, deceased, to exhibit to him their claims under oath or affirmation within such time as this court shall direct. Dated Newark, N. J., ,(^ William Doe. State of New Jersey, County of Essex. \ ss. William Doe. being duly sworn according to law ui)on his oath, deposes and says that he is the petitioner in the foregoing II40 Probate Law and Pi^actice. petition named, and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this~^ day of , 19.., at Newark, N. J., before me, J. C. F., Notary Public of N. J. For form of application in case a rule to limit creditors has been obtained see Form 179. Wieliam Doe. Form 177. Order Directing Administrator to Notify Creditors to Exhibit Claims. [See Orphans' Court Act, section 100, page 584, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Decree of John Doe, deceased. j Insolvency. Order Directing Notice, to Creditors. William Doe, administrator of the estate of John Doe, de- ceased, having by application in writing represented to this court on oath that according to the best'of his knowledge and belief the personal and real estate of the said John Doe, de- ceased, is insufficient to pay the debts of the said deceased. It is thereupon, on this day of , 19. . , or- dered, and the said William Doe, administrator as aforesaid, is hereby directed to give public notice to the creditors of the estate of the said John Doe, deceased, to exhibit to the said administrator under oath or affirmation their claims and de- mands against the said estate within six months from the date of this order, by setting up such notice in five of the most public places in the county for the space of two months, and also by advertising the same at least once in each week for the like period in , one of the newspapers printed in this State. W. P. M.. Judge. Insolvent Estates. 1141 Form 178. Notice to Creditors of Insolvent Estate to Present Claims to Administrator. [See Orphans' Court Act. section 100. page 584. supra; and Orphans' Court Rule 40. page 588. supra.] Pursuant to an order of the Orphans' Court of the County of Essex made on the day of 19. . , upon the application of William Doe, administrator of the estate of John Doe. deceased, notice is hereby given by the said William Doe, administrator as aforesaid, to the creditors of the said estate of John Doe, deceased, to exhibit to him under oath or affirmation their claims and demands against the said estate within .... months from the day of , 19. . , (the date of the order), or they will be forever barred from j)rosecuting or recovering the same. Dated Newark, N. J., William Doe, , , 19. . . Administrator. For proof of posting notice see Form 115, for proof of publication see Form 114. Form 179. Application of Administrator Representing Estate to be Insolvent in Case Rule to Limit Creditors Has Been Ob- tained. [See Orphans' Court Act, section 109, page 585, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Decree of John Doe, deceased. j Insolvency. Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of ....... in the County of and State of , respectfully shows that : Your petitioner is the administrator of the estate of John Doe, late of , deceased. On the day of 19..., the Surrogate of the County of Essex made an order directing him to give public notice to the creditors of the said estate to bring in their debts, demands and claims against the 1 1 42 Probate Law and Practice. said estate under oath within months from the date of said order ; and according to the best of petitioner's knowl- edge and behef the real and personal estate of the said dece- dent is insufficient to pay his debts. Your petitioner therefore prays that this court will decree the said estate of John Doe, deceased, to be insolvent, and for such other and further orders and decrees in the premises as are by law required and as to this court shall seem meet. Dated Newark, N. t., „, ^ William Doe. , 19---- State oe New Jersey, | County of Essex. j William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- tained therein are true to the best of his knowledge and belief. Subscribed and sworn to this^ day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. William Doe. Form 180. Order Fixing Time to Make Report of Claims. [See Orphans' Court Act, section 103, page 593, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Decree of John Doe, deceased. j Insolvency. Order Fixing Time to Make Report of Claims. It appearing that by an order of the Surrogate of the Coun- ty of Essex, made on the day of , 19. . ., Wil- liam Doe, administrator of the estate of John Doe, deceased, was directed to give public notice to the creditors of the estate Insolvent Estates. 1143 of the said John Doe, deceased, to bring in their debts, demands and claims against the said estate under oath, within months from the date of said order, and the said W'ilham Doe having by his petition hied herein, fepresented that, according to the best of his knowledge and belief, the real and personal estate of the aforesaid decedent is insufficient to {)ay his debts, and prayed that the aforesaid estate might be decreed insolvent. It is thereupon, on this day of i9- • • , or- dered that , the day of , 19. . . , be and the same hereby is fixed for the said administrator to make re- port to this court of the several claims and demands which may be exhibited against said estate, and to exhibit therewith under oath an accotmt of the moneys, goods, chattels, rights and credits of the said decedent which have come to his knowl- edge, hands or possession, and also an inventory of the real es- tate of said decedent which has come to his knowledge, and the value thereof as near as may be, and for the hearing of the application that said estate be decreed insolvent ; and it is further ordered that the said William Doe give due notice ac- cording to the statute in 'such case made and provided of his intention to make such report and application. W. P. M., Judge. The above order is only necessary in case of proceedings brought after rule to limit creditors has been taken or in case a special application to fix the time for presenting the report of claims and assets is necessary by reason of such report not having been filed within the time limited by law. Form 181. Notice of Intention to Make Report of Debts and Assets. [See Orphans' Court Act, section 103, page 593, supra.] Essex County Orphans' Court. tate of I On Petition j Insolvency. In the matter of the estate of ) On Petition for Decree of John Doe, deceased. Notice of fnfciitioii to Make Report of Debts and Assets. J 144 ' Probate Law and Practice. Notice is hereby given to the creditors of John Doe, de- ceased, and other persons interested, that a report of the sev- eral claims and demands exhibited against the estate of the said decedent, as well as an account of the personal estate and an inventory of the real estate of the said decedent, and the value thereof as near as may be, will be made to the Orphans' Court of the County of Essex on the ....;. day of , 19..., by the subscriber, the administrator of the estate of. John Doe, deceased, at which time and place the said ad- ministrator will make application to have the aforesaid estate decreed insolvent. Dated. Newark, N. J., William Doe. , , 19 ... , Administrator. The above notice must be set up in three of the most public places of the county where such decedent resided at the time of his death for two months before the date fixed for present- ing the report. For proof of posting notice see Form 115. Form 182. Report of Claims and Account of Estate. [See Orphans' Court Act, section 102, page S93. supra, and ib. section 103, page 593-] Essex County Orphans' Court. In the matter of the estate of | On Petition for Decree of John Doe, deceased. j Insolvency. Report of Claims and Account of Estate. To the Orphans' Court of the County of Essex : The report of William Doe, administrator of the estate of John Doe, deceased of the several claims and demands ex- hibited against said estate within the time by this court limited, showing the amount due thereon at this time, is as follows : Claim of William Jones for merchandise furnished to decedent during his life- time, book account $1,000.00 Claim of John Smith for money loaned decedent during his lifetime, evi- denced bv note of decedent ^oo.oo Insolvkxt Estatks. 1 145 ludgment recovered against decedent dur- ing liis lifetime by William Jones on which there is now due the sum of. i. 000.00 Administration expenses estimated at . . . J50.00 $2,750.00 (Set up full list of claims presented, stating nature of the claim, zvhether by judgment, hook account, etc.) The following is a just and true account of the moneys, goods, chattels, rights and credits of John Doe, deceased, which have come to the knowledge, hands or possession of William Doe, administrator of the aforesaid estate, and also an in- ventory and valuation of the real estate of the aforesaid decedent, which has come to the knowledge of the said adminis- trator : Amount shown by inventor}- on lile in the office of the Surrogate of the County of Essex $1,000.00 Loss on sale of goods and chattels in- ventoried 200.00 800.00 Interest on balance on deposit in Savings Institution, accrued since date of inventory 25.00 Cash on deposit in Savings Institution being assets discovered subsequent to filing of in- ventory 200.00 Plot of unimproved land 25x100 being known and designated as Nos , Street, in the City of Newark 500,00 $1,525.00 All of which is res])ectfully suljinitted this day of , 19.. Statu of New Jersen'. | County of Essex. | William Doe, jjcing duly sworn according to law, upon his oath, de]joses and says that he is the administrator of the estate of Jolm Doc, deceased, and that the foregoing is a 1 146 Probate Law and Practice. true report of the several claims and demands exhibited against said estate, and also a just and true account of the moneys, goods, chattels, rights and credits of the said John Doe. deceased, which have come to his knowledge, hands or posses- sion, and also an inventory of the real estate of the said dece- dent, which has come to his knowledge, and the value thereof as near as may be. Signed subscribed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. WiivLiAM Doe. Form 183. Exceptions to Account of Assets. [See Orphans' Court Act, section 104, page 593. supra, and Orphans" Court Rule 20, page 663, supra.] Essex County Orphans' Court. [n the matter of the estate of ) On Petition for Decree of John Doe, deceased. j Insolvency. Exceptions to Account of Assets. John Smith, one of the creditors of the estate of John Doe. deceased, hereby excepts to the account of the assets exhibited to this court by William Doe, administrator of the aforesaid estate, and alleges for cause of exceptions as follows : I. The said administrator has not accounted for live certain shares in the Building and Loan Association which were owned by the said John Doe at the time of his death. IL Li the inventory filed by the said William Doe, adminis- trator as aforesaid, a certain retail business conducted by the said John Doe in his lifetime was appraised at the sum of $500, whereas the true value of the business was not less than $1,000. IIL That the said account of the assets of said estate con- tained the following item "loss on sale of goods and chattels Insolvent Estates. 1147 inventoried" without specifying the goods and chattels upon the sale of which the loss accrued. Dated Newark. N. T-, , ^ ^ ToHN Smith. k. N. T., ■) , 19... I Form 184. Exceptions to Claim of Creditor. [See Orphans' Court Act. section 104, page 593, supra, and Orphans' Court Rule 20, page 663. supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Decree of John Doe, deceased. j Insolvency. Exceptions to Claims of Creditors. William Doe, administrator of the estate of John Doe, deceased, hereby excepts to the claim exhibited by William Jones against the aforesaid estate, and alleges for cause the following : I. That the prices charged by the said William Jones for the said merchandise are excessive. II. That a certain portion of said merchandise, to wit and , was never furnished to the said John Doe, nor was the same ever received by .him. This accountant further excepts to the claim of John Smith to the sum of $500 alleged to be due him upon a promissory note made by testator, and alleges for cause for exceptions, that during his lifetime, to wit on the day of , 19. . ., the said John Doe did pay to the said John Smith, the sum of $100 on account of the principal of said note, for which sum the said John Smith has not given credit, and that the balance due upon said note is the sum of $400. Form 185. Decree on Exceptions to Report of Claims and Ac- count of Assets. [Sec Orphans' Court Act, section 104, page 593. supra.] Essex County Orphans' Court. 1 148 Probate Law and Practice. In the matter of the estate of | On Petition for Decree of John Doe, deceased. ( Insolvency. Decree on Exceptions. Exceptions having been tiled by John Smith, a creditor of the estate of the said John Doe, deceased, to the account of assets of the estate of the said John Doe, deceased, exhibited by William Doe, administrator of said estate, and the court having inquired into the matter and having heard the proofs and allegations in the premises, and being of the opinion that said exceptions are not well founded in law ; and exceptions having also been filed by William Doe, administrator of the estate of John Doe, deceased, against the claim of William Jones, exhibited against said estate, and the court being of the opinion that this exception is not well-founded ; and an excep- tion having also been filed against the claim of John Smith exhibited against the said estate for the sum of $500, and it appearing that said claim should be reduced to the sum of $400. It is thereupon, on this day of 19-. -, ordered adjudged and decreed that the aforesaid exceptions filed by the said John Smith against the account of assets exhibited by said William Doe, administrator of the said John Doe, be, and the same are hereby overruled ; and that the exceptions filed by William Doe, administrator as aforesaid, against the claim of William Jones exhibited against said estate, be, and the same are hereby overruled ; and that the exception filed by said \\'illiam Doe administrator as aforesaid, against the claim exhibited by John Smith be and the same is hereby sustained, and that the amount of the claim of the said John Smith be and the same is hereby reduced to the sum of $400. W. P. M., Judge. Form 186. Decree That Estate is Insolvent and Ordering Sale of Lands. [See Orphans' Court Act, section 107. page 596, supra.] Essex County Orphans' Court. Insolvent Estates. 1149 of I On Petition j Insolvency. In the matter of the estate of ) On Petition for Decree of John Doe. deceased. Decree of Insolvency. It appearing that WilHam Doe, administrator of the estate of John Doe, deceased, has made report to this court of the several claims and demands exhibited against said estate, and also a just and true account of the moneys, goods, chattels, rights and credits of the said decedent which have come to his knowledge, hands or possession, and also an inventory of the real estate of said decedent which has come to his knowledge and the value thereof, and it further appearing that the said William Doe, administrator as aforesaid, has given due notice to the creditors of the aforesaid estate to exhibit their claims, and of his intention to make such report and to apply for a decree adjudging the said estate to be insolvent, pursuant to the statute in such case made and provided. And it further appearing that said report was duly filed in the Surrogate's ofifice of the County of Essex twenty days before the day named for presenting the same, and that no exceptions have been filed to the aforesaid report of claims, account or inventory (or that the exceptions filed to the afore- said report of claims, account and inventory have been duly determined by said court by its order made the day of JQ. . . ), and the court having considered the amount of the personal and real estate and the value thereof, and it appearing that the real and personal estate is insufficient to pay the debts, and that the estate is likely to be insolvent. It is thereupon, on this day of , 19..., ordered, adjudged and decreed that the aforesaid estate of John Doe, deceased, is likely to l)e insolvent, and the said ad- ministrator is hereby directed to proceed as if the estate were insolvent, and to make sale of the whole or any part of the real estate of the said John Doe, deceased, from time to time, as may appear expedient, pursuant to the statute in such case marie and ])rovide(l. W. P. M., Judge. For [)roceedings on sale of lands see Forms 151. et seq. 1 150 Probate Law and Practice. Form 187. Petition for Sale of Land in County Other Than That in Which Estate was Decreed to be Insolvent. [See Orphans" Court Act. section 108, page 596, supra.] Hudson County Orphans' Court. In the matter of the insolvent "| On Petition for Sale of estate of John Doe, deceased, j Lands. Petition for Sale of Lands. To the Orphans' Court of the County of Hudson : The petition of William Doe, of the of , in the County of Essex and State of New Jersey, respectfully shows that : 1. He is the administrator of the estate of John Doe, late of the County of Essex, deceased, duly appointed by the Surrogate of the said County of Essex. 2. On the day of , 19. . ., the Orphans' Court of the said County of Essex made its order decreeing that the estate of the said John Doe was likely to be insolvent, and ordering your petitioner to proceed as though the estate were insolvent, and to make sale of the whole or any part of the real estate of the said John Doe, deceased ; an authenticated copy of which order is hereunto annexed and made a part hereof. 3. The said John Doe died seized of certain lands and premises in the of in the County of Hudson and State of New Jersey, to wit: (here describe the lands). Your petitioner therefore prays that this court may order and decree the sale and conveyance by your petitioner of the aforesaid lands and real estate of the said John Doe, deceased, situate in the County of Hudson. Dated Newark, N. J., „, ^ •^ William Doe. ' i9--- State oe New Jersey, County of Essex. ■■) William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named and that the matters and things contained therein are true to the best of his knowledge and belief. Insolvent Estates. iisi a William Doe. Subscribed and s\\orn to this day of 19. . ., at Newark. N. J-, before me, J. C. F., Notary Public of N. J- A certified copy of the decree of insolvency, directing the sale of land, should be annexed. Form 188. Order for Sale of Land in County Other than that in which Estate was Decreed to be Insolvent. [See Orphans" Court Act. section 108. page 596. supra. 1 Hudson County Orphans' Court. In the matter of the insolvent | On Petition for Sale of estate of lohn Doe, deceased, f Lands. I On P j Lands Order for Sale of Lands. An authenticated copy of an order and decree made by the Orphans' Court of the County of Essex, being produced to this court whereby it appears that the real and personal estate of John Doe, late of the said County of Essex, is insufficient to pay his debts and that the said estate is likely to be insol- vent ; and it further appearing that William Doe, administra- tor of the estate of the said John Doe, deceased, was therein and thereby ordered and directed to proceed as if the said es- tate were insolvent and to make sale of the whole or any part of the real estate of the said John Doe, deceased, from time to time as might to him appear expedient. And it further appearing that the said John Doe died seized of lands or real estate situate within the County of Hudson to wit: (Describe the lands). It is thereupon, on this day of , 19. . . , or- dered and decreed that tlie said William Doe, administrator as aforesaid, make sale and conveyance of the said lands or real estate of the said John Doe, deceased, hereinabove described, according to the statute in such case made ;ui(l provided, and 74 1 1 52 Probate Law and Practice. that said William Doe, administrator as aforesaid, report said sale to this court for confirmation. G. G. T., Judge. For form of report of sale, see Forms 157 and 161 ; for form of decree confirming sak, see Forms 159 and 162; for form of administrator's deed, see Forms 160 and 163. Form 189. Petition of Barred Creditor for Extension of Time to Present Claim. [See Orphans' Court Act, secton 112, page 588, supra.] Essex County Orphans' Court. f1 On "^ Icre , , r I —- Petition of Barred In the matter of the estate of^,.^ , -^ ^ . . ^ , ^ , , y Creditor for Extension of Tohn Doe, deceased. ( ^. ^ -^ ^ r^^ ■ J June to Present Claim. Petition. To the Orphans' Court of the County of Essex : The petition of John Jones, of the of , in the County of and State of , respectfully shows that : 1. John Doe, late of the County of Essex, deceased, died on the day of , 19. . . , and on the day of , 19..., letters of administration upon his estate were duly issued to William Doe, who duly qualified as such administrator. 2. On the day of , 19. . . , the Surrogate of the Coupty of Essex, upon the application of the said William Doe, made an order requiring all creditors of the said John Doe, deceased, to present their claims to the said adminis- trator within the time limited in said order and on the day of , 19. . ., the said Surrogate made his decree barring all creditors whose claims had not been presented to the said administrator within the time limited in his aforesaid order. 3. On the .... day of , 19. . ., this court by its decree, declared the estate of the said John Doe, deceased, to be insolvent. IxsoLVEXT Estates. 1153 4. Your petitioner has a claim ainoiuitiiig to One thousand dollars ($1,000.) against the estate of the said John Doe. de- ceased, for moneys loaned hy your petitioner to the said John Doe, deceased, during his lifetime, which sum has never been repaid to him and on the day of 19. . . , he went to the office of his attorney, who prepared a claim against the estate of the said John Doe, deceased, which your petitioner duly signed and verified by his affidavit, and his said attorney promised to file the said claim with the said administrator of the estate of the aforesaid John Doe, deceased, but through inadvertence failed and neglected so to do, by reason whereof your petitioner's said claim against the said estate was not presented within the time limited in the aforesaid order of the Surrogate and his claim has been barred by said decree. 5. Your petitioner further shows that distribution of the estate of the said John Doe, deceased, has not as yet been made. Your petitioner therefore prays that this court may extend the time within which claims may be presented by creditors of the estate of the said John Doe, deceased, to the end that he may duly present his aforesaid claim and participate in the distribution of the said estate. Dated Newark, N. J., . John Jones. , , 19- • • State oe New Jersey, ") County of Essex. j John Jones, of full age, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing ])etition named and that the matters and things therein contained are true to tlie best of his knowledge and belief. Subscribed and sworn to this"^ day of , I J . T.T , T.T T 1 r > John Jones. 19. . ., at Newark, N. J., before [ "^ me, J J. C. F., Notary Public of N. J. The court has ])ower to extend the time in which claims may be jjresentcd until after the final distribution of the estate 1 1 54 PROBATr; Law and Practice. of the intestate, and a petition of this character may be filed after a decree for partial distribution, if there be sufficient assets in the hands of the administrator to pay the same. Form 190. Rule to Show Cause on Application of Creditor for Extension of Time to Present Claim. [See Orphans' Court Act, section 112 page 588, supra.] Essex County Orphans' Court. T ,1 ^j. r .1 . . r^ O" Petition of Barred in the matter of the estate of ^ ,. r -r^ T , T-^ J J >- Creditor tor Extension of John Doe, deceased- [ ^. J 1 nne to Present Clami. Rule to Slio2v Cause. Upon reading and filing the petition of John Jones, filed herein, whereby it appears that he is a creditor of the estate of John Doe, deceased, and through the inadvertance of his at- torney his claim was not presented to the administrator of said estate and that the same has been barred by a decree of the Surrogate of the County of Essex entered in said matter and it further appearing that by a decree of this court the estate of the said John Doe, deceased, was declared to be insolvent and no reason appearing or being alleged to the ■contrary. It is thereupon on this day of , one thou- sand nine hundred and , ordered that the said William Doe, administrator of the estate of John Doe. deceased, show cause before this court on the day of , 19. . .. at 10 a. m., in the forenoon, at the Court House, in the City of Newark, why the time within which claims against the estate of the said John Doe, deceased, may be presented by the creditors of the estate of the said John Doe, deceased, should not be extended to enable the said John Jones to pre- sent his aforesaid claim against said estate. And it is further ordered that true, but uncertified, copies of this order and the petition filed herein be served upon the said William Doe, administrator as aforesaid, personally or by leaving the same at his residence or usual place of abode with a person over the age of fourteen years within days from the date hereof. W. P. M., Judge. IxsoLVEXT Estates. ii OD Form 191. Order Extending Time for Presentation of Claims Against Estate. [See Orphans' C(nirt Act, section 112 page 588, supra.] Esse;x County Orphans' Court. T ., ^, .- ^, ^ ^ rl On Petition of Barred In the matter ot the estate of „ ,. . .^ T , T-, J J > Creditor tor Extension of John Uoe, deceased. ,,,. -^ ^, . J 1 ime to Present Claim. Order Extending Time for Presentation of Claim. It appearing from the petition of John Jones, tiled herein, that he is a creditor of the estate of John Doe, deceased, and that his said claim against the estate has heen barred by a decree of the Surrogate of the County of Essex by reason of not having been presented to the administrator of the estate of the said John Doe, deceased, within the time limited by the aforesaid order of the Surrogate. And it further appearing that the estate of the said John Doe, deceased, has been decreed by this court to be insolvent and that the failure of the said John Jones to duly present his claim to the administrator of the said estate was by reason of the inadvertence and neglect of his attorney, and it further appearing that the rule to show cause made herein lias been duly served upon William Doe, administrator of the estate of the said John Doe, deceased, and no reason being alleged or appearing to the contrary. It is on this day of , one thousand nine hun- dred and , ORDERED that the time within which claims against the estate of the said John Doe, deceased, may be presented to William Doe, administrator of the estate of the said John Doe, deceased, by creditors of the said John Doe, deceased, be and the same is hereby extended to the day of , 19. . .. W. P. M., Judge. 1 1 56 Probatk Law and Practici;. Form 192. Decree Allowing Account and Distributing Proceeds of Estate Among Creditors. [See Orphans' Court Act, secton no, page 598, supra; ih., section 122, page 64-4, supra and ib.. section 125, page 647. supra and Orphans' Court Rules 17, 18 and 19, pages 642. 645 and 643.] Essex Countv Orphans' Court, Term A. D., 19. . . In the matter of the estate of . ,^ _ , -r^ , , V On accountmgf. )ohn Doe, deceased. I On Decree Alloiviiig Account and Distributing Estate. The Surrogate having audited and stated the final account of Wilham Doe, administrator of the estate of John Doe, deceased, and placed the same on the files of his office twenty days previ- ous to the day of , 19. . . , and having on the day last aforesaid reported the same to this court for allowance and settlement, and it having been proved to the satisfaction of this court that notice of the intention of the said administrator to settle his said account on the day of , 19. . ., has been duly given according to law, and the court having examine^ the said account and the vouchers and receipts for payments and disbursements claimed therein, and having found the same to be correct in all particulars. It is, on this day of , A. D., one thousand nine hundred and ....... ordered, adjudged and decreed that the said account be in all things allowed as reported, and that there is a balance remaining in the hands of said accountant amounting to the sum of dollars, to be disposed of according to law ; and it is further ordered that from the afore- said balance the said accountant be allowed the sum of dollars as and for his commissions, and that a counsel fee of dollars be allowed to , proctor for said account- ant. And it further appearing by the report of the said adminis- trator made on the day of 19. • • , that the claims duly exhibited against the said estate amount to the sum of dollars, to which report no exceptions were made. Testimony Dk Cexf. Essk. • ii .->/ It is further ordered, adjudged aud decreed that the balance of dollars remaining in the hands of the said adminis- trator, after deducing the aforesaid allowances of commissions and counsel fees from the balance remaining in his hands as aforesaid, be distributed and paid by the said administrator to the said creditors in the proportion of cents on each dollar due to them respectively according to the aforesaid report. W. P. M., Judge. The account of the executor or administrator upon which this decree is based must be noticed for settlement, audited and stated by the Surrogate, and reported by him for allowance bv the court, in the same manner as all other accounts. TESTIMONY DE BENE ESSE. I. BY COMMISSION TO TAKE DEPOSITION OF WIT- NESS TO WILL. Form 193. Petition for Commission to Take Deposition of Non- Resident Witnesses to Will. [See Orphans' Court Act, section 16, page 203. supra.] Essex County Surrogate's Court. In the matter of the probate of 1 the alleged will of John Doe, >On Petition for Probate, deceased. J Petition. To F. G. S., Jr., 'Surrogate of the County of Essex: The petition of A. B., of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is the executor named in the last will and testament of John Doe, late of , who died on the day of , 19. . . ; 2. One of the subscribing witnesses to said will, to wit: is dead, and the other, to wit : resides 1 158 • Probate Law and Practice. out of this state, to wit : in the of . . . ., in the State of , and the testimony of the said is material in support of the proof of said will, which has been duly offered for probate. Your petitioner therefore prays that a commission annexed to said will issue out of this court directed to (state office held by couunissioner) authorizing and empowering him to take the deposition of the said , one of the sub- scribing witnesses to the aforesaid will. Newark, N. J., ^ -g , , I9--- State of New Jersey, County of Essex. 3EY, I A. B., being duly svv'orn according to law upon his oath, deposes and says that h.e is the petitioner in the foregoing pe- tition named, and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this"^ ^^yo^ ' L A. B. 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. The petition must pray that the commission be directed to the judge of some court of law, mayor, recorder or other chief magistrate of the city or town where such witness may be found, or to a consul or vice-consul of the United States stationed in a foreign state or kingdom. Form 194. Order for Commission to Take Depositions of Non- Resident Witnesses to a Will. [See Orphans' Court Act, section 16, page 203, supra.] Essex County Surrogate's Court. In the matter of the probate of 1 the alleged will of John Doe, >On Petition for Probate, deceased. J Order for Commission. Testimony De Bene Esse. 1159 On reading and tiling the petition of A. B., the petitioner herein, whereby it appears that one of the subscribing wit- nesses to the last will and testament of John Doe, late of the County of Essex deceased, to wit : is dead and that the other, to wit : resides without this state in the of in the State of , and that the testimony of the said is material in support of the proof of the said will. It is thereupon, on this day of 19. . . , ORDERED that a commission, annexed to the said will, issue out of and under the seal of this court directed to {state office held by commissioner) authorizing and empowering liim to take the deposition of the said ; and it is further ordered that the said deposition shall be annexed to the said commission and certified in the same manner in which sucli acts are usually authenticated by the said and returned together with the said will and commission into this court. F. G. S., Jr., Surrogate. Form 195. Commission to Take Deposition of Non-Resident Witness to a Will. [See Orphans' Court Act, section 16, page 203, supra.] State of New Jersey, '1 County of Essex. '' The State of New Jersey to (state official character of conunissioiter ) (ireeting: (l. s.) Whereas, A. B., the executor named in the will of John Doe, deceased, hereunto annexed, has pre- sented the same to F. G. S., Jr., Surrogate of the County of Essex, for probate, and it appears that , one of the sub- scribing witnesses to the same, resides out of this state and in the State of You are therefore hereby authorized and empowered to take the deposition of the said to said will, and to certify the same in the manner in which such acts are usually authenticated by you. ii6o Probate Law axd Practice. Witness, F. G. S., Jr., Surrogate of the County of Essex aforesaid and the seal of his office, this .... day of , 19. . . F. G. S., Jr., Surrogate. The original will and a copy of the usual oath taken by subscribing witnesses in proving a will (see Form 2, supra), referring to the said will by date, etc., should be annexed to the commission. The subscribing witness must subscribe and take such oath before the commissioner who signs the usual jurat thereto, and who must in addition sign the following certificate. I, , (name and title of office Jield by couimis- sioiier), do hereby certify in the manner in which such acts are usually authenticated by me, that , the person in the within commission named, personally appeared before me at , in the County of and State of , this day of , 19. . ., and was duly sworn by me to the truth of the above deposition by him signed. Witness my hand and seal of office this day of , 19. . . , at aforesaid. (Signature). Form 196. Petition for Commission to Take Deposition of Witness to Foreign Will. [See Orphans' Court Act, section 22. page 211, supra.] Essex County Surrogate's Court. In the matter of the estate of | On Petition for Probate of John Doe, deceased. j Will of Non-Resident. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of John Jones of the of , in the County of and State of respectfully shows that : I. John Doe, late of the City of Chicago. County of Cook and State of Illinois, departed this life on the day of , 19. ., leaving a last will and testament which was duly admitted to probate by the Probate Court of Cook County, in the State Tkstimoxv Dk Bkxk Essk. ii6i of Illinois. An exemplihed copy of the record of probate of said will has been duly tiled in the office of the Surrogate of the County of Essex, but it does not appear from such record that the said will was executed in accordance with the laws of the state of Xew Jersey. 2. On the day of 19. ... a petition for the probate of said will in the State of New Jersey was duly pre- sented to this court whereby it appears that and tlie subscribing witnesses to said will, reside in the City of Chicago, County of Cook and State of Illinois. Your petitioner therefore prays that a commission issue out of and under the seal of this court directed to the Honorable ,. ., {title of office held by commissioner), authorizing and empowering him to take the depositions of the said and , the subscribing witnesses to the aforesaid will. Dated Newark, N. J., ' John Jones. , , i9--- State of New Jersey RSEV, ) ■X. ] County of Esse:: '' John Jones, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing pe- tition named, and that the matters and things therein contained are true to the best of his knowledsre and belief. Subscribed and sworn to this" day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. > John Jones. Form 197. Order for Commission to Take Deposition of Witness to Foreign Will. [See Orphans' Cinirt Act, section 2i, paj;e 211, supra.] Essex County Surrogate's Court. In the matter of the estate of | On Petition for Probate of John Doe, deceased. j Will of Non -Resident. Order for Commission. ii62 Probate Law and Practice. It appearing by the petition filed herein that John Doe, late of the City of Chicago, County of Cook and State of Illinois, de- parted this life on the day of , 19. . ., leaving a last will and testament which was duly admitted to probate by the Probate Court of Cook County, in the State of Illinois ; that an exemplified copy of the record of probate of said will has been duly filed in the office of the Surrogate of the County of Essex ; and that it does not appear from such record that the will was executed in accordance with the laws*of the State of New Jersey; and it further appearing that and , the subscribing witnesses to said will, reside in the City of Chicago, in the County of Cook and State of Illinois. It is thereupon, on this day of , one thou- sand nine hundred and , ordered that a commission annexed to said will issue out of and under the seal of this court directed to the 'Honorable {title of office held by commissioner), authorizing and empowering him to take the depositions of the said and , the subscrib- ing witnesses to the aforesaid will. F. G. S., Jr., Surrogate. Form 198. Commission to Take Deposition of Witness to Foreign Will. [See Orphans' Court Act, section 23, page 211, supra.] State oe New Jersey, County oe Essex. ■I The State of New Jersey to the Honorable , (l. s.) (title of office held by commissioner), Greeting: Whereas, an exemplified copy of the record of probate of the last will and testament of John Doe, late of the City of Chicago, County of Cook and State of Illinois, has been filed in this court, from which record it does not appear that said will was executed in the manner required by the laws of this state to transfer or afifect the title to real estate situate in this state ; and it further appearing that and , the subscrib- ing witnesses to said will, reside out of this state, and in the State of Illinois. Testimony De Bene Esse. 1163 You are therefore hereby authorized and empowered to take the depositions of the said and , the subscrib- ing witnesses to said will, and to certify the same in the manner in which such acts are usually authenticated by you. Witness, F. G. S., Jr., Surrogate of the County of Essex aforesaid and the seal of his office this day of , 19 F. G. S., Jr., Surrogate. Form 199. Deposition of Witness to Foreign Will. [See Orphans" Court Act, section 23, page 211. supra.l State of Illinc [NOIS, I [^OOK. j County of Cook. , of full age. being by me duly sworn according to law upon his oath, deposes and says that he is a resident of the County of Cook and State of Illinois ; that he is one of the witnesses to the last will and testament of John Doe. late of the City of Chicago, in the County of Cook and State of Illinois, deceased ; that he has examined the original writing duly admitted to probate by the Probate Court of Cook County, Illinois, as the last will and testament of the said John Doe, deceased, remaining on file and of record with the clerk of said court, and that the copy of said will annexed hereto is a true copy of the will of the said John Doe, which he witnessed. Deponent further says that he saw the said John Doe sign and seal said writing and heard him publish, pronounce and declare the same as and for his last will and testament ; that at the time of the doing thereof, the said testator was of sound and disposing mind, memory and understanding, as far as this deponent knows and as he verily believes ; that the other subscribing witness to said will, was present at the same time with this deponent when the said will was signed by the said testator and by him published and declared as and for his last will and testament as aforesaid ; and that the said and deponent subscribed their names to said will as 1 164 Probate Law and Practice. witnesses in the presence of said testator and of each other, at the request of said testator. Subscribed and sworn to this^ day of , 19. . ., at , before me, > II. BY AUTHORIZATION OF MASTER, ETC., TO TAKE DEPOSITION. Form 200. Petition for Order Deputizing Master, Etc., to Take Deposition o£ Non-Resident Witness. [See P. L. 1913- page 102, page 203, supra.] Essex County Surrogate's Court. In the matter of the probate of^ the alleged will of John Doe, ^On Petition for Probate, deceased. J Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of A. B., of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is the executor named in the last will and testament of John Doe, late of the City of Newark, in the County of Essex and State of New Jersey, who died on the day of , 19. . . 2. One of the subscribing witnesses to said will, to wit : is dead, and the other, to wit : resides out of this state, to wit : in the of in the State of , and the testimony of the said is material in support of the proof of said will, which has been duly offered for probate. Your petitioner therefore prays that , an attorney (or cou7isellor) , at law, admitted to practice in this state (or a master in chancery of Nciv Jersey, or notary public, or commissioner of deeds), be specially deputized and authorized Tkstimoxy Dk Bf.xk Esse. 1165 t(j take the deposition of the witness to the afore- said win. Dated Newark, X. T., ^ ■^ A. B. , , i9--- State of New Jersey, | County of Essex. j A. B., being duly sworn according to law u{)on his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this~^ day of , I 19. . ., at Newark, N. J., before me. J. C. F., Notary Public of N. J A. B. Form 201. Order Deputizing Master, Etc., to Take Deposition of Non-Resident Witness. [See P. L. 1913, page 102, page 203, supra.] Essex County Surrogate's Court. In the matter of the probate of^ the alleged will of John Doe, vOn Petition for Probate, deceased. J Order Deputizing Attorney at Law to Take Deposition. On reading and filing the petition of A. B., the petitioner herein, whereby it appears that one of the subscribing witnesses to the last will of John Doe, deceased, to wit: is dead and that the other, to wit : resides in the of , in the State of , and that testimony of the said is material in support of the proof of the said will, and praying that , an attorney (or counsellor) at law, admitted to jjractice in this state (or a master in chancery of New Jersey, or a notary public or 1 166 Probate Law and Practice. conunissioner of deeds) be specially deputized and authorized to take the deposition of the witness to the aforesaid will. It is thereupon, on this day of , 19..., ORDERED that the said , an attorney at law, admitted to practice in this state {or otherivise as the case may be) be and he is hereby deputized and authorized to take the deposition of , the witness to the last will and testament of , deceased, as aforesaid. F. G. S., Jr., Surrogate. For form of deposition of witness see Form 2. III. BY APPOINTMENT OF COMMISSIONER TO EXAMINE WITNESS UPON INTERROGATORIES. Form 202. Petition for Commission to Examine Witness De Bene Esse. [See P. L. ,1915. page 141, page 5S, supra and 2 Comp. Stat., page 2231, section 2i^, et seq.] Essex County Surrogate's Court. In the matter oi the probate of^ the last will of John Doe, vOn Petition for Probate, deceased. J Petition for Commission to Examine Witness De Bene Esse. To F. G. S., Jr., Surrogate of the County of Essex: The petition of William Doe, of the of in the County of and State of , respect- fully shows that : I. John Doe, late of the County of Essex, deceased, departed this life on the day of , 19. . ., having first executed a paper writing purporting to be his last will and testament, which has been duly offered for probate in this matter. Testimony De Bene Esse. 1167 2. William Jones, one of the attesting witnesses to said will. is a material witness in this matter, and resides in the of , in the County of and State of and your petitioner is unable to proceed in this matter without the benefit of his testimony. Your petitioner therefore prays that a commission issue out of and under the seal of this court, directed to , of the of , in the County of and State of , authorizing him to examine de bene esse the said witness above named. Dated Newark, N. J., „, ^^ •^ William Doe;. ..-, , i9--- State of New Jersey 1 County of Essex. William Doe, being duly sworn according to law upon his oath, deposes and says that William Jones is a material wit- ness in the matter of the probate of the last will and testa- ment of John Doe, deceased, and resides in the of , in the County of and State of , and that deponent is unable to proceed with the above entitled matter without the benefit of his testimony. Subscribed and sworn to this"^ M^^'^fM--/ •;•;••> William Doe. 19. . .. at Newark, N. J., before me, J. C. F., Notary Public of N. J. A commission to take testimony de bene esse will issue either out of the Surrogate's Court or Orphans' Court. If applica- tion for such commission is made to the Orphans' Court, it must be on eight days notice. No notice, however, is required for such an application in an ex parte proceeding before the Surrogate. Such a commission will issue in any proceeding pending in cither the Orphans' or Surrogate's Court. 75 ii68 Probate Law axd Practice. Form 203. Order for Commission to Examine Witness De Bene Esse. [See P. L. 1915, page 141, page 58, supra.] Essex County Surrogate's Court. In the matter of the probate of ^ the last will of John Doe, >-On Petition for Probate, deceased. J Order for Commission to Examine Witness De Bene Esse. It appearing by the petition of William Doe filed herein that William Jones is one of the attesting witnesses of the last will and testament of John Doe, late of the county of Ess-ex, deceased, which will has been duly offered for probate herein, and that the said William Jones resides in the of , in the County of and State of , and that the said petitioner cannot proceed in this matter with- out the benefit of his testimony. It is, on this day of , 19..., ordered that a commission issue out of and under the seal of this court directed to , of the of , in the County of and State of , authorizing him to examine de bene esse the said witness above named, on oath or affirmation upon the interrogatories annexed to said commission, and to reduce such examination to writing, and to return the same annexed to the said commission into this court. F. G. S., Jr., Surrogate. Form 204. Commission for Examination of Witness De Bene Esse. [See 2 Comp. Stat., page 2232, section S7-] Essex County Surrogate's Court. Tkstimoxv Dn Bkxf Esse. 1169 State of Xew COUXTV OF tw Jersev, I F Essex. j The State of New Jersey to , of the of , in the County of and State of Greeting: Know ye, that we in confidence of your prudence and fideHty have appointed you, and by these presents do give unto you full power and authority diligently to examine William Jones, of the of in the County of and State of upon certain interrogatories to be exhibited to you, and therefore we command you that at certain dates and places to be appointed by you for that purpose, you do cause the said witness to come before you, and then and there examine him on his corporal oath or affirmation first taken before you, and that you do take such his examination and cause the same to be reduced to writing and signed by said witness and by yourself ; and when you have so taken it, you are to send it to us in our Surrogate's court, without delay, closed up under your seal distinctly and plainly set, together with the said interrogatories and this writ. And we further command you before you act in or be present at the swearing or examination of any witness or witnesses, you do take the oath specified in the schedule hereto annexed before some person competent to administer the same. Witness, F. G. S., Jr., Judge of the Surrogate's Court of the County of Essex, in the State of New Jersey, at Newark, this day of in the }ear of our Lord, one thousand, nine hundred and F. G. S.. Jr.. Clerk of the Surrogate's Court. Form 205. Interrogatories on Probate of Will. [See 2 Conip. vStat., i)a.uc ^-'3-'. section 37. and V. L. 1915, pa.ur 141, page 58, supra.] Essex Couxtv vSurroc.ati;'s Corur. 1170 Probate Law and Practice. In the matter of the probate"^ of the will of John Doe, de- vOn Petition for Probate, ceased. J Interrogatories to be Ad- ministered to N n - Resident Witness. Interrogatories to be administered to , one of the subscribing witnesses of the last will and testament of John Doe, deceased, to be produced, sworn and examined upon the part of the proponent in a certain matter now pending in the Essex County Surrogate's Court of the State of New Jersey, in the matter of the probate of the last will and testament of John Doe, deceased. 1. Were you acquainted with John Doe, who resided in the of , in the County of Essex and State of New Jersey? 2. Examine the paper writing hereto annexed purporting to be the last will and testament of the said John Doe, and state whether you recognize your signature thereon as a witness? 3. If you find that your signature is annexed to said paper writing as a witness, state how you came to sign the same?' 4. If you signed the said paper writing as a witness, state who, if anybody, was present at the time you signed the same? 5. Examine the said paper writing and state whether you know who signed the name "John Doe" which appears upon the .... page of said writing. State also your means of knowledge. 6. Were you present when the signature mentioned in the fifth interrogatory was made ? 7. If you were present when the signature mentioned in the fifth interrogatory was made, state who made it, also, who, if anybody besides yourself, was present at that time, and whether you saw the said signature written? 8. If you were present when the signature mentioned in the fifth interrogatory was made, state what, if anything was said by the person signing the name "John Doe" at the time of, or before the making of said signature? 9. If any statement or declaration was made by the person signing the name "John Doe" at or before the time of the Testimony De Bene Esse. 1171 making of said signature, state wlio was present at the time of making such declaration. 10. If your knowledge as to who executed the signature mentioned in the fifth interrogatory is derived from any dec- laration or statement made by any person, state who, if any- body besides yourself, was present when such statement or declaration was made. 11. If you signed the said paper writing as a w^itness, did you know the nature of the paper you were witnessing? If so, state your means of knowledge. 12. If your knowledge of the nature of said papei" writing was derived from the statement or declaration of any other person, state wdio. if anyjjody, besides yourself, was present when such statement or declaration was made. 13. Do you know who signed the name (the other zvitness of the ivill) which appears upon the page of said paper writing? If you know, state who signed it, and also your means of knowledge. 14. Who was present when the signature mentioned in the thirteenth interrogatory was made? 15. Examine the .said paper w^-iting and state whether you know in what order the signatures which appear upon the page of said paper were affixed thereto. The interrogatories must be approved by the Surrogate or,' when issued out of the Orphans' Court, by a judge of that court. In proceedings before the Surrogate, w^hich are usu- ally ex parte, no notice of the application for the commission and approval of interrogatories is necessary. In a case of a commission issued out of the Orphans' Court, however, five days notice of such application must be given. In a con- tested case in the Orphans' Court, the respondent may submit cross-interrogatories, which must likewise be approved by the court. Form 206. Directions for the Execution of a Commission by Com- missioner. [Sec P. L. 1915, page 141, page 58, .supra.] Essex County Surrog.ate's Court. 1 i 72 Probate Law and Practice. In the matter of the probate"^ of the last will of John Doe, de- vOn Petition for Probate. <:eased. J Directions for Execution of Commission. I. The commissioner before entering upon his duties must take oath or affirmation before any person lawfully authorized to administer an oath or affirmation in the state, territory or kingdom where the commissioner resides or may be at the time, in the following form : -State of County of . . . ■} I, , do swear that I will faithfully, fairly and impartially execute the annexed com- mission to the best of my skill and knowledge. Dated, , . . . . ") (Signature of coni- ,...,..., , 19 . . . ( missioner. ) 2. Before examining the witness, the latter should be sworn in the usual form, or, if conscientiously opposed to taking an oath, then his affirmation may be taken. 3. The commissioner will cause the examination of each witness to be reduced to writing and to be subscribed by him ; and the commissioner shall also sign the same. 4. The heading or title of the deposition is as follows : "De- positions of Witnesses Produced, Sworn and Executed the day of , 19. ., under and by virtue of a Com- mission issued out of the Surrogate's Court of the County of Essex in the State of New Jersey, in the Matter of the Pro- bate of the Last Will and Testament of John Doe, deceased, therein depending {or otherzvise as tJie case may be). William Jones, of the of ., in the County of and State of a witness produced on the part of the proponent, being duly sworn (or affirmed) deposes and says : First. To the first interrogatory he says (and so on through the several interrogatories). Testimoxv De Bene Esse. 1173 When the deposition is finished, it shonld be subscribed by the witness and certified in the following form : Examination taken, reduced to" writing and sworn to, this , day of ,19..,^ \\iLLiAM Jones. before me. {Signature of Commissioner.) 5. If any exhibits are produced and proved before the com- missioner, they shall be annexed to the depositions to which they relate, and shall be certified by the commissioner, or, if requested by the party producing the exhibit, the commis- sioner will mark it as an exhibit in the matter and return it to the party offering it. 6. The commissioner will endorse on the back of the com- mission the following return : "The execution of the fore- going commission appears by the deposition and commission hereunto annexed." (Signature of commissioner.) 7. The commissioner will annex the interrogatories, deposi- tions and exhibits to the commission and close up the same under his hand and seal (which is usually done by sealing the envelope and writing the commissioner's name across the seal) and direct the same to the Surrogate at Newark. If the package is to be sent by mail, the commissioner may place the same in any post office, certifying upon the back of the en- velope containing the same the time when and the post office in which the same has been so placed, as follows : "Deposited in the post office at this day of , 19 . . , by me, {Signature.) 8. It is lawftil for the commissioner to delixcr the commis- sion and return closed up and directed as aforesaid to the party procuring the commission, his attorney or agent, who shall deliver the same to the Surrogate, in which case the person delivering the package will be required to take oath that he received the said conmiission and retm-n, sealed up, from the hands of the said commissioner, at on the 11/4 Probate Law and Practice. day of , 19. . , and that the same has not been opened or altered since he received it. 9. In the case of a commission which has been executed in 'a foreign state, nation or kingdom, it may be transmitted to the party on whose application it was issued, his agent or attorney in the United States, who will deliver the same to the Surrogate, making oath or affirmation when and how he received it, and also that he verily believes that it has not been opened or altered since it was closed up and sealed as aforesaid. 10. If the commission and return have been received by mail, the Surrogate, upon being satisfied that it has not been opened or altered since it was closed up and sealed, will open the same and endorse thereon : "This packet received this ...... day of , 19. . . , sealed up, from the post- master at , and opened by me," which endorsement he shall sign, and immediately file the commission and return. If the packet shall be delivered by the party securing the com- mission, his agent or attorney, the endorsement will be made accordingly, and the affidavit of the messenger will also be filed with the commission and return. DISCHARGE AND REMOVAL OF EXECUTORS, ETC. Form 207. Petition by Executor for Discharge. [See Orphans' Court Act, section '146, page 612, supra, and Orphans' Court Rule 29, page 614, supra.] Essex Countv Orphans' Court. In the matter of the estate of | On Petition of Executor John Doe, deceased. j for Discharge. Petition. To the Orphans' Court of the County of Essex : ^The petition of William Doe, of the of in the County of and State of , respectfully shows, that : DiSCHARGK OF EXKCUTORS &C. 11/5 1. Your petitioner is the executor named in the last will of John Doe, deceased, which said will was duly proved before, and letters testamentary thereon duly issued by the Surrogate of the County of Essex on the day of , 19. . ; petitioner has entered on the duties of his otiice, but has not fully performed the same. 2. Your petitioner is about to remove from the State of Xew Jersey and therefore desires to be discharged from the further performance of the duties of his said office. 3. The persons interested in this application are as follows : X. Y., who resides at No , Street in the of , in the State of ; R. D., who resides at No. , Street in the of , in the State. of ; and L. S., who resides at No , Street, in the of , in the State of , legatees and devisees under the last will of the said John Doe, deceased ; all of the aforesaid parties in interest are of full age with the exception of the said X. Y., w^ho is a minor of the age of 16 years and resides with her parents, R. Y. and B. Y., at the aforesaid address. Your petitioner therefore prays that he may be discharged from the further performance of the duties of his said office of executor of the aforesaid estate. Dated Newark, N. J., William Doe. > > ly . . . State of New Jersey, ) County of Essex. j William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- tained therein are true to the best of his knowledge and belief. Subscribed and sworn to this" day of 19.., at Newark, N. J., before me, J- C. F., Notary Public of N. J a William Doe. ] J 76 Probate Law and Practice. Thirty days notice of this appHcation must be given to all parties interested or to such of them as the court shall by order direct. The court on good cause shown may direct that less than 30 days notice be given. For form of notice of application see Form 214, for proof of service Form 38. Form 208. Order Discharging Executor, Etc. [See Orphans' Court Act, section 146, page 612, supra; and Orphans' Court Rule 29, page 614, supra.] Essex Couxty Orphans' Court. In the matter of the estate of ) On Petition of Executor John Doe, deceased. j for Discharge. Order DiscJiarging Executor. It appearing from the petition of William Doe, filed herein, that the said William Doe is the executor of the last will of John Doe, deceased, and that letters testamentary were issued to him by the Surrogate of the County of Essex, and that said petitioner prays that he may be discharged from the further performance of his duties as such executor; and it appearing that due notice of this application has been given to all parties interested in the estate of the said John Doe, deceased, (or tiiat all of the parties in interest have duly consented hereto) and the court having examined into the matter and it appear- ing that there is sufficient reason for such discharge. It is thereupon on this day of , 19..., ordered that the said William Doe be and he is hereby relieved and discharged from all further duties of his said office, ex- cept accounting for and paying over the moneys or assets re- ceived by him by virtue of his said office. W. P. M., Judge. Form 209. Petition for Removal of Executor or Administrator. [See Orphans' Court Act, section 149, page 600, supra, ib. section 151, page 611, supra; and ib. section 152, page 608, supra.] Essex County Orphans' Court. Removal of Exkcutors &:c. ir In the matter of the estate of | On Petition for Removal Jolm Doe, deceased. j of Administrator. Petition. To the Orphans' Court of the County of Essex: The petition of William Doe, of the of , in the County of and State of , respectfully shows that : 1. He is one of the children of John Doe, late of , deceased, and letters of administration upon the estate of the said John Doe, deceased, have been duly issued to James Doe by the Surrogate of the County of Essex. 2. The said James Doe, administrator as aforesaid, has deposited the funds of the said estate in his personal bank account, has mingled them with his own funds, and on the day of , the said James Doe purchased cer- tain lands and premises known and designated as No , Street, in the City of , with money of the estate of the said John Doe, and took the title thereto in his own name ; and the said administrator has otherwise wasted and misapplied the funds of the said estate committed to his care. Your petitioner therefore prays that this court may revoke the letters of administration granted to the said James Doe as aforesaid and remove him from his said office. Dated Newark, N. T.. ,,. ^ William Doe. • ••, , 19 • • • State of New Jersev, County of Esse SRSEV, ) ;ex. j William Doe, being dul}- sworn according tcj law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- tained therein are true to the best of his knowledge and belief. Subscri])ed and sworn to this"] day of Kj. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. William Doe. 1 178 Probatk Law and Practice. Five days notice of applications of this character is required by Orphans' Court Rule 39; the better practice is however to take a rule to show cause; for form of notice see Form 214, for rule to show cause Form 213, for proof of service Form 38. Form 210. Order to Show Cause Why Executor or Administrator Should Not be Removed. [See Orphans" Court Act, section 149, page 600, supra, ib. section 151, page 611, supra; and ib. section 152, page 608, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Removal John Doe, deceased. J of Administrator. Rule to Shozv Cause. William Doe, of the of , in the County of , and State of , having hied his petition herein alleging that he is one of the children of John Doe, late of the County of Essex, deceased, and that James Doe, the adminis- trator of the estate of the said John Doe, deceased, has wasted and mismanaged the aforesaid estate entrusted to his care as such administrator, and praying that the said James Doe may be removed from his aforesaid office. It is thereupon, on this day of , 19..., ordered that James Doe, the administrator of the estate of John Doe, deceased, show cause before this court on the day of , 19. . . , at ten o'clock why he should not be removed from his office of administrator of the estate of the said John Doe, deceased. And it is further ordered that a true but uncertified copy of this order be served upon the said James Doe, personally or by leaving the same at his residence or usual place of abode with a person over the age of fourteen years, within days from the date hereof. W. P. M., Judge. For form of proof of service see Form 38. Removal of Executors &c. 1179 Form 211. Order Removing Administrator. [See Orphans' Court Act, section 149. page 600, supra: ib. section 151, page 611, supra; il). section 152, page 608. supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Removal John Doe. deceased. ( of Administrator. Order Removing Adminis- trator. William Doe, one of the next of kin of John Doe, late of the County of Essex, deceased, having presented his petition, alleging that Jarnes Doe, the administrator of the estate of the said John Doe, deceased, has wasted and misapplied the funds of the said estate committed to his custody, and it ap- pearing that due notice of this application has been given by rule to show cause duly served upon the said administrator, and the cour.t having inquired into the matter and it being made to appear that the said James Doe, administrator as aforesaid, has wasted and misapplied a part of the said estate committed to his care. It is thereupon on this day of , 19. . . , ordered that the letters of administration granted to the said James Doe, as aforesaid, be and the same are herel^y revoked, and the said James Doe is hereby removed from his office as such administrator. And due notice having been given to the widow and all the next of kin of the said John Doe, deceased, it is further or- dered that letters of substitutionary administration upon the estate of the said John Doe, deceased, be granted to William Doe, one of the children of the said John Doe, deceased, tipon his giving bond to the ordinary in the sum of dollars. in manner and form required by law with sureties to be ap- proved by this court. And it is further ordered that the said James Doe forth- with surrender and deliver to the said William Doe all goods and chattels, moneys anrl effects and other assets which he may hold as such administrator and that he state and settle his ii8o Probate Law and Practice. account as such administrator at the next term of court and pay and deliver the balance, if any, found due upon such ac- counting to the said William Doe, substituted administrator as aforesaid, within sixty days after the settlement of his said account. W. P. M., Judge. PROCESS. Form 212. General Form of Citation. [See Orphans' Court Act. section 174, page 39, supra.] Essex County Orphans' Court. State of New Jersey, r} County of Essex. ( The State of New Jersey to [l. S.] and and Greeting : We cite and command you that you personally be and ap- pear before the Orphans' Court to be holden in Newark in and for the Comity of Essex on the day of , one thousand nine hundred and at ten o'clock in the forenoon, at the Court House in the Cit}' of Newark to (Jicrc insert relief sought), and to abide the judg- ment of the said court in the premises. Witness , Judge of our said Orphans' Court at Newark, aforesaid, this day of one thou- sand nine hundred and Surrogate and Clerk. This citation must be served by the sheriff. Form 213. General Form of Rule to Show Cause. [See Orphans' Court Act. section 179, page 39. supra.] Essex County Orphans' Court. Process. iiSi "'! In the matter of the estate John Doe, deceased. Rule to Show Cause. Apphcation having been made by W'iUiam Doe, one of the children and next of kin of John Doe, deceased, setting forth, under oath, that James Doe, executor of. the estate of the said John Doe, deceased, has wasted and misappHed a portion of the estate committed to his custody {or as the case may be). It is thereupon on this day of , 19. . . , ordered that the said James Doe show cause before this court on the day of , 19. . , at 10 a. m., at the Court House, in the City of Newark, why he should not be removed from his said office of executor as aforesaid. It is further ordered that a true, but uncertified copy of this rule be served upon the said James Doe, either personally or by leaving the same at his residence with a member of his family over fourteen years of age within .... days from the date hereof. W. P. M., Judge. For form of proof of service see Form 38. Form 214. General Form of Notice of Application to Orphans' Court or Surrogate. Essex County Ori'hans' Court. In the matter of the estate of | John Doe, deceased. j A'otice of Application. To and and : You are hereby notified that on the day of 19..., at the Court House in the City of Newark, at ten o'clock in the forenoon, I shall ap])ly to the Orphans' (or Surrogate's) Court of the County of Ivssex for an order (here describe order for ivhich application will be made). Dated Newark, N. J., ,^ ,^ ' ■' ' X. Y. » i9--- For proof of service see Form 38. ii82 Probate Law and Practice. Form 215. Subpoena to Testify before Surrogate. [See P. L. 1915, page 140. page 57. supra.] Essex County Surrogate's Court. State of New Jersey, County of Essex, j The State of New Jersey. To Henry Brown, of Number , [l. s.] Street, in the of , in the County of , and State of New Jersey. Greeting : By virtue of this writ, you are hereby commanded to per- sonally be and appear before the Surrogate's Court of the County of Essex, to be holden at the Court House, in the City of Newark, on the day of , one thousand nine hundred and at ten o'clock in the forenoon, to give evidence in the matter of the probate of a certain paper writing purporting to be the last will and testament of John Doe, deceased, (or os the case may be), now pending unde- termined in our said court, and tlfis you are in no wise to omit under a penalty of fifty dollars. Witness, F. G. S., Jr., Judge of our said Surrogate's Court, at Newark aforesaid, this day of one thou- sand nine hundred and F. G. S.. Jr., Surrogate and ex-officio clerk of the Surrogate's court. For form of proof of service see Form 38. Form 216, Subpoena to Testify before Orphans' Court. Essex County Orphans' Court. State of New Jersey, SEY, j X. I PC County of Essex. ' To X. Y. : By virtue of this writ you are hereby commanded person- Process. i 183 ally to be and appear before the Orphans' Court [l. S.] to be holden at Newark in and tor the County of Essex on the day of , iQ .... at the Court House in the City of Newark, at ten o'clock in the forenoon of that day to give evidence in a certain cause now pending, undetermined in our said court and then and there to be tried between James Doe, caveator, and X. Y., proponent, in the matter of the probate of the alleged will of John Doe, deceased (or as the case Diay be) and this you are in no wise to omit under a penalty of one hundred dollars. Witness \V. P. j\I., Esq., judge of our said court at Newark aforesaid, the day of , nineteen hundred and F. G. S., Jr., Surrogate and Clerk. For form of proof of service see Form 38. SERVICE OF CITATION ON NON-RESIDENT. Form 217. Appointment by Surrogate of Person to Serve Process on Non-Resident. [See Orplians' Court Act, section 177. page 40, supra.] I, F. G. S., Jr., surrogate of the County of Essex, hereby appoint X. Y. to make service of the within citation upon the within-named William Doe. who resides out of the State of New Jersey. Dated'Xewark, N. J., F. G. S., Jr., , , 19. . . Surrogate. Form 218. Proof of Service of Citation upon a Non-Resident. [See Orplians' Court .\ct.. section 177. ]niii,(; 40, supra.] State of New Jersey, •■!• County of Essex. X. Y., being duly sworn according to law. upon his oath, de- poses and says that on the day of 19. . , he -erved the within citation upon William Doe. to whom it is 76 1 1 84 Probate; Law and Practice. addressed, by delivering to him personally at his residence in the City of New York a true copy thereof {or by leaving a true copy thereof at Number . . . Street, in the City of Nezv York, his usual place of abode, with some person of the age of fourteen years or upivards), at the same time stat- ing its nature and contents and exhibiting the original. Subscribed and sworn to this"^ day of ,1 X. Y. I9-.--, J l^efore me, J. C. F., Notary Public of N. J. Form 219. Order of Publication of Notice to Absent Parties. [See Orplians' Court Act. section 178, page 41, supra.] Essex County Orphans' Court. In' the matter of the estate of John Doe, deceased. Order of Publication. Process of citation having been issued in the above matter, and it having been made to appear to the satisfaction of the court that William Doe, the person against whom such cita- tion has been issued resides out of this State. It is thereupon on this ...... day of , 19. • - ordered that the said William Doe do appear in the aforesaid matter on the day of , 19. . , and in default thereof such proceedings will be had against him as if he had appeared in said suit or proceeding, and it is further ordered that notice of this order as prescribed by the rules of the Court of Chancery shall within ten days hereafter be served personally upon the said absent defendant by the delivery of a copy thereof to him personally, or iti default of such service that said notice be published within the said ten days in , a public newspaper printed at in the County of , (the county where the party resided zvheii the injury complained of occurred) in this State for four weeks successively at least once in each week and in case of such publication that a copy thereof be also mailed within tlie Process. 11S5 same time to the said absent defeiuiant, directed to his post- office address, if the same can be ascertained, in the manner prescribed by law and the rules of the Court of Chancery. \V. P. M.,' Judge. This order must be made returnable not less than thirty days from its date. For form of Notice of Order see Form 220. Form 220. Notice to Absent Parties. [See Orphans' Court Act, section 178, page 41. supra; Chancery Rules 57, 58, 59 and 60.] Essex Count v Orphaxs' Court. To William Doe : By virtue of an order of the Orphans' Court of the County of Essex, made on the day of the date hereof, in the matter of the estate of John Doe, deceased, on petition of James Doe, you are required to appear and answer the said petition on or before the day of 19. . , or stich proceeding will be had against you as if you had appeared in said pro- ceeding. The said petition is filed for the purpose of obtaining pro- bate of a certain paper writing as the last will and testament of John Doe, late of the of , in the County of and State of , deceased, (or othcrci.'isc, as the case mav be), and you are made a party because i as the case may be). Dated Newark, N. T-. , ,19... A. R. C, Proctor for petitioner. St.. Newark. N. J. This notice must be served or ])nblisbc(l and maik-d within twenty days of the date thereof, if i)tiblication is necessary it is made by publishing the same in one of tlu' i)ublic news- papers of this state designated in the order for four weeks at least once in each week-. I'or ff;rni of proDf of ])nblicati(in of ii86 Probate Law and Practice. notice, see Form 114, for proof of mailing see Form 39; for proof of service Form 38. Form 221. Proof of Inquiry for Residence and Mailing. [See Orphans' Court Act. section 178. page 41. supra ; Chancer}- Rules 57. 58, 59 and 60.] Essex County Orphans' Court. In the matter of the estate Tohn Doe, deceased. Proof of Inquiry. State of New Jersey County of Essex 5EY, 1 A. B. C, l^eing duly sworn, on his oath deposes and says that he is the proctor for petitioner and the person actnally entrusted with the management and conduct of the above en- titled matter ; that he has, in good faith, made diligent and careful inquiry for the residence and post-office address of William Doe, one of the parties in the above-stated matter and that he is credibly informed in such manner that he be- lieves it to be true that the said William Doe resides in the of , in the State of and that his post-office address is : and this deponent did on the day of last, place in the post office at a letter directed to the said ^^'illiam Doe at with the postage prepaid, containing a copy of the notice hereto an- nexed {or as zvcll in the manner directed by the rules of the Court of Chancery relating thereto as in every other zvay by zvhich he thonglit it probable that he could ascertain such residence and address and that he has not been able to discover and has no information as to the residence or post-office ad- dress of said defendant). Subscribed and sworn to this^ day of , 19..., L A. B. C. before me, J J. C. F., Notarv Public of N. T- ACCOUXTING. TI87 ACCOUNTING. Form 222. Notice of Settlement of Account. [See Orphans' Court Act. ( )u Accountmg, John Doe. deceased. j Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of , in the County of and State of , respectfully shows as follows : 1. Your petitioner is the administrator of the estate of John Doe, deceased, and herewith presents his account of his administration of the aforesaid estate. 2. The names and addresses of all persons interested in said accounting are as follows : Henry Doe, of full age, a brother of intestate, who resides at Number Street, in the of in the County of , and State of ; Mary Williams, of full age, a sister of intestate, who resides at Number ..... Street, in the City of in the County of ....;..., and State of ; Mary Jones, a minor of the age of sixteen years. the daughter of Eliza Jones, a deceased daughter of the said John Doe, deceased, and who resides with her father, Henrv Jones, at Number Street, in the City of Accounting. 1189 in the County of and State of : no guardian has been appointed for the said Mary Jones, so far as your peti- tioner has been informed. 3. The following is a summary of his aforesaid accoimt : Accountant charges himself as folloK's: To amount of Inventory $5,000 00 Amount collected in addition to In\entory .... 3,000 00 Total charges $8,000 00 Accountant prays allowance as foUozvs: Amount of expenditures 1,000 00 Balance in the hands of accountant $7,000 00 Your petitioner therefore prays that said account may be allowed, and also for the allowance of commissions and counsel fees. Dated Newark, N. J., William Doe. , , I9--- State of New Terse Y; County of Essex. William Doe. being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this" day of , 19.., at Newark, N. J-, before me. F. R. S., Notary Public of N. T. W^iLLiAM Doe Form 225. Petition on Second or Other Accounting. [See Orphans' Court l\ule 19. page 634, supra.] Essex County Orphans' Court. In the matter of the estate , On accounting. lohn Doe. deceased. "\ Petition. 1 190 Probatk Law and Practice. To the Orphans' Court of the County of Essex : The petition of WilHam Doe. of the of , in the County of , and State of respectfully shows as follows : 1. Your petitioner is the executor of the last will and testa- ment of John Doe, deceased, and herewith presents his ac- count of his administration of the aforesaid estate. 2. The names and addresses of all persons interested in said accounting are as follows : Henry Doe, of full age, a brother of testator, who resides at Number . . . . , Street, in the of , in the County of and State of ; Mary Williams, of full age, a sister of testator, who resides at Numljer , Street, in the City of , in the County of and State of ; Mary Jones, a minor of the age of sixteen years, the daughter of Eliza Jones, a deceased daughter of the said John Doe, deceased, and who resides with her father, Henry Jones, at Number . . . . , Street, in the City of , in the County of and State of ; no guardian has been appointed for the said Mary Jones, so far as your petitioner has been informed. 3. The following is a summary of his aforesaid account : Accountant charges himself as follows: Balance in hands of accountant as shown in last previous account $ 8,000 00 Amount received during period covered by this account 5,ooo 00 Total charges ' $13-000 00 Accountant prays allowance as folloivs: Amount of disbursements as shown by said account 3,000 00 Balance in the hands of accountant $10,000 00 Your petitioner therefore prays that said account may be allowed and also for the allowance of commissions and counsel fees. Accounting. Dated Newark. N. J., i9---- State of Xew Jersev, CouNTv OF Essex. 1191 William Doe. ss. William Doe, Ijeing tluly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this day of , 19.., at Newark, N. J., before me, E. C. G., Notary Public of N. J William Doe. Form 226. Petition on Trustee's First Account. [See Orphans' Court Rule 19, page 634, supra.] Essex County Orphans' Court, In the matter of the estate John Doe, deceased. °f } On Accounting. Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of in the County of and State of respectfully shows as follows : 1. Your petitioner is the trustee under the last will and testament of John Doe, deceased, and herewith present^ his account of his administration of the aforesaid estate. 2. The names and addresses of all persons interested in said accounting are as follows: llenry Doe, of full age, a l)rother of testator, who resides at Number Street, in the of , in the County of and State of ; Mary W' illiams, of full age, a sister of testator, who resides at Number . . . . , vStreet in the Citv of 1 192 Probate LvAW and Practice. , in the County of and State of ; Mary Jones, a minor of the age of sixteen years, the daughter of EUza Jones, a deceased daughter of the said John Doe, deceased, and who resides with her father, Henry Jones, at Number . . . . , Street in the City of , in the County of and State of ; no gyardian has been appointed for the said Mary Jones, so far as your petitioner has been informed. 3. The following is a summary of his aforesaid account : As to Corpus. This accountant charges himself with $10,000 00 This accountant prays allowance for 1,000 00 Balance of corpus in hands of trustee $9,000 00 As to Income. This accountant charges himself with $3,000 00 This accountant prays allowance for 2,500 00 Balance of income in the hands of trustee . . . 500 00 Your petitioner therefore prays that said account may be allowed, and also for the allowance of commissions and counsel fees. Dated Newark, N. J., Wieliam Doe. , , i9-.-. State oe New Jersey, County oe Essex. ■'} William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this^ '' Vj ^, ° tvt' " T " 1" ' r " ' ^ William Doe. 19.., at Newark, N. J., before me, E. C. G., Notary Public of N. J. ACCOUXTINX. II93 Form 227. Petition on Trustee's Second and Subsequent Account- ings. [See Orphans' Court Rule 19, page 634, supra. 1 EssKx CouxTv ()ri'1iaxs' Court. In the matter of the estate of ^ , „ , , , ^.. accountins:. lohn Doe, deceased. I On Petition. To the Orphans' Court of the County of Essex : The petition of \\illiam Doe. of the of in the County of and State of respectfully shows as follows : 1. Your petitioner is the trustee under tiie last will and testament of John Doe, deceased, and herewith presents his account of his administration of the aforesaid estate. 2. The names and addresses of all persons interested in said accounting are as follows : Henry Doe, of full age, a brother of testator, who resides at Number . . . ., Street, in the City of , in the County of and State of ; Mary Williams, of full age, a sister of testator. who resides at Number . . . . , Street in the City of , in the County of and State of ; Alary Jones, a minor of the age of sixteen years> the daughter of Eliza Jones, a deceased daughter of the said John Doe, de- ceased and who resides with her father, Henry Jones, at Num- ber . . . . , Street, in the City of , in the County of and State of ; no guardian has been appointed for the said Mary Jones, so far as your peti- tioner has been informed. 3. The following is a summary of his aforesaid account: As to Corpus. Accountant charges himself as follows: Balance in the hands of trustee as shown 1)_\- his last previous accounting $9,000 00 Amount received during i)eriod co\ercd by this account 5,ooo 00 Total charges $14,000 00 1194 Probate Law and Practice. Accouniant prays allcKvaiicc as follo-a's: Amount of disbursements as shown Ijy this account 1,000 00 Balance of corpus in the hands of trustee $13,000 00 As to Income. Accountant charges himself as folloics: Balance in hands of trustee as shown by his last previous accounting $ 500 00 Amount received during period covered l^y this ac- counting 3,000 00 Total charges .,, . ...- $3,500 00 Accountant prays alloivance as follows: Amount of disbursements as shown by said account 3,000 00 Balance of income in the hands of trustee . . . $500 00 Your petitioner therefore prays that said account may be allowed, and also for the allowance of commissions and counsel fees. Dated Newark, N. J., William Doe. , , I9-- State of New Jersey, County oe Essex. -I William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this~ day of , 19. . ., at Newark, N. J., before me, F. R. S., Notary Public of N. J. William Doe. Accounting. 1195 Form 228. Petition on Trustee's Account in Case of Separate Trust. [See Orphans' Court Rule 19, page 634. supra.] Essex Couxtv Orphans' Court. In the matter of the estate of 1 „ . . , „ , , > On Accountmor. johix Doe, cleceased. j Petition. To the Orphans' Court of the County of Essex. The petition of William Doe, of the of , in the County of and State of , respectfully shows as follows : 1. Your petitioner is the trustee under the last will and testa- ment of John Doe. deceased, and herewith presents his accoiuit of his administration of the aforesaid trusts, as well as of the special trust fund for the benefit of Mary Jones created in and l)y the will of the aforesaid John Doe. deceased. 2. The names and addresses of all persons interested in said accounting are as follows : Henry Doe, of full age, a lirother of testator, who resides at Number Street, in the of in the County of and State of ; Mary Williams, of full age, a sister of testator. who resides at Number Street, in the City of , in the County of and State of : Mary Jones, a minor of the age of sixteen years, the daughter of Eliza Jones, a deceased daughter of the said John Doe. de- ceased, and who resides with her father. Henry Jones, at Num- ber ...'..., Street, in the City of in the County of and State of ; no guardian has been appointed for the said Mary Jones, so far as your petitioner has been informed. 3. The following is a summary of his aforesaid accounts: As to Corpus of General Trust. This accountant charges him.self with . . . .$10,000 00 This accountant ])rays allowance for i.ooo 00 Balance of corpus of general trust $9,000 00 1 196 Probate Law and Practice. As to Income of General Trust. This accountant charges himself with .... $3,000 00 This accountant prays allowance for .... 2,500 00 Balance of income of general trust $500 00 As to Corpus of Trust for the Benefit of Mary Jones. This accountant charges himself with the amount of the trust fund as created in and hy said will . $50,000 00 Accountant prays allowance for no dis- bursements therefrom Balance of corpus of trust for Mary Jones . $50,000 00 As to Income of Trust for the Benefit of Mary Jones. This accountant charges himself with .... $2,500 00 This accountant prays allowance for .... 2,000 00 Balance of income of trust for ^Mary Jones. VS500 00 Your petitioner therefore prays that said accounts may be allowed, and also for the allowance of commissions and counsel fees. Dated Newark, N. J., William Doe. , , I9--- State oe New Jersey, SKY, I ss. County of Essex. William Doe, of full age, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things there- in contained are true to the best of his knowledge and belief. Subscribed and sworn to this ' 'day of , 19 . . ., at Newark, N. J., before me, E. C. G., Notary Public of N. J. William Doe. ACCOUXTING. 1 197 Form 229. Account of Executor, Administrator or Guardian. [See Orphans' Court Act. :>i.ction 114. page 616, supra aiul ib., section 115, page 616, supra.] EssKx County Orpii.\xs' Court. In the matter of the estate of T , -r\ ^ J ? On Accountinsr. lohn Doe, deceased. 1 Account. The account of WilHam Doe, the executor of the last will and testament of John Doe, deceased, shows as follows: First. This accountant charges himself as follows: 1914. Aug. 20. To amount of inventory and appraise- ment $5,000 00 Dec. I. To interest on deposit in Savings Institution 300 00 1915- Jan. 3. Proceeds of sale of dwelling known as No St., Newark, N. J 5,000 00 $10,300 00 Second. This accountant prays allowance as follows: 1914. 'V\:)ucher No. July I. Stirrogate's bill for probating will I $10 00 July 7. Dr. William Jones, medical at- tendance during last illness 2 100 00 July 10. Mary Smith, nurse during last illness 3 50 00 July K). Thomas I'.rown, Undertaker's Ijill 4 300 00 1 198 Probate Law and Practice. Aug. 5. Surrogate's bill for filing in- ventory 5 3 00 Aug. 10. William Young, Appraiser .... 6 5 00 Aug. 10. George Jones, Appraiser 7 5 00 Aug. 20. Henry Williams, groceries furn- nished decedent during his lifetime 8 30 00 1914. Sept. 6. Michael Higgins, ice furnished decedent during his life- time 9 20 00 1915- Oct. 15. Surrogate's fees on accounting. 10 40 00 Oct. 15. Taxes assessed upon lands of decedent during his life- time II 160 00 ^:>/2T, GO Summary. This accountant charges himself with $10,300 00 This accountant prays allowance for 723 00 Balance $9,577 00 Dated Newark, N. J., * William Doe. 19. . . Executor. State of New Terse\ ;ey, I County of Essex. ^ William Doe. being duly sworn according to law upon his oath, deposes and says that he is the executor in the fore- going account named, and that the said account is in all things just and true, both as to the charges and discharges thereof, according to the best of his knowledge and belief. Accounting. i 199 Subscribed and sworn to this"^ •I day of ig .... at Newark, N. J., before me, J. C. F., Notary Public of N. J. Annex statement of assets see Form 232. William Doe. Form 230. Account of Trustee. [See Orphans' Court .\ct. section 114. page 616. supra.] Essex County Ori'm.xns' Court. In the matter of the account of" the trustee of the estate of John Doe, deceased. Account. The account of William Doe, trustee of the trusts created in and by the last will and testament of John Doe, late of the County of Essex, deceased, shows as follows : First — As to Corpus. This accountant charges himself as follows: 1914. July I. To amount of corpus of trust fund as shown by the final account of the executor of the Said John Doe, de- ceased $10,000 00 Aug. 5. To proceeds of sale of premises No , Street, Newark, N. J., made by the executor of the said John Doe 5,000 00 Sept. 10. To interest on the sum of $200 00, being the amount of an assessment for street improvements against prop- erty No , Street, Newark, N. j., owned by the said testator, from the payment of said assessment to date 24 00 • Total charges $15,024 00 77 I200 Probate Law and Practice. This accountant prays allowance as follows: 1914. Sept. 10. To amount of assessment for street im- provements against property No. , Street, Newark, N. J., owned by said testator $200 00 $200 00 Summary as to Corpus. This accountant charges himself with $15,024 00 This accountant prays allowance for 200 00 Balance of corpus in hands of trustee $14,824 00 Second — As to Income. This accountant charges himself as follows: 1914. Aug. 7. Interest on funds on deposit in Savings Institution, Newark, N. J. . Aug. 1 1. To rent of premises No , St., Newark, N. J Sept. 9. Interest on mortgage of $5,000.00 given by William Jones on premises No. St., Newark, N. J. . Sept. 15. To rent of premises No , St., Newark, N. J. Sept. 25. Interest on mortgage of $5,000.00 given by James Smith, on premises No. , St., Newark, N. J . . 125 00 $150 00 100 00 125 00 100 00 $600 00 This accountant prays allowance as follows: 1914. Voucher No. Sept. 6. To John Jones, plumbing repairs No , St., Newark, N. J i $25 00 Oct. 13. Taxes on property No , St., Newark, N. J 2 150 00 ACCOUXTING. 1201 Xov. 19. Interest on the sum of $200 00. being the amount of an assessment for betterments by reason of street im- provements at Xo , St., Newark, N. J., which interest is credited to cor})us in this account 24 00 Dec. 13. Cash to William Doe. on ac- count of income 3 300 00 $499 00 Summary as to Income. This accountant charges himself with $600 00 This accountant prays allowance for 499 00 Balance of income in hands of trustee $101 00 • Dated Newark, N. J., William Doe, , , 19. . . Trustee. State of New Jersey, | County ce Essex. j W'lLLiAM Doe, the trustee above-named, being duly sworn according to law, upon his oath deposes and says that the above account is in all things just and true, both as to the charges and discharges thereof, according to the l)est of his knowledge and belief. Subscribed and sworn to this day of 19 . . ., at Newark, N. J., before me, J. F. C, Notary Public of N. J. Annex statement of assets see Fcjrm 232. William Doe. I202 Probate Law and Practice. Form 231. Account of Trustee in Case of Special Trust Fund. [See Orphans' Court Act, section 114, page 616. supra.] Essex County Orphans' Court. In the matter of the account of^ the trustee of the estate of > John Doe, deceased. J Account. The account of Wilham Doe, trustee of the trusts created in and by the last will and testament of John Doe, late of the County of Essex, deceased, shows as follows : First — As to Corpus. This Accountant Charges Himself as Follows: 1914. July I. To amount of corp.us of trust fund as shown by the final account of the executor of the said John Doe, de- ceased $10,000 00 Aug. 5. To proceeds of sale of premises No. . . . . , Street, Newark. N. J., n^ade by the executor of the said John Doe 5,000 00 Sept. 10. To interest on the sum of $200.00 being the amount of an assessment for street improvements against prop- erty No , Street, Newark, N. J. owned by the said testator, from the payment of said assessment to date 24 00 Total charges $LS.024 00 The Accountant Prays Allowance as Follows: 1914. Sept. 10. To amount of assessment for street im- provements against property No. , Street, Newark, N. J.. owned by said testator $200 00 ' $200 00 Accounting. 120,^ Summary as to Corpus. This accountant charges himself witli $15,024 00 This accountant ])rays allowance for 200 00 Balance of corpus in hands of trustee $14,824 00 Second — As to Income. . This Accountant Charges Himself as Follows: 1914. Aug. 7. Interest on funds on deposit in Savings Institution, Newark^ ?^- J • • 150 00 Aug. II. To rent of premises No , St., Newark, N.J 100 00 Sept. 9. Interest on mortgage of $5,000.00 given by William Jones on premises No. . . . . , St., Newark, N. J. . 125 00 Sept. 15. To rent of premises No St., Newark, N. J 100 00 Sept. 25. Interest on mortgage of $5,000.00 given by James Smitii, on premises No. , St., Newark, N. J.. . 125 00 $600 00 This Accountant Prays Allowance as Follows: 1914- Voucher No. Sept. 6. John Jones, i)lumbing re])airs No , St., Newark, N. J i $25 00 Oct. 13. Taxes on property No , St., Newark, N. J. 2 150 00 Nov. 19. Interest on the sum of $200.00 being the amount of an -' assessment for betterments by reason of street im- provements at No , St., Newark, N. J., which interest is credited to corpus in this account. ... 3 24 00 I204 Probate Law and Practice. Dec. 13. Cash to William Doe, on ac- count of income 4 300 00 S499 00 Summary as to Income. This accountant charges himself with $600 00 This accountant prays allowance for 499 00 Balance of income in hands of trustee Sioi 00 Third — As to Corpus of Special Trust Fund for the Benefit of Mary Jones. This accountant charges himself with the amount of said trust fund as created in and by the last will and testament of John Doe. deceased $50,000 00 This Accountant Prays Allowance as Follows: No disbursements have been made from corpus $50,000 00 Fourth — As to Income from Special Trust Fund for the Benefit of Mary Jones. This Accountant Charges Himself as Follows: .914. Aug. I. To interest on bond and mortgage for $5,000.00 on property of A. B. . . . $250 00 Sept. I. To interest on bond and motgage for $10,000.00 on property of X. Y.. 500 00 1915- Feb. I. To interest on bond and mortgage for 20,000.00 on property of Y. D.. 1,000 00 Apr. I. To interest on mortgage for $15,000.00 on property of Q. R 750 00 $2,450 00 Account I XG. 1205 This Accountant prays allowance as follows: 1914. Aug. II. Cash paid to Martlia Jones, guardian of Alary Jones $150 00 Sept. 3. Cash paid to Alartha Jones, guardian of Alary Jones 400 00 1915- Feb. 5. Cash paid to Alartha Jones, guardian of Alary Jones 900 00 Apr. 2. Cash paid to Alartha Jones, guardian of Alary Jones 650 00 $2,100 00 Summary as to Special Trust Fund for Mary Jones. As to Corpus. This accountant charges himself with $50,000 00 This accountant prays allowance for 000 00 Balance of corpus of special trust $50,000 00 As to Income. This accountant charges himself with $2,450 00 This accountant prays allowance for 2,100 00 Balance of income of special trust $350 00 Dated Newark, N. J., Wili,l\m Doe. , , 19. . . Trustee. State of New Jersey, ) County or Essex. j' William Doe, the trustee above named, being duly sworn ac- cording to law upon his oath, deposes and says that the above account is in all things just and true, both as to the charges and i2o6 Probate Law and Practice. discharges thereof, according to the best of his knowledge and belief. Subscribed and sworn to this" day of , 19 . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. Annex statement of assets ; see Form 232. William Doe. Form 232. Statement o£ Assets to be Annexed to all Accounts. [See Orphans' Court Rule 21, page 636, supra.] The following is a full statement, or list, of the securities, investments and assets of which the balance of the aforesaid estate of John Doe, deceased, in the hands of said Willian Doe, executor as aforesaid, consists, and a statement of ah changes made in the securities of the said estate since the filing of the Inventory (or since the last accounting) : Securities Now in the Hands of Accountant. Bond and mortgage given by William Jones, on premises No , Street, Newark, N. J c^5,ooo 00 Bond and mortgage given by James Smith, on premises No , . Street, Newark, N. J 3,000 00 Cash on deposit in National Bank 300 00 $8,300 GO The Following Changes in the In\cstments Have Been Made by Accountant Since the Filing of the Inventory (or Last ' Account). Bond and mortgage of James Brown for $5,000.00 on premises No , Street, Newark, N. J., was paid on the day of , 19. . ., by the said mortgagor and the proceeds thereof have been reinvested by loaning the same to William Jones on his bond and mortgage for $5,000.00 on premises No , Street, Newark, N. J. Dated Newark, N. J., William Doe, . . . , , 19 . . . Executor. Accounting. 1207 Form 233. Exceptions to Account. [See Orphans' Court Act. section 126. page 36. supra, and Orphans" Court Rule 20. page 663, supra. J Essex County Orphans' Court. In the matter of the estate John Doe, deceased. Bxceptio>is I On Exceptions to Account. James Doe, one of the children and next of kin of John Doe, late of the County of Essex, deceased, hereby excepts to the account of William Doe, administrator of the estate of John Doe, deceased, for the following reasons : First : The said accountant has not charged himself with the sum of five hundred dollars on deposit in the Savings Institution to the credit of "John Doe and Jane Doe, his wHq, either to draw, survivor to take," which said sum was the property of the said John Doe and constitutes assets of his estate. Second: The said accountant has not charged himself with the proceeds of a certain life insurance policy issued by the Life Insurance Company for five thousand dollars, which policy constitutes a portion of the estate of the said John Doe, deceased. Third : Accountant prays allowance for the sum of one hun- dred and fifty dollars expended by him in the payment of taxes assessed upon certain real estate owned by said intestate, whereas said taxes were not assessed until after the death of decedent and were therefore not a charge against his personal estate. Dated Newark, N. J., James Doe. , , i9--- Form 234. Decree on Account of Executor or Administrator, or on Guardian's Final Account. [See Orphans' Court Act, section 125, page 647, supra.] Essex County Orphans' Court. i2o8 Probate Law and Practice. In the matter of the account oi~^ the executor of John Doe, y deceased. J Decree Allozving Account The Surrogate having audited and stated the final account of William Doe, the executor of the last will and testament of John Doe, deceased, and placed the same on the files of his office twenty days previous to the day of , A. D., 19..., and having on the day last aforesaid reported the same to this court for allowance and settlement, and it having been proved to the satisfaction of the court that notice of his intention to settle the said account on said day of , A. D., 19. . . , in this court was given by said account- ant according to law ; And the court having examined the said account and the vouchers and receipts for payments and disbursements claimed therein, and having found the same to be correct in all i)articu- lars, and no exceptions being made thereto. It is on this day of , A. D., one thousand nine hundred and , ordered, adjudged and decreed, that the said account be in all things allowed as reported, and that there is a balance remaining in the hands of said accountant amounting to the sum of dollars to be disposed of ac- cording to law. It is further ordered that from the aforesaid balance the said accountant be allowed the sum of dollars as and for his commissions, and that a counsel fee of dollars be allowed to , proctor for said accountant. W. P. M.. Judge. Form 235. Decree on Guardian's Intermediate Account. [See Orphans" Court Act, section 124, page 649, supra.] Essex County Orphans' Court. In the matter of the intermediate'] account of the guardian of ^ John Doe. a minor. J Decree AUowinci Account. Accounting. 1209 The surrogate having audited and stated the intermediate account of W'ilHani Doe, the guardian of John Doe, a minor, and placed the same on the files of his office twenty days prev- ious to the day of , A.D., one thousand nine hundred and , and having on the day last aforesaid reported the same to this court for allowance and settlement, and it having been proved to the satisfaction of the court that notice of his intention to settle the said account on the day of A.D., one thousand nine hundred and in this court was given by said accountant according to law ; And the said account having been examined by the court and being found to be properly and fairly stated, and the items thereof to be supported and justified by the vouchers, and no exceptions being made thereto. It is, on this day of , A. D., nineteen hun- dred and ordered, adjudged and decreed that the said account be entered of record. It is further ordered that the said accountant be allowed the sum of dollars on account of his commissions, and that a counsel fee of dollars be allowed to , proctor for said accountant. W. P. .M., Judge. Form 236. Decree on Trustee's Account. [See Orphans' Court Act. section 125. page 647. su])ra. | Essex County Orphans' Court. In the matter of the account of^ the trustee of John Doe, v deceased. J Decree Alloiving Account. The surrogate having audited and stated the account of Wil- liam Doe, the trustee under the last will and testament of John Doe, deceased, and ]>laced the same on the files of his office twenty days previous to the day of .A. D.. 19. . ., and having on the day last aforesaid reported the same to this court idr allowanre and settlement, and it having been I2IO Probate Law and Practice. proved to the satisfaction of the court that notice of his inten- tion to settle the said accounts on said day of , A. D., 19. . ., in this court was given by said accountant accord- ing to law. And the court having examined the said accounts and the vouchers and receipts for payments and disbursements claimed therein, and having found the same to be correct in all particu- lars, and no exceptions being made thereto. It is on this day of , A. D., nineteen hundred and , ordered, adjudged and decreed that the said ac- count be in all things allowed as reported, and that there is a balance of corpus amounting to the sum of dollars, and a balance of income amounting to the sum of dollars remaining in the hands of said accountant to be disposed of according to law. It is further ordered that the said accountant be allowed the sum of dollars as and for his commissions on the sum of dollars of income collected by him, and that said accountant be allowed the further sum of dollars as and for his commissions on the corpus of said estate, and that a counsel fee of dollars be allowed to , proctor for said accountant. W. P. M., Judge. Form 237. Decree on Trustee's Accounts in Case of Special Trust. [See Orphans' Court Act, section 125, page 647, supra.] Essex County Orphans' Court. In the matter of the accounts of"^ the trustee of John Doe, y deceased. J Decree Allozving Accounts. The surrogate having audited and stated the accounts of William Doe, the trustee under the last will and testament of John Doe, deceased, and placed the same on the files of his office twenty days previous to the day of , ACCOUNTINC. 121 I A. D.. 19. . ., and having on the day last aforesaid reported the same to this court for allowance and settlement and it having been proved to the satisfaction of the court that notice of his intention to settle the said accounts on said day of A. D., 19. . . , in this court was given hv said account- ant according to law. And the court having examined the said accounts and the vouchers and receipts for payments and disbursements claimed therein, and having found the same to be correct in all particu- lars, and no exceptions being made thereto. It on this day of , A. D.. nineteen hundred and ordered, adjudged and decreed that the account of the aforesaid trustee of the principal trust created in and bv the will of the said John Doe. deceased, be in all things allowed as reported, and that there is a balance of corpus amounting to the sum of dollars, and a balance of income amount- ing to the sum of dollars remaining in the hands of said accountant to be disposed of according to law. It is further ordered that the said accountant be allowed the snm of dollars as and for his commissions on the sum of dollars of income collected by him, and that said accountant be allowed the further sum of dollars as and for his commissions on the corpus of said estate. It is further ordered that the account of the aforesaid trustee of the special trust created for the benefit of Mary Jones be in all things allowed as reported and that there is a balance of corpus amounting to the sum of dollars and a balance of income amounting to the sum of dollars remaining in the hands of said accountant to be dis])ose(l of according to law. And it is further ordered that the said accountant be allowed the sum of .... dollars as and for his commissions on the sum of .... dcjllars of income of said special trust fund collected by him and that the said accountant be allowed the further sum of dollars as and for his commissions on the corpus of said si)ecial trust fund and that a counsel fee of .... dollars be allowed to proctor for said accountant. \V. P. AT.. Judge. I2I2 Probate Law and Practice;. Form 238. Interlocutory Decree on Accounting Where Balance is Due Accountant. [See Orphans' Court Act. section 125, page 647. supra.] Essex County Orphans' Court. Term A. D., 19. . . In the matter of the final account^ of the administrator of John ^ Doe, deceased. J Interlocutory Decree on Account. The surrogate having audited and stated the final account of William Doe, the administrator of the estate of John Doe, deceased, and placed the same on the files of his office twenty days previous to the day of A. D., 19. . ., and having on the day last aforesaid reported the same to this court for allowance and settlement, and it having been proved to the satisfaction of the court that notice of his intention to settle the said account on the said .... day of A.D., 19. ., in this court was given by said accountant according to law and the court having examined the said account and the vouchers and receipts for payments and disbtu"sements claimed therein, and having found the same to be correct in all particulars. And it appearing by said account as reported for settlement that the said accountant claims there is a balance due him to the amount of dollars. It is on this day of A. D., one thousand nine himdred and in the Term of , 19. . . . of the Orphans' Court of the County of Essex, in the State of New Jersey, ordered, adjudged and decreed that the further consideration of said account be continued tmtil the day of , 19. . ., in the term of , 19. . . . W. P. M., Judge. Accounting. 1213 Form 239. Final Decree on Account Where Balance is Due Accountant. [See Orphans' Court Act. section 125. page 647, supra.] Essex County Orph.^ns' Court. Term. A. D.. 19... In the matter of the final account^ of the administrator of John > Doe, deceased. J Filial Decree on Account. William Doe, the administrator of the estate of John Doe, deceased, having on the day of , A. D., 19. . . , in the Term of , 19. . ., presented his account as such administrator to this court for allowance, and it appearing that there was a balance due the accountant and that by an order of this court made on the day of 19. • • , the further consideration of the said account was continued until the day of , 19. . . , in the Term of 19. . ., and now on the day last aforesaid the surrogate having reported the same to this court for allowance and no exception being made thereto. It is on this day of 19. . . , in the term of , 19. . . , ORDERED, ADJUDGED and DECREED that the said account be in all things allowed as reported and that there is a balance due the said accountant amounting to the sum of dollars. W. P. M.. Judge. Form 240. Decree Allowing Account and Adjudicating upon Exceptions. [See Orphans' Court Act, section 125. page 647. supra.] Essex County Orphans' Court. In the matter of the account of^ the trustee of John Doe, > deceased. J Decree Alloiving Account and Adjudicating upon Exceptions. 12 14 Probate Law and Practice. The surrogate having audited and stated the account of William Doe, the trustee under the last will and testament of John Doe, deceased, and placed the same on the files of his ofihce twenty days previous to the day of A. D., 19..., and having on the day last aforesaid reported the same to this court for allowance and settlement, and it having been proved to the satisfaction of the court that notice of his intention to settle his said account on the said day of , 19. . ., was given by said accountant accord- ing to law. And exceptions having been hied to said account by James Doe, one of the children of John Doe, deceased, and the proofs and allegations of the parties having been heard and con- sidered by the court. It is on this day of , A. D., one thousand nine hundred and , ordered, adjudged and decreed that the exception first submitted be allowed and that said account- ant l)e surcharged with the sum of five hundred dollars on deposit in the Savings Institution to the credit of John Doe, and Jane Doe, his wife ; that the exception secondly submitted be and the same hereby is overruled ; and that the exception thirdly submitted be and the same is hereby allowed and the sum of one hundred and fifty dollars prayed allowance as paid out of income for a betterment be stricken therefrom and the same charged against the corpus of the estate, and that the interest on said sum of one hundred and fifty dollars from the date of its payment to the date of said accounting be charged against the income of the said estate and also credited to the corpus. And the court having examined the said account and the vouchers and receipts for payments and disbursements claimed therein, and having found the same to be otherwise correct in all particulars. It is on this day of , A. D.. one thousand nine hundred and ordered, adjudged and decreed. that the said account be amended in accordance with the fore- going and that as so amended the said account be allowed, and that there is a balance of corpus amounting to the sum of dollars, and a balance of income amounting to the ACCOUNTIXC. 12 15 sum of dollars, remaining in the hands of said accountant to he disposed of according to law. And it is further ordered that the said accountant he allowed the sum of dollars as and for his commissions on the sum of dollars of income collected hy him and that he he allowed the further sum of dollars as and for his commissions on the corpus of said estate and that a counsel fee of dollars be allowed to proctor for said accountant and a counsel fee of dollars be allowed to , counsel for exceptant. W. P. At., Tudge. Form 241. Decree Allowing Account and Ordering Distri- bution of Estate. [See Orphans' Court Act. section 125. page 647, supra: and ih.. section 168, page 716, supra.] Essex Countv Ori'hans' Court. In the matter of the account of ^ the administrator of John K- Doe, deceased. J Decree AUoiving .Iccount and Ordering Distrihittion. The surrogate having audited and stated the hnal account .of William Doe, administrator of tiie estate of John Doe, deceased, and placed the same on the files of his office twenty days previous to the day of 19.... and having on the day last aforesaid reported the same to this court for allowance and settlement, and it having been proved that notice of the intention of the said administrator to settle his said account on the day of 19. . ., has been duly given according to law, and the court having examined the said account and the vouchers ;uid receipts for payments and disbursements claimed therein, and having found the same to be correct in all respects, and no exceptions being made thereto. 78 I2i6 Probate Law and Practice. It is on this day of 19. • -, ordered, ad- judged and decreed that the said account be in all things allowed as stated and that there is a balance remaining in the hands of said accountant amounting to the sum of dollars to be distributed according to law, and it is further ordered that from the aforesaid balance the said accountant be allowed the sum of dollars, as and for his com- missions, and that a counsel fee of dollars be allowed to proctor for said accountant. And it having been proven to the satisfaction of the court that the said John Doe, deceased, left him surviving a widow, Jane Doe, and two children, William Doe and James Doe, as his only next of kin. It is further ordered that the aforesaid sum of dollars, after deducting therefrom the amount of commissions and counsel fees hereinbefore allowed, be distributed and paid to the aforesaid widow and next of kin of the said John Doe, deceased, as follows: to the said Jane Doe, widow of said intestate, one-third part thereof ; to the said \\'illiam Doe a son of said intestate, one-third part thereof and to the said James Doe, a son of said intestate, one-third part thereof. W. P. M., Judge. For form of proof of persons entitled to distributive shares, see Form 259. PROCEEDINGS TO REQUIRE EXECUTOR TO ACCOUNT WITH CO-EXECUTOR. Form 242. Petition of Executor for Order Requiring Co-Execu- tor to Account With Him. [See Orphans' Court Act. section 138, page 422, supra.] Essex County Orphans' Court. T ., ,, r ^1 ^ ^ i:~^ 0» Application of Execu- In the matter of the estate of If . ^ ^ T 1 r-> J J >tor to Require Co-Execulor John Doe, deceased. f . ^ J to Account. Petition. Accounting. 1217 To the Orphans' Court of the County of Essex : The petition of Wilham Doe, of the of in the County of and State of Xew jersey, respect fullv shows that : 1. John Doe, late of the County of Essex, deceased, died on the day of 19 leaving a last will and testament wherein and wherehy he nominated and appointed James Smith and your petitioner the executors thereof ; and on the day of 19 the said will was duly admitted to probate by the Surrogate of the County of Essex, and letters testamentary thereon issued to the said James Smith and your petitioner, the executors therein named, who thereupon proceeded to administer the trusts created in and bv the said will. 2. A portion of the estate of the said John Doe, deceased, consists of certain real estate situate in the City of Newark in the County of Essex, aforesaid, upon which are erected thirteen dwelling houses, all occupied by tenants, and requiring constant care and attention. 3. Your petitioner is engaged in business in the City of Xew York, and therefore was unable to give the aforesaid real estate of the said John Doe, deceased, the care and attention which it deserved, and entered into an arrangement with James Smith, his co-executor as aforesaid, v,-ho resides in the City of Newark, whereby the latter undertook to care for the aforesaid real estate. 4. The said James Smith has been collecting the rents from the aforesaid real estate and paying annual charges thereon and the expenses of repairing the same, but has refused and neglected to account for the sums so received and disbursed by him as aforesaid, or to give your petitioner anv information in regard to the same. Your petitioner therefore prays that this court may order and direct the said James Smith, your petitioner's co-executor, as aforesaid, to account with him for all assets which have come into his hands as such executor. Dated Newark, N. J., Wii.i.i.xm Doic. T9... Statk ok New Jerskv, I County of Essex. j ' William Doe, being duly sworn upon his nath according to I2i8 Probate Law and Practice. law deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to tliis" day of 19. . ., before me, J. C. F.. Notary Public of N. ]. Form 243. Order to Show Cause Why Executor Should Not Account to His Co-Executor. Essex County ORriiANs" Court. [See Orphans' Court Act. section 138, page 422. supra.] T ^, ^^ r ^x ^ ^ t~] On Application of Execu- in the matter of the estate of ' . ^ ^^ T , TA J J ytor to Require Co-Execu- John Doe, deceased. ( . ^ J tor to Account. Rule to SIiow Cause. William Doe, of the of in the County of and State of liaving presented his petition herein alleging that James Smith, co-executor with him of the estate of John Doe, deceased, has been collecting funds of the estate of the said John Doe, deceased, and has refused to ac- count therefor, or to give the said William Doe any informa- tion in regard to the same, and praying that this court may order the said James Smith to account with the said William Doe, his co-executor as aforesaid, for all assets which have come to his hands as such executor. It is thereupon, on this day of 19. . .. or- dered that the aforesaid James Smith show cause before this court on the day of I9- • • , why he should not accoimt with William Doe, his co-executor, for all assets which have come to his iiands as executor under the last will and testament of John Doe, deceased. It is further ordered that a true but uncertified copy of this order be served upon the said James Smith within .... days from the date hereof, personally or by leaving the same at his ACCOUNTINI".. I21Q residence or usual place of abode with a person abo\e the age of fourteen years. W. P. M., Judge. For proof of service, see Form 38. Form 244. Order Requiring Executor to Account with Co-Ex- ecutor. [See Orphans" Court Act. sectiim 138, page 422. supra.] Es.sEx County Okimi.ans' Court. T , . .- 1 .0 (^" Ap])hcation of Execu- In the matter ot the estate ot ' . „ ^ T 1 T^ , i vtor to Kefunre Co-E.xecu- |ohn Doe, deceased. [ ^ J tor to Account. Order Rcqniriiuj Executor to Account IVith Co- E.vecutor. This matter being opened to the court l\v proctor for petitioner, and it appearing that William Doe. one of the executors of the last will and testament of John Doe, de- ceased, has duly filed his petition herein alleging that James Smith, his co-executor, has collected assets of the estate of the said John Doe, deceased, and refused and neglected to account therefor, or to advise the said William Doe, his co- executor, as aforesaid, in regard thereto, and the rule to show cause made herein having been duly served, and the matter now coming on to be heard, and the court being satis- fied that the allegations in petitioner's said petition are true and that sufficient reasons exist why the said James Smith should account with William Doe, his co-executor as afore- said. It is thereupon, on this .... day of , 19. . ., ordered, adjudged and decreed that James Smith, one of the executors of the last will and testament of John Doe, deceased, account with William Doe, his co-executor, for all as.sets which have come to his hands as executor of the last will and testament of John Doe, deceased, on or before the day of 19.... 1220 Probate Law and Practice. And it is further ordered that a true but uncertified copy of this order be served upon the said James Smith within .... days from the date hereof, personally or by leaving the same at his residence or usual place of abode with a person above the age of fourteen vears. W. P. M., Judge. For form of proof of service see Form 38. PROCEEDINGS TO COMPEL EXECUTOR OR AD- MINISTRATOR TO ACCOUNT. I. WHERE EXECUTOR, ETC., FAILS TO ACCOUNT WITHIN ONE YEAR. Form 245. Petition Requesting Surrogate to Cite Executor to Account. [See Orphans" Court Act. section 116. page 622. supra.] ^ Essex Countv Surrogate's Court. In the matter of the estate of | On Petition for Citation to John Doe, deceased. J Account. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of Henry Doe, of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is one of the children and next of kin of John Doe, late of the County of Essex, deceased, who died on the day of 19. . . , intestate. 2. On the day of , 19. . , the Surrogate of the County of Essex duly appointed William Doe adminis- trator of the estate of the said John Doe, deceased. • 3. William Doe has failed and neglected to file his account as administrator of the estate of the said John Doe, deceased, although more than one year has elapsed from the date of his appointment. Accounting. 1221 Your petitioner therefore prays that a citation may issue re- quiring the said William Doe to account at the ensuing term of the Orphans' Court. Dated Newark, N. T., Henrv Doe. ,19... State of New Jersev, County of Esse: ssEv, I Henry Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named and that the matters and things contained therein are true to the best of his knowledge and belief. Subscribed and sworn to this"^ , f ^ ° , \t " 't" L ' r " ' > I-Ienrv Doe. 19. . ., at Newark, N. J-, before me. J. C. F., Notary Public of N. J. Form 246. Citation to Account. [See Orphans" Court Act. section 116, page 622. supra.] Essex County Orphans' Court. December Term 191 5. State of New Jersey, County of Essex. ^- I'' To WiELiAM DoK, Administrator (l. s.) of the Estate of John Doe, Deceased, Greeting: We cite and command you that you render an account of your administration of the estate of John Doe, deceased, on , the day of April, 1916, at the April term of this court, to be holden in and for the County of Essex, and luiless you so do, that you personally be and appear before this court on the day last aforesaid, to show cause, if any you have, why you have not so accounted, and to abide the judg- ment of the court in the ])remises. 1222 Probate Law and Practice. Witness, W. P. M., judge of our said Orphans' Court at Newark, aforesaid, this day of , one thou- sand nine hundred and F. G. S., Jr., Surrogate and Clerk. This citation must be served In' the sheriiT. II. WHERE EXECUTOR FAILS TO ACCOUNT WITHIN TWO YEARS. Form 247. Petition Requesting Surrogate to Report Failure to Account. * [See Orphans' Court Act, section 117, page 622, supra, and P. L. 191 1, page 734, page 623, supra.] Essex County Surrogate's Court. In the matter of the estate of | On Petition for Citation to John Doe, deceased. ( Account. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of Jane Doe, of the of , in the County of and State of , respectfully shows that : 1. Your petitioner is the widow of John Doe, late of the County of Essex, deceased, and on the day of , 19. ., the will of the said John Doe was duly admitted to pro- bate by the Surrogate of the said County of Essex, and let- ters testamentary thereon issued to William Smith, the ex- ecutor therein named. Your petitioner is one of the legatees named in the aforesaid will of John Doe. deceased. 2. The said William Smith duly entered upon his duties as such executor, but has wholly failed and neglected to file an account of the estate of the said John Doe, deceased, for the space of two years after his appointment as such executor. Your petitioner therefore prays that the Surrogate may re- port to the Orphans' Court the aforesaid neglect of the said William Smith, executor as aforesaid, to file his account of the Accounting. 1223 estate of the said John Doe, deceased, within the time liniiteci by law. Dated Newark, N. T-, t t^ Tank Dok. , ,19.... ■• State of New Jersev, | County or Essex. J ^ Jane Doe. being chily sworn acct)r(ling to law upon her oatli. deposes and says that she is the petitioner in the foregoing petition named and that the matters and tilings contained therein are true to the best of her knowledge and belief. Subscribed and sworn to this"" day of , 19. . ., at Newark, N. J., before me, E. C. G., Notary Public of N. J, > Jane Doe. Form 248. Report by Surrogate of Failure to File Account. [See Orphans' Court Act, section ii". page 622, supra, and P. L. 191 1, page 734, page 623. supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Citation to John Doe, deceased. j Account. Report of Surrogate of Failure of Executor to file Account. To the Orphans' Court of the County of Essex: I, F. G. S., Jr., Surrogate of the County of Essex, do hereby report pursuant to the request of Jane Doe, widow of John Doe, late of the Comity of Essex, and one of the legatees named in the last will of the said John Doe, deceased, that Wil- liam Smith, the executor of the last will and testament of the said John Doe, deceased, has failed and neglected to render an account of the estate of the said John Doe, deceased, for the space of two years after his ap])ointmcnt. 1224 Probate Law and Practice. Respectfully submitted this day of , one thousand nine hundred and .... F. G. S., Jr., Surrogate. Form 249. Order of Orphans' Court Directing Surrogate to Issue Citation, [See Orphans' Court Act. section 117, page 622. supra, and P. L. 191 1, page 734, page 623, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Citation to John Doe, deceased. ( Account. Order Directing Surrogate to Cite Executor to Account. It appearing from a report of F. G. S., Jr., Surrogate of the County of Essex made upon the application of Jane Doe, widow of John Doe, late of the County of Essex, deceased, and one of the legatees named in the last will and testament of the said John Doe, deceased, that William Smith, the ex- ecutor of the last will and testament of the said John Doe, de- ceased, has neglected to render an accoimt of the estate of the said decedent for the space of two years after his appoint- ment, and no reason appearing or being alleged to the contrary. It is thereupon on this day of , 19. . . , or- dered that the Surrogate of the County of Essex cite the said William Smith to render an account of the estate of the said John Doe, deceased, which has come into his hands as such executor. W. P. M., Judge, Form 250. Citation to Account. [See Orphans' Court Act. section 116, page 622. supra; ib. section 117, page 622, supra, and ib., section 114, page 622, supra.] Essex County Orphans' Court. accouxting. 1221 State of New Jersev, County oF Essex. TiiK State of Xew Jersey To William Doe, Administrator (L. S.) OF THE Estate of John Doe. Deceased, Greeting : We cite and command you. that yon render an account of your administration of the estate of John Doe. deceased, and unless you sliall so do. that you personally be and api)ear before the Orphans' Court, to I)c holden at the Court House, in the City of Newark, in and for the Comity of Essex, on the day of 19. . . at ten o'clock in the forenoon, to show cause, if any you have, why you have not so accoimted. and to abide the judgment of the said court in the premises. Witness. W. P. M., Judge of our said Orphans' Court at Newark aforesaid, this day of , one thou- sand nine hundred and F. G. S., Jr.. Surrogate and Clerk. This citation must be served bv the sheriff. III. BY APPLICATION TO ORPHANS' COURT. Form 251. Petition to Orphans' Court for Order to Show Cause Why Executor, etc., Should not Account. [See Orphans' Ct will and testament of John Doe. late of the County of Essex, deceased, having duly presented her petition alleging that William Smith, the executor of the last will and testament of the said John Doe. deceased, has failed and neglected to state and settle his account in the Surrogate's office of the County of Essex within the time limited therefor by law. It is thereupon, on this day of , 19. . , or- dered that \\'illiam Smith, executor of the last will and testa- ment of John Doe, late of the County of Essex, deceased, show cause before this court on the day of , 19. . . at ten o'clock in the forenoon wdiy he should not state and settle his account in the Surrogate's office of the County of Essex, as required by the statute in such case made and provided. W. P. M.. Judge. For proof of service, see Form 38. Form 253, Order Directing Executor to Account. [See Orphans' Court Act, section 114, page 622. supra and ih. section 117, page 622. supra.] Essex Couxtv Orphans' Court. In the matter of the estate of | On Petition for Citation to John Doe, deceased. j Account. Order Directing Executor to Account. Jane Doe. one of the legatees named in the last will and testament of John Doe, late of the Comity of Essex, deceased, having filed her petition herein alleging that William Smith, the executor of the last will and testament of John Doe, de- ceased, has failed to state and settle his account in the office of the Surrogate of the County of Essex within the time limited by law^ therefor, and the rule to show cause made herein having been duly served, and the matter coming on to .l>s heard, and no reason a])pearing to the contrary. It is thereupon on this day of 19. . , or- dered, adiudged and decreed that William Smith, the ex- 1228 Probate Law and Practice. editor of the last will and testament of John Doe, late of the County of Essex, deceased, state and settle his account as such executor in the office of the Surrogate of the County of Essex, within .... days from the date hereof. And it is further ordered that a true but uncertified copy of this order be served upon the said William Smith within .... days from the date hereof, personally or by leaving the same at his residence or usual place of abode with a person above the age of fourteen years. W. P. M., Judge. APPOINTMENT OF TRUSTEES. Form 254. Notice of Application for Appointment of Trustee. [See Orphans" Court Act, section 135, page 296, supra, -nd Orphans' Court Rule 45, page 299, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Appoint- John Doe, deceased. j ment of Trustee. Notice of Application. To Richard Doe, one of the cestuis que trustent of the trusts created in and by the last will and testament of John Doe, deceased : You are hereby notified that on the day of 19. . ., at ten o'clock in the forenoon, I shall apply to the Orphans' Court of the County of Essex at the Court House in the City of Newark, for an order appointing R. S., or some other suitable person, to execute the trusts declared in the last will and testament of John Doe, late of the County of Essex, deceased, in the place and stead of X. Y., the trustee in said will named, who has refused to act as such trustee {or zvho after taking upon himself the burden of administering the said trust, departed this life before fully executing the trusts so committed to him). Dated Newark, N. T-, -.w -nv ^ William Doe. , , i9.-- Appoixtmkxt of Trustees. 1229 This notice is required to be served upon resident parties in interest, or upon such of them as the court may direct, five days before the date of the appHcation, non-residents may be served by mail at least 30 days before the return day. IMinors and incompetents are served by serving notice on them by serving- their guardians if any and if none then upon their nearest of kin or persons standing in loco parentis t^ them and also upon the person with whom such nu'nors reside. Form 255. Petition for Appointment of Trustee. [See Orphans' Court Act. section 135. page 296, supra, and Orplian? Court Rule 45, page 299. supra.] Essex Couxtv Okphaxs' Court. In the matter of the estate of ") On Petition for the Ap- John Doe, deceased. j pointment of a Trustee. Petition. To the Orphans' Court of the County of Essex : The petition of William Doe respectfully shows that: 1. John Doe, late of the County of Essex died on or about the day of 19. . , leaving a last will and testa- ment wherein and whereby he devised all of his real estate to one X. Y., in trust to sell the same from time to time, and to invest the proceeds and divide the same equally among all his children when his youngest child should attain the age of twenty-one years, vesting in such trustee full power to expend such sums for the support, maintenance and education of his children as in his discretion should seem for their best in- terest, which said will was on the day of , 19. ., duly admitted to probate by the Surrogate of the County of Essex. 2. The said John Doe left him surviving two children, to wit : William Doe, your petitioner who is of full age, and James Doe, an infant of the age of eighteen years. No guard- ian has been appointed for the said James Doc. who is residing with your petitioner. 3. X. Y.. the trustee named in the last will and testament of John Doe, deceased, as aforesaid, lias refused to act as such 1230 Probate Law and Practice. trustee (or the said X. Y ., after taking upon Ji'unself the bur- den of administering the said trust, departed this life before execcuting and eonipleting the trust so committed to him, or as the case may be). 4. Due notice of this application has been given to all per- sons interested in the execution of the aforesaid trust (or all persons interested in the execution of said trusts have duly con- sented hereto as by their consent hereunto annexed zvill more fully appear). 5. The income from real estate devised to the said X. Y. in trust as aforesaid amounts to the sum of dollars per year ; and the personal property in the hands of the said X. Y., trustee as aforesaid, amounts to dollars. Your petitioner therefore prays that R. S., or some other suitable person, may be appointed to execute the aforesaid trusts created in and by the last will and testament of the said John Doe, deceased, as aforesaid, in the place and stead of the said X. Y. Dated Newark, N. J., ,,, ^ William Doe. , , i9--- State of New Jersey County of Essex 3EY, ) } ss. William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things contained therein are true to the best of his knowledge and belief. Sul:)scril-)ed and sworn to this"^ day of , If). ... at Newark, N. J-. before me, J. C. F., Notary Public of ' '. J. For notice of application see Form 254 >■ William Doe. Appoixtmkxt of TRrsTEEs. 123 1 Form 256. Decree Appointing Trustee. [See Orphans' Court Act. section 135. page 296. supra, and Orphans' Court Rule 45. page 299, supra.] Essex Couxtv Ori'ii.\ns' Court. Decree Appo'intiny Trustee. In the matter of the estate of | On Petition for Appoint- john Doe, deceased. ( ment of Trustee. It appearing from the petition of William Doe, filed herein, that John Doe, late of the Cotmty of Essex, deceased, in and by his last will and testament, duly admitted to probate by the Surrogate of the County of Essex, devised all of his real estate to one X. Y., upon certain trusts in said will created and declared, and it appearing that the said X. Y. has refused to act as such trustee {or that the said X. Y., after taking upon himself the burden of administering the said trust, departed this life before the completion of the trusts so committed to him or as the case may be), and that due notice of this ap- plication has been given to all persons interested in the ex- ecution of said trusts, in manner and form as required by the rules of this court (or that all persons interested in the exe- cution of said trusts Jiai'c duly consented hereto). And it appearing that the income from the said real estate devised to X. Y. in trust as aforesaid amounts to dollars per year, and that the personal property in the hands of the said X. Y., trustee as aforesaid, amounts to dollars. It is thereupon, on this day of , 19. . , or- dered, adjudged and decreed that R. S., who in the judgment of the court is a suitable person, be and he hereby is appointed trustee in the place and stead of the said X. \ ., to execute and complete the trusts created and declared in the said last will and testament of John Doe. deceased, as aforesaifl. And it is further ordered that the said R. v^., before entering upon his duties as such trustee, enter into bond to the ordinary of this state in the sum of dollars with sufficient sureties 79 1232 Probate Law and Practice. to be approved by this court, conditioned for the faithful performance of his duties as such trustee. W. P. M., Judge. Form 257. Bond of Trustee Appointed by the Orphans' Court. [See Orphans" Court Act, section 135, page 296, supra.] Know all men by these presents that we, R. S., A. B., and C. D., all of the of , in the County of and State of New Jersey, are held and firmly bound unto the Ordinary of the State of New Jersey in the sum of dollars lawful money of the United States, to be paid to the said ordinary as aforesaid, his successors or assigns, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally firmly by these presents. Sealed with our seals and dated the day of , one thousand nine hundred and The condition of this obligation is such that whereas the said R. S., has been appointed by the Orphans' Court of the County of Essex trustee to execute the trusts created in and by the last will of John Doe, deceased, in the place of X. Y., the trustee in said will named. Now if the said R. S., shall well and truly perform the said trusts, then this bond shall be void, otherwise to remain in full force and effect. Signed, sealed and delivered » ' r^' / ' i . , r > A. B. (l. s.) in the presence 01 „ ^ , . J C. D. (l. s.) Add justification of stireties as in Form 7. DISTRIBUTION. I. OF ESTATE OF INTESTATE. Form 258. Petition for Decree of Distribution. [See Orphans' Court Act, section 168. page 716, supra and Orphans' Court Rule 26. page 717, supra.] Essex County Orphans' Court. DisTRir.uTiox. 1233 In the matter of the estate of | On Petition for Decree of John Doe, deceased. j Distribution. Petition. To the Orphans" Court of tlie County of Essex : The petition of WilHam Doe, of the of in the County of and State of New Jersey, respectfully shows that : 1. He is the administrator of the estate of John Doe, late of the County of Essex, deceased, and presents herewith his final account as such administrator, whereby it appears that there is a balance amounting to the sum of dollars re- maining in his hands for distribution among the next of kin of the said intestate. 2. The said John Doe was a native of Ireland, and your petitioner is uncertain as to who are his next of kin and en- titled to distribution of the residue of his personal estate. Yotir petitioner therefore prays that this court may make its decree ordering a just and equal distribution of the residue of the personal estate of the said John Doe, deceased, to the next of kin of the said intestate. Dated Newark, X. [., ,,, t-. ^ \\ ^LI.l.\^[ Doe. , 19. St.ate of New Jersey County of Essex ..}.., William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named and thai the matters and things contained therein are true to the Ix'st of his knowledge and belief. Subscribed and sworn to this"^ day of , [ 19.., at Newark, N. J., before me, J. C. F., Notary I'ublic of .\. J. N(j notice of this ajjplication is necessary. William Doe. 1234 Probate Law and Practice. Form 259. Proof of Next of Kin Entitled to Distribution. [See Orphans' Court Act. section 168. page 716, supra and Orphans' Court Rule 26, page 717, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Decree of John Doe, deceased. J Distribution. Proof of Next of Kin. State oe County New Jersey, ") : oE Essex, j Jane Doe, being duly sworn upon her oath, deposes and says that she is the sister of John Doe, late of the County of Essex, deceased. That said John Doe was a native of Ireland, which he left some forty years ago ; deponent is also a native of Ireland, and came to this country with her brother, John Doe aforesaid. The said John Doe never married, but left him surviving as his next of kin, the following named persons : a brother. James Doe, who resides in County , Ireland ; and Michael Dunn. Patrick Dunn and Bridget Dunn, the children of Mary Dunn, a deceased sister, all of whom are of full age. and reside in County Ireland, and your petitioner who resides in the City of Newark in the County of Essex afore- said. Subscribed and sworn to this"^ day of , 19... at Newark, N. J., before me, J. C. F., Notary Public of N. I. ^ Iane Doe. Form 260. Decree of Distribution of an Intestate's Estate. [See Orphans' Court Act. section 168. page 716, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Petition for Decree of John Doe. deceased. j Distrilnition. Decree of Distribnt'wn. The account of William Doe, administrator of the estate of DlSTKIBL TIOX. 12 or John Doe, deceased, having been thily auiHtcd and slated by the surrogate, and it appearing by the said account that the s""i of dollars remains after the payment of debts, funeral charges and just expenses, and it having been proved to the satisfaction of the court that the said John Doe left him surviving as his only next of kin. Jane Doe, a sister. James Doe, a brother, and Michael, Patrick and Bridget Dunn, the children of a deceased sister, ^^larv Dunn. It is thereupon on this day of , 19. .., or- dered, adjudged and decreed that the aforesaid residue of the estate of the said John Doe, deceased, be distributed among his next of kin as follows, to wit : One-third part th'ereof to his aforesaid sister, Jane Doe ; one-third part thereof to his afore- said brother, James Doe ; one-ninth part thereof to his afore- said nephew, INlichael Dunn; one-ninth part thereof to his aforesaid nephew, Patrick Dunn ; one-ninth part thereof to his aforesaid niece, Bridget Dunn. w. P. ^r., Judge. Application for this order is usually made at the time of the allowance of the account of the administrator, and it is in- corporated into the decree allowing the account (Form 234). The above form is only used in a case where after the account has been allowed, the administrator decides to apply for a decree of distribution. II. IN CASE OF WILL. Form 261. Notice of Application for Decree of Distribution in Case There is a Will. [See Orphans' Court Act. section 173. pa^e 7_'_>. supni, ;inrl Orphans' Court Rule 28, page 724, supra.] EssKx CouxTv Orphans' Court. In the matter of the estate of ") On Petition for Decree of John Doe, deceased. j Distribution. Notice of Applicatwrt. To James Doe, legatee under the last will of John Doe. de- ceased : 1236 Probate Law and Practice. You are hereby notified that on the day of 19. . ., at 10 a. m., at the Court House in the City of Newark. I shall, apply to the Orphans' Court of the County of Essex for a decree adjusting, ordering and making just distribu- tion in accordance with the directions and provisions of the last will and testament of the said John Doe, deceased, of what remains of the aforesaid estate after all debts and ex- penses have been allowed and deducted. Dated Newark, N. J., William Doe. , .i9--- This notice is necessary on application for a decree of dis- tribution where there is a will, see Orphans' Court Rule 2"/, page '2^^, supra. For form of proof of service see Form 38. Form 262. Petition for Decree of Distribution in Case of Will. [See Orphans' Court Act, section 173. page 722, supra, and Orphans' Court Rules 27 and 28, pages J2t, and 724, supra.] Essex Couxtv Orphans' Court. state of I On Petition John Doe, deceased. ( Distribution. In the matter of the estate of | On Petition for Decree of Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of , in the County of and State of , respectfully shows that : 1. He is the executor named in the last will and testament of John Doe, late of the County of Essex, deceased, which said will was duly admitted to probate by the Surrogate of the County of Essex on the day of , 19. . 2. On the day of , 19. . . , the final account of your petitioner, executor as aforesaid, was duly allowed by this court, whereby it appears that there is a balance of said estate remaining in his hands, after the payment of all just DlSTRIUL'TlON". I. ■0/ debts and legacies, other than those payable from the residuum of the estate, amounting to the sum of dollars. 3. The fourth clause of the will of the said John Doe, de- ceased, a cop\' whereof is hereunto annexed, provides as fol- lows : "1 give, devise and bequeath all of the rest res- "idue and remainder of my said estate to my "wife, Jane Doe, authorizing and empowering "her to expend and dispose of the same as she "may choose. After the death of my said wife, "Jane, I give, devise and bequeath such of the "residue of my estate as .^lall then remain to "my children, James, Mary and Henry, share "and share alike." 4. The said Jane Doe claims that under the terms of the said will she is entitled to receive the residue of the estate abso- lutely and that James, Mary and Henry, the children of the said John Doe, take no interest therein, and your petitioner is uncertain as to whom to distribute the aforesaid residue of the estate of the said John Doe, deceased. 5. The persons interested in this proceeding are Jane Doe, who resides at No , Street in the of in the State of and James, Mary and Henry Doe, all of whom reside at No. . . , Street in the of , in the State of All of the foregoing are of full age with the exception of Henry Doe, who is a minor of the age of 16 years and who resides with his brother, James Doe, at his aforesaid residence. Due notice of this application has been given to all of the aforesaid persons interested in this proceeding. Your petitioner therefore prays that this court may b}- its order adjust and make just distribution of the said residue of the said estate in accordance with the directions and provisions of the will of the said John Doe, deceased. Dated Newark, N. J.. W^iijjam Dok. i9--- St.\te of New Jersey, County of Essex. William Doe, being duly sworn according to law upon his 1238 Probate; Law and Practice. oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein stated are true to the best of his knowledge and behef. ■ Subscribed and sworn to this~ day of . 19. ., at Newark, N. J. me, [., before j William Dol. J. C. F., Notary Pubhc of N. J. If petitioner so chooses, he may take a rule to show cause why the prayer of*his petition should not be granted, which rule will direct the method in which it is to be served, instead of proceeding by notice to the next of kin. For form of notice see Form 214; for form of proof of service of notice see Form t,8 ; for rule to show cause see Form 213. Form 263. Decree of Distribution in Case of a Will. [See Orphans' Court Act, section 173, page 722. supra and Orphans' Court Rules 27 and 28, pages 723 and 724, supra.] Essex Countv Orphans' Court. In the matter of the ertate o^ ) On Petition for Decree of John Doe, deceased. j Distribution. Decree of Distribution. It appearing from the petition of William Doe, executor of the last will and testament of John Doe, deceased, filed herein, that the said executor has duly filed his account exhibiting a balance of the said estate in his hands to the date of filing the same, amounting to the sum of dollars which said account was duly allowed by the decree of this court on the day of , 19. . . , and that he prays that this court may by its order make just distribution of the afore- said balance in his hands in accordance with the directions and provisions of the last will and testament of the said John Doe, deceased, and due notice of this application having been given Rlil-L'XDIM', r.ONDS AM) Rl-I.KASKS. 1J39 to all persons in interest and the matter coming; on to be heard, and the court having heard the allegations of the parties and arguments of counsel, and having duly considered the same, and being satisfied that Jane Doe, widow of the said John Doe, deceased, is entitled under the terms of tlie will of the said John Doe, deceased, to the residue of said estate in the hands of the executor as aforesaid. It is thereupon on this day of , one thou- sand nine hundred and Okdkked that the aforesaid sum of dollars remaining in the hands of the said Wil- liam Doe, executor as aforesaid, after all debts and expenses have been allowed and deducted, be distributed and paid by the said William Doe, executor as aforesaid, to the said Jane Doe, upon her tendering to the said executor a proper refund- ing bond therefor. W. P. M., Judge. III. REFUNDING BONDS AND RELEASES. Form 264. Refunding Bond by Next of Kin. [See Orphans' Court Act, section 17J, ])age 714, supra.] Know all men I'.v tiiksE prkskxts, that I, James Doe, of the of in the County of and State of New Jersey, am held and firmly bound unto William Doe, ad- ministrator of the estate of John Doe, deceased, in the sum of dollars, lawful money of the United States, to be paid to the said William Doe, administrator as aforesaid, his suc- cessors in office or assigns, to which payment well and truly to be made I ])ind myself, my heirs, executors and adminis- trators firmly by these j)resents. vSealerl with my seal and dated the day of , 19... Whereas the above bounden James Doe has received from the above-named William Doe, administrator of the estate of 1240 Probate Law and Practice. John Doe, deceased, dollars, being his distributive share of the personal estate of the said John Doe, deceased. Now the condition of this obligation is such that if any debt or debts truly owing by the said intestate, shall be here- after sued for and recovered, or otherwise duly made to ap- pear, which there shall be no other assets to pay, that then, and in every such case, if the said James Doe shall refund and pay back to the said William Doe, administrator as aforesaid, his ratable part of such debt or debts, and of the costs of suit and charges, by reason of such debt or debts, out of the part or share so as aforesaid received by him thereby to enable the said administrator to satisfy such debt or debts, then the above obligation to be void, or else to remain in full force and virtue. Signed and sealed in ) ^ ^^ . . ^^ . , } Tames Doe. (e. s.) the presence 01 j ' No sureties are required on this bond which is required to be in double the amount of the distributive share. Form 265. Refunding Bond by Legatee. [See Orphans" Court Act, section 172, page 714, supra.] Know ael men by these presents, that I, James Doe, of the of in the County of and State of , am held and tirmly bound unto William Doe, the ex- ecutor of the last will and testament of John Doe, deceased, in the sum of dollars lawful money of the United States to be paid to him, his successors in office or assigns, to which payment well and truly to be made I bind myself, my heirs, executors and administrators. Sealed with my seal and dated this day of , 19... Whereas, the above-named John Doe did by his last will and testament, duly probated before the surrogate of the County of Essex and State of New Jersey, on the day of , 19..., give, devise and bequeath unto the above- bounden James Doe the sum of dollars, and did there- in also appoint the above-named W^illiam Doe executor there- of ; and whereas the above botmden James Doe has received Refundixg Bonds axu Rkleases. 1241 from the above-named \\'illiam Doe, executor as aforesaid. dollars the amount of his aforesaid legacy. Xow the condition of this obligation is such that if any debt or debts truly owing by the said deceased, shall be hereafter sued for and recovered, or otherwise duly made to appear, which there shall be no other assets to pay, that then and in every such case, if the said James Doe shall refund and pav back to the said William Doe, executor as aforesaid, his ratable part of such debt or debts, and of the costs of suit and charges, by reason of such debt or debts, out of the part or share so as aforesaid received by him thereby to enable the said executor to satisfy such debt or debts, then the above ob- ligation to be void, or else to remain in full force and virtue. Signed and sealed in the ) _ ^ r > Jamf.s Doe (h s.) presence of ( j . ^ v^- ^-j No sureties are required on this bond, which is required to be in double the amount of the legacy. Form 266. Release to Executor. [See Orphans' Court Act. section 163. page 715. supra. 1 Know all men ijv these presents, that whereas, John Doe, late of deceased, in and by his last will and tes- tament, duly proved before the surrogate of the County of , did give and bequeath to X. Y., the sum of dollars and in and b\v said will did nominate and ap])oint Wil- liam Doe the executor thereof. Now, therefore, I, the said X. ^'., do hereby acknowledge that I have received from the said William Doe, executor as aforesaid, the simi of dollars in full for the legacy to me bequeathed in and by the last will of the said John Doe as aforesaid, and by these presents do for myself, my heirs, ex- ecutors and administrators remise, release and forever dis- charge the said William Doe, executor as aforesaid, his heirs, executors and administrators, of and from all claims and demands whatsoever in law or in equity which against the said William Doe or against the said estate of John Doe, deceased. I have or shall have by reason of the aforesaid legacy. 1242 Probate Law and Practice. In witness whereof I have hereunto set my hand and seal this day of , in the year nineteen hundred and Signed and sealed in the presence of X. Y. (l. s) The above release must be acknowledged in the same man- ner as a deed. See Form 8a. Form 267. Release of Administrator. [See Orphans' Court Act. section 163. page 715. supra.] Know all men by these presents that I, James Doe, one of the next of kin and distributees of John Doe, late of the County of Essex, deceased, for and in consideration of the •sum of dollars lawful money of the United States of America, to me in hand paid by William Doe, administrator of the estate of the said John Doe, deceased, have remised, re- leased and forever discharged and by these presents do for myself, my heirs, executors and administrators, remise, re- lease and forever discharge the said William Doe, adminis- trator as aforesaid, his heirs, executors and administrators of and from all manner of action or actions, cause and causes of action, suits, debts, duties, sums of money, accounts, reck- onings, bonds, bills, specialties, covenants, contracts, contro- versies, agreements, variances, trespasses, damages, judg- ments, executions, claims and demands whatsoever, in law or in equity, which against the said William Doe, administrator, as aforesaid, I ever had, now have, or which my heirs, ex- ecutors or administrators hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatso- ever from the l^eginning of the world to the date of these proceedings. In witness whereof, I ha\e hereunto set my hand and seal the day of , in the year of our Lord, one Pavmi::nt OF M(iM,\ in ro Court. 124^ thousand nine liundred and Signed. W iiliani Doc. (l. S.) 1 X. V. ; Annex acknowledgment as in form 8a. Signed, sealed and delivered in the presence of Form 268. Release of Guardian by Ward. [See Orphans' Court .\ct. section 1(33, page 715. supra.) Know all .men by these presents, that I. X. V.. in con- sideration of a final settlement this day had and made by Wil- liam Doe. my guardian appointed by the surrogate of the County of Essex, and of the sum of dollars, to mc paid, have and by these presents do hereby remise and forever discharge the said \\'illiam Doe of and from all claims ami demands whatsoever in law or in equity which against the said William Doe. as my guardian. I ever had. now have, or shall have. In witness whereof I have hereunto set my hand and seal this day of 19. . .. Signed and sealed in 1 ,, „ . I r t A. 1 . ( L. S) the presence of j The above release must be acknowledged in the same man- ner as a deed. See Form 8a. A guardian or trustee filing the abo\e release need not set- tle an account. Orphans' Court .\ct, section IJO. page 6ii>. supra. PAYMENT OF MONEY INTO COURT. Form 269. Affidavit on Payment of Money into Court. [See 2 Comp. Stat., page 2272. section 38. page 7'-'. .sui.iu.| Essex Cotntv Oki'Iians' Coi-rt. ■ the estate of ) iased. I In the matter of John Doe, deceai^ Affnhivit on I'liyiiinit nf Moiiev Into Court. 1244 Probatk Law and Practice. State of New Jersey, ■} County oe Essex. '' ' William Doe, being duly sworn upon his oath, according to law, deposes and says that he is the administrator of the estate of John Doe, late of the County of Essex, deceased. That on the day of , 19. . . , the Orphans' Court of the said County of Essex duly allowed his final account as such administrator, and that there remains in his hands the sum of dollars, being the distributive share of Henry Doe, one of the children of the said John Doe, and as such entitled to participate in the distribution of his estate ; but that the said Henry Doe has not appeared to claim the said distributive share, although more than three months have elapsed since the time of the allowance of deponent's final account, as aforesaid. Deponent further says that he has made diligent inquiry for the post-ofiice address of the said Henry Doe entitled to such distributive share as aforesaid, but that he has not been able to ascertain the same (or that lie ascertained that said Henry Doe resided in the of in the County of and State of , and that on the day of , 19. ., he mailed a letter addressed to the said Henry Doe, at his above address, notifying him to appear and receive the said distributive share and that said Henry Doe has not appeared or claimed the same). Subscribed and sworn to this^ day of , I 19.., at Newark, N. J., before me, J. C. F., Notary Public of N. J William Doe. Form 270. Receipt of Surrogate on Payment of Money into Court. [See 2 Comp. Stat., page 2272. section 38, page 712, supra.] Essex County Orphans' Court. In the matter of the e>tate John Doe. deceased. Pavmkxt of Money into Court. 1245 Receipt for Money Paid into Court. State of New Jers County of Esse X. f I, F. G. S., Jr., Surrogate of the County of Essex and Clerk of the Orphans' Court of said county, do hereby acknowledge the receipt of the sum of ...... dollars paid to me by \Vil- liam Doe, the administrator of the estate of John Doe, de- ceased, which sum is the amount of a distributive share of the aforesaid estate to which Henry Doe is entitled, who has failed to appear and claim the same. In witness whereof, I have hereunto set my hand and atlixed my seal of ofifice this day of , 19. . . F. G. S., Jr., Surrogate and Clerk of the Orphans' Court. Form 271. Petition for Money Paid into Court by Person Entitled Thereto. [See 2 Comp. Stat., page 2272, section 40, page 713, supra.] Essex County Orphans' Court. In the matter of the estate of ) On Application for Money of I On Ap j Paid ii John Doe, deceased. ( Paid into Court. Petition. To the Orphans' Court of the County of Essex : The petition of Henry Doe respectfully shows that : T. He is the son of John Doe, late of the City of Newark, in the County of Essex, deceased. His said father died on the day of 19. . ., and William Doe was duly appointed adnu'nistrator of his said father's estate. The >aid William Doc duly administered the estate of his father, the said John Doe. aforesaid, and on the day of 19. . ., j)aid into this court the sum of d James Doe. Form 274. Rule to Show Cause Why Executor. Etc., Should Not be Held in Contempt. [See Orphans' Court Act. section 183. page 49. supra.] Essex County Orphans' Court. COXTKMPT PrOCKI'IMNC.S. 1249 In the matter of the estate of ") On Petition to Adjudge John Doe, deceased. j Executor in Contempt. Order to SIi07c Cause JJliy Executor Should Not be, Connnitted for Contempt. On reading and filing the petition of William Doe setting forth that James Doe, the executor of the last will and testa- ment of John Doe, deceased, failed and neglected to appear before this court on the day of 19.., as directed by an order of this court made on the day of ,19.... It is on this day of , 19. . , ordered that the said William Doe show cause before this court on the day of 19. ... at ten o'clock in the forenoon, why he should not be adjudged in contempt of this court because of hi^ refusal to obey the order of this court made on the day of 19. . ., as aforesaid. And it is further ordered that a true but uncertified copy of this order and of the petition upon which the same is based be served upon the said William Doe, personally within . . * . days from the date of this order. W. P. M., Judge. For proof of service see Form 38. Form 275. Order Committing Executor for Contempt. [See Ori)lians' Court Act, section 183. page 40. supra.] Essex Couxtv Orphans' Court. In the matter of the estate of ") On Petition to Adjudge j Executor in Contempt. John Doe. deceased. Order IIoldi)uj Hxecutor in Contempt. It appearing that by order of this conrt made on the day of , 19. . ., William Doe, the executor of the last will and testament of John Doe, deceased, was ordered to ap- pear before this court on the day of 19. . , 1250 Probate Law and Practice. to make discovery as to the condition of the aforesaid estate in his hands, and that the said WilHam Doe disobeyed said order and refnsed and neglected to appear and make discovery as therein directed. And it further appearing that by an order of this court made on the day of , 19. ., the said William Doe was ordered to show cause before this court on the day of 19. • ., why he should not be com- mitted for his contempt in disobeying the aforesaid order of this court, which last mentioned order has been duly served upon him, and the matter coming on to be heard, and the court having considered the matter, and being satisfied that the said William Doe wilfully disobeyed the order of said court made on the day of , 19. . , as aforesaid. It is on this day of , 19. . . , ordered and adjudged that the said ^^'illiam Doe is guilty of a contempt of this court in not obeying the aforesaid order of this court, and that he stand committed to the county jail of the County of Essex for his aforesaid contempt until the further order of this court. W. P. M.,' Judge. SUITS FOR LEGACIES AND DISTRIBUTIVE SHARES. Form 276. Petition for Recovery of Legacy. [See Orphans' Court Act. section 192, page 730, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Petition for Recovery John Doe, deceased. j of Legacy. Petition. To the Orphans' Court of the County of Essex : The petition of William Doe, of the of in the County of and State of , respectfully shows that : Suits for Legacies. 1251 1. John Doe, late of the County of Essex, died on or about the ...'.. day of 19. . . , leaving a last will and testament wherein and whereby he gave to your petitioner a legacy of dollars, to A. B. a legacy of dollars and to X. Y., a legacy of dollars; and one R. S. was therein nominated and appointed as executor thereof. The said will was on the day of , 19. . . , dulv ad- mitted to probate by the Surrogate of the aforesaid County of Essex, who, on the same day, duly issued letters testa- mentary thereon to the said R. S., the executor therein named. 2. The said R. S., executor as aforesaid, has filed his final account in the office of the Surrogate of the County of Essex, which account has been duly allowed by this court, and it thereby appears that the said executor has sufficient assets in his hands to pay your petitioner's aforesaid legacy, without prejudice to the rights of others entitled to priority or equality of payment. 3. -More than one year has elapsed since the probate of said will and your petitioner has demanded payment of the said legacy from the said R. S., executor as aforesaid, and has tendered him a proper refunding bond, but said executor has neglected and refused to pay the same. Your petitioner therefore prays that a decree may be made directing and requiring the said R. S., executor as aforesaid, to pay to your petitioner his aforesaid legacy, and that the said R. S., executor as aforesaid, and the said A. B. and X. Y., the other legatees in said will named as aforesaid, may be cited to appear and answer the premises and abide such decree as the court shall make therein. Dated Newark, X. J., U'ii.i.i.\.\r Ook. , ,19.... State of New Jersey, County of Essex. 1 William Doe, the petitioner in the foregoing petition named, being duly sworn according to law upon his oath, deposes and 1252 Probate Law and Practice. says, that the matters and things therein contained are true to the best of his knowledge and belief. Subscribed and sworn to this"^ day of , 19. . ., at Newark, N. J-, before nie. ^ J. C. F., Notary Public of N. T- > William Doe. Form 277. Citation on Petition for Legacy or Distributive Share. [See Orphans' Court Act. section 192, page 730, supra.] Essex County Orphans' Court. State of New Jersey^ RSEY, "I ex. } ss. County of Essex. The State of New Jersey, To Jane Doe, and Henry Doe, and James Doe. (l. s.) the executor of the last will and testament of John Doe, deceased, Greeting : We cite and command you that you personally be and appear before the Orphans' Court, to be holden at the Court House, in the City of Newark, in and for the County of Essex, on the , the day of , A. D. 19. . ., at ten o'clock in the forenoon, to answer unto the petition of William Doe that a decree may be made directing James Doe, executor of the last will and testament of John Doe. deceased, to pay the legacy, or distributive share, to which the said William Doe is entitled out of said estate, and to abide the judgment of the said court in the premises. Witness W. P. M., Judge of our said Orphans' Court at Newark aforesaid, this day of , one thousand nine hundred and .... F. G. S., Jr., Surrogate and Clerk This citation must be served bv the Sheriff. Suits for Legacies. 1253 Form 278r Answer in Suit for Recovery of Legacy. [See Orphans' Ctnirt Act. section ig2. page 730. supra.] Essex Countv Orph.\xs' Court. In the matter of the estate of ") On Petition for Recovery I Or ]of John Doe, deceased. J of Legacy. Answer. The answer of R. S., the executor of the last will and testament of John Doe, deceased, to the petition of William Doe, petitioner herein. This respondent, answering, says as follows : 1. He admits the allegations set up in the first and second paragraphs of the said petition. 2. This respondent, further answering, says that he is in- formed in such manner that he believes it to be true, that the said William Doe has assigned his aforesaid legacy to one James Smith, who has served upon your petitioner notice of such assignment and that this respondent cannot safely pay the said legacy to the said William Doe. 3. This respondent prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. Dated Newark, N. J., W. B., , , 19... Proctor for Respondent. This answer must be filed witliin 20 days from the return day of the citation. Form 279. Decree for Payment of Legacy. [See Orphans" C 19- •• State oe New Jersey, | C()L•^•T^■ OF Essex. J \\ illiam Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein 1256 Probate Law and Practice. contained are true to the best of his knowledge and beUef. >- William Doe. Subscribed and sworn to this~^ day of , 19 . . ., at Newark, N. J., before me, J. C. F., Notary PubHc of N. J. For form of citation see Form 277 ; for form of answer see Form 278. Form 281. Decree for Payment of Distributive Share. [See Orphans' Court Act, section 192, page 730, supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition for Payment John Doe, deceased. j of Distributive Share. Decree for Payment of Distributive Share. Wilham Doe, having filed his petition for the recovery of his distributive share as one of the next of kin of John Doe, late of the County of Essex, deceased, and citations having been issued to James Doe, administrator of said estate and one of the next of kin, and to Richard Doe, the remaining next of kin of the said John Doe, deceased, and the said citation having been returned duly served ; and the court having examined into the matter and being satisfied that the said James Doe, adminis- trator as aforesaid, has settled his accounts, and that the same were duly allowed by this court, and that there remains a sur- plus of dollars in the hands of the said administrator after payment of the debts of the said John Doe, deceased, and the expenses of settlement of his estate. And it further appearing that by a decree of this court made on the day of , 19. . ., it was ordered that one-third of the aforesaid surplus, after certain deductions therefrom for commissions and counsel fees, be paid and distributed to the said William Doe, and that the one-third part of the said surplus to which the said William Doe, is en- titled, as aforesaid, amounts to the sum of dollars, DiRECTioxs AS TO I.w i:st.mi:nts. 12^7 and that the said William Doe, has duly demanded the i)ay- ment of the aforesaid sum of dollars from the said James Doe, administrator as aforesaid, at the same time tendering a proper refunding hond therefor, hut that the said administrator has neglected and refused to pav the same. It is thereupon on the day of , one thousand nine hundred and , ordered, adjudged and decreed that there is due to the said William Doe from the aforesaid estate the sum of dollars, with interest thereon from the day of , 19. . ., and it is further ordered that James Doe. the aforesaid administrator, pay the said sum of dollars to the said William Doe forthwith upon the said William Doe tendering to him a proper refunding hond therefor. W. P. M., Judge. DIRECTIONS OF COURT AS TO INVESTMENTS. Form 282. Petition for Directions as to Investment of Funds of Estate. [See Orplians" Court Act, section 136. page 389. supra.] Essex County Orpii.ans' Court. In the matter of the estate of ") On Petition for Directions I Or j as John Doe, deceased. j as to Investment of Funds. Petition. To the Orphans' Court of the County of«Essex: The petition of William Doe respectfully shows that: I. He is the trustee of the trust created in and Ijy the last will and testament of John Doc, late of the County of Ivssex, deceased, and has in his hands the sum of dollars, which he is required in- the terms of the said will to retain for an indefinite period ; and the estate in his hands would he materially henehted hy the proper investment of said sum at interest. 1258 Probate Law and Practici;. 2. One X. Y., of the City of Newark, in the County of Essex and State of New Jersey, is wilHng to borrow the aforesaid sum of dollars for the period of years at per cent interest, and ofifers, as security there- for, his bond and a second mortgage on his house and lot in the of , which premises are described as follows: {Jiere insert description of property.) The aforesaid premises are now subject to a mortgage of dollars. 3. Petitioner has made diligent inquiry among persons ac- quainted with the values of real estate in the vicinity where the above-described property is situated and has been advised that said property is worth the sum of dollars. 4. The names and residences of the persons interested in the trust fund held by petitioner as aforesaid are : A. B., who resides at No , Street, in the of , in the State of ; and C. D. and E. F., who both reside at No , Street, in the of , in the State of All the foregoing are of full age, with the exception of E. F., who is a minor of the age of sixteen years, and resides with R. F., his father, at the aforesaid address. . 5. Due notice of this application has been given to all persons in interest (or all. persons in interest have duly con- sented Jiereto as by their consent hereunto annexed zvill more fully appear). Your petitioner therefore prays the directions of the court in the premises. Dated Newark, N. J., ,,. ^ ^ *^ William Doe. , , i9--- State oe New Jersey ss County of Essex. 1 William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things con- Directions as to Ixvkstmexts. 1259 tained therein arc true to the best of his knowledge and beUef. Subscribed and sworn to this "" day of , ^ TVT 1 XT T t r > \\ ii.i.iAM Doe. 19 . . ., at Newark, N. J-, before [ me, J. C. F.. Notary Public of X. J. Annex affidavits of two persons as to value of real estate as in Form 155. Five days' notice of applications of this character must be given to all persons in interest or a rule to show cause may be taken which will direct the method by which it shall be served. For form of notice see Form 214: for form of rule to show cause see Form 213; for proof of service see Form 38. Form 283. Order Directing Investment of Funds of Estate. [See Orphans' Cnurl Act, section 130, page 389. supra.] Essex County Orphans' Court. T ^, ,, , ,, . . f1 On Petition for Directions In the matter of the estate of , ^ T , T-> J 1 >as to the Investment of John Doe, deceased. I ^^ J Funds. Order. Upon reading and filing the petition of William Doe, the trustee of the trusts created in and by the last will and testa- ment of John Doe. deceased, for directions as to the invest- ment of certain moneys of said estate, and the court having examined into the matter and being satisfied that the securitv by way of second mortgage offered by X. Y.. is insufiftcient and that it will not be for the best interest of the estate to loan the funds of the estate upon security of this character. It is thereu])on, upon this day of 19. . . , ordered that the said William Doe be not authorized to loan to the said X. Y., the sum of dollars ui)on his bond, secured by a second mortgage on said premises in said petition particularly described. W. I'. M.. Judge. i26o Probate Law and Practice. GUARDIANSHIP. I. LETTERS OF GUARDIANSHIP OF PERSON AND ESTATE OF ORPHAN MINOR. Form 284. Petition by an Orphan over Fourteen Years of Age for the Appointment of a Guardian. [See Orphans" Court Act. section 37. page 747, supra, and Orphan?" Court Rule 13, page 747. supra.] Essex County Surrogate's Court. In the matter of the guardianship | On Petition for Appoint- of William Doe, a minor. j ment of Guardian. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of William Doe, who resides at Number . . . ., Street, in the of in the County of Essex and State of New Jersey, respectfully shows that: 1. Your petitioner is an orphan of the age of fourteen years and upwards, and under the age of twenty-one years, to wit: of the age of seventeen years, and has personal property of the value of dollars, as nearly as your petitioner can ascer- tain, within this State, and is seized of certain real property, the income whereof amounts to dollars annually. 2. The names and residences of his nearest of kin, of the persons with whom he resides and of those standing in loco parentis to your petitioner, are as follows : A. D., a brother, residing at Number . . . . , , Street, in the of , in the County of , and State of ; J. D., a brother, residing at Number Street, in the of \, in the County of and State of ...., with whom your petitioner resides and who stands in loco parentis to your petitioner. All of the above named are of full age with the exception of the said A. D. Your petitioner therefore prays that letters of guardianship of his person and property be granted to X. Y., who resides Guardianship of Minors. 1261 at Number Street, in the of , in the County of and State of Xew Jersey. Dated Newark, N. [., . . . ., , 19. . ., and signed in the .presence William Doe. of, F. G. S., Jr., Surrogate. State of New Jersev, County of Essex. i ^j. J. D., being duly sworn according to law upon his oath, deposes and says that he has read the foregoing petition of William Doe, and that he of his own knowledge deposes and says that the things therein contained are true to the best of his knowledge and belief. Deponent further says that he has personal knowledge of the value of the personal estate of the said William Doe, and the amount of the income from any real estate owned bv him. That petitioner's personal estate is of the value of dollars, and that the income from two dwelling houses owned by petitioner amounts to the sum of dollars annually. Subscribed and sworn to this" day of 19 . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. J. D. Form 285. Order Appointing Guardian for an Orphan Above the Age of Fourteen Years. [See Orphans' Court Act, section Z7, page 747, supra.] Essex County Surrogate's CorKp. In tlie matter of the guardianshi]! "I On ]*etition for .Appuint- of William Doe, a minor. i nicnt of G.uardian. Order .1 pl^oinliiKj (iiiardiaii. William Doe, of the of in the County of Essex and State of New Jersey, having presented his petition 1262 Probate; Law and Practice. signed in the presence of the surrogate, whereby it appears that the said WilHam Doe is an infant orphan above the age of fourteen years, and prays that X. Y., of the , of , in the County of and State of New Jersey, be ap- pointed his guardian, and it further appearing by the affidavit of J. D. annexed to said petition that he has personal knowl- edge of the value of the personal estate of the said William Doe and the amount of the income from any real estate belonging to him, that the value of the personal estate of the said William Doe is dollars and the amount of the income from the real estate belonging to him is dollars annually. It is thereupon on this day of 19. • . , ordered that guardianship of the person and property of the said William Doe be committed to the said X. Y.. and that letters of guardianship be issued accordingly upon the said X. Y., entering into bond to the Ordinary in the sum of dollars for the faithful execution of his office according to law, which bond shall be approved by the Surrogate. F.' G. S., Jr., Surrogate. For form of bond see Form 292. Form 286. Petition by Mother for Guardianship of Child Under the Age of Fourteen Years. [See Orphans' Court Act. section Ti~. page 750, supra, and Orphans' Court Rule 13, page 747, supra.] EssKx County Surrogate's Court. In the matter of the guardianship ") On Petition for Appoint- of William Doe, a minor. J ment of Guardian. Petition. To F. G. S., Jr.. Surrogate of the County of Essex : The petition of Jane Doe, who resides at No , Street, in the of in the County of Essex and State of New Jersey, respectfully shows that : Guardianship of Minors. 1263 1. Your petitioner's husband. John Doe. late of the County of Essex aforesaid, lately died, leaving a child William Doe. an orphan minor, under the age of fourteen years, to wit : of the age of four years, and without having disposed of the guardianship of said orphan minor, and that said orphan minor is possessed of personal property of the value, as nearly as your petitioner can judge, of dollars, and is seized of certain real estate, the income whereof amounts to dollars per annum, requiring the care of a guardian. 2. The names and residences of the nearest of kin. of an\- persons standing in loco parentis to said minor, and of the persons with whom he resides, are as follows : your petitioner, his mother, whose residence is hereinbefore stated and with whom the said William Doe resides ; John Doe, a brother, who resides at No , Street, in the of , in the County of and State of and Mary Roe, a sister who resides at No Street, in the of in the County of and State of All of the above named are of full age with the exception of John Doe, who is a minor of the age of nineteen years. Your petitioner therefore prays that letters of guardianship of the person and property of the said William Doe be granted to her until the said orphan, after arriving at the age of four- teen, shall choose another guardian or guardians. Dated Newark, N. J., ^ ^ •^ Tane Doe. , , i9--- State of New Jersey County oe Essex Jane Doe, being duly sworn upon her oath according to law, deposes and says that she is the ])etitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of her knowledge and belief. De- ponent further says that the value of the personal estate of said orphan is dollars, and that the amount of the income 81 1264 Probate Law and Practice. of two certain dwelling houses belonging to him is dollars annually. Subscribed and sworn to this^ day of , 19 . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. > Jane Doe. Form 287. Order Appointing Mother Guardian. [See Orphans' Court Act. section S7, page 750, supra.] Essex County Surrogate's Court. In the matter of the guardianship ") On Petition for Appoint- of William Doe, a minor. j ment of Guardian. Order AppointUig Guardian. It appearing from the petition of Jane Doe, of the of in the County of , and State of , filed herein, that John Doe, late of , lately died leav- ing a child, William Doe, a minor, under the age of fourteen, to wit ; of the age of four years, and without having dis- posed of the guardianship of said child, and that the said petitioner is the mother of said child and prays that she may be appointed the guardian of said minor, and it further appear- ing that the value of the personal estate of said orphan is dollars and the amount of income from certain real estate belonging to him is dollars annually. It is thereupon on this day of , 19..., ordered that the guardianship of the person and property of said William Doe be committed unto the said Jane Doe, his mother, as aforesaid, until the said orphan, after arriving at the age of fourteen, shall choose another guardian or guardians, and that letters of guardianship be granted accord- ingly upon the said Jane Doe entering into bond to the Ordi- nary in the sum of dollars conditioned for the faith- ful execution of her office according to law, which bond shall be approved by the surrogate. F. G. S., Jr., Surrogate. For form of bond see Form 292. Guardianship of ^Minors. 1265 Form 288. Petition by Next of Kin for Guardianship of Infant Under the Age of Fourteen Years. [See Orphans' Court Act. section 2>7' page 750, supra, and Orphans' Court Rules 13 and 14, pages 747 and 752, supra. ) EssKx County Surrogate's Court. In the matter of the guardianship "| On Petition for Appoint- of \\'iniam Doe, a minor. j ment of Guardian. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of Richard Doe, who resides at No , Street, in the of , in the County of and State of , respectfully shows that : 1. John Doe, late of the of in the County of Essex and State of New Jersey, lately died without disposing of the guardianship of his child, William Doe. who is an orphan minor under the age of fourteen years, to wit : of the age of six years. 2. The names and residences of the nearest of kin, of any persons standing in loco parentis to said orphan, and of the persons with whom he resides, are as follows : yoiu^ i:)etitioner, a brother, whose residence is hereinabove given ; and James Doe, a brother, who resides at No , Street, in the of , in the County of and State of The said William Doe resides with your petitioner at his residence hereinbefore named and your pe- titioner stands in loco parentis to him. All of the above named are of full age. 3. The said William Doe is possessed of personal property of the value as nearly as your petitioner can ascertain, of dollars, and is seized of real estate the income where- of amounts to dollars per annum. 4. All of the ]jersons entitled to the guardianshij^ of said orphan have renounced their right of guardianship and re- quested the ajjpointment of your petitioner (or due notice of this application has been given to all persons entitled to the > guardianship of said orphan). 1266 Probate Law and Practice. Your petitioner therefore prays that letters of guardianship of the person and property of the said WilHam Doe be granted to him until the said orphan, after arriving at the age of fourteen years, shall choose another guardian or guardians. Dated Newark, N. }., ^ ^ Richard Doe. , I9--- State of New Jersev, | County of Essex. j Richard Doe, being duly sworn upon his oath according to law, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. Deponent further says that the value of the personal estate of said orphan is dollars, and that the amount of the income of two certain dwelling houses belonging to him is dollars annuallv. Richard Doe. Subscribed and sworn to this"^ day of , 19 . . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. For form of notice of application see Form 289; for proof of service of notice see Form ;^S' ; for form of renunciation see Form 290. Form 289. Notice of Next of Kin of Application for Appoint- ment of a Guardian for an Infant Under Fourteen. [See Orphans' Court Act, section 37. page 750, supra, and Orplian?" Court Rule 14, page 752, supra.] Essex County Surrogate's Court. In the matter of the guardianship ) On Petition for Appoint- of William Doe, a minor. j ment of Guardian. Notice. To James Doe, brother of William Doe, an orphan minor under the age of fourteen years : GUAKDIANSIIIP Ol' Ml.NOKS. 1 jGj You are herein- notihed that on the day of , 19. . ., at lo a. m., at the Court House in the City of Newark, I shall apply to the Surrogate of the County of Essex to be appointed guardian of the person and property of the said William Doe. Dated Newark, N. J., , I9--- IvRIIAKU DOK. For proof of service see Form 38. Form 290. Renunciation of Right of Guardianship. [See Orphans' Court Act, section 37. page 750, supra, and Orphans' Court Rule 14. page 752, supra.] I, James Doe, brother of William Doe, an ori)han under the age of fourteen years, hereby renounce all right and claim to guardianship of the person and property of the said William Doe and hereby consent to the appointment of Richard Doe as guardian of the said minor. Dated Newark, N. J., James Doe. ' 19-.. Form 291. Order Appointing Next of Kin Guardian of an Infant Under Fourteen. [See Orphans' Court .Act. section 37. page ■/-,(). sui)ra. ami Orphans' Court Rule 14. page 752. supra.] Essex County Surrog.\te's Court. In the matter of the guardianship ") On Petition for Ajjpoint- of William Doe, a minor. j ment of Guardian. Order Appoiiiiiiin (iitdrdidii. It appearing from the jietition of Kichard Doe, of the of , in the County of and vState of filed herein, that said petitioner is one of the brothers of William Doe, a minor under the age of fourteen years, and 1268 Probate Law and Practice. that due notice .of this apphcatiou has been given to all of the next of kin, or parties by law entitled to the guardianship of said minor, as well as to all persons standing in loco parentis to him, and also to the persons with whom said minor resides (or that all the persons entitled by Uuv to the guardianship of said orphan, the persons standing in loco parentis to him, and the persons zvith whom said minor resides, have renounced their right of guardianship and requested the appointment of your petitioner), and it further appearing that the value of the personal estate of said orphan is dollars, and the amount of income from certain real estate belonging to him is dollars annually, and the Surrogate having made inquiry into the circumstances of the case, and being satisfied that the said Richard Doe is a suitable person to be appointed guardian ; It is thereupon on this day of , 19.... •ordered that the guardianship of the person and property of the said William Doe be committed to the said Richard Doe until the said orphan, after arriving at the age of fourte«?li, shall choose another guardian or guardians, and that letters of guardianship be granted accordingly upon the said Richard Doe entering into bond to the ordinary in the sum of dollars conditioned for the faithful execution of his office according to law, with sureties to be approved by the Surro- gate. F. G. S., Jr., Surrogate. For form of bond see Form 292. Form 292. Guardianship Bond. [See Orphans' Court Act, section 49, page 315. supra.] Know all men by these presents, That We, A. B., C. D. and E. F., all of the of , in the County of , and State of New Jersey, are held and firmly bound unto the Ordinary of the State of New Jersey, in the sum of dollars, lawful money of the United States, to be paid to the said Ordinary as aforesaid, his successors, or assigns, to which payment well and truly to be made, we bind ourselves, our heirs, executops and administrators, jointly and severally, firmly by these presents. J Guardianship of Minors. 1269 Sealed with our seals and dated the dav of , one thousand nine hundred and The condition of this obligation is such that whereas the surrogate of the said County of Essex has appointed the said A. B., to be guardian of the person and property of William Doe, an orphan minor under the age of fourteen vears ; now therefore if the said A. B., shall faithfully execute his said office of guardian, then this obligation shall be void, other- wise to remain in full force and effect. Signed, sealed and delivered ^ -r^ /" ^ • ,, r > CD. (l. s.) m the presence of, ( ^ ^ ) ■^ J E. F. (l. s.) Annex Justification of Sureties see Form 7. Form 293. Letters of Guardianship Issued by the Orphans' Court. [See Orphans' Court Act. section 44. 3 Comp. Stat., p. 38-7.] Essex County Orphans' Court. State of New Jersev, County of Essex. i ss. I, F. G. S., Jr., Surrogate of the County of Essex, do certify that on the day of , 19..., the Orphans' Court of the County of Essex admitted of , as guardian of the person and property of , being a minor the age of fourteen years. Witness my hand and seal of office this day of , nineteen hundred and (l. s.) F. G. S., Jr., Surrogate. Form 294. Letters of Guardianship Issued by the Surrogate. [See Orphans' Court .-Vet. section 44, 3 Comp. Stat., p. 3827.] Essex County Surroc.ate's Court. State of New Jersey, | :' OF Essex. j T, F. G. S., Jr., Surrogate of the County of Essex, do County 12/0 Probate Law and Practice. ' certify that on the day of , 19. . ., 1 admitted , of , as guardian of the person and property of , beng a minor the age of fourteen years. Witness my hand and seal of office this day of , nineteen hundred and (L. s.) F. G. S., Jr., Surrogate. II. ON ESTATE OF MINOR WHOSE FATHER IS LIVING. Form 295. Petition for Appointment of Guardian of Estate of a Minor During Lifetime of Father. [See Orphans' Court Act, section 40, page 754, supra, and Orphans'- Court Rules 13 and 14. pages 747 and 752, supra.] Essex County Surrogate's Court. In the matter of the guardianship ) On Petition for Appoint- of William Doe, a minor. J ment of Guardian. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of John Doe, who resides at No , Street, in the of , in the County of Essex, and State of New Jersey, respectfully shows that: I. Your petitioner is the father of William Doe, an infant of the age of seventeen years who has become possessed of and entitled to personal estate of the value of dollars, and who is also seized of real estate, the income from which amounts to dollars annually. The said William Doe resides with your petitioner at the address hereinbefore stated. GUARDIAXSHIP OF MlNORS. I 27 1 Your petitioner therefore prays that he may be appointed guardian of the estate of the said infant, Wilhani Doe. Dated Xewark, X. J.. ,„ " John Doe. ' • ^ y • • • State of New Jer CouxNTv OF Essex RSEY, I X. j John Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. De- ponent further says that the value of the personal estate of the said William Doe is dollars, and that the amount of the income from the real estate owned by him is dollars per annum. Subscribed and sworn to this" day of , 19. . at Newark, N. J., before me, J John Doe. J. C. F., Notary Public of N. J. Form 296. Order Appointing Guardian of Estate of a Minor During the Lifetime of the Father. [See Orphans' Court Act. section 40, page 754, sui)ra, and Orplians' Court Rules 13 and 14, pages 747 and 752. supra.] Essex County Surrog.\te's Court. In the matter of the guardianship "j On Petition for Appoint- of William Doe, a minor. j ment of Guardian. Order Appointbig Cuardian. It appearing from the petition of John Doe, of the of , in the County of Essex and State of New Jersey, that the said John Doe is the father of William Doe, an infant under the age of fourteen years ; that the said William Doe has become possessed of and entitled to per.sonal property in the said County of Es.sex to the value of dollars and also of real estate, the income from which amounts to dollars annually, and that the said John Doe prays that he may 1272 Probate Law and Practice. be appointed guardian of tlie estate of the said William Doe. It is thereupon on this day of , IQ---, ordered that the said John Doe be appointed guardian of the estate of the said William Doe, and that letters of guardian- ship be issued to him accordingly upon the said John Doe entering into bond to the ordinary of the State of New- Jersey in the sum of dollars, with sureties to be approved by the said surrogate. F. G. S., Jr., Surrogate. For form of bond (from which the words "of the person and" should be stricken) see Form 292. III. TESTAMENTARY GUARDIANSHIP. Form 297. Petition for Letters of Testamentary Guardianship. [See 2 Comp. Stat., page 2627, section i. page 743. supra.] Essex County Surrogate's Court. . , .~^ On Petition for Letters In the matter of the estate of,^^ ^ ^ ,. ^,..,,. .^ . Vof Testamentary Guardian- Wnliam Doe, a mmor. 1 . . Petition. To the Surrogate of the County of Essex : The petition of X. Y., who resides at No Street, in the of in the County of Essex and State of New Jersey, respectfully shows that : 1. John Doe, late of the County of Essex and State of New Jersey, departed this life on the day of , 19. . ., leaving a last will and testament, which has been duly admitted to probate, and recorded in the office of the Surro- gate of the County of Essex, wherein and whereby he nomi- nated and appointed your petitioner guardian of the aforesaid William Doe, his minor child. 2. Jane Doe, the mother of said infant, has duly consented to the appointment of your petitioner as guardian, in a writing GUARDIAXSIIll' OF MiXtiKS. 127:5 executed prior to the probate of the will of the said John Doe. deceased {or the mother of said infant is dead). 3. The personal estate to which said minor will be entitled will not exceed in value the sum of dollars; the income from his real estate amounts to the sum of dollars per year : and the said John Doe in and by his last will and testament did not expressly provide that your pe- titioner should serve as the guardian of said minor without bonds. Your petitioner therefore prays that letters of testamentarv guardianship of the person and estate of the said William Doc. a minor as aforesaid, may be issued to him. Dated Newark. X. [.. X. Y. ' i9--- State of New Jersev, County of Essex. ■■} X. Y., of full age, being duly sworn upon his oath accord- ing to law, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein contained are true to the best of his knowledge and belief. Deponent further says_ that the value of the personal estate of the said minor is dollars and that the amount of income from the real estate owned by him is dollars per annum. Subscribed and sworn to this"^ day of , [ 19. ... at Newark, N. J., before me, X. Y J. C. F., Notarv Public of N. }. Form 298. Consent of Mother to Appointment of Testamentary Guardian. [See 2 Comp. St.it.. page 2627, section i, page 743. supra.] Essex County Sukuocate's Court. 1274 Probate Law and Practice. ^ , ^ , ^"^ On Petition for Letters In the matter of the estate of ^ ^, ^ ^ „ ,. ^^...,. „ . vof 1 estamentary CTiiardian- Wilham Doe, a mmor. ( , . J ship. Consent of Mother. John Doe, late of the of , in the County of Essex and State of New Jersey, deceased, having by his last will and testament appointed X. Y., of the ....... of , in the County of , and State of , guardian of the person and property of his infant child, William Doe. Now, therefore, I, Jane Doe, widow of the said John Doe and mother of the said William Doe, do hereby consent to the appointment of the said X. Y., as guardian of the person and property of the said William Doe. Dated Newark, N. J., Jane Doe. , , I9--- Signed and acknowledged by the said Jane Doe on the day of , 19. . • , in the presence of us, who were both present at the same time, and who have hereunto subscribed our names as witnesses in the presence of the said Jane Doe. A. B. CD. State of New Jersey County of Essex ' \ ss. A. B. and C. D., being severally duly sworn upon their oaths, each for himself deposes and says, that the said A. B. and C. D. were both present at the same time, and saw Jane Doe, in the foregoing consent named, sign the said consent and heard her acknowledgment that the same was her free act and deed on the day of , 19. . ., and that there- upon the said A. B. and C. D. subscribed their names there- to as witnesses in the presence of the said Jane Doe. Subscribed and sworn to" this"^ . ■„ .O^inw. . day of , I 19. . ., at Newark, N. J., before | p -pv me, J ' J. C. F., Notary Public of N. J. i Guardianship of Minors. 12 / .-^ This consent must be executed and acknowledged prior to the probate of the will appointing the guardian. Form 299. Acceptance of Guardianship. [See Orphans' Court Act. section 50. page 746, supra.) Essex County Surrogate's Court. In the matter of the estate of] 0» Petition for Letters William Doe. a minor. T ^^^^amentary Guardian- J ship. Acceptance. I. X. X., of the of , in the County of aiicl State of , having been appointed in and by the last will of John Doe, deceased, late of the of , Essex County, Xew Jersey, guardian of the person and property of his infant child. William Doe, do hereby declare my acceptance of the said guardianship. Dated Newark, N. J., " , 19. . . , and signed in the presence of F. G. S., Jr., Surrogate. This acceptance must be executed in the presence of the Surrogate. > X. Y. Form 300. Order Granting Letters of Testamentary Guardian- ship. [See 2 Comp. Stat., page 2627, section i. page 743. supra: and Or^ phans' Court Act, section 50, page 746. supra.] Essex County Surrogate's Court. T 4.1 xi. r ^1 . . r^ ^^'1 petition for Letters (if in the matter of the estate of ' wj-u- r\ • y J estanicntar\- Guardian- William Doe, a minor. I , • J ship. Order Granting Letters of Testamentary Guardian- ship. John Doe. late of the of in the County 1276 Probate Law and Practice. of Essex and State of New Jersey, deceased, having by his last Will and Testament, which has been duly proved and recorded in the office of the Surrogate of the County of Essex, appointed X. Y., of the of in the County of , and State of , guardian of his infant child, William Doe, and it having been duly proved at the time of the probate of said will that Jane Doe, the mother of said child, had duly signed and acknowledged her consent to said appointment, (or and it appearing that the mother of said child is dead); and the said X. Y. having appeared before the Surrogate and declared his acceptance of the said guardian- ship, and it appearing that testator in and by his said will did not expressly provide that the said X. Y. should serve as guardian without bonds, and that the value of the personal estate of the said minor is dollars, and the amount of income from certain real estate belonging to him is dollars. It is thereupon on the day of IQ- •, ordered that letters of guardianship of the person and prop- erty of the said William Doe be granted to the said X. Y.. upon his entering into bond to the ordinary for the faithful execution of his office, in the sum of dollars, with sureties to be approved bv the Surrogate. F. G. S., Jr., Surrogate. For form of bond see Form 301. Form 301. Bond of Testamentary Guardian. [See Orphans' Court Act. section 50. page 746. supra.] Know all men by these presents. That We, X. Y., princi- pal, and C. D. and E. F.. sureties, all of the City of X^ewark. in the County of Essex and State of Xew Jersey, are held and boimd unto the Ordinary of the State of Xew Jersey, in the sum of dollars, to be paid to the sai"d Ordinary, his suc- cessors and assigns : to which jiayment well and trulv to be i Guardianship of ]\Iixors. 1277 made we bind ourselves, and each of us. for ourselves, jointly and severallv. our and each of our heirs, executors and admin- istrators. Sealed with our seals and dated this day of , i9--- The condition of this obligation is such that whereas John Doe, late of the City of Newark, in the County of Essex and State of New Jersey, did in and by his last will and testament, duly proved and recorded, appoint the above-named X. Y. to be the guardian of his child, William Doe, a minor ; and whereas, the said X. Y. has appeared before the Surrogate of the County of Essex and accepted the said guardianship. Xow, therefore, if the said X. Y. shall faithfully execute his office as guardian, as aforesaid, then this obligation shall be void, otherwise to remain in full force and etifect. Signed, sealed and delivered ' ^' in the presence of f ^' t^ / ' "( J CD. (l. s.) Justitication of the sureties on the bond should lie annexed thereto. See Form 7. Form 302. Letters of Testamentary Guardianship. [See Orphans' Court Act, section 45, 3 Comp. .Stat., p 3828.] ESSKX CorxTV SfKK<^i".ATK's CoiRT. State of X: '.v^\ Jersey, | )F Essex, j ss. County of ^ To ALL TO Whom These Presents Shall Come Greeting: Whereas, late of the County of , in the State of , in and by his last will and testament, duly proved Ijefore the Surrogate of the County of , did appoint to be guardian of the person and property of his child, an infant, under the age of twenty-one years ; and whereas, the said has accepted the said a])pointment and entered into bond according to law ; therefore. 1278 Probate Law and Practice. I, F. G. S., Jr., Surrogate of the County of , do hereby certify that the said is duly authorized to execute the said trust according to law and the terms ot the said last will and testament. In witness whereof, I have hereunto set my hand and seal of office, this day of , (l. S.) a. D., nineteen hundred and F. G. S., Jr., Surrogate. IV. NON-RESIDENT MINORS. Form 305. Petition by Non-Resident Orphan for Appointment of Guardian. [See Orphans' Court Act. section 41. page 748, supra, and Orphans' Court Rule 13, page 747, supra.] Essex County Surrogate's Court. In the matter of the guardian- | On Petition for Letters of ship of William Doe, a minor. J Guardianship. Petition By Non-Residoit Minor. To F. G. S., Jr., Surrogate of the County of Essex : — The petition of William Doe, who resides at No , street in the of , in the County ot and State of New York, respectfully shows that : — 1. Your petitioner is an infant orphan of the age of four- teen years and upwards, to wit ; of the age of seventeen years and resides out of the State of New Jersey, to wit ; at the address hereinbefore mentioned. 2. Your petitioner has personal property within the County of Essex aforesaid, of the value, as nearly as he can ascertain of dollars, and is seized of real estate in the State of New Jersey, the income whereof amounts to dol- lars annually ; the nearest of kin of your petitioner are his brothers James and John Doe, who reside at No Street, in the City of New York, in the County and State of New York ; and your petitioner resides with his Guardianship of Minors. 12/9 brother James at the aforesaid address, and his said brother stands in loco parentis to him. Your petitioner therefore prays that X. Y.. of the of in the County of Essex and State of New Jersey, be appointed his guardian within this State. Dated 19. .. Signed in the presence of Judge of the Court of the City. County and State of Xew York. \\'lLLIA.M DoK. State of Xew York, County OF Xew York. ss. James Doe, being duly sworn according to law, deposes and says that he is the brother of William Doe, the peti- tioner in the foregoing petition ; that he has personal knowl- edge of the value of the real and personal property of his said brother. William Doe. and that the value of his personal property will not exceed the sum of dollars, and that the income from his real property amounts to dollars per year. > James Doe. Subscribed and sworn to this"^ day of , 19. ., at before me. O. Z., X'otary Public of the State of N. Y. The abo\e petition must be signed by the orphan in the presence of a judge of a court of record in the state, terri- tory or country in which such orphan may be, and acknowl- edged before said judge in the same manner as deeds are re- quired to be acknowledged in this State : for form of acknowl- edgment, see Form Sa. If the orphan is out of the Ignited States, the petition must be signed and acknowledged by such orphan before a public ambassador, minister, consul, vice-consul, etc., of the 82 i28o Probatk Law and Practice. United States in the country where such orphan is at the time of signing such petition. Form 304. Order Appointing Guardian for Non-Resident Orphan. [See Orphans' Court Act. section 41, page 748, supra.] Essex County Surrogate's Court. In the matter of the guardian- | On Petition for Letters of ship of Wilham Doe, a minor, j Guardianship. Order Appointing Guardian. Wilham Doe, of the of , in the County of and State of New York, having presented his. petition duly signed and acknowledged in the presence of a judge of a court of record of the State of New York, wherebv it appears that the said William Doe is an infant orphan of the age of fourteen years and upwards, residing out of the State of New Jersey, and that he is possessed of personal propert}' within this State to the value of dollars, and that he is seized of real estate within this State the in- come whereof amounts to the sum of dollars annually, and prays that N. Y., of the of , in the County of Essex and State of New Jersey, be appointed his guardian. It is thereupon on this day of 19. • , ordered that the said X. Y., be appointed guardian of the said William Doe, and that letters of guardianship issue to him accordingly upon his entering into bond to the ordinary of the State of New Jersey, in the sum of dollars, with sureties to be approved by the said surrogate. F. G. S., Jr., Surrogate. Form 305. Petition for Appointment of Special Guardian for Property of Non-Resident Minor. [See Orphans' Court Act, section 43, page 756. supra, and Orphans' Court Rules 13 and 14. pages 747 and 752. supra.] Essex County Surrogate's Court. Gi'ARDiAxsHip OF Minors. 12RT "^ On I^etition for the Ap- In the matter of the guardian- ship of John Doe, a minor. l)ointment of Guardian for Property of Xon-Resident Minor. Petition. To F. G. S.. Jr.. Surrogate of the County of Esse.x : The petition of W'iUiam Doe. who resides at Xo. Street, in the City of in the County of and State of New York, respectfully shows that : 1. John Doe, a minor of the age of fifteen years, the brother of your petitioner, resides with him. and is seized of certain real estate in the City of Newark, in the County of Essex and State of Xew Jersey, known and designated as Xo. , Street, and consisting of a ])arcel of land with a dwelling house thereon, the income from which amounts to the sum of dollars per annum, and is also possessed of certain personal property within the County of Esse.x and State of Xew Jersey aforesaid, of the \alue of dollars. 2. The next of kin and persons entitled to the guardian- ship of the said John Doe are your petitioner, a brother, whose place of residence is hereinabove stated ; James Doe. a brother, who resides at No Street, in the of in the County of and State of : and Sarah Smith, a sister, who, resides in the of in the County of and State of The said John Doe resides with your petitioner, who stands in loco parentis to him. 3. All of the next of kin and persons entitled to guardian- ship of the said John Doe have duly renounced their said right of guardianship, and have requested the a])pointment of your petitioner, (or, due notice of this application has been cjiven to all of the next of kin and persons entitled to (jHarduinship of the said John Doe. minor, as aforesaid ). Your petitioner therefore prays that letters of guardian- ship of the aforesaid ])roi)erty. real and personal, and of the 1282 Probate Law and Practice. said John Doe, within the State of New Jersey, be committed to some fit person. ^^^^^ ' WD T9--- State oe New Jersey, County of Essex. ISEY, ") X. I W'ilham Doe, being duly sworn according to "law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. Deponent further says that the value of the personal estate of the said John Doe is dollars, and that the amount of the income from the aforesaid real estate belonging to him is dollars per annum. Subscribed and sworn to this~^ day of 19 • • , > William Doe. at Newark, N. J., before me. J J. C. F., Notary Public of N. J. For form of notice of application see Form 289, for proof of service of notice see Form 38. for renunciation see Form 290. Form 306. Order Appointing Special Guardian for Property of Non-Resident Minor. [See Orphans' Court Act, section 43, page 756, supra, and Orphans' Court Rules 13 and 14. pages 747 and 752, supra.] Essex County Surroc.atk's Court. In the matter of the guardian- ship of John Doe, a ]\Iinor. J Order AppohiUng Guardian. C)n Petition for the Ap- pointment of Guardian for Property of Non-Resident Minor. It appearing from the petition of ^^'illiam Doe, filed herein, that John Doe, a minor, residing without this state, to wit : in Guardianship of [Minors. 12S3 the City. Count)- and State of Xew York, lias personal prop- erty to the value of dollars, and real property which produces an annual income* of dollars within the County of Essex aforesaid, ami that all of the next of kin and persons by law entitled to the guardianship of said minor have duly renounced their said right of guardian- ship {or that due notice of this application has been given to all the next of kin and persons by laic entitled to guardianship of said minor). It is thereupon, on this day of , 19. . . ., ordered that A. B., of the of , in the County of Essex and State of New Jersey, be and he is hereby ap- pointed guardian of the aforesaid real and personal property of the aforesaid non-resident minor within this state, and that letters of guardianship be issued accordingly upon the said A. 15., entering into bond to the (Ordinary in the sum of dollars, conditioned according to law for the faithful perform- ance of his duties. F. G. S., Jr., Surrogate. For form of jjond see I-'orm 292. REMOVAL FROM STATE OF PROPERTY OF NON-RESI- DENT MINORS. Form 307. Petition by Non-Resident Guardian for the Removal of Property of Ward From the State. [See 2 Comp. Stat., page 2629, section 6, page 790, supra, and ib., page 2630, section 7, page 791, supra.] EssKx Col'XT^■ Orphans' Court. In the matter of the removal "^ from the state of the property K- On Petition, of William Doe, a minor. J Petition. To the Orphans' Court of the County of h'sscx. The petition oi Richard Doe, of the of [284 Probate Law and Practice. in the County of and State of , respect- fully shows that : 1. Your petitioner is a resident of the City. County and State of Xew York and on the day of , 19. . ., he was appointed by the Surrogate of the said County of New York, guardian of the person and property of William Doe, a minor, residing in the City. County and State of New York aforesaid. 2. The said William Doe. minor as aforesaid, is entitled to personal property situate within this county and state, to wit : a legacy of dollars, given to the said minor by the last will of John Doe. deceased, duly admitted to probate bv the Surrogate of the County of Essex and State of Xew Jersey on the day of iQ. . , which said legacy is in the hands of James Doe. the executor of the said last will and testament of John Doe. deceased. 3. The value of the personal property of the said William Doe at the place of his residence will not exceed the sum of dollars and your petitioner has given adequate secur- ity as such guardian as aforesaid, in the sum of dollars, which bond is in double the amount of the value of the aforesaid legacy over and above the value of the prop- ertv of such ward in the place of his residence, which securitv has been approved by the Surrogate of the said County of New York, as will appear by the certificate of the Surrogate here- unto annexed. Your petitioner therefore prays that an order may be made authorizing him to demand, sue for, collect and receive the said legacy to wdiich his said ward is entitled as aforesaid and re- move the same to the place of residence of }Our petitioner and of his said ward. Dated 19. . Richard Doe. ' I ss. Richard Doe, being duly sworn according to law upon his State of New Jersey County oe Essex GrARDiAxsiiip oi- Minors. 12S5 oath, deposes and says tliat lie is llic petitioner in the foregoing petition named and that the matters and things therein con- tained are trne to the l)est of his knowledge and belief. Subscribed and sworn to this"^ day of , 19. ., K. Richard Doe. at before me. J If tlie guardian lias given bond with adequate security in the place of his appointment, in a sum double the amount in value of the property- of the ward in this State, over and above the value of the property of such ward in the place of his residence, there should be procured from the officer ap- pointing him a certificate, authenticated according to the Act of Congress, setting forth such fact. In. the absence of such certificate. Or if the court be not satisfied with the sufficiency of such security, he will be required to give additional securitv in this state in such form and in such amount as the court may direct. See 2 Comp. Stat, jiage 2630, section 7, page 791, supra. Form 308. Notice of Application by Non-Resident Guardian For Removal of Property of Ward From State. [See 2 Comp. Stat., page 2630, section 8, page 792, supra.] Essex County Orpttans' Court. In the matter of the removal"^ from the State of the property vOn Petition, of William Doe, a minor. J Notice of . lpf>l!catioii. To James Doe, executor of the last will and icslament of John Doe, deceased: , t ,,. You are hereby notified that on the day of , 19...., at 10 a.m., or as soon thereafter as counsel can be heard, I shall apply to the Orphans' Court of the County oi Essex, at the Court House, in the City of Newark, for an order authorizing me to demand, sue for. collect and receive a 1286 Probate Law and Practice. certain legacy of dollars in your hands as executor of the will of John Doe, deceased, given by said will to Wil- liam Doe, a minor, of whom I was appointed guardian by the Surrogate of the County of New York, and further authorizing me to remove the same from this state to the place of residence of myself and my said ward. Dated Newark, N. J. , 19. .. Richard Doe, Guardian of William Doe. This notice must be served twenty days before making the application. The Orphans' Court may also order notice of such intended application to be given to other persons inter- ested. 2 Comp. Stat., page 2630, section 8, page 792, supra, for form of proof of service of notice see Form 38. Form 309. Order Authorizing Guardian of Non-Resident Minor to Remove Property of Ward Out of This State. [See 2 Comp. Stat., page 2629, section 6; ib. page 2630, section 7, pages 790 and 791, supra, and ib. page 2630, section 8, page 792, supra.] Essex County Orphans' Court. In the matter of the removal"^ from the state of the property y On Petition. of William Doe, a minor. J Order Authorising Removal of Property from State. It appearing from the petition of Richard Doe, filed herein, that the said petitioner resides in the City, County and State of New York and that he is the guardian, duly appointed by the Surrogate's Court of the said County of New York, of the person and property of William Doe, a minor, residing in said City, County and State of New York. And it further appearing that the said William Doe, minor as aforesaid, is entitled to personal property situate within this County and State, to wit : a legacy of dol- lars, given to the said minor by the last will of John Doe. de- ceased, which will was duly admitted to probate by the sur- GiARDiAxsiiip (U- Minors. 1287 rogate of the County of Essex and State of Xew Jersey on the day of 19. .. whieh legacy is in the hands of James Doe, the duly qualitied executor of said will : and proof being made to the satisfaction of the court h\ certifi- cate of the surrogate of the said County of New York, duly authenticated according to the acts of Congress that the said Richard Doe, guardian as aforesaid, has given adequate security as such guardian in double the amount of the value of the aforesaid legacy over and above the value of the property of such ward in the place of his residence, and that due notice of this application has been given to the said James Doe, executor of the last will of John Doe. in whose custody the said legacy is as aforesaid ; and the court having investigated the matter ; and it appearing to the satis- faction of the court that it is for the interest of the said ^^'illiam Doe, ward as aforesaid, that said guardian be permitted to re- move the said legacy to which tl* said ward is entitled as aforesaid, from this State. It is thereupon on this day of I9- •, ordered that the said Richard Doe, guardian as aforesaid, be, and he is hereby authorized to demand, sue for, collect and re- ceive the said legacy, to which his said ward, William Doe, is entitled as aforesaid and remove the same to the ]:)]ace of resi- dence of himself and ward ; and it is further ordered that the delivery, transfer, or payment of such legacy by the said James Doe, to the said Richard Doe shall be a legal discharge and acquittance for the same. A. F. S.. Judge. V. WHERE NEXT OF KIN ARE NON-RESIDENT OR ABSENT. Form 310. Petition by a Stranger for Appointment of Guardian for Orphan Whose Next of Kin are Non-Residents. [Sec Orijhans' Court Act. section 42, pa^c 734, supra, and Orplians' Court Kule 13, page 747, supra.] Essex Countv Suhkoc.atk's Col'kt. 1288 Probate Law and Practice. In the matter of the guardianship | On Petition for Appoint- of WilHam Doe, a minor. \ ment of Guardian. Petition. To Fred G. Stickel, Jr., Surrogate of the County of Essex: The petitioner of X. Y., who resides at No , Street, in the of in the County of Essex and .State of New Jersey, respectfully shows that: 1. William Doe is a minor under the age of fourteen years, to wit: of the age of seven years, and he resides at No , Street, in the of , in the County of Essex and State of New Jersey. 2. Both the father and mother of said minor are dead, and the only next of kin of said infant is a brother, James Doe, who resides at No , Street, in the City of New York in the State of New York. There is no person standing in loco parentis t% said minor, who resides with your petitioner. 3. The said minor, William Doe, is seized of real estate, the annual income whereof amounts to dollars annually, and is entitled to personal property situate within the County of Essex of the value, as nearly as your petitioner can ascertain of dollars. 4. Due notice of this application has been given to all persons by law entitled thereto (or all persons by law entitled to notice of this application have duly renounced their right of guardianship and requested the appoijitsuent of your petitioner) . Your petitioner therefore prays that such action may be taken in respect to the appointment of a guardian or guardians for said minor as shall seem for his best interest and advantage. Dated Newark, N. J., ^ y - , I9--- State of New Jersey, | County of Essex j X. Y.. being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing pe- GUARDIAXSIIIP 01' ^[IXORS. I289 titioii named, and that the matters and thing's therein con- tained are true to the best of his knowledge and belief. De- ponent further says that the value of the personal estate of said minor will not exceed in value the sum of dollars and that the amount of the income froiu the real estate owned by him amounts to dollars per annum. X. Y Subscribed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J- For form of notice see Form 289; for proof of service see Form ^S ; for renunciation see Form 290. Form 311. Order Appointing a Guardian for Orphan Whose Next o£ Kin are Non-Resident. [See Orphans' Court Act. section 42, page 754. supra, and Orplians' Court Rules 13 and 14, pages 747 and 752, supra. J Essex County Surrog.vte's Court. In the matter of the guardian- | On Petition for Appoint- ship of William J3oe, a minor. J ment of (Uiardian. Order Appoiut'nui Cuardiaii. It appearing from the duly verified petition of X. Y., of the of , in the County of and State of , filed herein, that William Doe is an orphan minor under the age of fourteen years, and resides within this State, and that the nearest of kin of said orphan minor do not reside within this State ; and it further appearing that the said orphan is seized of certain real jM'operty and is entitled to personal property situate within this State, and that it appears for the best interest and advantage of said minor thai a guardian should be appointed for him. And it further appearing that due notice of this aj^plication has been given to all persons by law entitled thereto (or that all persons entitled h\ law to notice of this application hare 1290 Probate Law and Practice. duly renounced their right of guardianship of said orphan and requested the appointment of your petitioner). It is thereupon on this day of 19. . . . ordered that guardianship of the person and property of the said WilHam Doe, until he arrives at the age of fourteen years and chooses another guardian, be committed to X. Y.. the petitioner herein, and that letters of guardianship be issued accordingly upon the said guardian entering into bond to the ordinary in the sum of dollars, with sureties to be approved by the Surrogate, conditioned for the faithful execu- tion of his office according to law. F. O. vS.. Jr.. Surrogate. For form of bond see Form 292. Form 312. Petition for Appointment of Guardian for Minor Child of Absconding or Absent Parent. [See Orphans' Court Act. section 39, page 7S3^ suiira. and Orplians" Court Rules 13 and 14. pages 747 and 7^2. supra.] Essex County Surrogate's Court. ""^ On Petition for Guardian- In the matter of the guardian- I ship for Minor Under ship of John Doe, a minor. [Fourteen -Years, Whose J Parent Has Absconded. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of William Doe who resides at No Street, in the of , in the County of Essex and State of New Jersey, respectfully shows that: I. Prior to the day of , 19. . ., his brother. James Doe, a citizen of this state, together with the latter's minor son, John Doe, resided with your petitioner at his aforesaid residence. On the aforesaid day of , the said James Doe left his aforesaid home, ostensibly to seek work in the City of Albany in the State of New York, leaving his aforesaid child, John Doe, with your petitioner and with- out making any competent or suitable })rovision for his main- tenance or education. Guardianship or* Minors. 1291 2. Since the said James Doe left his home as aforesaid, your petitioner has not heard from him, although your petitioner has repeatedly written to him, addressing his letters to Albany, Xew York, nor has the said James Doe taken any steps to provide suitable maintenance and education for the said John Doe, but has absconded or absented himself from this state for the period of more than two years last past. 3. The aforesaid John Doe is a minor under the age of fourteen years, to wit: of the age of ten years. The names and residences of the nearest of kin of the said John Doe are as follows : — Henry Doe, an uncle, who resides at No Street, in the of in the County of and State of ; Robert Doe, an uncle, who resides at No , Street, in the of in the County of , and State of ; and Mary Jones, an aunt, who resides at No Street, in the of , in the County of and State of 4. The said minor resides with your petitioner, there is no person standing in loco parentis to said minor, and all of the aforesaid next of kin and persons by law entitled to guardian- ship of said minor have duly renounced their right of guard- ianship and requested the appointment of your petitioner {or due notice of this application has been given to all persons entitled by lazv to the guardianship of said minor). 5. The aforesaid John Doe is not possessed of nor entitled to any property either real or personal, so far as your petitioner can ascertain (or the said John Doe is possessed of personal property to the value of dollars, and is also seized of certain real estate, to i^'it: tzvo divelling houses located at No , Street, in the of /;/ the County of and State of the amount of the income from 7<.'hich amounts to the sum of dollars per annum). Your petitioner therefore prays that letters of guardian- ship of the said John Doe, a minor as aforesaid, may he granted 1292 Probate Law and Practice. to him until the said John Doe shall arrive at the age of fourteen years, and select a new guardian. Dated Newark, N. T-, ..r t^ ^ Willi A xM Doe. , , i9--- State oe New Jersey, County oe Essex. s.v,J James Doe, being duly sworn according to law upon his oath, deposes and says, that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. (// the minor is possessed of real and personal property, add the following) : Your petitioner further says that the said John Doe is possessed of personal property of the value of dol- lars, and is also seized of two dwelling houses situate at No. . . . ., Street, in the .... of in the County of and State of , and that the income from the aforesaid real estate amounts to the sum of dollars per annum. Subscribed and sworn to this "^ ^f"y°' m-VkT1 James Doe. 19. . ., at Newark, N. J., before me, X. Y., Notary Public of New Jersey. For form of notice see Form 289 ; for proof of service see Form 38 ; for Renunciation see Form 290. In the case of a minor over fourteen years, the petition should be made by the minor, and signed by him in the presence of the Surrogate, Deputy-Surrogate, or a special master in chancery. No notice or renunciation of the next of kin is necessary in such case, but the petition should recite their names and addresses pursuant to the provisions of rule 13. If the minor is seized of any real estate, or possesses any personal property, the affidavit of some person familiar with the value of the same should be annexed. Guardianship of Minors. 1293 Form 313. Order Appointing Guardian for Child of Abscond- ing or Absent Parent. [See Orphans' Court Act. section 39. page 735. supra and Orphans* Court Rules 13 and 14. pages 747 and 752, supra.] EssKx County Surrogatk's Court. "^ On I'etition for (iiiardian- In the matter of the guardian- I shi]) for Minor Under ship of John Doe. a minor. [Fourteen Years, \\'liose J Parent has Absconded. Order Appoiniiiui Guardian. It appearing from the jjctition of W'ilHam Doe, filed herein, that James Doe, a citizen of this state, has absconded or ab- sented himself from this state for the term of two years, leaving in this state his child, John Doe, a minor under the age of tweifty-one years, to wit: of the age of ten years, without competent and suitable provision for his maintenance and edu- cation, and it further appearing that such child resides in the said County of Essex, and that all of the next of kin of said minor, and persons by law entitled to guardianship have duly renounced their said right of guardianship (or due notice of this application has been given to all the next of kin of said minor and persons by law entitled to guardianship), and it further api)earing that said minor is not seized of any real estate nor possessed of any personal property (or said minor is seised of certain real estate in the of ...... in the County of and State of , consisting of tzvo divelling houses, the income from zvhich amounts to the sn})i of dollars per annum and is also possessed of personal property to the vahic of dollars). It is thereupon, on this day of if). . . . ORDKRKD that the guardianship of the aforesaid John Doe be and the same is hereby committed to the said William Doe and that letters of guardianship be issued accordingly, uj^on the .said William Doe entering into bond to the ( )r(linary of the State of New Jersey in the sum of flollars, condilioned according to law for tlie faith fnl execution of his office. F. G. S., Jr.. Surrogate. For form of guardian's bond see Form 2')2. J294 Probate Law and PRACTicr;. VI. APPOINTMENT OF GUARDIANS AD LITEM. Form 314. Notice to Infant Over Fourteen Years. [See Orphans' Court Rule 47, page 757, supra.) Essex County Orphans' Court. In the matter of the probate of"^ On Application for Ap- the last will and testament of vpointment of Guardian Ad John Doe, deceased. J Litem for Lifant Party. Notice to Infant Over Fourteen Years. To William Doe: Take notice, that I shall apply to the Orphans' Court of the County of Essex, at the Court-House in the City of Newark on the day of 19 . . . , at ten o'clock in the forenoon, or as soon thereafter as the matter can be heard, to assign and appoint a guardian ad litem for you in the above stated matter. X. Y., Proctor for Proponent. Dated , , 19. . . ' For proof of service see Form 38. Form 315. Petition for the Appointment of a Guardian Ad Litem of Infant Over Fourteen Years, Where No Application on Behalf of Infant is Made. [See Orphans' Court Rule 47, page 757. supra.] Essex County Orphans* Court. In the matter of the probate of^ On Application for Ap- the last will and testament of Vpointment of Guardian Ad John Doe, deceased. J Litem for Infant Party. Petition. To the Orphans' Court of the County of Essex: The petition of Jane Doe respectfully shows that: I. Your petitioner is the proponent in the above entitled matter, and Henry Doe, a minor over the age of fourteen years is a party to this proceeding. Guardians Ad Litem. 1295 2. On the day of 19. . . , the said Henry Doe was duly served with process of citation issued out of this court, but no apphcation for the appointment of a guard- ian ad Htem for the said infant party has been made, although more than fiive days have elapsed since the service upon him of the citation as aforesaid. 3. Due notice of this application has been given to the said infant party. The petitioner therefore prays that a guardian ad litem mav be assigned for the said Henry Doe, to apj)ear for the said minor in the above entitled matter. Signed in the presence ^. , ^ ^ ^ ^ ' T.xNE Doe. V Jersey, ") Essex. j St.\te of New County of E= Jane Doe, being duly sworn according to law upon her oath, deposes and says that she is the petitioner in the foregoing petition named, aod that the matters and things therein con- tained are true to the best of her knowledsc and l)clicf. Subscribed and sworn to this"^ day of , 19. . .. at Newark. N. J., before me, J. C. F., Notarv Public of N. T > Jane Doe. Form 316. Order Appointing Guardian Ad Litem for Infant Over Fourteen Years on Application of Petitioner. [See Orphans' Court Kule 47, page JS7- supra.] Essex County Orphans' Court. In the matter of the prol)ate of] On Ajjplication for .\p- the last will and testament of vpointmeiit of Guardian Ad John Doe, deceased. J Litem for Infant Party. Order Apl^oititiiuj Ciiardiaii Ad Litem for hi font Over four- teen Years. 'I'his matter being oj^ened to the court bv proctor 83 1296 Probate; Law and Practice. for proponent, and it appearing that Henry Doe, one of the parties herein, a minor under the age of twenty-one years and over the age of fourteen years, has been served with citation to appear herein ; that no appHcation has been made for the appointment of a guardian ad litem for the aforesaid infant party, although more than five days have elapsed after the service upon him of the citation as aforesaid, and that due notice of this application has been given to the said Henry Doe. It is thereupon on this day of , 19..., ordered that be and he is hereby assigned and appointed guardian ad litem for the said Henry Doe, for him and in his behalf to appear in this matter. W. P. M., Judge. Form 317. Notice to Infant Under Fourteen Years. [See Orphans' Court Rule 47. page 757, supra.] Essex County Orphans' Court. In the matter of the probate of"^ On Application for Ap- the last will and testament of Vpointment of Guardian Ad John Doe, deceased. J Litem for Infant Party. Notice to Infant Under Fourteen Years. To William Doe: — (guardian, father or mother as the case may be) of Henry Doe, a minor, under the age of fourteen years : Take notice that I shall apply to the Orphans' Court of the County of Essex at the Court-House in the City of Newark, on , the day of , 19 . . . , at ten o'clock in the forenoon, or as soon thereafter as the matter can be heard, to assign and appoint a guardian ad litem for Henry Doe, an infant party in the above-stated matter, who is under the age of fourteen years. X. Y., Proctor. Dated, , , 19. • • For proof of service see Form 38. Guardians Ad Litk>[. 1297 Form 318. Petition for the Appointment of Guardian Ad Litem for Infant Under Fourteen Years, Where no Application is Made on Behalf of Infant. [See Orphans' Court Rule 47. page 757. supra.] Essex County Orphans' Court. Ill the matter of the probate of^ On Application for Ap- the last will and testament of Vpointment of Guardian Ad John Doe, deceased. J Litem for Infant Party. Petition. To the Orphans' Court of the County of Essex : The petition of James Doe respectfully shows that: 1. Your petitioner is the proponent in the above-entitled matter. The citation issued in this matter was duly served upon Henry Doe, an infant under the age of fourteen years, who is a party to this proceeding. 2. The father of the said Henry Doe is dead, and the said infant resides with his mother, Sarah Doe, and due notice of this application has been served u])on the said Sarah Doe, but no application for the appointment of a guardian ad litem for said infant party has been made, although more than five days have elapsed since the service upon him of the citation issued herein, as aforesaid. Your petitioner therefore prays that, some suitable person be appointed by this court as guardian ad litem for the said infant, Henry Doe, for him and in his behalf to a])pear in this matter. Dated Newark, X. |., t ,^ A.Mics iJor;. , , i9--- Kw Jerskv, I F Essex. j Static oe NE^ ,. ^ " y ss. County of James Doe, being dul_\- sworn according lo l;iw ui)t)ii his oalh, dc])Oses and says that he is the jtetitioner in the foregoing 1298 Probate Law and Practice. petition named, and that the matters and things therein con- tained are true to the best of liis knowledge and belief. Subscribed and sworn to this^ day of ^ 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. ]. > Tames Doe. Form 319. Order Appointing Guardian Ad Litem for Infant Under Fourteen Years Where No Application Made in His Behalf. [See Orphans' Court Rule 47, page 757. supra.] Essex County Orphans' Court. In the matter of the probate of"^ On Application for Ap- the last will and testament of ypointment of Guardian Ad John Doe, deceased. J Litem for Infant Party. Order Appoi}iti)ig Guard- ian Ad Litem. This matter being opened to the court by proctor for proponent, and it appearing that Henry Doe, a party to this proceeding, who is an infant under the age of fourteen years, has been duly served with process of citation issued in this matter ; that the father of the said Henry Doe is dead, and that due notice of this application has been given to Sarah Doe, the mother of the said Henry Doe, and that no applica- tion has been made for the appointment of a guardian ad litem for the said Henry Doe, although more than five days have elapsed since the service upon him of the citation issued herein as aforesaid. It is thereupon, on this day of , 19. . ., ordered that be and he is hereby assigned and ap- pointed guardian ad litem for the said infant Henry Doe, for him and in his behalf to appear in this matter. W. P. M., Judge. GuARDiAxs Ad LiTF.>r. 1299 Form 320. Petition of Minor Over Fourteen Years for the Appointment of a Guardian Ad Litem. [See Orphans' Court Rule 46. page 757, supra.] Essex Count v Orph.vxs' Court. In the matter of the probate of"^ On Apphcation for Ap- the last \\V\ and testament of vpointment of Guardian Ad John Doe, deeeased. J Litem for Infant Party. Petition of Minor for Afypoiittiiioit of Guardian Ad Litem. To the Orphans' Court of the County of Essex: The petition of Henry Doe respectfully shows that: Your petitioner is one of the parties to the above entitled matter, and is a minor under the age of twenty-one years, and over the age of fourteen years, and by reason of his minority is unable to answer or make defense in this matter in a legal, competent and proper manner. Your petitioner therefore prays that his father, William Doe, may l)e assigned and appointed guardian ad litem of vour pe- titioner, for him and in his behalf to appear in this matter. Dated Newark, X. }., ^^ ^ Henry Doe. , , 19- •• • 1. W illiam Doe, above named, do hereby consent and agree to accept the appointment of guardian ad litem above prayed for of Henry Doe, a minor under the age of twenty-one years, to make answer and defense in behalf of the said infant in the above entitled matter. In witness whereof I hereby sul)scribe my name, this day of in the year 19. . . Signed in the i^resence of ) „, „ „..,,? ^,1 > W 1 I.I.I. ^.\! Doe. \\ illiam Clarke. ( State of New Jersey, | County of Essex. | William Clarke of full age, being duly sworn according to law, upon his oath deposes and says : I was present and saw I300 Probate Law and Practice. William Doe subscribe his name to the above-written agree- ment, the same having been by me first read to the said William Doe. I was also present and saw the above-named Henry Doe subscribe the foregoing petition, the said petition having been by me first read to the said Henry Doe. I further say that from information given me and from the appearance of the said Henry Doe, I verily believe and have no doubt that he is under the age of twenty-one years and over the age of fourteen years. Subscribed and sworn to this"^ day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary PubHc of N. J William Clarke. Form 321. Order Appointing Guardian Ad Litem of Infant over Fourteen Years on Application of Infant. [See Orphans' Court Rule 46. page 757. supra.] Essex County Orphans' Court. In the matter of the probate of the last will and testament of John Dee, deceased. \ On Application for Ap- vpointment of Guardian Ad j Litem for Infant Party. Order Appointing Guardian Ad Litem. Upon reading the petition filed in this court by Henry Doe. one of the parties thereto, setting forth that he. the said Plenry Doe, is a minor over the age of fourteen years, and praying that his father W^illiam Doe may be appointed his guardian ad litem, for him and in his behalf to appear and defend in this matter, and upon reading the written assent of the said William Doe annexed to the said petition that the appointment be made, and the affidavit of W^illiam Clarke verifying the age of the said petitioner and stating that the said petition and assent were signed in his presence. Guardians Ad LiTF:>r. 1301 It is on this day of 19. . . ordered that said William Doe be assigned and appointed guardian ad litem for the said Henry Doe, by whom he may appear in this matter. \V. P. M.. Tudge. Form 322. Petition for Appointment of Guardian Ad Litem of Infant Under Fourteen Years, on Behalf of Infant. [See Orphans" Court Rule 46, page 757. supra.] Essex Countv Orpiiaxs' Court. Tn the matter of the probate ot~^ On Application for Ap- the last will and testament of Vpointment of Guardian Ad John Doe, deceased. J Litem for Infant Party. Petition for Appointtncnt of Guardian Ad Litem. To the Essex County Orphans' Court : The petition of William Doe of the City of Newark in the County of Essex and State of New Jersey, respectfully shows that : Your petitioner is the father of Henry Doe, a minor under the age of fourteen years, to wit : of the age of six years, and that the said Henry Doe is a ])arty in the above-entitled matter. Your petitioner therefore prays that he may be appointed guardian ad litem for the said Henry Doe, for him and in his behalf to appear in this matter. Dated Newark, N. J., „, .^ , , i9--- Annexed to the petition should be the agreement of the guardian to act as such, and an affidavit verifying the signa- ture of petitioner and the age of the minor, as in Form 320, supra. Form 323. Order Appointing Guardian Ad Litem for Infant Under Fourteen Years on Application in His Behalf. [Sec Orphans" Cc)url Rule 46, pa<4c 757, sui)ra.| EssKx CouNTN' Oki'iians' Court. 1302 Probate Law and Practice. In the matter of the probate of^ On AppHcation for Ap- the last will and testament of Vpointment ot Guardian Ad John Doe, deceased. J Litem for Infant Party. Order Appointing Guardian Ad Litem. Upon reading the petition filed in this matter by William Doe, whereby it appears that he is the father of Henry Doe, one of the parties to this proceeding, and that the said Henry Doe is a minor under the age of fourteen years, and praying that the said William Doe may be appointed guardian ad litem of the said Henry Doe; and upon reading the written assent of the said William Doe to the said appointment, and the affidavit of William Clarke verifying the age of the said pe- titioner and stating that the said petition and assent were signed in his presence. It is thereupon on this day of , 19..., ordered that the said William Doe be assigned and appointed guardian ad litem of the said Henry Doe by whom he may appear in this matter. W. P. M., Judge. VII. SALE OF WARD'S LAND OR TIMBER BY GUARDIAN. Form 324. Petition for Order to Sell Ward's Lands. [See 2 Comp. Stat., page 2628, section 3, page 761, supra.] Essex County Orphans' Court. In the matter of the sale of lands | ^^^ Petition of William Doe, a minor. j Petition. To the Orphans' Court of the County of Essex: The petition of Richard Doe, of the of in the County of and State of , respectfully shows ' that : Sale of Lands bv Guardians. 1303 1. Your petitioner is the guardian. duW appointed hv the Surrogate of the County of Essex, of \\ illiam Doe. a minor of the age of ten years. 2. Both of the i)arents of petitioner's said ward are dead. and his said ward is Hving with ; there is no person who stands in loco parentis to said minor and is chargeable with his support, but he is dependent for his education and maintenance entirely upon his own estate, and has no other proper means of support. 3. Petitioner's said ward is not possessed of any personal estate whatever, but he is seized of certain real estate in the said County of Essex, to wit: (insert description of property by metes and bounds). 4. The said real estate is valued at the sum of dollars and is encumbered by a mortgage of dollars ; the rents, issues and profits of said real estate amount to the sum of dollars per month, and are not sufficient for the maintenance and education of petitioner's said ward. Your petitioner therefore prays that he may be ordered to sell the whole or such part of the aforesaid real estate of his said ward as this court shall judge adequate for his main- tenance and education. Dated Newark, N. J., -n t^ •^ Richard Doe. - i9--- State of New Jersey ■■! County of Essex. Richard Doe, being duly sworn upon his oath according to law, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. w'^ubscribed and sworn to this^ day of . ., 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. Richard Doe. 1304 Probate Law and Practice. Form 325. Decree Ordering Sale of Ward's Lands. [See 2 Comp. Stat., page 2628, section 3, page 761, supra.] Essex County Orphans' Court. In the matter of the sale of lands . „,.,,. .p. • ^ --" Petition, ot vVilliam Doe. a mnior I On Decree Ordering Sale. It appearing to the court from the petition of Richard Doe, guardian of William Doe, a minor, that his said ward is of tender years ; that his parents are dead and that there is no person who stands in loco parentis to said minor and is charge- able with his support, but that he is dependent for his edu- cation and maintenance entirely upon his own estate, and has no other proper means of support ; and it further appearing that the said ward has no personal estate, and that the rents and profits of the real estate of said ward are not sufficient for his maintenance and education, and the court having made a full investigation of the estate and circumstances of said ward, and judging it to be necessary that part of the lands of said ward should be sold for his maintenance and education. It is thereupon on this day of , 19. • . , ordered and decreed that the said Richard Doe guardian as aforesaid sell a certain portion of the lands of William Doe. his said ward, to wit: {describe the land zvhich the court orders sold), and make a report of such sale and of his pro- ceedings by virtue of this order to this court for its approval, and the court having examined into the sufficiency of the bond previously given by the said Richard Doe, guardian as afore- said, and finding that said bond is in the judgment of the court insufficient, it is further ordered that the said Richard Doe, guardian as aforesaid, before selling the aforesaid lands, give an additional bond in the sum of dollars, with sureties approved by this court, conditioned for the faithful execution of his office. W. P. M., Judge. Before this order can be obtained, the guardian must make a report of the sale to the court, Forms 157 and 161, upon Sale of Lands by Guardians. 130^ notice to all interested j)arties. Form 154; for proof of serv- ice see Form 38; for guardian's bond see Form 292. Form 326. Deed by Guardian. [See 2 Comp. Stat., page 2628, section 5. page 764. snpra.] This Indexture. made the dav of , in the year of our Lord one thousand nine hundred and between Richard Doe. guardian of William Doe, a minor, of the of in the County of , and State of party of the first part : and of the of , in the County of and State of party of the second part. Witnesseth, whereas the said party of the first part, by virtue of an order of the Orphans' Court of the County of Essex, in the State of New Jersey, made on the flay of , in the year of our Lord one thousand nine hun- dred and , of the term of in said year, having first advertised the same according to law, did sell the land hereinafter described, at public vendue, to the said party of the second part, he being the highest bidder therefor. for the sum of dollars, and did report the said sale to the said Orphans' Court, who by their order made on the day of , in the year of our Lord one thousand nine hundred and , did confirm the sale, and order and direct the said party of the first part to execute a good and sufficient conveyance in the law, to the said party of the second part, for the same. Now this indenture witnesseth, that the said party of the first part, guardian as aforesaid, in consideration of the sum of dollars to him paid by the said party of the second part, the receij)t whereof is hereby acknowledged, does grant, bargain, sell and convey unto the said party of the second j)art, his heirs and assigns, all that certain tract or parcel of land and premises, hereinafter particularly described, situate. lying, and being in the of in the Countv of Kssex and State of New Jersey, {describe the la)ids as in decree for sale), together with the hereditaments and a])purte- nances ; to have and to hoM mito the said party of the second 1306 Probate Law and Practice. part, his heirs and assigns to the only proper use of the said party of the second part, his heirs and assigns forever, accord- ing to the form of the statute in such case made and provided. In witness whereof, the said party of the first part, as such guardian as aforesaid, hath hereunto set his hand and seal the day and year first above written. Signed, sealed and delivered 1 t^ .^ ^ -. . ' r > Richard Doe. [e. s.l m the presence of j Add acknowledgment as in Form 8a. >On Petition. VIII. APPLICATION FOR ORDER AUTHORIZING USE OF PRINCIPAL OF WARD'S PERSONAL ESTATE FOR HIS EDUCATION. Form 327. Petition of Guardian for Order Authorizing Use of Prin- cipal of Minor's Estate for His Education. [See 2 Comp. Stat., p. 2629, section 5d., page 769, supra.] Essex County Orphans' Court. In the matter of the application'' of Richard Doe, guardian of William Doe, a minor, for an order authorizing use of principal of ward's personal estate for the support of ward. Petition. To the Orphans' Court of the County of Essex: The petition of Richard Doe, of the of , in the County of Essex and State of New Jersey, respectfully shows that : I. On the day of , 19. . . , your petitioner was duly appointed, by the surrogate of said County of Essex, guardian of the person and property of William Doe, a minor, an orphan of the age of eighteen years, whose father and mother are both dead, and who is at present residing with. . . . 2. There is no person charged with the duty of supporting the said minor, whose estate consists only of the sum of Sale of Lands by Glardians. 1307 dollars, which is deposited in the Savings Insiitutitm and produces an income of dollars per annum, all of which appears from the inventory filed in the surrogate's oftice of the County of Essex by your petitioner as such guanlian. 3. The said William Doe has displayed an unusual aptitude for music and desires to take a course of special studies, to the end that he may be a professional musician, and in order that this result may be accomplished, it will l»e necessarv to expend the sum of one hundred dollars per month irom the principal of his estate. 4. Your petitioner is unwilling to assume the responsibilitv for so large an expenditure of the corpus of his said ward's estate, and therefore prays that an order may be made fixing the amount that he may expend during the ensuing vear for or towards the support, maintenance and education of his said ward. Dated Newark, N. T-. t-. t^ RicHAKn Doi:. , I9--- State oe New County of iw Jersey, | F Essex. j Richard Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named and that the matters and things therein con- tained are true to the best of his knowledge and belief. Subscribed and sworn to this"^ ^^>' o^ 'I RiciiAKi) Doe. 19. . .. at Newark, N. J., before me, J. C. F., Notary Pubhc of N. ]. Form 328. Order Authorizing Guardian to Use Principal of Minor's Estate for His Education. [See 2 Comp. Stat., page j6j SS. EX. J G. P., being duly sworn according to law upon his oath, deposes and says that he is Su])crintendent of a state (or county) asylum of this state for the insane, and that. 13 14 Probate Law and Practice. acting in such capacity, he is charged with the care of all patients in said asyUim ; that one John Doe is an inmate of said asykim, having been admitted thereto on the day of , 19. . ., upon the certificates of and , two reputable physicians residing in this state, and has since been continuously confined therein as an insane patient. Deponent further says that the said John Doe is insane, and by reason thereof is not capable of receiving, managing, or taking care of his personal property, and that the following is a full medical history of the said John Doe while confined in said asylum; {Here insert medical history from Asylum rec- ords). Subscribed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. G. P. Porm 333. Affidavit of Physician Connected With Asylum as to Continued Lunacy. [See 2 Comp. Stat., page 2786, section 3-h, page 775, supra.] Essex County Orphans' Court. In the matter of the guardian- "| On Petition for Letters of ship of John Doe, a lunatic. ( Guardianship. iian- "| On Petitio latic. J Guardiansl Affidavit of Physician. State oe New Jersey, | County of Essex. j John Smith, being duly sworn according to law upon his oath, „ ,. , . , . • I (juardianship. a lunatic. J Petit 10)1. To the Orphans' Court of the County of Essex : The petition of Jane Doe respectfully shows, that : I. Your petitioner resides at Number Street. in the of , in the County of Essex and State of New Jersey. On the day of , 19. . . , John Doe who resided in the Count}^ of Essex aforesaid, was duly ad- judged insane by a Judge of the Court of Common Pleas of the said County of Essex and was, on the certificate of such Judge, committed to , a lunatic asylum in this State, at the expense of the said County of Essex. The said John Doe is possessed of personal property to the amount of six hundred dollars (the sum of zvhich the lunatic is possessed cannot exceed one thousand dollars). Guardianship of I.\compi:tf.xts. 1317 2. The nearest of kin of the said John Doe are voiir pe- titioner, his daughter, who resides as hereinbefore stated : William Doe, a son, who resides at Number Street, in the of in the County of and State of ; and James Doe, a son, who resides at Number Street, in the City of in the County of and State of all of whom are of full age, with the exception of William Doe, who is a minor of the age of eighteen years. All of the aforesaid nearest of kin of the said John Doe entitled to guardianship have duly renounced their said right of guardianship and requested the appointment of your petitioner (or due notice of this application has been given to all of the nearest of kin of the said John Doe entitled to guardianship). Your petitioner therefore prays that letters of guardian- ship of the said John Doe may be granted to her. Jane Doe. - i9--- State of New Jersey. ■■! County of Essex. ^ Jane Doe, being duly sworn upon her oath according to law, deposes and says that she is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of her knowledge and belief. Deponent further says that the said John Doe is possessed of personal property to the amount of six hundred dollars, and that the total amomit of the personal property possessed by him will not exceed the sum of one thousand dollars. Tane Doe. Subscribed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. For form of renunciation see l^^orm 292: for nolice of application, Form 289; for proof of service of notice Form 38. 1318 Probatl; Law and Practice. Form 336. Order Appointing Guardian for Lunatic Who Has Been Committed to Asylum at the Expense of the County. [See 2 Comp. Stat., p. 2785. section 3-e. page --/Z, supra, and Orphans' Court Rules 13 and 14, pages 747 and 752, supra.] Essex County Orphans' Court. In the matter of the guardian- 1 On Petition for Letters of ship of Jolm Doe, a hmatic. j Guardianship. Order Appoin\vng Guardian. It appearing from the petition of Jane Doe filed herein that John Doe has heretofore been adjudged insane by a Judge of the Court of Common Pleas of the County of Essex and duly committed to , a lunatic asylum in this state, at the expense of the said County of Essex, and it appearing that the said John Doe is possessed of personal property to the amount of six hundred dollars, and that all of the next of kin of said John Doe have renounced their right of guar- dianship and requested the appointment of the said petitioner, {or that due notice of this application has been given to all of the nearest of kin of the said John Doe entitled to guardian- ship). It is thereupon on this day of , one thou- sand nine hundred and , ordered that the said Jane Doe be and she hereby is appointed guardian of the said John Doe, a lunatic as aforesaid, and that letters of guardian- ship be issued to her accordingly upon her entering into bond to the Ordinary in the sum of dollars, with condi- tion prescribed by law, which said bond shall be first ap- proved by this court as to the form and sureties thereon. W. P. M., Judge. For form of bond see Form 336^. Form 336a. Bond of Guardian of an Incompetent. [See 2 Comp. Stat., p. 2793, section 15, page 778, supra.] Know Alt, Men By These Presents That We, William Doe, as principal and James Smith, and William Jones, as GUARDIAXSIIIP OF IXCOMPKTKXTS. 13^9 sureties, are held and firmly bound unto the Ordinary or Sur- rogate General of the State of Xew Jersey in the sum of dollars, lawful money of the United States of America, to be paid to the said Ordinary or Surrogate Gen- eral ; to which payment well and truly to be made, we bind ourselves, our Heirs, Executors, and Administrators, jointly and severally, firmly by these presents. Sealed with our Seals, and dated the day of in the year of our Lord one thousand nine hundred and The Coxditiox of This Obligatiox is Such That Whereas, the above bounden William Doe was by an order of the Orphans' Court of the County of Essex, made on the day of A. D., nineteen hundred and duly appointed guardian of John Doe, a lunatic : Now Therefore, if the said Williain Doe shall well and truly take care of the person and estate of the said John Doe and of all writings and evidences touching his lands and render the same to such person or persons as by law are, or may be entitled to receive the same, and render a just and true account of the rents, issues and profits of the real estate of the said John Doe, and if any part should be ordered to be sold, shall render a just and true account of the moneys arising on the sale thereof, and. in the meantime improve the said lands and tenements to the best advantage, and shall commit no waste, or destruction thereof or thereon; and if he shall render a true account of the expenditures and disbursements of the goods, chattels and personal estate of said John Doe that shall come to his hands, then this obligation to be void, otherwise to be and remain in full force and virtue. Sealed and delivered in the ^ Wh.lia.m DoK, (l. s.) Presence of I Jamks Smith, (l. s.) John C. Fineran. J W'ilham Joxes, (l. s.) Annex justification of sureties as in Form 7. 1320 Probate Law and Practice. ADOPTION PROCEEDINGS. I. IN CASE OF ABANDONMENT OF CHILD. Form 337. Petition for Adoption. [See 2 Comp. Stat., page 2807. section 13, pages 797 and 800, supra.] Essex County Orphans' Court. In the matter of the adopti r -r^ r^ -r^ ■ r Ou Petitioil. of i). G. K.. a minor. tion I Petition. To the Orphans" Court of the County of Essex. The petition of B. W. W. and A. C. \\'., his wife, who reside at Number Street, in the of , in the County of Essex and State of New Jersey, respectfully shows that : 1. Your petitioner, B. \V. W., is engaged in the business of ; his age is years, and the age of your petitioner's wife, A. C. W., is years. 2. Your petitioners desire to adopt B. G. R.. a minor child aged years, who is now living with your peti- tioners. The mother and father of said child are unknown to your petitioners, they having abandoned said child, and your petitioners are therefore unable to secure their consent to its adoption. 3. The said child is not po^ssessed of any property whatso- ever, so far as your petitioners know, and as they verily believe. Your petitioners therefore pray that this court will appoint some discreet and suitable person as next friend of the said child, to the end that he may give his consent to the adop- tion of said child by your petitioners, and that the court will inquire into the merits of this petition and will, by its decree, grant to your petitioners permission to adopt said child, and will adjudge that the rights, privileges and duties heretofore existing between the said child and his parents in all respects be at an end, and that the name of the said child be changed to B. G. W., and the rights, duties, priv- ileges and relations between said child and your petitioners. Adoption- of ^Iixors. 1321 who shall l)c his i)arents by adoption, may thenceforth in all respects be the same as if the said child had been born to your petitioners, his adopted parents, in lawful wedlock, ex- cept only as otherwise provided in an act entitled "An Act con- cerning minors, their adoption, custody and maintenance," approved April 2d, 1902, and the several supplements antl amendments thereto. Dated P.. W. \V. , 19.... A. C. W. State of Xkw Jkrs CorxTY OF E / TKRSI'V, ) > ss. iSSKX. j B. W. W. and A. C. \\'., personally appeared Ijefore me and being severally duly sworn on their oaths, say that the facts set forth in the foregoing petition by them signed are in all respects true to the best of their knowledge, information and belief, and that they have made diligent inquirv as to the residence of the parents of said child, but are tuialjle to learn anvthing as to their whereabouts. Subscribed and sworn to this'~^ day of , 19. ., y at , before me. J R. G. B., Attorney at Law of Xew jersev B. W. \\' A. C. W Form 338. Order Fixing Day for Appointment of Next Friend. [See 2 Comp. Stat., page 2807, section 13. page 7<)J. supra, and ili. i)age 2808, section 15, page 801, supra.] EssKx CouxTv ( )Ri'iiAxs' Court. In the matter of the application' of B. W. W. and A. C. W. for leave to adopt B. G. R., a minor. >-On Petition. Order I'lvituj Pay for .Ippoiiitiiit'iit of Next Friend. rpon reading the petition of 1!. W. W'.. and .\. C. W'., duly 1322 Probate Law and Practice. verified, wherein it is among other things prayed that permis- sion be granted them to adopt B. G. R. pursuant to the pro- visions of an act entitled "An Act concerning minors, their adoption, custody and maintenance," approved April 2, 1902, and the several supplements and amendments thereto, it is Ordered that said petition and the affidavit thereto an- nexed be filed with the clerk of this Court, and it appearing that it is necessary, under the provisions of said act, that a disinterested and suitable person be appointed as next friend to said child, it is further ordered that the day of next at ten o'clock in the fore- noon, at the Court House, in the City of Newark, be and the same is hereby fixed as the time and place, when and where the appointment of a next friend may be made, and it is fur- ther ordered that notice of said petition ^^nd order fixing the time and place when and where the appointment of a next friend will be made, be published in the and , two newspapers circulating in the County of Essex, once a week for three weeks sticcessively. Done in open court this day of , Nineteen Hundred and W. P. M., Judge. For proof of publication see Form 114. Form 339. Order Appointing Next Friend and Fixing Day for Hearing. [See 2 Comp. Stat., page 2807, section 13, page 797, supra, and ib. page 2808, section 15, page 801. supra.] Essex County Orphans' Court. In the matter of the applica-^ tion of B. W. W. and A. B. I ^ ^ ^. . ^ir r 1 J . T, ^ rO" Petition. W. for leave to adopt B. G. R., a minor. Order Appointing Nest Friend and Fixing Day for Hearing. Due proof having been made of the publication of notice Adoption- of Minors. 1323 of the petition tiled herein and of the time and place when and where the appointment of a next friend of the said child would be made, as directed by the order of this court, made on the day of Nineteen Hundred and and it appearing to the court that F. G. S., Jr., of tlie City of Newark, is a discreet and suital)le person, and no cause being shown to the contrary. It is ordered that the said F. G. S., Jr-. be and he is hereby appointed next friend to the said B. Ct. R., a minor child, for the purposes set forth in an act entitled "An Act concerning minors, their adoption, custody and maintenance," approved April 2, 1902, and the several supplements and amendments thereto. And the court doth assign for the hearing of said petition and the examination of the parties in interest, the day of , Nineteen Hundred and at the Court House in the City of Newark, at ten o'clock in the forenoon. Done in open court, this day of Nine- teen Hvmdred and \V. P. M.. Judge. Form 340. Consent of Next Friend. [See 2 Comp. Stat., page 2807. section 13. page 800, supra.] EssKN County Orphans' Court. In the matter of the applica-"^ tionof B. W. W. andA^B. I Q^p^^.^.^^ \\ . for leave to adopt B. R., a j minor. J Consent by Xcxt Pricnd. Whereas the Orphans' Court of the County of l'"sso\ did by an order made on the day of i<). . , in a certain proceeding in said court depending, upon the aj)- jjlication of B. W. \X. and A. B. W. for leave to adoj)! I'.. K.. a minor child, api'oint me, F. G. S., Jr., of the City of .Newark. ■County of Essex, next friend of the said 1'. R. for iho pu'-- 1324 Probate Law and Practice. poses set forth in an act entitled "An Act concerning minors, their adoption, custody and maintenance," approved i\pril 2d, 1902, and the several supplements and amendments thereto ; and Whereas I have inquired into the matter and have heard the examination of witnesses taken before the court and am satisfied that it is for the best interests of said minor, child that he should be adopted by the said B. W. W. and A. B. W. under the provisions of said act; Now, therefore, I, the said F. G. S., Jr.. next friend, by appointment, of the said B. R.. minor child, do hereby consent to his adoption by the said B. W. W., and A. B. W., and to a change of his name to B. G. W. Given under my hand and seal this day of , Nineteen Hundred and F. G. S.. Jr., (l. s.) State of New Jersey County of Essex '-'■ \ ss. Be it Remembered, that on this day of , in the year of Our Lord, One Thousand Nineteen Hundred and before me. the subscriber, a Master in Chanc- ery of the State of New Jersey, personally appeared F. G. S.. Jr., who I am satisfied is the person mentioned in the within consent and to whom I first made known the contents thereof, and thereupon he acknowledged that he signed, sealed and delivered the same as his voluntary act and deed, for the uses and purposes therein expressed. A. J. B., Master in Chancery of New Jersey. Form 341. Decree Permitting Adoption. [See 2 Comp. Stat., page 2808. section 15, page 803. supra.] Essex County Orphans' Court. In the matter of the application'^ of B. W. W, and A. B. W. I ^ ^^ ,.,. r 1 1 -r, ^ T-. )^On Petition, for leave to adopt B. (7. K., a minor. Decree Peniiittiiig Adoption. Whereas B. W. W. and A. B. W., his wife, on the Adoption of Minors. , 1325 day of , Xineteen Hundred and presented their petition to this court setting forth that they reside at Xumber Street, in the City of New- ark, in the County of Ejssex, and State of New Jersey : that the said B. W. W. is by occupation a ; that the age of the said B. W. W. is years, and that the age of A. B. W., his wife, is years ; that they desire to adopt B. G. R.. a minor child aged years, who resides in tlie of in the County of Essex aforesaid, and is now H\ing with the said petitioners ; that the mother and father of said child are unknown to said petitioners they having abandoned said minor child; that said minor child had no legal guardian who could give consent to such adoption and has no property what- soever, and praying that a discreet and suitable person might be appointed next friend of said child to the end that he might give his consent to such adoption and that the court would inquire into the merits of said petition, and would by its decree grant permission to the said B. W. \\'. and A. B. W.. his wife, to adopt said minor child, and that the court would change the name of the child to B. C. W'., to which petition there was annexed an affidavit of said petitioner duly verified according to law. Whereupon and upon reading the aforesaid petition and affidavit, the court ordered that the same be filed with the clerk of this court and the same was filed accordinglv : and it appearing to the court that it was necessary under the ])ro- visions of an act of the Legislature of this State entitled, "An Act concerning minors, their adoption, custody and mainte- nance." approved April 2d, 1902, and the several supplements and amendments thereto, that a person should be apiwinted as next friend to said child, and the court having by its order fixed the day of Nineteen TTun- drcd anfl as the time and place where such a])- pointmcnt would be made, and ordered that notice of said peti- tion and of the said time and place so fixed sliould be published in , and twf) newspapers circulating in the said C(nnit\- of Essex, once a week for three 1326 Probate Law and Practice. weeks successively ; and it appearing that such pubhcation was made, and that the court on the day so assigned, to wit. the day of , Nineteen Hundred and , by its order appointed F. G. S., Jr., Esq., of Newark. in the County of Essex aforesaid, next friend of the said minor child for the jnirposes set forth in the said act, and by said order assigned the day of Nineteen Hundred and for the hearing of said petition and the examination of the parties in interest, and that on the day so appointed the hearing of said petition and exam- ination of the parties in interest was adjourned for one week, to wit — until the day of , Nineteen Hundred and And it appearing that on the said day of 19. ., the court proceeded to a full hearing of the petition and examination of the petitioners, and of all parties in interest, under oath ; and the court being of the opinion that the facts stated in the petition are true, and being satisfied that the peti- tioners are of good moral character and of reputable standing in the community, and of ability to properly maintain and edu- cate said child, reference being had to the degree and condition in life of the child's parents and that the best interests of the said child would be promoted by such adoption. And the said F. G. S., Jr., next friend of the child by appointment, as afore- said, having on the day of 19. . . given his writ- ten consent duly acknowledged to such adoption, which con- sent has been filed with the clerk of this court ; Now, therefore, by virtue of said act. It is ordered, ad- judged and decreed that the prayer of the said petitioners be and the same is hereby granted, and that said B. G. R. shall hereafter be known by the name of B. G. W. ; and the court hereby declares and adjudges that from the date of this decree the rights, duties, privileges and relations hereto- fore existing between the said B. G. R. and his parents shall be and are in all respects at an end ; and that the rights, duties, privileges and relations between the said B. G. R. and the said B. ^^^ W. and A. B. \\'.. his parents by adoption, are and shall henceforth be the same as if the said B. G. R. had beeh born to his aforesaid adopted parents in lawful wedlock, Adoption of Minors. 1327 except only as otherwise provided in tlie said act of the Legis- lature above mentioned. Done in open court this day of One Thou- sand Xine Hundred and \V. P. M.. T. II. WERE CONSENT OF PARENT OBTAINED. Form 342. Petition for Adoption. [See 2 Conip. Stat., page 2807, section 13. page 798, supra.] Essex County Orph.\ns' Cottrt. In the matter of the adoption w^ , ^ ,-. • • ^ ^ . ^ 5> On Petition. R L., a minor. '•] Petition. To the Orphans' Court of the County of Esse.x : — ' The petition of P. \'. S.. and L. B. S.. his wife, who reside at No , Street, in the City of Newark, in the County of Essex and State of New Jersey, respectfully shows that : — 1. Your petitioner, P. A'. S., is engaged in the business of ; his age is years, and the age of 3'our petitioner's said wife, L. B. S., is years. 2. Your petitioners desire to adopt R. L., a minor child, aged about years, who is now living with your petitioners at their residence hereinabove mentioned. 3. That the parents of said child are B. L.. and A. L. B. L., the mother of said child is dead, and A. L.. the father of said child, who resides at No , Street, in the of County of Essex and State of New Jer- sey, has given his consent to the adoption of said minor child by your petitioners, which consent is in writing, duly signed and acknowledged by the said ])arcnt. and is hereunto an- nexed. 4. The said child is not |)Ossessed of any ])ropcrly what- soever, so far as your petitioners know and as tlioy \erily believe. 1328 Probate; Law and Practice. Your petitioners therefore pray that the court will inquire into the merits of this petition, and will by its decree grant unto your petitioners permission to adopt said child, and will adjudge that the rights, privileges and duties heretofore existing between the said child and his parent shall, in all respects, be at an end, excepting the right of inheritance ; that the name of the child be changed to P. E. S. ; and that the rights, duties, privileges and relations between the said child and your petitioners, who shall be his parents by adoption, may thenceforth in all respects be the same, including the right of inheritance, as if the said child had been born to your petitioners, his adopted parents, in lawful wedlock, except only as otherwise provided in an act entitled "An Act concern- ing minors, their adoption, custody and maintenance," ap- proved April 2d, 1902, and the several supplements and amendments thereto. Dated 19...., P. V. S. (l. s.) L. B. S. (l. s.) State of New Jersey, County oe Essex. '' I ss. P. V. S., and L. B. S., his wife, personally appeared before me, and being severally sworn on their respective oaths, say that the facts set forth in the foregoing petition, by them signed, are in all respects true to the l^est of their knowledge, information and belief. Sworn and subscribed to be-"^ ^ fore me, this dav > too' of A.D., 19... J ^- ^- ^■ J. R. W., A blaster in Chancery of New Jersey. Form 343. Consent of Parent. [See 2 Comp. Stat., page 2S0J, section 13, page 798, supra.] I, A. L., parent of R. L., a minor child, aged , born on the day 19 . . , do hereby Adoptiox of Mixors. 1329 consent to his adoption by P. \'. S. and L. B. S.. his wife, and to the change of his name to P. E. S.. in accordance with tlie provisions of an Act of the Legislature entitled. "An Act con- cerning minors, their adoption, custody and maintenance." approved April 2, 1902, and the several supplements and amendments thereto. Witness my hand and seal this day of One Thousand Xine Hundred and A. L. (l.s.) State of Xew |ei ' V ss County of Ese [ersev, ") ;sEx. I BE IT REMEMBERED, That on this day of , One Thousand Xine Hundred and before me. the subscriber, a blaster in Chancery of X'^ew Jersey, personally appeared A. L., who I am satisfied is the person named in and who executed the within instrument, and I having first made known to him the contents thereof, he acknowledged that he signed, sealed and delivered the same as his voluntary act and deed for the purposes therein expressed. J. R. W.. Master in Chancerv of Xew Tersev. Form 344. Order Fi:!dng Day for Hearing. [See 2 Comp. Stat., page 2808, section 15, page 802, supra.] Essex County Orph.vxs' Coirt. In the matter of the application"^ of P. V. S. and L. B. S.. his „ ^ .,. .. ^ , , .^- > On Petition, wife, for leave to adopt R. 1... a minor Order Fixing Pay for Hcarin;/. Upon reading the petition of \\ \ . S. and L. !'>. S.. his wife, duly verified, wherein it is among otlicr things prayed that ])ermission be granted them to adopt R. L., pursuant to the provisions of an act, entitled "An Act concerning minors, their adoption, custody and maintenance," ap])rt)vcd April 2, 1902, and the several sufjfilements and rimcnduicnts thereto. 1330 Probate Law and Practice. together with the consent of A. L., parent of the said R. L., duly acknowledged thereunto annexed. IT IS ORDERED that the said petition, affidavits and con- sent thereto be filed with the clerk of this court, and that the day of I9- • , at ten o'clock in the forenoon, at the Court House, in the City of Newark, is hereby appointed for the hearing of said petition and the examination under oath of the parties in interest. Done in open court, this day of , One Thousand Nine Hundred and W. P. M., Judge. Form 346. Order for Adoption. [See 2 Comp. Stat., page 2808, section 15, page 803, supra.] Essex County Orphans' Court. In the matter of the application of P. V. S. and L. B. S., his wife, for leave to adopt R. L., a minor. >-On Petition. Order. Whereas P. V. S. and L. B. S., his wife, on the day of 19- •, presented their petition to this court. setting forth that they reside at Number , Street, in the City of Newark, in the County of Essex and State of New Jersey ; that the said P. V. S., is by occupation a ; that the age of the said P. V. S., is years, and the age of the said L. B. S., his wife, is years; That they desire to adopt R. L., a minor child, aged about years, and who is now living with the said P. \'. S., and L. B. S.. his wife, at Number , Street, in the City of Newark, in the County of Essex and State of New Jersey; that the mother of said child is dead and that his father is A. L.. and that said child has no property whatsoever ; and praying that the court would inquire into the merits of the said petition, and would by its decree grant permission to the said P. \ . S. and L. B. S., Adoption of ^Minors. 1331 his wife, to adopt said child, and would change the name of the said child to P. E. S.. to which petition there was an- nexed an affidavit of the said petitioners, duly verifying the same according to law, and the duly acknowledged written consent of A. L., the father of said R. L., to the adoption of the said R. L. by the said P. \'. S. and L. B. S., his wife, and to the change of the name of the said R. L. to P. E. S. Whereupon, and upon reading the said petition, affidavit and consent, the court ordered that the same be filed with the clerk of the court : and the same were filed accordingly, and the court thereupon assigned the dav of A. D., Nineteen Hundred and , for the hearing of said petition, and the examination of the parties in interest; and. upon the day so appointed the court proceeded to a full hearing of the petition and the examination of the petitioners, the said minor child, and the father of the said child, and of all other parties in interest, under oath, and the court being of the opinion that the facts stated in the petition are true, and being satisfied that the petitioners are of good moral character and of reputable standing in the communitv, and of aljility to properly maintain and educate said child, reference being had to the degree and condition in life of the child's parent, and that the best interests of the child would be pro- moted by such adoption ;. NOW THEREFORE, by virtue of the Act in such case made and provided it is ordered, adjudged and decreed that the prayer of the said petitioners be and the same is hereby granted, and that said R. L., a minor child of A. L., shall hereafter be known by the name of P. E. S. ; and it is further ordered, adjudged and decreed that from the date of this decree, the rights, duties, privileges and relations heretofore existing between the said R. L. and his parent, the said A. I... shall be. and are in all respects at an end, excej^ting the right of in- heritance; and that the rights, privileges, duties and relations between the said R. L. and the said P. V. S. and L. P. S., his wife, his parents by adoption, are and shall henceforth be the same, inclucling the right of inheritance, as if the said R. L. had been born to the said adopted parents in lawful i33- Probatk Law and Practice. wedlock, except only as otherwise provided in an act entitled "An Act concerning minors, their adoption, custody and main- tenance," approved April 2d, 1902, and the several supple- ments and amendments thereto. • Done in open court this day of A. D.. One Thousand Nine Hundred and W. P. M., Judge. III. IN CASE OF SURRENDER OF CHILD TO CHIL- DREN'S AID SOCIETY &c. Form 348. Petition for Adoption in Case Where Parents Have Surrendered Custody of Child to Children's Aid Society. [See 2 Comp. Stat., page 2807, section 13, page 800. supra.] Essex County Orphans' Court. In the matter of the adoption , „ -n, ■ ■ r ^f r^ ■ > On Petition, of Al. C. a minor. 1 On Petition. To the Orphans' Court of the County of Essex. The petition of E. H. and R. H., of the City of , the County of Essex and State of New Jersey, respectfully shows that : 1. Your petitioners are desirous of adopting a certain minor child named M. G., and are desirous that the name of said child shall be changed to G. H. Said child is about the age of years, and is now residing with your peti- tioners at Number . . . ., Street , in the City and County aforesaid ; said child is possessed of no prop- erty, real or personal, to the petitioners' knowledge, except the clothing, toys, books and such other articles provided for her use by your petitioners. 2. Said child was released, in writing, by the father for the purpose of adoption, and was placed in^the care of the Children's Aid Association, a corporation of the State of New Jersey, Head Otfice Number Adoption* of Minors. 1333 Street, on or aboul the dav of , 19. .. The mother of said child is dead. 3. Your petitioners are of the ages of and years respectively. 4. Your petitioners are of good moral character and of excellent standing in the community, and of ability to prop- erly clothe, maintain and educate the child sought to be adopt- ed,, having reference to the condition and degree in life of the child's parents, and the best interests of said child will be promoted by such adoption : said child was placed in the care of your petitioners by the Children's Aid Association on or about the day of , 19. . and said Children's Aid Association has consented to the adoption of tlie said child ; and during the time said child has been placed in your jietitioners' care she has remained in the home of your petitioners, and has been wholly maintained and educated by }-our jietitioners at their expense. Your petitioners therefore pray that a decree may be made by this court, in conformity with the Act entitled, "An .Act concerning minors, their adoption, custody and maintenance" (Revision of 1902) and the several supplements and amend- ments thereto, declaring and adjudging that from the date of said decree the name of said child shall be changed to and be G. H., and that the rights, duties, privileges and relations there- tofore existing between the said child and her |)arcnts shall be in all respects at an end, except the right of inheritance ; and that the rights, duties, privileges and relations between said child and your petitioners, parents by a(l()])tion, shall thence- forth in all respects be the same, including the right of in- heritance, as if said child had been born to them in lawful wed- lock, except only as otherwise ]:)rovided in the said act, with all other rights as by said act pro\ided. Dated Newark, X. T.. E. H. ,19... R. H. Petitioners. State of Nkw JI•:KSI•:^ County of Esskx ! K. U. and ]\. II.. being se\crall\ duly sworn accorch'ng to 1334 Probate Law and Practice. law upon their oaths, depose and say that they are the peti- tioners in the foregoing petition named, and that the matters and things therein contained are true to the best of their knowledge and belief. Subscribed and sworn to this"^ •••-•••••day of , I9--. ^ ^ ^ at Newark, N. ]., before me. J J. C. F., " Notary Public of N. J. Form 349. Consent of Society to Adoption. [See 2 Comp. Stat., page 2807, section 13, page 800, supra.] Essex County Orphans' Court. In the matter of the application"^ of E. H. and R. H., for the Lon Petition, adoption of M. G., a minor. J Consent. The Children's Aid Association of New Jersey, a corporation of the State of New Jersey, having legally ac- quired the custody and control of M. C, minor child now about years of age, does hereby consent to her adoption by E. H. and his wife, R. H., -and to the change of her name to G. H., in accordance with the provisions of an Act of the Legislature of the State of New Jersey, entitled "An Act con- cerning minors, their adoption, custody and maintenance," (Revision 1902), approved April 2nd, 1902. and the several supplements of and amendments thereto. In witness whereof. The Children's Aid Associa- tion of New Jersey, has caused this consent to be signed by its president and its corporate seal to be hereto affixed and attested by its secretary, this day of 19. . . The Children's Aid Association of New Jersey. By President. (c. s.) Attest : , Secretary. Adoption of ^Minors. 1335 State of Xfw Jkkskv, County of Essex. i BE IT REMEMBEKEU that Oil this day of , 19. ... , before me, the subscriber, personally appeared who being by me duly sworn does depose and make proof to my satisfaction that he well knows the corporate seal of The Children's Aid Association of New Jersey, the corporation named in the foregoing instrument; that the seal thereto affixed is the proper corporate seal of the said corporation ; that said seal was so affixed thereto and the said consent signed and delivered by ,"who was at the date and execution thereof the president of said corporation, in the presence of deponent, as the voluntary act and deed of the said corporation, and that deponent thereupon signed the same as subscribing witness. Subscribed and sworn to this^ day of , 19.., > C. A. S., at Newark, N. ]., before me, J Secretary. J. A. C, Attorney at Law of New Jersey. Form 350. Order Fixing Day for Hearing. [See 2 Comp. Stat., page 2808, section 15, page 801, sui)ra.] Essex Countv Orph.\ns' Court. In the matter of the application""^ for the adoption of M. G., a VOn Petition, minor. J Order Fixing Day for Hearing. A petition in the above entitled matter having l)ecn presented l)y E. 11., and his wife, R. 11., for the adoption of M. G., an infant, and for the change of her name to G. 1 1.. in accordance- with the provisions of an act entitled, "An Act concerning minors, their adoption, custody and maintenance," (Revision of 1902), approved April 2d, 1902, and the several sui)ple- ments to and amendments thereof. 1^3^ Probate Law and Practice. It is ordered that the said petition, affidavits and consent thereto be filed with the clerk of this court and that the day of 19. .. at ten o'clock in the fore- noon at the Court House in the City of Newark, is hereby appointed for the hearing of said petition and the examination under oath of the parties in interest. Done in open court this day of , One Thousand Nine Hundred and W. P. M., Judge. Form 351. Decree Permitting Adoption. [See 2 Comp. Stat., page 2808. section 15. page 803. supra.] Essex Couxtv Orpiiaxs' Court. In th.e matter of the adoption of ) ., -r, . . , , „ . > On Petition. M. (t., a minor. j Decree Permitting Adoption. Whereas, E. H. and R. H., his wife, on the day of 19. •, presented their petition, setting forth that they reside at Number Street, in the City of in the County of Essex and State of New Jersey ; that the age of the said E. H. is years, and the age of the said R. H. is years ; that they desire to adopt M. G., a minor child of the age of years, who resides in the of in the County of , and State of and is now living with petitioners at Number Street, in the of in the County of Essex and State of New Jersey ; that the father of the said child surrendered the care and control of said child to the Children's Aid Society, a corporation organized under the laws of New Jersey to care for children, who have duly consented to the adoption of said child by a writing under their common seal ; that the mother of said cliild is dead, and praying that the court, by its decree, would grant permission to the said E. H. and R. H. to adopt said child, and that the court would change Adoption of Minors. 1337 the name of said child to G. H. ; to wliieh petition there was annexed an affida\it of the petitioners, duly verif\ins: the same according to law. Whereupon, and upon reading the said petition and atihdaxit, the court ordered that the same be tiled with the clerk of this court and the same were tiled accordingly : and ditl assign the day of 19. . . at ten o'clock in the forenoon, at the County Court Mouse, in the City of Xewark, as the time and place for the hearing of the said petition and the examination of the parties in interest, by virtue of an Act of the Legislature entitled "An Act concern- ing minors, their adoption, custody and maintenance" (Revi- sion of 1902) and the several supplements thereto and amend- ments thereof. And whereas, on the day so appointed the court proceeded to a full hearing of the petition and to the examination of the petitioners and the said child and all parties in interest, under oath, and the court, from the testimony so taken, being of the opinion that the facts stated in the petition are true, and that the petitioners are of good moral character and of reputable standing in the community, and of ability to properly maintain and educate the said child — having reference to the condition in life of the said child's parents — and that the best interests of the said child will be promoted by such adoption. Now, Therefore, by virtue of the said Act, it is ordered, adjudged and decreed that the prayer of the said petitioners be granted, and that the said M. G. shall hereafter be known by the name of G. H., and it is further ordered adjudged and decreed that from the date hereof the rights, duties, privileges and relations heretofore existing between the said M. G. and her parents shall be in all respects at an end, excepting the right of inheritance; and that the rights, duties, i)rivilcges and relations between the said M. G. and the said E. H. and i\. If. are and henceforth shall be the same, including the right of inheritance, as if the said M. G. had been born to the said E. H. and K. H., her adopted parents, in lawful wed- lock, except only as otherwise ])rovidcd in the .Act of the Legislature above mentioned. 1338 Probate Law and Practice. • Done in open court, fhis day of , one thou- sand nine hundred and W. P. M., Judge. PROCEEDINGS TO SET ASIDE DECREE OF SURROGATE. Form 352. Petition to Set Aside Decree of Surrogate. [See Chapter IV, page 68, supra.] Essex County Surrogate's Court. In the matter of the estate of John Doe, deceased. On Petition to Set Aside Decree of Surrogate Grant- ing Letters of Administra- tion. Petition. To F. G. S., Jr., Surrogate of the County of Essex: The petition of Lilly Doe, of the of , in the county of and State of , respectfully shows that : 1. She is the lawful wife of John Doe. who departed this life on the day of , 19. . ., intestate, and was lawfully joined in the bonds of matrimony with him on the day of , 19. . ., in the of and State of I 2. On the day of , 19. . ., by virtue of an order of the Surrogate of the County of Essex, letters of administration upon the estate of the said John Doe, deceased, were issued by the Surrogate of the County of Essex, afore- said, to William Jones, upon his application. 3. William Jones, the said administrator at the time of the death of the said John Doe, knew that the said John Doe was married to your petitioner, who is lawfully entitled to the administration of the estate of said John Doe, her deceased husband. 4. No notice of the application of the said William Jones for letters of administration upon the estate of the said John Setting Aside Decrees. 1339 Doe, deceased, was served upon your petitioner, nor has she renounced her right to administer upon the estate of the said John Doe, nor had she any knowledge of such appH- cation until she inadvertently learned of the same on the day of , 19. . . 5. The petition filed by the said William Jones for adminis- tration, as aforesaid, does not recite your petitioner as one of the next of kin or heirs at law of the said John Doe, and your petitioner is informed and verily believes that at the time of filing said petition, the said William Jones knew that he was not entitled to administration upon the estate of the said John Doe, and your petitioner charges that the said letters of ad- ministration issued to the said William Jones were obtained through false and fraudulent representations made to this court by the said W^illiam Jones, and through the concealment of the fact that your petitioner is the lawful widow of the said John Doe, and as such lawfully entitled to the admiinstration of his estate. Your petitioner therefore prays that the decree of this court made on the day of , 19..., as aforesaid, ordering that letters of administration upon the estate of the said John Doe, deceased, be issued to William Jones aforesaid, be opened, set aside and for nothing holden. Dated Newark, N. J., LiLEV Doe ., 19... The foregoing petition should be fully verified by an affi- davit reciting and verifying every fact set up in the petition in the same manner as an injunction bill is verified. Form 353. Order to Show Cause Why Decree of Surrogate Should Not be Set Aside. [.'>cc Chapter IV. page 6(S. supra.] Essex County Sukkocate's Coukt. '^ On I'etition to Set Aside In the matter of the estate of [ Decree of Surrogate Grant- John Doe, deceased. f ing Letters of Administra- tion. RkIc to Show Cause. It ajjpearing by the petition of T,illy Doc, liled herein, that on 1340 Probate Law and Practice. the day of , 19. . ., by virtue of an order of this court made on that day, letters of administration upon the estate of the said John Doe, deceased, were issued to WilHam Jones, and that no notice of the aforesaid appHcation for letters of administration upon the estate of the said John Doe was given to Lilly Doe, the widow of the said John Doe and the petitioner herein, and it being alleged that the aforesaid order granting letters of administration was obtained by fraud and imposition upon this court by the said William Jones. It is thereupon, on this day of , I9---, ordered that William Jones show cause before this court on the day of , 19. . . , why the decree of this court made on the day of , 19. . ., directing that letters of administration upon the estate of the said John Doe, deceased, be issued to the said William Jones, should not be opened, set aside, and for nothing holden. And it is further ordered that a true but uncertified copy of this rule, together with the petition and affidavit whereon it is based, be served upon the said William Jones within days from the date hereof, personally. F. G. S., Jr., Surrogate. For proof of service see Form 38. Form 354. Order Setting Aside Decree of Surrogate. [See Chapter IV. page 68, supra.] Essex County Surrogate's Court. In the matter of the estate of On Petition to Set Aside Decree of Surrogate Grant- John Doe, deceased. f i^g Letters of Administra- J tion. Order Setting Aside Letters. It appearing from the petition of Lilly Doe, filed herein, that she is the lawful widow of John Doe, late of the County of Essex, deceased, who died on the day of , 19. . ., intestate, and that on the day of , 19. . ., Settixg Aside Decrees. 1341 by virtue of an order of this court, letters of administration upon the estate of the said John Doe, deceased, were dulv issued to WilHam Jones, and it appearing that the name of the said Lilly Doe, wido\y as aforesaid, \vas not included ainonj^ the names of the next of kin set up in the application for letters of administration made by the said William Jones, as aforesaid, and that no notice of the aforesaid application for letters of administration was given to the said Lilly Doe, and that she never renounced her right of administration upon his estate, nor had she knowledge of such application until after the date of the order granting letters as aforesaid. And it further appearing that the rule to show cause made herein has been duly served upon the said William Jones, and the court having examined into the matter and heard the testimony of witnesses produced on the part of petitioner and of respondent herein, and being satisfied that the said Lilly Doe is the widow of the said John Doe, deceased, and that no notice of the application of William Jones for letters of ad- ministration upon the estate of the said John Doe, deceased, w^as given to the said Lilly Doe, widow as aforesaid, and that she never renounced her said right of administration, and that at the time of making the said application, the said William Jones knew that the said Lilly Doe was the widow of the said John Doe, deceased, and also knew her place of residence, and that the said order granting letters of administration upon the estate of John Doe, deceased, was obtained by the said William Jones by fraud and imposition upon this court. It is on this day of , one thousand nine hundred and , ordered, adjudged and decreed that the order pf this court made on the day of 19. . . , granting letters of administration upon the estate of the said John Doe, deceased, to the said William Jones be oj^ened, vacated, set aside and for nothing holden, and that the letters of administration issued in ])ursuance of the aforesaid order be, and they arc hereby revoked. F. G. S., Jr., Surron-atc. 1342 Probate Law and Practice. APPEAL. I. FROM DECREE OF SURROGATE. Form 355. Petition of Appeal from Order of Surrogate Granting Letters of Administration. [See Orphans' Court Act, section 201, page 74, supra, and Orphans' Court Rule 49, page 75, supra. 1 Essex County Surrogate's Court. T- ,, ,, f , r") On Appeal from Grant of In the matter 01 the estate of I ... . . , ^ -P , „ J >Aamniistration by burro- John Doe, deceased. I gate. Petition. To the Surrogate of the County of Essex: The petition of WilHam Doe, of the of . ., in the County of , and State of , respect- fully shows that : 1. Your petitioner is one of the next of kin and heirs at law of John Doe, late of , deceased, who died intestate on or about the day of , 19. . . , leaving him surviving three children, to wit : William Doe, your petitioner, James Doe and Richard Doe, his only next of kin. 2. On the day of , 19. . . , the said James Doe made application to the surrogate of the County of Essex for letters of administration upon the estate of the said John Doe, deceased, and the said surrogate, by his order made on the day last above mentioned, issued letters of adminis- tration upon the said estate to the said James Doe. 3. Your petitioner, as one of the children of the saic^ John Doe, deceased, is entitled to administration upon his said estate ; he has not renounced his said right to administer and no notice of the aforesaid application of the said James Doe for such administration was served upon him, and he complains and alleges that the whole and every part of the aforesaid order of the said surrogate granting letters of administration upon the estate of the said John Doe, deceased, to the said James Doe, as aforesaid, is erroneous, improper and illegal, and that he is aggrieved thereby. Appeal. 1343 4. The persons who claim to be interested in the said pro- ceedings before the snrrogate arc your petitioner's two brothers, James and Richard Doe. Your petitioner therefore prays that the above-named persons interested in the said proceedings before the said surrogate as aforesaid and each of them may be cited to appear in the Orphans' Court of this County, pursuant to the rules and practice thereof, and that the aforesaid order of the said surro- gate and the proceedings thereunder may be reversed and set aside by the said Orphans' Court, and that the letters of ad- ministration issued to the said James Doe as aforesaid may be revoked, and that letters of administration upon the estate of the said John Doe, deceased, may be granted to vour pe- titioner. Dated Newark, X. J., William Doe. ,. 19- •• State of New Jersey, ) County of Essex. j William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the fore- going petition named, and that the matters and things therein contained are true to the best of his knowledg-e and belief. Subscribed and sworn to this~^ day of , I 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of New Jersey. William Doe. Form 356. Petition of Appeal from Order of Surrogate Admitting Will to Probate. [See Orphans' Court Act, section 202. page 74. siii>ra. and ( )ri)lians' Court Rule 49, page 75, supra.] Essex County Surrogate's Court. 86 1344 Probate Law and Practice. In the matter of the estate of | On Appeal from Probate of John Doe, deceased. j Will by Surrogate. Petition of Appeal. To the Surrogate of the County of Essex. The petition of appeal of William Doe of the of , in the County of , and State of , respectfully shows that: 1. Your petitioner is one of the children of John Doe, late of the County of Essex, deceased, who died on the day of , 19. . ., leaving him surviving as his next of kin three children, to wit : William Doe, your petitioner, James Doe, and Richard Doe. 2. On the day of , 19. . ., one X. Y. pro- duced before the Surrogate of the County of Essex for probate a paper writing purporting to be the last will and testament of the said John Doe, deceased, wherein the said X. Y. was named as the sole executor thereof, and the said Surrogate thereupon, on the day last named, made his order admitting the said paper writing to probate as and for the last will and testament of the said John Doe, deceased, and granting letters testamentary thereon to the said X. Y., which letters were duly issued on the day last aforesaid. 3. Your petitioner complains and alleges that the whole and every part of the said order of the said Surrogate admit- ting the said will to probate and issuing letters testamentary thereon to the said X. Y., as aforesaid, is erroneous, im- proper and contrary to law, and that your petitioner is aggrieved therebv. 'te?5 4. Your petitioner alleges, for grounds of appeal, as follows : a — At the time of the making and of the supposed execu- tion of said paper Avriting, and for a long time prior thereto, the said John Doe was of unsound mind and as such incapable of disposing of his estate by will, b — The said X. Y. did unduly, illegally and fraudulently influence the said John Doe in respect to the making and supposed execution of the said paper writing. Appeai,. 1345 c — The supposed execution of the said paper writing is illegal and insufficient under the laws of this State to constitute the same the last will and testament of the said John Doe, deceased, for that the said John Doe did not at the time of the supposed execution thereof sign, publish and declare the said paper writing as and for his last will and testament in the presence of two witnesses, present at the same time, pursuant to the statute in such case made and pro- vided. 5. The names of all persons concerned in this proceed- ing are as follows: [Here insert the names of the executor of the zmll, all of the legatees named therein, and all of the next of kin and heirs at huv of testator). Your petitioner therefore prays that the above-named persons concerned in this proceeding and each of them may be cited to appear in the Orphans' Court pursuant to the rules and practice thereof, and that the aforesaid order of the said Surro- gate and the proceedings thereon may be reversed and set aside by the said Orphans' Court, and that the letters testamentary issued to the said X. Y. may be revoked. Dated Newark, N. J., William Doe. - , I9--- State of New Jersey, | CouxTv OF Essex. j William Doe, being duly sworn according to law upon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. .Subscribed and sworn to tliis^ day of ". . ., 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of New Jersey >■ \\'iLLi\M Doe. 1346 Probate Law and Practice. Form 357. Citation on Appeal. [See Orphans' Court Rule 50, page 76, supra.] Essex County Orphans' Court. State oe New Jersey, 1 ss. County of Essex. The State of New Jersey, To X. Y., executor of the last will and testament (l. s.) of John Doe, deceased; Mary Doe, James Doe, Henry Doe, and Richard Doe, Greeting: We cite and command you, that you personally be and appear before the Orphans' Court, to be holden at the Court House, in the City of Newark, in and for the County of Essex, on the day of , 19. . ., at ten o'clock in the forenoon, in the matter of the appeal of Wilham Doe from an order of the Surrogate of the County of Essex made on the day of . ., 19. . ., admitting to probate a paper writing purporting to be the last will and testament of John Doe, deceased, and to abide the judgment of the said court in the premises. Witness, W. P. M., Judge of our said Orphans' Court at Newark aforesaid, this day of , one thou- sand nine hundred and F. G. S., Jr., Surrogate and Clerk. This citation must be served by the Sheriff. Form 358. Decree Reversing Order of Surrogate Admitting Will to Probate. [See Orphans' Court Act. section 202, page 74, supra.] Essex County Orphans' Court. In the matter of the estate of ") On Appeal from Probate of John Doe, deceased. J Will by Surrogate. Decree Denying Probate of Will. ' William Doe, one of the children of John Doe, late of the Appkal. 1347 County of deceased, having presented his petition of appeal from an order of the Surrogate of the County of Essex. made on the day of 19. . ., admitting to pro- l)ate a certain paper writing purporting to be the last will and testament of the said John Doe, deceased, and granting letters testamentary thereon to X. Y., the executor therein named ; and it ai)pearing that citations were thereupon duly issued by the Surrogate of the County of Essex to all persons concerned to appear before this court on the dav of 19.... on the hearing of said appeal, and that said citations have been returned duly served u])on the persons to whom they were respectively directed ; and the court having taken testimony and heard the allegations of the parties herein, and being satisfied that the said John Doe. deceased, at the time of executing the aforesaid ])aper writing was of unsound mind and incapable of executing a valid will (or othcrzcisc as the case may be). It is thereupon on this day of 19. . • , ordered, adjudged and decreed, that the aforesaid paper writ- ing is not the last will and testament of the said John Doe, deceased, and that the order made by the said surrogate on the day of 19..., admitting the same to ])robate as and for the last will and testament of the said John I )oe, deceased, be and the same is hereby reversed and set aside, and that the letters testamentary issued thereon be and the same are hereby revoked. And it is further ordered that a counsel fee t)f dollars be allowed to , coimsel for the said William Doe, the appellant herein, and that a counsel fee of dollars be allowed to .' , counsel for the respondents herein, and that said counsel fees, together -with the costs of this apj^eal be paid from the estate of the said John Doe, deceased. \V. i\ M.. Judge. 1348 Probate Law and Practice. Form 359. Decree Reversing Order of Surrogate Granting Letters of Administration. [See Orphans' Court Act. section 201, page 74, supra.] Essex County Orphans' Court. T ., ,, r ^, .. 4^ r~l C)n i\ppeal from Grant of In the matter of the estate of ... . T , r-. J J yAdmmistration by Siirro- lohn Doe, deceased. f -^ J gate. Order Revoking Letters of Administration. Wilhani Doe, one of the children of John Doe, late of the County of , deceased, having presented his petition of appeal from the order of the Surrogate of the County of Essex, made on the day of , 19. . . , granting letters of administration upon the estate of the said John Doe. deceased, to James Doe, and it further appearing that citations were thereupon duly issued by the surrogate of the said County of Essex to all persons concerned to appear before this court on the day of , 19..., which citations have been returned duly served upon the persons to whom they were respectively directed, and the court having taken testi- mony and heard the allegations of the parties herein, and it appearing that no notice of the application of the said James Doe to the said Surrogate for letters of administration upon the estate of the said John Doe, deceased, was given to William Doe, one of the next of kin of the said John Doe, deceased, and that the said Vi'illiam Doe has not renounced his said right to administer thereon. It is thereupon on this day of , 19. . . . ordered, adjudged and decreed that the said order of the surro- gate made on the day of , 19. . . , granting let- ters of administration upon the estate of the said John Doe. deceased, be and the same is hereby reversed and set aside, and that the letters of administration issued thereon be and the same hereby are revoked ; and it is further ordered that William Doe, the appellant herein, be and he hereby is ap- pointed administrator of the goods, chattels, rights and credits Appeal. i349 of the said John Doe, deceased, and that letters be issued to him accordingly, upon his entering into bond to the ordinary, with condition as prescribed by law, in the sum of dollars. And it is further ordered that each party hereto pay his own costs. W. P. M., Judge. Form 360. Decree Affirming Order of Surrogate Admitting Will to Probate. [See Orphans" Court Act. section 202, page 74. supra.] Essex County Orphans' Court. In the matter of the estate of | On Appeal from Probate John Doe, deceased. j of Will by Surrogate. Decree Affirming Order of Surrogate. William Doe, one of the children of John Doe, late of the County of Essex, deceased, having presented his petition of appeal from an order of the Surrogate of the County of Essex, made on the day of 19 admitting to pro- bate a certain paper writing purporting to be the last will and testament of the said John Doe, deceased, and granting letters testamentary thereon to X. Y., the executor therein named, and it appearing that citations were thereupon duly issued by the Surrogate of the County of Essex to all persons concerned to appear before this court on the day of 19. . .. at ten o'clock in the forenoon on the hearing of said appeal, and that said citations have been returned duly served upon the persons to whom they were respectively directed, and the court having taken testimony and heard the allegations of the parties herein, and being satisfied that the said paper writing was duly executed by the said John Doe, as his last will and testament in manner and form prescribed l)y the statute in such case made and provided, and that the said John Doe at the time of making said will was of sound and disjjosing mind, memory and understanding, and that said will was not the product of undue intluence. 1350 Probate Law and Practice. It is thereupon on this day of , 19..., ordered, adjudged and decreed that the aforesaid decree of the Surrogate of the County of Essex admitting to probate the said paper writing as and for the last will and testament of John Doe, deceased, and directing that letters testamentary thereon issue to X. Y., the executor therein named, be, and the same is hereby in all things ratified and confirmed and that the said paper writing is the last will and testament of the said John Doe, deceased. And it is further ordered that a counsel fee of dollars be allowed to A. B., proctor for proponent, and the court being satisfied that the appellant herein had reasonable cause for contesting the validity of the said will, it is further ordered that a counsel fee of dollars be allowed to C. D., proctor for the caveator, the aforesaid counsel fees to be paid by the said X. Y., the executor named in said will, out of the estate of the said testator. PI. V. O., Judge. II. DISMISSAL OF APPEAL. Form 361. Petition for Dismissal of Appeal. [See Orphans' Court Rule 51, page T] . supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition of Appeal John Doe. deceased. j from Probate of Will. Petition for Dismissal of Appeal. To the Orphans' Court of the County of Essex. The petition of William Doe, of the of m the County of , and State of , respectfully shows that : I. Your petitioner is the executor of the last will and testa- ment of John Doe, late of the County of Essex, deceased, which was by an order of the Surrogate of the County of Essex, made Appeal. 1351 on the day of , 19. . ., duly admitted to pro- bate. 2. On the day of i«j. . ., James Doe. one of the next of kin of the said John Doe, deceased, chilv filed his petition of appeal from the aforesaid order of the surrogate of the County of Essex admitting said will to probate, but the said James Doe, appellant as aforesaid, has failed to serve a copy of the said petition of appeal, nor has he caused citations to be issued and served upon the persons concerned in said appeal, as required by the rules of this court, although more than ten days have elapsed since the filing of said })etition of appeal. 3. Due notice of this application has been given to James Doe, the appellant as aforesaid. Your petitioner therefore prays that the a])peal of the said James Doe from the decree of the surrogate admitting to pro- bate the will of the said John Doe, deceased, be dismissed for lack of prosecution. Dated, Newark, N. J., Wii.i.iam Doe. , I9--- State of New Jersey County of Essex. -} William Doe, being duly sworn according to law ujjon his oath, deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein con- tained are true to the best of his knowledge and belief. William Di^e. Subscriljed and sworn to this day of , 19. . ., at Newark, N. J., before me, J. C. F., Notary Public of N. J. Five days' notice of this a])plication is necessary. See (Or- phans' Court Kule 51. Vov form of notice of aj)])lication see Form 214; for proof of service see Form 38. 1352 Probate Law and Practick. Form 362. Order Dismissing Appeal. [See Orphans' Court Rule 51. page ". supra.] Essex County Orphans' Court. In the matter of the estate of | On Petition of Appeal from John Doe, deceased. ( Probate of Will. Order Dismissing Appeal. James Doe, one of the next of kin of John Doe, deceased, having filed his petition of appeal from an order of the Surro- gate of the County of Essex, made on the .... day of , 19. . ., admitting to probate a certain paper writing as the last will and testament of the said John Doe, deceased, and it appearing that the said appellant has failed and neglected to serve his said petition of appeal and to issue citations to the persons interested, in manner and form as prescribed by the rules of this court, and no reason being alleged, or appearing to the contrary, and it appearing that due notice of this appli- cation has been given to the said James Doe, appellant as aforesaid. It is thereupon on this day of , one thousand nine hundred and , ordered, adjudged and decreed, that the said petition of appeal of the said James Doe from the order of the surrogate, made on the day of , one thou- sand nine hundred and , admitting to probate a certain paper writing as the last will and testament of the said John Doe, deceased, be and. the same is hereby dismissed for lack of prosecution. W. P. M., Judge. III. APPEALS FROM ORPHANS' COURT. Form 363. Notice of Appeal. [See Prerogative Court Rule 59. page 81. supra.] Essex County Orphans' Court. In the matter of the probate of 1 ^, ^^ . . . . , , -,1 r T , -r^ 1 1 > On i etition of Appeal, the will or John Doe, deceased, j Notice of Appeal. William Doe, one of the next of kin of John Doe, deceased, Appeal. 1353 hereby appeals to the Prerogative Court from the decree entered herein on the day of , 19. . . . admitting to probate a certain paper writing as the hist will and testament of John Doe, deceased, and every part thereof ( // apf^cal is taken from only a portioii of said decree, specify :eliat forti(ni). Dated Newark, N. 1., ^ ' X. Y., , , i9--- Proctor for Appellant. This notice is hied with the Surrogate and a copy thereof must within five days of the hliug of the same be served upon the adverse party or upon his proctor. See Orphans' Court Rule 59. For form of proof of service see Form 38. ^On Petition of Appeal. Form 364. Petition of Appeal From Probate of Will. [See Prerogative Court Rules 60 and 6r, pages S4 and .^5. supra.] New Jkksev Prerogative Court. In the matter of the appeal from the decree of the Orphans' Court of the County of Essex, admitting to probate a certain paper writing as the last will and testament of John Doe, deceased. ^ Petition of Apj'eaJ. To the Ordinary of the State of New Jersey: The petition of , of the of in the County of and State of resi)ectfully shows that : 1. Petitioner is one of the next of kin of John Doc, late of the County of Essex, deceased. On the .... day of 19..., the Orphans' Court of the County of Essex made its order admitting to probate a certain ])aper writing ])urporting to be the last will and testament of the said John Doe, deceased. 2. Your petitioner complains and alleges that the whole and every ])art of the aforesaid decree is erroneous. im])r()per and 1354 Probate; Law and Practice. illegal, and that your petitioner is aggrieved thereby. (// appeal is taken front only a portion of said decree, specify what portion.) Your petitioner therefore prays that the aforesaid order of the said Orphans' Court and every part thereof, be reversed by this court. Dated Newark, X. J., .X.. Y., , , 19- •• Proctor for and of Counsel with Appellant. The petition of appeal must be tiled with the Register of the Prerogative Court within thirty days after the tiling of the notice of appeal and within live days after filing the same a copy must be served upon the adverse party or his proctor. See Prerogative Court Rule 60. For proof of service see Form Form 365. Answer to Petition of Appeal from Probate of Will. [See Prerogative Court Rule 66, page 'tiy, supra. J New Jersev Prerogative Court. In the matter of the api)eal of^ James Doe from an order of the Orphans' Court of the County of Essex, admitting to probate a certain paper writing as the last will and testament of John Doe, deceased. ;^On Petition of Appeal. Anszver to Petition of Appeal The answer of \Mlliam Doe, respondent, to the petition of appeal of James Doe, appellant. 1. This respondent, answering, says that he admits the allega- tions contained in paragraph one of the petition of appeal filed herein. 2. This respondent is advised, believes, and submits that said decree is just and in accordance with law, and denies that said decree or any part thereof is erroneous, improper or Appeal. 1355 illegal, but on the contrary alleges that said decree in every part thereof is legal, proper and correct. He therefore prays that the said decree may be in all things affirmed with costs to be adjudged to this respondent. X. Y., Proctor for and of Counsel with Respondent. The answer to a petition of appeal must be filed within fifteen days after service of a copy of the petition; see Pre- rogative Court Rule 66. For proof of service see Form 38. Form 366. Petition of Appeal From Decree on Account. [See Prerogative Court Rule 62. page 84, supra. | New Terskv Prkrog.vtivk Court. In the matter of the appeal of James Doe from an order of the Orphans' Court of the County of Essex, allowing the account of William Doe, the administrator of the estate of I John Doe, deceased. J >()n I'etition of Appeal. Petition of Appeal. To the Ordinary of the State of New Jersey: The petition of James Doe, of the of in the County of Essex and State of New Jersey, respectfully shows that : 1. On the day of kj. . ., William Doe. the executor and trustee under the last will and testament of John Doe, deceased, presented his account as such executor and trustee to the Orphans' Court of the County of Essex, and exceptions having been filed thereto by your petitioner, the Or- phans' Court, on the day of iw- • • . made its order overruling certain of the said exceptions, and ordering that said account be allowed. 2. Your ])etitioner hereby api)eals from the following por- tions of the aforesaid order: 1356 Probate Law and Practice. a. From that part of the said order of the said Orphans' Court overriding appellant's exception to said account alleg- ing that said accountant had not charged himself with the amount of dollars on deposit in the Savings Institution in the City of , as part of the estate of the said John Doe, deceased. b. From that part of the said order of the Orphans' Court whereby the sum of two hundred dollars prayed allowance as paid out of income for betterments was ordered stricken therefrom, and charged against the corpus of the estate, and interest on the said sum of two hundred dollars from the* date of its payment to the date of said accounting was ordered charged against the income of the said estate, and also credited to the corpus. 3. Your petitioner complains and alleges that the aforesaid order of the Orphans' Court is erroneous, improper and illegal in the foregoing particulars ; and that your petitioner is aggrieved thereby. Dated Newark, N. T., Y Y , , I9--- Proctor for and of Counsel with Appellant. This petition must be hied with the Register of the Pre- rogative Court within thirty days after filing the Notice of Appeal. Within five days after filing the petition the same must be served upon the adverse party or his proctor ; for proof of service see Form 38. Form 367. Answer to Petition of Appeal from Decree on Account. [See Prerogative Court Rule 62, page 84. supra.] New Terskv Prerogative Court. Appeal. 1357 In the matter of the appeal ot"^ James Doe from the decree of the Orphans' Court of the County of Essex, allowing the account of William Doe, as administrator of the estate of John Doe, deceased. >(M\ Petition of Appeal. Aiis-iK'cr. The answer of William Doe, respondent, to the petition of appeal of James Doe, appellant: 1. This respondent answering, admits the allegations con- tained in the first paragraph of appellant's ])etition of appeal filed herein. 2. This respondent is advised, believes, and submits that the portions of said decree complained of by appellant are just- and lawful, and this respondent denies that the aforesaid por- tions of the said decree or any parts thereof are erroneous, im- proper or illegal, and alleges that said portions of said decree are legal, proper and correct. He therefore prays that the said petition of api)eal may be dismissed with costs. 3. This respondent further answering, says, that that portion of the aforesaid decree of the Orphans' Court of the County of Essex, wherein the said court adjudges and decrees that the amount of a deposit in the Savings Institution to the credit of the said John Doe and Jane Doe, either to draw, survivor to take, at the time of his decease was a part of the estate of the said John Doe, deceased, and that account- ant should be surcharged with the amount thereof, is errone- ous, illegal and improper, and tliat this respondent is aggrieved thereby. He therefore prays that the aforesaid ])i)rlion ot the >aid decree of the Orphans' Court of the Cdunty of h'ssex may l)e reversed by this court. X. ^ ., Proctor for and ui Coun.sel with Respondent. The answer to a j)etition of appeal nuisl be tiled within fifteen days after service of a copy of the Petition ol' Appeal. See Prerogative Court Rule 66. I'Or jtroot dI ^ei"\ice see Form 38. 1358 Probate Law and Practice. FORMS OF WILLS. Form 368. Simple Form of Will. I, John Doe, of the of , in the County of and State of , being of sound and disposing mind, memory and understanding, do make and execute this my last will and testament in manner and form as follows, that is to say : First. I direct that all of my just debts and funeral ex- ])enses be paid as soon after my decease as conveniently may be. Second. I give to my son, John Doe, the sum of five thou- sand dollars ($5,000.) and direct that the same be paid to him without the deduction of any succession or other tax of what- ever nature, character or description, it being my will that any such tax levied against said legacy be paid out of the residue of my estate. ' Third: I give, devise and bequeath all of the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situate, whereof I may die seized or possessed, to my wife, Jane Doe, to have and to hold the same to her own use forever. Fourth. I nominate, constitute and appoint my said wife, Jane Doe, executrix' of this my last will and testament, giving unto my said executrix full power and authority to sell and convey any and all of the real estate whereof I may die seized. It is my wish and I do hereby order and direct that my said executrix be not required to give bonds or other security as such executrix in this or any other jurisdiction wherein pro- ceedings may be required to be taken in connection with this my will. Fifth. It is my will and I do order and direct that this will remain in full force and efl^ect, notwithstanding children may hereafter be born to me. In Witness Whereof, I have hereunto set my hand and seal. this day of , one thousand nine hundred and John Doe. (Seal.) Forms of Wills. 1359 Signed, sealed, published and declared by the said John Doe. the testator above-named, as and for his last will and testa- ment, in the presence of us who were both present at the same time and who at his request, in his presence and in the presence of each other, have hereunto subscribed our names as wit- nesses, on this day of one thousand nine hundred and William Jones. Joiix Jones. Form 369. Clause Creating Trust for the Benefit of a Niece During Life, Remainder at Her Death to Her Children, if Any, Otherwise to Others. I give, devise and bequeath all of the residue of my estate, whether real, personal or mixed, and wheresoever situate, to James Jones, in trust nevertheless, to invest the same and to pay the income arising therefrom to my niece. Mary Doc. daughter of William Doe, during her natural life, and upon the decease of the said Mary Doe to pay the said residue and remainder of my estate to the issue of her body then living, if any, and to the issue of any deceased issue, per stirpes and not per capita. In case the said Mary Doe shall die without lawful issue or the descendants of lawful issue, then it is my will and I do direct that the said residue and remainder of my estate be paid to William Jones, if then living, or in case of his death, to his lawful heirs, for his or their own proper use and benefit forever. Form 370. Clause Creating Trust. I give, devise and bequeath all of the rest, residue and re- mainder of my estate, whether real, personal or mixed, and wheresoever situate, to William Jones, in trust nevertheless, to invest the same and to pay the income arising therefrom to my wife, Jane Doe, (luring the period of her natural life or until her re-marriage. Upon the death or re-marriage of my said \\\\\\ Jane- Doe, it is my will and 1 do direct that William Jones, trustee as aforesaid, pay all of the .said rest, residue and remainder t)f my estate to my cbildre-n Henry, Mary and James, to br di- vided between them equallv share and share alike. 87 1360 Probate Law and Practice. Form 371. Clause Providing for Payment of Income to Widow for Life with Privilege of Using Principal with Remainder Over. I give, devise and bequeath the income of all the rest, residue and remainder of my estate, whether real, personal or mixed, and whersoever situate, to my wife, Jane Doe, during the period of her natural life. If it should so happen that the in- come from my said estate should not be sufficient to support my said wife, Jane Doe, in as comfortable a manner as that to which she was accustomed during my life-time, then it is my will and I do authorize my said wife to expend so much from the principal of my estate as may be necessary for that purpose. Upon the death of my said wife, Jane Doe, I do give, devise and bequeath all of the rest, residue and remainder of my said estate to my children, Henry, Mary and William, to be di- vided equally between them share and share alike. Form 372. Codicil to a Will. I, John Doe, of the of , in the County of and State of , being of sound and disposing mind, memory and understanding, do make and execute this codicil to my last will and testament, dated the day of , 19- •• First. I give to my son William, in addition to the legacy given him in my aforesaid will, the sum of Five Thousand Dollars ($5,000.). Second. I cancel and revoke the legacy of Five Thousand Dollars ($5,000.) given to James Doe. Third. In all other respects I do ratify and confirm my aforesaid will. In Witness \\'hereof, I have hereunto set my hand and seal this day of , one thousand nine hundred and John Doe. (Seal.) Signed, sealed, published and declared by the said John Doe, the testator above-named, as and for a codicil to his last will and testament bearing date the day of , 19. . ., in the presence of us who were both present at the same Forms of Wills. 1361 time and who at his request, in his presence and in the pres- ence of each other, have hereunto subscribed our names as wit- nesses on this day of , one thousand nine hun- dred and William Jones. John Jones. TABLE OF CASES. Aber v. Clark, 119. Acker's Case.*86, 189. 206, 271. Adams v. Adams. 68, 340, 718, 721, ■J 27,, 724, 731. Adoue V. Spencer, 459. Albert v. Perry, 751, 752, 758. Aldridge v. McClelland, 396, 424. 520. 609. 671, 672. Alexander's Case, 119, 154. Alexander, In re, 43, 46, 766, '/(i'], 772. Alexander's Will, In re, 147. Alexander v. Bacot, 663. Allaire v. Allaire. 140, 141, 142, 144, 202, 203, 211, 212, 213, 216, 221. Allen's Case, 407. Allen V. Dundas, 68. Allen V. Edwards, 734. Allen V. Sanders. 334. Allen V. Van Houten, 355, 426. Ailing V. Ailing, 766, 767, 768, 769. Alpaugh, In re, 141. Alpaugh's Estate, In re, 265. Alpaugh V. Wilson, 526. Anderson v. Anderson, 175, 548, 549- Anderson v. Berry, 696. Anderson v. Eggers, 156. Andress v. Andress, 78, 691, 697. Andress v. Weller, 106, 115, 117. Andrews' Case, 109, 123. Annin v. Vandoren, 252, 275. Antonidas v. Walling, 760. Arbib, In re, 148. Armstrong v. Armstrong, I03, 155, 156, 163, 167. Arnault v. Arnault, 121, 152, 158, 170. Arnold v. Robins, 573. Arrowsmith v. Van Harlingien, 450. Ashby V. Ashby, 424. Atkinson v. Atkinson, 547. Ayres v. Ayres, 109, 130, 131, 133, 134, 135, 141. Ayres v. Shepherd, 293, 539. B Babbitt v. Babbitt, 607. Babbitt v. Fidelity Trust Co., 255, 256, 376, 383, 556, 685, Bailey's Estate, 72,3. Bailey v. Spofford, 413. Bailey v. Stiles, 245. Baker's Estate, In re, 652, 653 662. Baker's Will, In re, 112. Baker v. Johnston, 678, 685. Baldwin v. Vreeland, 350. Ballantine v. Frelinghuysen, Ballantine v. Young, 387. 250, 692. 656, 2,7^- Bannister v. Jackson, 107, 115, iig. Banta v. Moore, 255, 349, 618, 628, 721. Banvard's Estate, In re, 163. Barber's Will, In re, 109, 151, 155. Barber v. Baldwin, 117. Barcalow, In re, 400, 695. Barclay v. Cooper. 352, 354, 393. Barker v. Barker, 119, 171, 172. Barker v. Streuli, 137, 138, 170. Barkman v. Richards, 159, 162, 163. I^arnes v. Taylor, 419. 1363 1364 Probate Law and Practice. Barnesly v. Powel, 68. Barry, . In re Hannah, 766, 768, 772. Bassett v. Shoemaker, 453. Batton V. Allen. 702. Bayeaux v. Bayeaux, 145, 147. Bayles v. Staats, 607. Bayley's Case, 401, 637, 638, 669. Bayley v. Bayley, 50, 718, 719, 721. Baylis, In re Goods of, 146. Beat V. Storm, 105. Beall V. Cunningham, 175. Beam v. Paterson Safe Deposit & Trust Co., 381. Beatty v. Trustees, 410. Bechtold v. Read, 416, 417, 418, 450, 455, 456, 624. Beckhaus v. Ladner, 702. Beers v. Shannon, 254. Beggans' Case, 89, 130, 133, I34, 135, 140, 141,. 143- Behring's Case, In re, 347. Belcher v. Belcher, 351. Bell V. White, 295. Bellerjeau v. Kotts, 416. Bennett v. Bennett, 106. 107, 149, 150, 166, 167, 169. Benson v. Wolf, 283, 284, 287, 288. Bentley v. Dixon, 606, 607. Berdan's Case, 130, 141, 142, 143. Berry's Case, 210. Bethlehem Iron Co. v. Philadel- phia & Seashore R. R. Co., 510, 511- Binsse v. Paige, 410. Bioren v. Nesler. 130, 132. 133, 135, 140, 141, 142, 143, 232. Bird V. Hawkins, 546, 624, 631 634, 635. Bird V. Wiggins, 312, 313. Birkholm v. Wardell, 393. 532, 546, 549, 640, 670, 671. 674, 695. Bishop V. Bishop, 147. Black, Estate of, 707. Black V. Black, 525, 526. Black V. Foljambe, 156. Black V. Whitall, 48, 338, 341, 631. 632. 648, 655, 701, 704- Blackborough v. Davis, 68. Blackett v. Ziegler, 175. Blackslee, In re, 128. Blackwell v. Blackwell 402, 404. Blake v. People, 734. Blauvelt v. Ackerman, 394, 399. 450, 691. Bleecker v. Hennion, 493. Bliss V. N. Y. Life Insurance Co., 511. Bloom V. Terwilliger, 140. Bloomfield v. Ash, 80. Bockover v. Ayres, 516, 518. Bogart, Matter of, 734. Bogert V. Bateman, 91, 130, 142. Bogert V. Hertell, 413. 415. Bogy V. Roberts, 703. Bohle V. Hasselbrock, 573. Boisaubin v. Boisaubin, 159, 164. Bolles V. Bolles, 314, 606, 607. Bonnell v. Bonnell, 350. 356. Booraem's Case, 273. Boulton V. Scott, 42, 48, 6:^2, 648. 65s, 72,?,- Bowe V. Naughton, 140, 141. Bowen v. Johnson, 68. Boylan v. Meeker, 114, 116. 117. 118, 119, 120, 124, 144, 171, 172. 173, 178, 183, 233. Boynton v. Sandford, 526, 540. Bracher's Will. In re, 190. Braddock v. Hinchman, 373. Bradway v. Holmes, 277, 550, 618. Brady v. McBride, 104. Brands v. DeWitt, 704, 735- Brashears v. Orme. 118. Bray v. Neill, 43. 397, 426, 460, 473. 474, 484. 486, 487, 499. Brearley v. Brearley, 351, 4^6. Brearley v. Molten. 553, 554. 557- Breining's Case, 132. Brengel's Will, In re, 150, 157, 164. Brewster v. Demarest, 380, 382, 38s, 552. 669, 692. Brick V. Brick, 137. 138, 152, I59. 166. Table of Cases Cited. 1365 Brinkerhoff .v. Banta, 400. Brinkerhoff, v. Ransom, 466. Brokaw v. Brokaw, 355, 427, 625, 671, 674. Brokaw v. Hudson, 339. Brooke v. Kent, 181. Brooks V. Metropolitan Life Ins. Co., 759- Brothers v. Pickel, 227. Brown v. Brown, 376, 381, 387, 436, 555, 556. 557- Brown v. Murray, 342. Brown v. Pancoast, 295. Brown v. Ryder, 80, 289. Brown v. Wallis, T/T. Brown v. Welsh, 804. Brownlee v. Lockwood, 277; 618, 628. Bruere v. Gulick, 685. Brunson v. Burnett, 68. Brush V. Young, 293, 296, 297, 443- Bryan's Appeal, 100. loi. Buchanan v. Buchanan. 240, 2^0. 338. Buchanan v. Pierie, 112. Buck, In re, 125, 129. Buckman's Will, In re. 103, 107, 121, 150. Budd V. Hiler, 299, 342. 364. 620. Buecker v. Carr. 56. 71. Bumstead v. Judges. 228. Burgis V. Burgis, 68. Burkhardt v. Burkhardt. 195. Burnett v. Eaton, 454. Burnham v. Dalling, 552, 646, 649. Burr V. Burr, 233, 235. 674. Burton v. Mellis, 557. Bussom V. Forsyth, 709. Byard v. Conover, 159. Byrnes v. Gibson, 149, 152, 156. 160, 161, 171, 172. Calvin, Estate of, 288. Camden Mutual Life Insurance Assn. V. Jones, 503, 591. Campbell, Matter of, 175. Campbell v. Campbell, 546. Campbell v. Cole, 433. Campbell v. Hough, 505, 513, 515. Campbell v. Mackie, 410. Campbell v. Purdy, 410. Campbell v. Thatcher, 68. Campfield v. Ely, 532. Carey v. Monroe, 367, 369, 664. Carlin v. Carlin, 88, 667. Carolus v. Lynch, 68. Carow V. Mowatt, 267. Carpenter v. Cameron, 145. Carpenter v. Gray, 313, 314, 601. Carrick v. Carrick, 277, 618. Carroll v. Baxter, 81. Carroll v. Bonham, 239. Carroll v. Hause, 150, 159. Carson v. Marshall, 450. Carter's Case, 108, 152. Carter's Estate, In re, 434, 435, 445- Case V. Hasse, 136. Casey's Will, In re. 113. Casselman v. McCooley, 275, 431, 444- Cassidy, In re, 42, 43, 243. Cazassa v. Cazassa, 701. Chadwick's Case, 12, 56, 196, 213. Chaffee v. Baptist Missionary Convention, 128. Chamberlain, In re, 198. Chamberlin v. McDowell, 533, 541. Chandler v. Thompson, 432. 433. Chappell, In re Goods of. 146. Charlick's Estate, y},^,. Chase v. Kittredge, 128. Cliiswcll v. Morris, 494. Chittendon, In re, 296, 603. Christy v. Vest, 254. Claffey v. Lcdwith, 104, 107, ii;9, 165. Clark's Will, In re, 135, 142. 1366 Probate Law and Practice. Clark V. Clark. 135. Clark V. Costello, 42, 48, 71, 498. Clark V. Haines. 81. 86. Clark V. Hornbeck, 342, 638. Clark V. Knox, 410. Clarke v. Canfield, 195. 395. Clarke v. Johnston, 631, 634. Claus' Will, In re, 93. Claypool V. Norcross, 81, 83. Clayton v. Somers. 485. 533, 54i- Clement's Appeal, In re. 69, "jz, 610, 742. Clifton V. Clifton, 106, 107. 114. 122. 123. 149, 156. Clinch V. Eckford, 410. Cline V. Prall, 510. Cocks, Matter of, 385. Coddington v. Bispham, 355, 581. 631. 634. Coddington v. Jenner, 244, 245. Coddington v. Stone, 381. Cohen v. Moss, 339. Cole's Will, In re, 129. Cole V. Lee, 525. Cole V. Wooden. 288, 421. Coles V. Feeney. 355. 429. Colgate V. Colgate, 419, 454. Collard v. Collard, 180. Collier v. Munn, 410. Collins, Alatter of. 99. Collins V. Lewis, 573. Collins V. Osborn, 108, 120. Collins V. Steuart, 573. Collins V. Townley, 108, 233, 236. Combes v. Cadmus, 553, 556. Combs V. Jolly, 97. 99. Comer v. Comer, 701, 734. Compton's Case, 783. Compton V. Mitton. 130. 133, 136. 143, 144, 202. Congar v. Brady, 464. Conover's Case. 334. Conover v. Conover, 48. 632, 648. Conover v. Ellis. 682, 686. Conover v. Walling, 78, 510, 514. Conway v. Ewald, 144. Cook V. Cook. 350, 351, 353, 354, 431, 432, 518. Cook V. Gilmore. 410. Cook V. Lum, 346. Cooke V. Woman's Aledical Col- lege, 431. Cooley V. Vansyckle, 364, 368, 370. 403. 405. 536, 573. 637, 640, 644. Coombs, Ex parte, 47. Cooper, In re Goods of, 145. Cooper's Will, In re, 138, 160, 162, 163, 164, 166, 167, 172, 173. Cooper V. Cooper, 607. Cooper V. Wallace, 780, 782. Cooper V. Wells, 343. Coppuck V. Wilson. 588, 591. Corblis' Will, In re, 154. Cordwell's Estate, In re. 734. Corle's Case, 395. Corle V. iMonkhouse, 343, 370. Cornish v. Cornish, 68. Cornwell v. Deck, 403. Corr V. Porter, 176. Coudert v. Coudert, 186. Coughlin's Case, 116. Coursen's Will, In re, 11, 12, 13, 42, 197, 221, 413. Courtenay v. Williams, 734. Cowley V. Knapp, 99, 183. Cox V. Roome, 354, 405. Cox V. Wills, 550, 556. Cozzens, Alatter of, 385. Craft's Estate. In re, 103, 104. 106. 108. 116, 156. 160. Cramer v. Sharp, 262, 265, 266, 272, 292. Crane v. Bolles, 350. 356. Crane v. Brewer, 346. Crane v. Hearn, 389, 412, 415, 418. 420, 608. Crane v. Howell, 419, 420. Crane v. Van Duyne, 401, 557, 558, 768. Crater v. Smith, 547, 564. Craven's Case, 382, 385. Crawford v. Lees, 42, 48, 56, 58, 71, 200, 210, 211. Cresse's Case. 266. Creveling v. Fritts, 450, 453. Crisp V. Dunn. 563. 592. Table of Cases Cited. 1367 Crocker v. Crocker, 68. Crombie v. Engle, 513, 652. LTronkright v. Haulenbeck, 494. Crooke v. Watt, 699. Crosby v. Leavitt. 254. Cruikshank v. Parker, 351, 431. Crum V. Moore, 541. Culver V. Brown, 655, 682. Culver V. Culver, 450. Culver V. Pierson, 43. Cumberland Trust Co. v. Padgett, 384. Cunningham v. Stanford, 566. Current v. Current, 355. Curric v. Knight. 584. Curtis V. Curtis, 735. D Dale's Appeal, 118, 163. Dale V. Dale, 159, 161, 163, 165. Daly. Estate of, 385. Danly v. Cummins, 677. Darnell v. Buzby, 131, 132, 135. Davenport's Case, 284, 285, 286. 288, 289. 290. Davenport v. Davenport, in, 112. 245. Davis, In re Anastasia, 161, 162, 163, 171. Davis V. Combs, 656. Davis V. Howell, 535. Davis V. Newton, 734. Davis V. Vanderveer, 705. Davison v. Davison, 341, 666, 667. Davison v. Rake. 79, 92, "jjiZ. Dawson v. Macknet, 702. Day v. Day, 137, 138, 139, 160, 184, 233. Dean's Case, 331, Zi-- Debow V. Colfax, 343. De Camp v. Wilson, 523. Decker v. Decker, 633, 634. Decker v. Aliller, 543. De Concillio v. Brownrigg, 374. 375. 533, 542. Deegan v. Capner, 396, 400. Degnan's Case, 262, 265, 273. Deichman v. Arndt, 340. De Kay v. Darrah, 528. Delany v. Noble, 82, 737. Demarest v. Vandenberg, 568. Dempsey's Will, 272. Den V. Allen, 221. Den V. Gibbons, 114, 116, 120, 156, 169. Den V. Hillman, 456. Den V. Jaques, 463. Den V. Johnson, 106. Den V. Jones, 457. Den V. Lambert, 512. Den V. McKnight, 450. Den V. McPeake, 703. Den V. O'Hanlon, 71. Den V. Philhower, 512. Den V. Vancleve, 106, in. 118. Den V. Wright, 450. Denise v. Denise, 339, -J2,2). 734- Denton v. Clark, 437. De Peyster, Matter of, 678. Devine, In re, 91, 447, 448, 502. Devling v. Little. 415. Dey v. Codman, 376, 400. 406, 407, 427, 440, 553, 554. 556, 557. 640, 657. Diament's Estate, In re. 183, 184. Dibble v. Woodhull, 530. Dickerson v. Dickerson. 2,^)},, 600, 785. Dickerson v. Miller. 328. Dickerson v. Robinson, 323. 324, 325. Z-^T, 330, 4' 3. Dieffcnbach v. Grece, no. Dietz's Case, 46. ng, 149. Dietz v. Dietz, 78, 284, 286, 289, 290. Dildine v. Dildine, 710. Dillingham v. Martin, 299, 300. Dillon's Will, In re, 106, 107, 131. Dilts V. Stevenson, 338, 363, 368. Disbrow v. Durand, 521, 522, 524. Dissenger's Case, 394, 399, 769- 1368 Probate Law and Practice. Dixon V. Bentley. 628, 767. Dodd V. Lindsley, 465, 479. Dodson V. Sevars, 480, 579, 580. 583, m, 728. Dodson V. Taylor, 464. 465. Dolan V. Brown, 434. Doll V. Cash, 478, 504. Dolman v. Cook, 543, 544. Donahay v. Hall, 262, 265, 267, 272, 277, 278. Donnington v. Mitchell, 265, 699. Doolittle V. Willet, 372, 374. Dorchester v. Webb, 421. Doremus' Case, 395, 396, 397. Dorsheimer v. Rorback. 326. 404, IIZ^ 737- 'Downie v. Knowles, 668. Dreier's Estate, In re, 406, 408, 520, 669, 672. Dries' Case, Philip, 153. Drost V. Corle, 525. Drummond v. Jones, 442. Dufford V. Smith, 380, 382. 385. 390, 554, 642, 668, 669, 670, 691. 692. Dumont v. Dumont, 149, 154, 156. 162. 169. Duncan v. Barnes, 628. Duncan v. Davison, 416, 420, 629. 661. Dunham v. Doremus, TZ'^- Dunham v. Marsh, 46, 661, 662. 663, 665, ^2Z. Dunn V. Campbell, 534, 535, 54i. 542. 562, 570. Durbrow v. Eppens, 567. Dutton V. Pugh, 350. Duvale v. Duvale, 524. Dwight V. Newell, 413. Dyer v. Riley, 416, 417, 420. Eakin. In re, Ti},, 731. Eakin v. Brick, 597. Earl V. Halsey, 456. Earle v. New Brunswick. 438. Earle v. Norfolk, 149, 150. Earnest v. Earnest, 702. Eatley's Will, In re, 152, 156, 157, 160, 164, 165, 169, 170. Eddy's Case, 108, 156, 157, 235. Edge V. Edge, 109. Edwards v. Edwards, 159. Edwards v. Freeman, 701. Edwards v. McClave, 465, 480. Egerton v. Egerton, 520, 522, 545, 616, 669, 671. Eggers V. Anderson, 522. Eldridge v. Lippincott, 751. Elkinton v. Brick, 103, 115, 116, 117, 125, 131, 135, 141, 149, 155, 156. Ellicott V. Chamberlin. 271, 399. Ellicott V. Kuhl, 572, 573, 575. 576. Ellison V. Lindsey, 588. Elmer v. Loper, 669, 692. Elston V. Carpenter, 398. Ely V. Ely, 421. Embley v. Hunt, 85. 87, 227, 228, 229. Emson v. Allen, 519, 566, 568. 577, 578, 579- Emson V. Ivins, 583. Engle V. Crombie, 652, 658. English V. Newell, 416, 417, 418. 650. Equitable Life Assurance Society V. Chesley, 663. Errickson v. Fields, in, 133. Eschbach v. Collins, 180. Eureka Life Ins. Co. v. Geis, 806. Evans, In re. 46, 56, 58, 71, "jz. 201, 610. Evans v. Walsh, 533. Everitt"v. Williams, 414, 473, 499. 527, 528, 538. Exton V. Zule. 717, 718, 719, 720, 721. Table of Cases Cited. 1369 Farley v. Farley, 89. 140, 141. Farnum v. Boyd, 114, 168. Farrow v. Farrow. 345. Fay V. Fay, 531. Fennimore v. Fennimore, 412, 416, 456, 649, 650. Ferdon's Case, 44. Fesmire v. Shannon, 415. Fidler v. Higgins. 353. 518. Field V. Field, 634. Field V. Thistle, 563, 569. Filley v. Van Dyke, 631, 634. First Baptist Church v. Syms, 504. First National Bank v. Thompson. 375, 414, 461, 516, 528. 534, 541. 542, 543, 561, 573, 735- Fiscus V. Fiscus, 733. Fisher's Case. 12, 197, 198. Fisher v. Quick, 387, 402. Fisher v. Skillman, 403, 404. 406. 416, 417, 441- Fisk V. Fisk, 705. Flaacke's Estate, In re, 344, 406, 408, 409, 410, 673, 678, 679. Flinn's Case, 602. Fluck V. Lake, 288, 392, 396, 402, 410, 671, 673, 674, 692, 693. Fluck V. Rea, 115. Fluke V. Fluke, 350, 356. Flunimerfelt v. Fluminerfelt. 557. Fogg's Case, 536. 564, 568, 590. Folwell's Estate. In re, 106. 624. Folwell V. Folwell. 126. 127. Ford V. Westervelt, 482. 545. Fosdick V. Delafield, 147. Foster v. Dey, 449. Foster v. Knowles, 468, 469. Fowler v. Colt, 388, 392, 393, 411. 532, 551, 677. Franks v. Cooper, 543. Frean v. Hudson, 521, 522, 525. Freccia. In re, 262, 270. Fredericks v. Iscnnian, 467. French v. County Home, 68. Frey's Case, 85, 375, 411, 532, 543, 544, 668, 669, 670, 693. Frey v. Demarest, 631, 632, 634. 655, 737- Frey v. Frey, 392, 395. 397, 693. Friesner v. Symonds, 754. Fritz's Estate, In re, 43. Fritz V. Turner, 128, 149, 152. Frost V. Dcnman, 392, 395, 693. Frost V. Wheeler, 104. 114, 235. Frothingham's Case, 180, 181. Furgeson v. Jones, 797. Furman v. Furman, 487. Gahagan, In re, 109, 132, 140, 141. Gaines v. Chew, 68. Gaines v. Green Pond Iron Min- ing Co., 343. Gaines v. Hennen, 68. Gale, In re Goods of, 146. Gallagher v. AIcBride, 375. Gans V. Dabergott, 261. Gardella, In re, 139. Gargia v. Foster, 537, 563. Garrett v. Pierson, 734. Garrison v. Garrison, 122, 123. Gaston Trust, In re, 321, 668. Gay V. Mooney, 524. Geiser's Will, In re, 12. George's Appeal, 68. George v. Baker, 415. Gcst V. Flock. 350, 356. Giberson v. Giberson, 297, 442, 443- Gilham's Will, In re, 104. 150. (jill V. Roberts, 707. Gilligan v. Daly, 37^. 374, 679, 680, 694, 695. Gilman v. Aycr, 104, 107, lu, 167. Gilman v. Healy, 416. (jilmore v. Tuttle, 383, 397. Githens v. Goodwin, 72, 647, 654, 660. Givcns' Case, 331, 33^, 504. 1370 Probate Law and Practice. Gleespin, In re John, 114, 119, 120, 152, 156. Gloucester v. Eschljach, 331. Gloucester City v. Greene, 81, 83, 87. Goble V. Grant, 94, 116, 121. Godfrey's Case, 478, 483. Gordon's Case, 171. Gordon's Estate. In re, 163. Gordon v. Barkelew, 703. Gordon v. Olds, 191. Gordon v. Toler, 346, 347. Gosnell V. Flack, 734. Gottlieb V. N. J. Street Railway Co., 345- Gould V. Moulahan, 530, 531. Gould V. Tingley, 591. Graham v. Dickinson, 487. Graham v. Houghtalin, ^2. 48, 754, 762, 767. Grant v. Chambers, 343. Grandin v. Reading, 524. Grant v. Spann, 145. Grant v. Stamler, 113, 117, 123, 166, 188, 225, 235. Gratacap v. Phyfe, 624. 625. Grattan's Estate, In re, 98, 342, 721. Gray v. Fox, 48, 385, 390. Gray v. Gray, 605. » Gray v. Myrick, 646. Graydon v. Graydon, 404. Grece v. Helm, 288. Green's Case, 402. Green, In re, 327, 328, 329. Green v. Blackwell, 78. Green v. Groocock, 404. Green v. Hathaway, 704. Greene v. Butterworth, 535, 564. Greenwood v. Law. 343. Greiner v. Greiner, 401. 525. Griggs V. Veghte, 442, 443, 532. Grissom's Case, 74. Grumley v. Grumley, 700. Gunn V. Early, 92, 142. Gurrieri, In re Carmelo, 269. H Haas V. Childs, 286. Hackensack Savings Bank v. Morse, 469. Hagan v. Piatt, 392. Haggerty v. Lanterman, 431. Haggerty v. McCanna, 558, 760, 769. Haines, In re, 676. Haines v. Haines, 342. Haines v. Price, 350, 457, 529. 535, 544- Halsey, In re Cornelia B.. 54. Halsey v. Patterson, 548. Halsted v. Meeker, 388, 397. Halsted v. Tyng, 670. "Hamburgh Mfg. Co. v. Edsall, 370, 396, 399- Hammond v. Cronkright, 533, 551. Hance v. McKnight, 455. Hardin v. Lawrence, 493. Hardy v. Martin, 118. Harker v. Irick, 322, ^23. Harral v. Harral, 721. Harrall's Case, 525, 782. Harrington v. Brown, 255. Harris' Goods, 181. Harris v. Betson, 109. Harris v. Vanderveer, 137, 138. Harris v. White, 715. Harrison v. Fleischman. 573. Harrison v. Patterson. 566. Harrison v. Weldon, 68. Hartnett v. Wandell, 146, 147. Hartson v. Elden, 377, 395. 618. Hartwell v. Martin, loi. Haskin v. Teller, 733. Hastendenbeck, In re, 623, 624. Haston v. Castner, 459, 467. Hatt V. Rich, 431, 434, 437, 438, 439- Hattersley v. Bissett, 461. 471, 486, 548. 703. Hattie v. Gehin, 436, 439. Haughwout V. Murphy, 355. Table of Cases Cited. 1 37 1 Haulenbeck v. Cronkriglit, 404, 554. 557- Haven v. Foster, 174. Havens v. Thompson. 704, 735. Haydock v. Haydock, 149. 150. 151. 159- Hayes v. Hayes, 250, 338, 734. Hayes v. King, 705. Hayes v. Parker, 628. Hayle v. Hasted, 68. Hazen v. Durling, 324, 325. Healey v. Healey, 526. Heath's Case, 65, 642. Heath v. Maddock, 603, 604, 605. 616. Hebden's Will, In re, 237, 238. 241. Hedges v. Norris, 626, Til- Hegeman v. Roome, 443, 444. Heidecamp v. Jersey City, etc.. R. R. Co.. 804. Heisler v. Sharp, 91, 340, 370. 526, 540, 601. Hellier v. Lord. 374. Herbert v. Tuthill, 350, 356. Herkimer v. McGregor, 701. Hertell v. Bogert, 412, 415. Hess v. Cole, 42. 70, 71. Hesselman v. Haas, 799. Hetfield v. Debaud. 392, 396, 668. Hetzel V. Hetzel, 546. Hewes v. Hurfif, 527. Kibbler's Case, In re, 293, y^T, 684, 685, 686. Hicks V. Willis, 509. Higbie v. Morris, 545, 546, 547. Higgins V. McQuirk, 235. Hildrotli V. Marshall, 131, 132, 138. Hildrcth v. Schillinger, 245. Hill's Case, 80, 90, 95. 264, 266, 267. Hill V. Bloom, ']22,. Hill V. Day, 119. Hill V. Hill, 418, 420, 451, 452, 620, 632, 649, 661, 662. Hill V. Smalley, 272. Hill V. Smith, 350, 356. Killers v. Taylor, 797. Hillyer v. Schenck, 81, 82. 83. 87. Hilyard v. Wood. 179. 180. 184. 235. Koagland v. Cooper. 277. Hoboken Bank, etc. v. Sclnvoon. 348. Hodnett, In re, 11, 14, 71, 192, 195. Kohokus V. Erie R. R.. 42. 48, 71. 438, 487. 488, 498. Hoit V. Koit. 82, 22,},. Holcomb V. Coryell, 207, 311. 313, 314- 315. 388, 603, 608. Holcombe v. Holcombe, 184, 388, 389, 393. 403. 40s. 409. 414. 415. 420, 450, 451, 454, 455. 554. y^-j, 664, 682, 689. Hollinger v. Syms, 113, 235. Holmes v. McPheeters, 734. Honnass, In re, 2,2"^. Hopkins v. Meir, 480. Horner v. Web.ster, 524, 525. Hosack V. Rogers, 545. House V. Ev^ren, 430. Houston V. Levy, 465, 479, 631. Howard, In re, 115, 117, 164, 165. Howard v. Francis, 37^, 424, 426, 558. Howard v. Howard, 314, 728. Howell V. Howell, 569. Howell V. Potts. 586, 587, 590. Howell V. Schenck, 343. Howell V. Sebring, 513. Howell V. Taylor, 106, 152, 161. Howell V. Teel, 535. Howland v. Heckscher, "j^^t- Hoyt V. Newbold, 195. Hubljard V. Hubbard, 174. Hughes V. Murtha, 156. Humphrey, In re. 108, 152, i()i. 797. Hunt V. Hunt, 119. Hunt V. Maybcrry, 43. 358, "jyz. Hunt V. Smith, 294, 364, 405, 550. 573. 617, 627, 637, 638. Hurlbut V. Hutton, 376, 408. 40<;, 552, 640, 664. 1372 Probate Law and Practice. Huston V. Cassedy, 450. Huston V. Cassidy. 404, 441, 454- 668. Huston V. Reed, 339. Huston V. Roe, 668. Hutchinson v. Newbold, 471, 585. Hutton V. Hutton, 147. Hyer v. Morehouse, 652, 658, 659. 660. Hynes' Case, Mary, T], 79, 88. Incandescent Light & C. Co. v. Ivory v. Klein. 554, 556. Stevenson, 459. Jackson v. Jackson, 397. Jackson v. Reynolds, 656, 657, 658. Jackson v. Todd, 760. Jacobus V. Jacobus, 353, 354, 405. Jacobus V. Munn, 685, 693, 694. Jacques v. Ennis, 495, 509. Jeffrey v. Towar, 396. Jeffs v. Wood, 7ZZ, 734- Jenkins v. Guarantee Trust, etc., Co., 98, 255, 721. Jessop V. Watson, 699. Johns V. Norris, 456. Johnson, In re, 797. Johnson's Case, 99, 107, 162, 167. Johnson v. Cummins, 265. Johnson v. Eicke, 393, 652. Johnson v. Hubbell, 524. Johnson v. Lawrence, 685. Johnston v. Morrow, 533. Johnston v. Smith, 254. Jonas V. Hunt, 554, 557- Jones V. Davenport, 467, 468, 525. Jones V. Haines, 626. Jones V. Jones, 350. Joralemon v. Van Riper, 442, 443. Jordan v. Logue, 663. Judson V. Gibbons, 2T2. K Kahl V. Schober, 115, 137. Kaminer v. Hope, 288. Kayhart v. Whitehead, 80, 89, 90, 232, 233. Kearney v. Kearney, 557, 558. Kearns v. Kearns, 548. Keeler v. Keeler, 407. Keene v. Munn, 427, 545, 546. Keeney v. Henning, 632, 641, 656, 657, 692, 766, 768. Keep V. Miller, 355. Kelly's Estate, In re, 175. Kenney v. Tucker, 735. Kent v. Pickering, 543. Ker v. Banta, 444. Kern v. Kern, iii, 119. Kershaw v. Kershaw, 735. Ketcham, In re, 644. Keyser v. Kelly, 624. King V. Berry, 392, 393, 395, 396, 404, 406, 626, 631, 632. King V. Foerster, 417, 672, 673, 674. King V. Rockhill, 536, 589, 594. King V. Ruckman, 355. Kingsland v. Scudder, yi^^, 4o6, 408, 409, 674, 688, 696. Kinna v. Smith, 343. Kinnan v. Wight, 520, 543, 544, 552, 560. Kinney v. Emery, 199. Kip V. Van Cortland, 174. Kirby v. Coles, 370, 669, 670. Kirkpatrick, In re, 141, 178, 179, 184, 185, 260, 2^2,. Kise V. Heath, 108, 120, 152, 162. Kitchell V. Beach, 169, 171, 229, 230. Table of Cases Cited. 1373 Knapp's Will. In re, 175. Knikel v. Spitz, 49. Knox V. Newman, 148. Knox V. Nobel, 267. Koch V. Feick. 572. 597, 662. Koegel V. Egner. 111, 117. 159. 166. Kohler v. Knapp, 254. Krueger v. Ferry, 546. Lacey v. Dobbs, 130, 133. I34. I35. 140. La Foy v. La Foy. 339, 734. Laible v. Ferry, 372, 373, 374. Laing, In re, 128. Lake v. Park, 395. Lake v. Weaver, 424. Lane, Matter of, 707. Langstroth v. Golding, 482, 486, 549- Lanning v. Sisters of St. Francis, 295, 297, 443. Laroe v. Douglass, 418, 420. Lathrop v. Smalley, 394, 398. 601, 602. 603, 604, 608, 675, 693. Lavaggi V. Borella, 145, 431. Lawson v. Acton, 43, 48, 470, 499, 513- Leddel v. Starr, 606, 607. Lee's Case, 107, 117, 123, 324, 327, 330. 331- Lee V. Scudder. 112. 113. Lehigh Valley R. R. Co. v. Mc- Farland, 53, 231. Lent V. Howard, 376, 410. Leonard's Will, In re, 199, 202. Lett V. Emmett, 603. Lewis' Appeal, 703. Lewis' Case, In re, 108, 114, 376, 627. Lewis V. Champion, 569, 591, 592. Lewis V. Lundy, 702. Liddel V. McVickar, 406, 478, 485, 488, 499, 542, 639, 652, 656, 657- Light's Estate, 734. Lindley v. O'Reilly, 98, 103. 212, 215. 351. 431- Lindsley v. Dodd, 403. Lindsley v. Personette, 295. Linell V. Linell, 704. Lippincott's Case, 44, 662. Lippincott V. Bechtold, 456. 632, 648. Lippincott V. Lippincott. 430. 431. 434- Lippincott V. Stokes, 679. Lippincott v. WikofF, 136, 137, 268, 437- Lister V. Weeks, 603, 608. Livingston's Will, In re, 107. Lloyd V. Rowe, 715. Lockyer v. De Hart, 457. Long V. Hewitt, 797. Lothrop's Case, 13, 284, 285. Loudenslager V.Woodbury Heights Land Co.. 399. Louderbough v. Weart, 431, 434- Lowe V. Williamson, 114, 122. 156, 157. Ludlow V. Ludlow, 43, 89, 125, 130, 131, 133. 421. 422. Luppie V. Winans, 751, 754- Luse V. Rarick, 674. Lutjen V. Lutjen, 187, 626. Lynch V. Clements, 121, 149. 150, 151, 153. 156. Lyon V. Bird, 408, 684. 686. Lyon V. Church of the Rcdtomcr, 355- Lyons v. Van Riper, 107, 138. 139. 1374 Probate Law and Practice. M McCabe, Matter of, i8i, 182. McCarthy v. McCarthy, 212, 353. McCloskey v. Bowden, 630, 672. McCoon V. Allen, 107, 116, 156. McCormick, In re Estate of, 797. McCormick, Ex parte, 145. McCormick v. Stephany, 343. McCoy V. Jordan, 118. McCnlloch V. Tomkins, 669, 693. McCullough V. Forrest, 346. McCullough V. McCullough, 386. McCully V. Lum, 639, 640. McCurdy v. Neall, 93, 141, 142, 176. McDonald v. Hutton, 471, 513. McDonald v. O'Connell, 618. McDonnell, Ex parte, 145. McElwaine's Will, In re, 125, 127, 128, 129. McGee v. Ford, 734. McGill V. O'Connell, 342. Mclntyre v. Mclntyre, 182. McKeen v. Oliphant, 541. McKenzie v. Minard, 78, 89. McKinley v. Coe, 458. McKnight v. Walsh, 392, 396, 398, 403, 550, 551, 676, 677, 678, 691, 692, 693, 766. McLaughlin's Case, Catherine, 138, 158. McLaughlin's Will, In re, 188, 225. McLaughlin v. McLaughlin, 494, 495- McLenahan v. McLenahan, 546. McMahon v. Schoonmaker, 463. McPherson, In re, 226. McRae v. McRae, 702. McSpirit, In re Estate of James, 363. McWhorter v. Benson, 376. Mackey v. Mackey, 97, 188. Mackin v. Mackin, 188, 225. Macknet v. Macknet, 628, 745, 767. Macy V. Mercantile Trust Co., 386, 621, 637, 648. Maddock v. Astbury, 355. Magee v. Bradley, 626. Magnus v. Magnus, 100. Mahnken's Case, 791. Male's Case, 237, 238, 240, 241. Male V. Williams, 392. Mallett V. Bamber, 233, 234. Mallory v. Craige, 461, 634. Mandeville v. Parker, 133, 134. Manley, In re Cioods of, 146. Manners' Case, 132, 141, 142. Manners v. Manners, 129. Manns v. A. E. Sanford Co., 371, 540. Marcy, In re Samuel, 397, 696. Marr v. Marr, 453, 454. Marsh's Estate, In re, 285. Marsh's Will, In re, 603, 604. Marsh v. Love, 440. Marsh v. Marsh, 682, 683. Marsh v. Oliver, 421. Marshall v. Carson, 456. Martin v. Cullen, 486, 548. Mathis V. Mathis, 394, 397. !Mathis V. Sears, 250. Mathis V. Stevenson, 537, 563. Matthews v. Hoagland, 421, 631. Maxwell's Case, 137. Maxwell, In re, 197, 204, 206, 207, 271, 272. Maxwell v. McCreery, 617,. 627, 634. Meakings v. Cromwell, 432. Meeker v. Arrowsmith, "JZT. Meeker v. Vanderveer, 371, 540. Meis V. Meis, 727. Melick V. Voorhees, 404, 440. Merchant's Case, In re, 342, 343, 374- 679. Merchants' & Miners' Transporta- tion Co. V. Borland, 468. Merill v. New. England Life Ins. Co.. 254. Merrill v. Rush, 108, iii. Merritt v. Jordan, 664. Merritt v. Merritt, 388, 724. Table of Cases Cited. 1375 Merselis v. ^[erselis, 416. 628, 631. 632, 650. Metcalfe v. Colics. 341. 678. 683. 684, 701. Meyer's Case, 232. Meyer v. Madreperla, 195. Meyers v. Weger, 466. Mickle V. Matlack, 143, 202. Middleditch v. Williams, iti, 112. 118. 120, 121, 171, 198. Middlesex v. New Brunswick, 533. Middleton's Case, 152, 158. Middleton v. Carter, 277. 544, 689. Middleton v. Middleton, 421, 478. 521, 540. 671. Middleton v. Stewart. 105. Miles' Appeal, 180. Miller's Appeal. 701. Miller v. Harrison, 570. Miller v. Henderson, 338. 343. Miller v. Miller. 355, 429. Miller v. Pettit, 478, 594. Mink V. Walker, 291. Molten V. Sutphin, 440. Monroe v. Osborne, 381, 383, 384. 400. Montgomery v. Bruere, 343. Montgomery v. Dunning, 364. Moore's Case, 102, 183, 184. Moore v. Blauvelt, 149, 150, 152, 157. 173- Moore v. Robhins, 351. Moore v. Zabriskie, 695. Moores v. Moores, 350, 356, 439. Morgan, Matter of. 701. Morgan v. Dodge, 68. Morgan v. Morgan, 516, 694. Morris' Case, 90, 653, 659, 693, 604. Morris v. Dorsey. 431. 467, 484. Morris v. Morris. 610. 763. ^forrisse v. Inglis, 510, 511. Morse v. Hackensack Savings Bank. 350. 356, 439. 438. Morton's Case, 93. 553. Moss V. Bardswell, 147. Mott, In re, 91, 395, 674. Mott V. Mott, 119. Mount V. Slack. 82. 675. 690, 691. Mount V. Van Ness, 83, 394, 546. Mulcabv, Matter of Dennis, 284, 287. Muldoon V. Moore. 463. 467. Mulford V. Bowen, 450. 453. Mulford V. Hiers, 494, 495. Mulford V. Minch, 456. Mulford V. Alulford, 148, 343, 362, 367, 370. 401. 406, 554. 710. Mullaney v. Mullaney. 43. Muller V. Muller, 421. Mundy v. Mundy, 94. 131. 135, 141, 142, 143, 178. 179, 202. Munn, Estate of. 410. Munn V. Marsh, 468. Munn V. Munn. 92. Murch V. Smith Mfg. Co.. 553, 554. 557- Murray v. Blatchford. 416. Murray v. Lynch, 43, 45, 46, 69, 192, 196, 198, 200. 210. 610. Mutual Benefit Life Ins. Co. v. Howell 562. 568. Mutual Insurance Co. v. Hopper. 465. Mutual Life Ins. Co. v. v^turges. 412, 415- Myers' Case, 43. 153, 189, 199. 223. •Myers v. Daviess. 146. .Myers v. Myers, 173. N Naar v. Naar, 432. Napier, Goods of, 68. Naundorf v. Schumann, 442, 443. NeflF, Appeal of, 175. Nelson v. Krricksoii, 634. Nelson v. Nelson, 105, 424. 711. Nelson V. I'dtter, 98, 103, 212, 215, 216, 220, 221, 721. Nevius V. Disl)orougii, ~,7j,. New V. New, 734. Newark Lime & Cement Mfg. Co. V. Harrington. 464. 466. 1 1376 Probate Law and Practice. Newbold v. Fenimore, 561, 567. New England Mutual Life Ins. Co. V. Woodworth, 255. New Jersey Insurance Co. v. Meeker, 464. N. J. Title Guaranty & Trust Co.. In re, 687. New Jersey Trust, etc., Co., In re, 370, 657- 661. Newman v. Warner, 606. Nicklas v. Parker, 346, 349. Nicol V. Askew, 68. Noell V. Wells, 68. Nolan, In re Martin, 225. Normand v. Grognard, 250, 255, 256, 310, 349, 618, 628, 721. Northampton County Savings Bank, In re, 327, 330. Oberly v. Lerch. 353- 354. 355, 5i8, 765. Obert V. Hammel. 42, 48, 70. 71, 450, 473- Obert V. Obert, 450, 453- 454. 455- O'Brien v. Dwyer, 103, 107, 109. O'Callaghan, Appeal of, 44. O'Callaghan's Case, 57 1. 573. 662. Ocean View, etc., Co. v. West Jersey Title Co., 447- O'Donnell v. McCann, 543, 544- 566, 576, 581. li^^- Ogier's Estate, In re, 148. Ogilvie V. Hamilton, 68. O'Hanlin v. Van Kleeck. 471. 487. O'Neil V. Cleveland, 412. O'Neil V. Freeman, 579. Ordinary v. Barcalow, Z^Z, 326. 330, 423, 722,. Ordinary v. Connolly, 309, 33 L 410. Ordinary v. Cooley, 308, 309, 324. 504- Ordinary v. Dean, 2^2, 657, 758, 760. Ordinary v. Fowler, 329. Ordinary v. Heishon, 308, 315, 316, 326. Ordinary v. Kershaw. 323, 332, 341, 648. Ordinary v. Poulson, 328, 330. Ordinary v. Smith, 308, 319, 325, 731. Ordinary v. Snook, 330. 331. Ordinary v. Thatcher, 315, 319. Ordinary v. White, 325. Ordinary v. Wolfson, 323, 324. Osborn v. Allen, 195. Osborn v. Rogers, 94. Osborne v. Tunis, 343. Ott V. Tewksbury, ']2']. Otterson v. Hofford, 124, 144, 220, 221. Outcalt V. Appleby, 554. 557- Outwater v. Benson, 634. Palmer v. Casperson. 509, 516. Palmer v. Culbertson, 701. Pancoast v. Graham, 115, 123. 197, 198. Parker v. Allen, 505. Parker v. Combs, 570. Parker v. Copland, 346. Parker v. Glover, 380, 381. Parker v. Johnson, 375. Parker v. Reynolds, 479, 502. Parker v. Seeley, 351, 431. Parker v. Stevens, 618. Parr's Goods, 181. Parret v. Van Winkle, 459. Parsons v. Parsons, 702. Partridge v. Havens, 703. Partridge v. Partridge, 48, 478. Patton V. Hope, 137, 138, 141. Paul V. Wilson, 372, yji- Peck V. Cary, 115. Table of Cases Cited. Pedrick v. Pedrick, 299. Peer v. Peer, 703. Pemberton's Case, 78, 171. Penniman, In re, 181. Pennington v. Fowler, 735. People V. Miner, 415. Perrine v. Applegate, 94. 233, 234. -^35- Perrine v. Petty. 312, 313, 358, 382, 384, 385. 398. Perrine v. Vreeland, 382. Person's Appeal, 702. Personette v. Johnson, 90, 91, 93, 376, 408. 471. 485, 677- Personette v. Personette. 525, 543. 544. Petrie v. Voorhees. 340, 559. Petty V. Young, 421. Pew V. Hastings, 68. PfeffeHe v. Herr, 311. 313, 314. 601. 602, 603, 762, 772. Phelan's Estate, In re, 99, 128. Phelps V. Robbins, 100. Phillips, In re John. 610. Pickel V. Alpaugh, 363. Picquet, Appeal of, 254. Pierce v. Pierce, 160. Piersol v. Roop. 434, 435. Pierson v. Garrison, 530, 531. Pierson v. Phillips, 573. Pinney v. McGregory, 254, 253. Pisano v. Shanley Co., 250, 255, 256. Pitcher, In re, 478. Pitney v. Everson, 377, 685. Pittenger v. Pittenger, 48, 489. Plume V. Howard Savings Insti- tution, 42, 48, 71, 195. Podesta v. Binns, 42. 505. Podesta v. Moody. 90. Polhemus v. Middletnn. 407. 408. 426. Polhemus v. Princilla. 512. Polhemus v. Priscilla, 512. Polis V. Tice, 674, 692. Pollard V. Barkley, 410. Pomeroy v. Mills, 648, 677. 678. 682, 683. 691, 696. Porch V. Agnew, 511. Porch V. Fries, 759. Porter. In re, 555. Porter v. Trail. 212. 256. Porter v. Woodruff, 382, 383. Post V. Stevens, 410, 694. Post V. Van Houten. 728. Potter V. Adriance, 430. 431. Potter V. Berry, 43. Poulson V. National B.ink. 661. 663. Pratt V. Boody, 465. Pratt V. Douglas, 554. 557. 721. Pratt V. Morrell, 434, 435. Pratt V. Rice, 414. Price V. Price, 314, 607. Prickett v. Prickett, 523. Prince v. Hazleton, 239. Probasco v. Creveling, 350, 356. Proprietors of Eastern N e w Jersey v. Force, 417, 454. Prosser v. Wagner, 68. Proud V. Turner, 702. Pursel V. Pursel, 360, 326. 529, 332. 669, 671, 672. Pyatt V. Pyatt, 4^. 43. "•. 3/6. 406, 408, 617, 620, 621, 622, 628, 629, 661, 662, 669, 768, 769. Quarles v. Quarles, 702, 733. Queen, In re, 45, 46, 36, 38, 71, 94, 197, 251, 610. Quick V. Fisher, 371, 386. Quiilort V. Pcrgcaux, 36. 71, 188, 252. Quimby's Estate, In re, 273, 293, 295. 322. 1378 Probate Law and Practice. R Ramsay v. Voorhees. 467. Ramsdell v. Streeter. 150. 159. Ramsey's Estate, In re. 408, 418, 558, 664, 674. Randall v. Beatty, 183, 184. Randall v. Gray, 689. Ransom v. Brinkerhoff, 322. 463, 467. Ransom v. Geer, 421. Rattoon v. Overacker, 543. Rawlinson v. Shaw, 421. Read v. Drake, 86, 90. 95, 751, 758. Read v. Patterson, 550. Reading v. Wilson, 759. Receivers v. Paterson Gas Light Co., 592. Reddish v. Miller, 429. Reed v. Harris, 179. Reeve's Goods, 182. Reeve v. Townsend. 47, 91. Reeves v. Hannan, 343. Reeves v. Townsend, 587, 597. Richards v. Moore, 146. Rickenbacker v. Zimmerman, 701. Rickey v. Davis, 735. Ridgway v. English, 523. Riker's Estate, In re, 667. Rinehart v. Rinehart. 260, 265, 266, 421. Rix V. Smith, 68. Robbins v. Mylin. 735. Robbins v. Robbins, 131. 136. Roberts v. Wills, 344. Robertson v. McGeoch, 272. Robeson v. Duncan, 348. Robins v. Arnold, 562. Robinson v. Robinson, 254. Robinson v. Furman, 53, 474, 478, 479. 484, 487. Roesel v. State, 11. Rogers, In re. 309. Rogers v. Gennng, 558. Rogers v. Hand, 340. 341, 371, 540, 684. Rogers v. Traphagen, 549, 551. Rolfe V. Van Sickle, 440. Romaine v. Hendrickson. 350, 450. Rose V. Clark, 707. Ross' Case, 742. Ross V. Ross, 806. Roy V. Monroe, 350, 351. Roy V. Segrist, 68. Ruch V. Biery. 701. Runkle, In re, 174, 175. 176, 181. Runkle v. Gale, 95, 653. Runyon, in re Estate of, 264. Runyon v. Newark India Rubber Co.. 450. 451, 454. 489. 498, 513- Rusling v. Rusling, 89, 90, 91, 107, 118, 166. 171, 230, 340, 525. Russell's Case 43. 45- 251. 254. 74^- Rutherford v. Alyea, 326. 467, 468. 546, 583, 634. Rutherford Land Co. v. Sann- trock. 437. Ryan v. Dodds, 436. Ryan v. Flanagan. 559. 563, 565. 566, 567. Ryan v. Von Arx. 529. Ryan v. Wilson. 511. Ryder, In re Goods of, 147. Ryder v. Wilson. 565. 566. 567, 577- Ryerson, In re. 727. 728. Ryerson v. Ryerson. 413. Ryno v. Ryno. 56. 71, 73. St. Mary's Church v. Wallace. 465- Salaun v. Hartshorne, 459, 460, 463. Salisbury v. Colt. 392, 393, 398. Saltar v. Saltar. 527. Salter v. Ely, 154. 162. Salter v. Williamson. 631. 634. Sanders v. Blain. 413. Sanderson's Case, 707. Table of Casks Citkd. 1 .^7* ) Sanderson v. Sanderson, 114. 149, 152, 230, 2i3. Sandmann's Will. In re. 134. 141. 142. Satterthwaite's Estate. 294. 298. Saunders, In re Goods of, 145. Sayre, In re Will of James R., Jr., 75- Sayre v. Sayre, 90, 91. 260, 265. 702, 717, 718, 719, 720, 721. 731. Sbarbero v. Miller, 119. Schanck v. Schanck. 600, 607. Scharer v. Schmidt, 191. Schenck v. Schenck, 208, 294. 295, 418, 649. Schenck v. Vail, 708. Schick V. Grote, 346, 674. Schippers v. Kemphes. 346. Schlicher v. Keeler, 347. Schmitt V. Willis, 492. Schrafft v. \Volters, 338. Schuchhardt v. Schuchhardt. 94, 150, 152, 161. 162, 230. Schulting V. Schulting. 553. Schwalber v. Ehman. 158. Schweitzer v. Bonn, 402, 655. Scott V. Carter, 216. Scott V. Gamble. 450, 451, 453. 455- Scudder v. Stout, 439. Scudder v. Trenton Savings Fund Society, 349. Scudder v. Vanarsdale, 350, 705. 711. Seaman, In re, 160. Seaman v. Riggins, 510. Search v. Search, 48, 632, 634. 648, 65s, 718. Sebring's Will, In re, 234. Second National Bank v. Blauvelt, 529. 530. Secor V. Sentis, 676. Seeger v. Seeger, 431, 434. Seymour v. Goodwin, 48, 538, 561, 566, 567. Shailer v. Bumstead, 118, 160. Sharp's Estate, In re, 370. Shaver v. Shaver, 249, 339. Shaw V. Berry, 41O. Shaw V. Camp, 174. Shearman v. Cameron. 48. 400. 4-'6, 555, 634, (36j. Shearer v. Weaver. 797. Shedaker's Case, 93, 706. Shelton v. Homer, 414. Shepherd v. Hedden. 450. 454. Shepherd v. Newkirk, 316, 321, 390. Sherman v. Lanier, 43, 382, 383, 385, 400, 600, 667, 672. Sherrerd v. Trimmer. 633. Shotwell v. Dalrymple, 495. Shreve v. Joyce, 414, 416, 527. Shreve v. Shreve. 458. 545. 549. Shreve v. Wampole, 601. Sickles' Case, 151. 157. 166. 178. 181. Simons v. Forster, 537, 563. Simpson v. Bockius, 459, 467. Simpson v. Simpson, 702. Sinovcic In re Estate of Wicko, 79, 260, 261, 263, 266, 270. Sip V. Lawback, 509. Skellenger v. Skellenger, 710, 711. Skillman v. Lanehart, 93. 168, 233. Skillman v. Van Pelt, 463. 484. 516. Skillman v. Wiegand. 346. Skinner v. Wynne. 702. Slack V. Emery, 545. Slack V. Perrinc. 745. 746. Sloan V. Maxwell. 106. 107. 116. 122. 123. Slocum V. Grandin, 197, 199. Small V. Small, 160. Smalley v. Smalley, 351, 433- Smith, In re (n)0f Ida S.. 749- Smith V. Abbott, 445, 5(m), 5<). 394- Williamson v. Johnson, 450. Williamson v. Lippincott, 325. Williamson v. Updike, 308. 329. Willis V. Clymer, 670, 671. Willitt's Estate, In re, 184. Wilmerding v. McKesson. 385. Wilson's Case. 331. 766. Wilson V. Cobb, 397. Wilson V. Curtis. 147. Wilson V. Fisher. 737. Wilson V. Fritts. 187. Wilson V. Moran. 160. W'ilson V. Staats. 403. 531. 532. 687. 691, 695. Windmuller v. Spirits Distribut- ing Co.. 396, 398. Winans v. Brookfield. 450. Winans v. Luppie, 798. 799. Winants v. Terhunc. 351. 352. 457, 545- Winchell v. Sanger, 536. Wintermute, In re, 103. 114. 120, 233, 235- Wisham v. Lippincott. 535. Wolf V. Bollinger, 182. Wolfe's Case, 376. 408, 682. 683. Wolffe V. Loeb. 145. Wood V. Chetwnod, j()H, 525. O28, 65s. 767. Wood V. Hopkins, 529. Wood V. I.embckc, 432. 1384 Probate Law and Practice. Wood V. Tallman. 42. 43, 341. Wood V. Wood. 798, 799. Woodruff V. Lounsberry. 384^ 385. 677, 687. Woodruff V. Mutschler, 343. W'oodruff V. Snoover. 267. 283. 751. 752. Woodruff V. Ward, 387, 390. Woods, In re Goods of, 146. Woodward, Appeal of, 797, 806. Woodward v. Lord Darcy, 421. Woolley V. Pemberton, 268, 289, 533- Woolsey's Case, 534. 661. Woolsey v. Woolsey, 48, 661, 662, 7-20, ■/2,2. Wortman v. Skinner, 450, 453. 512, 517. Wright V. Flynn, 92. Wright V. Hartshorne, 457. Wright V. Smith, 450. Wright V. Wright, 453- Wurts V. Page, 350, 351. Wyckoff V. O'Neil, 393, 406, 409. 553. 675. Wvckoff V. O'Niel, 634. 720, 12^, 738. Wyckoff' V. W'yckoft', 244, 246, 399. Yard v. Larison, 299. Yarnall's Will, 239. Yauger v. Skinner. 119. Yeomans v. Petty, 526. Youmans v. Petty, 228, 230. Youmans v. Youmans. 339, 458. 634- Young's Case, 42, 78, 79. 199, 201, 210, 223. Young V. Schelly, 417, 418. 624, 626. Young V. Young, 82. 526, 570. Zabriskie v. M. & E. R. R. Co., 295- Zabriskie v. W'etmore. 48, 296, 297. 443- Zelozoskei v. Mason, 152, 154, 163. TABLE OF SECTIONS OF ORPHANS' COURT ACT CITED. Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect Sect on I, 3 Comp. Stat., 3813. 32. on 2, 3 Comp. Stat., 3813. 42. 243. 363, 620. on 3. 3 Comp. Stat., 3814. 731. on 4, 3 Comp. Stat., 3815. 20. on 5, 3 Comp. Stat., 3815. 20. on 6, 3 Comp. Stat., 3815. 19. on 7, 3 Comp. Stat., 3815. 3(3. on 8. 3 Comp. Stat., 3815. 36. on 9, 3 Comp. Stat., 3815, as amended. 36. on 9a, 3 Comp. Stat., 3815. 37, 666. on 9b, 3 Comp. Stat., 3816. 37, 666. on 9c, 3 Comp. Stat., 3816. 37, 666. on 10, 3 Comp. Stat., 3816. 38. on II, 3 Comp. Stat., 3816. 38. on 12, 3 Comp. Stat., 3816. 38. on 13, 3 Comp. Stat., 3816. 196, 200, 202. on 14, 3 Comp. Stat., 3817. 56, 201. on 15, 3 Comp. Stat., 3817. 13, 201. on 16, 3 Comp. Stat., 3818, as amended by P. h. 1913, p. 102. 203. on 18, 3 Comp. Stat., 3818. 227, 228, 229. on 19, 3 Comp. Stat., 3819. 227, 229. on 20, 3 Comp. Stat., 3819. 4. on 21, 3 Comp. Stat., 3819. 221. on 22, 3 Comp. Stat., 3819, as amended. 226. on 23, 3 Comp. Stat., 3820. 212, 363, 444. on 24, 3 Comp. Stat., 3821, as amended by P. L. 1915, p. 005. 21J, 214, 216, 445. Section 25, 3 Comp. Stat., 3821. 216, 217. Section 26, 3 Comp. Stat., 3822. 252, 253. 291. Section 27, 3 Comp. Stat., 3822, as amended by P. I,. 1914, p. 69, Sec. i. 189, 262, 264, 270. Section 28, 3 Comp. Stat., 3823. 260. Section 29, 3 Comp. Stat., 3^23. 251, 253. Section 30, 3 Comp. Stat., 3823, as amended 1)v P. I,. 191 1. j). ^39. Sec. i. 280. Section 31, 3 Comp. Stat., 3824. 281. Section 32, 3 Comp. Stat., 3824. 282. Section 34, 3 Comp. Stat., 3825. 275. Section 36, 3 Comp. Stat., 3825. 45, 741. Section 37, 3 Comp. Stat., 3826. 747, 748, 749. 750. 7S^. 755- Section 38, 3 Comp. Stat., 3826. 747. Section 39, 3 Comp. Stat., 3826. 756. Section 40, 3 Comp. Stat., 3827. 741, 754, 762. Section 41, 3 Comp. Stat., 3827. 748. Section 42, 3 Comp. Stat., 3827. 754. Section 43, 3 Comp. Stat., 3827. 757. Section 46, 3 Comp. Stat., 3828. 306, 307. 308. 309. Section 47, 3 Comp. Stat., 3829. 283, 310. T3«5 1386 Probatk Law and Practice. Section Section Section Section Section 320. Section Section 320. Section Section 320. Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section vSection Section Section vSection Section Section Section Section Section Section Section vSection Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 57 58 59: 60 61 62 63 64 65 66, 67 68 69 70 71 72 7i 74 75 76 77 78 79 80, 81 82 83 83a 84. 85 86 87 88 88a, 89. 90 91 92 93 94 95 96. 97 97a. 99 3 Comp. Stat., 3829. 308. 3 Comp. Stat., 3829. 315, 316, 317. 3 Comp. Stat., 3829. 315, 746, 747. 3 Comp. Stat., 3829. 206, 311. 3 Comp. Stat., 3829, as amended by P. L. 1915, p. 40. 319, 3 Comp. Stat., 3830. 319. 3 Comp. Stat., 3830, as amended by P. L. 1915, p. 40. 319, 3 Comp. Stat., 3830. 320. 3 Comp. Stat., 3830, as amended by P. L. 1915. p. 40. 31-9, 3 Comp. Stat., 3 Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., Comp. vStat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat 3 Comp. Stat., a, 3 Comp. Stat. 3 Comp. Stat., 100, 3 Comp. Stat. Id, 3 Comp. Stat. 3830. 3830. 3831. 3831. 3831. 3832. 3832. 3832. 3832. 3833. 3833- 3834. 3834. 3835. 3835- 3836. 3836. 3836. 3837. 3837. 3836. 3837. 3838. 3838. 3838. 3840. 3841. . 3842. 3842. 3842. 3843- 3843. 3843. , 3843 3844- 3844- 3844. 3845. 3845. 3845- 3846. 3847. 3847. . 3847 3848. 360. 360, 362, 363, 604. 361. 366, 368. 366. 361. 368. 365. 604. 365. 695- 528, 539- 529. 559. 585. 560. 563. 565. 577. 536. 578. 736. 578. 736. 579. 736. 566. 624, 736. 579. as amended by P. L. 1912, p. 276. 581. 580. 582. 663. 459- 470, 474- 477. 479- 473, 478, 483, 540. 3848. . 3848. . 3850. 480, 481. 509. 480, 481, 597. 500. 501. 501. 475. 483- 476. 502, 503. 480. 481. 513, 514, 597. 514. 515- 489. 517, 519. 519. 472. 490. 504. 495. 584. 584, 585. 586, 587. Table of Skctioxs of Oki'iians' Coukt Act Cited. 1387 Section 102, 3 Comp. Stat., 3850. 593. Section 103. 3 Comp. Stat., 3850. 593. Section 104, 3 Comp. Stat., 3850. 593, 594, 595. Section 105, 3 Comp. Stat.. 3850. 595. Section 106. 3 Comp. Stat.. 3851. 586. Section 107. 3 Comp. Stat., 3851. 596. Section 108, 3 Comp. Stat., 3851. 597. Section 109. 3 Comp. Stat., 3851. 585. Section no, 3 Comp. Stat., 3852. 598. Section in, 3 Comp. Stat., 3852. 599. Section 112. 3 Comp. Stat., 3852. 589, 591. Section 113, 3 Comp. Stat., 3852. 597. Section 114, 3 Comp. Stat., 3852. 605, 616, 622, 626. Section 115, 3 Comp. Stat., 3853. 616, 622. 641. Section 116, 3 Comp. Stat., 3853, as amended. 622, 625. 626. 629. Section 117, 3 Comp. Stat., 3854, as amended. 623. 630, 631, 695. Section 118. 3 Comp. Stat., 3854. 618. 625. Section 119. 3 Comp. Stat., 3855. 619, 627. Section 120. 3 Comp. Stat.. 3855. 363, 620, 627. Section 121, 3 Comp. Stat., 3855, as amended. 642. Section 122. 3 Comp. Stat., 3855, as amended by P. 1,. 1915, j). 715. O45, 646. 647. Section 123, 3 Comp. Stat., 3856, as amended. 645. Section 124. 3 Comp. Stat., 3856, as amended. 641. 645, 649, 650, 651, 656. Section 125, 3 Comp. Stat.. 3856, as amended. 643, 647, 650. 651. 670. Section 126, 3 Comp. Stat., 3857. as amended. 37, 650, 651. 660. 666. Section 127, 3 Comp. Stat., 3857. 64;*, 652. 655. Section 127a, 3 Comp. Stat., 3859. 726. Section 127b, 3 Comp. Stat., 3859. 617. Section 128, 3 Comp. Stat., 3859. 681. Section 129, 3 Comp. Stat., 3860. 676, 677, 679, 680, 681, 683. Section 130, 3 Comp. Stat., 3860, as amended, 687. Section 131, 3 Comp. Stat.. 3861. 681. Section 132. 3 Comp. Stat., 3861. 676. Section 133, 3 Comp. Stat., 3861. 689, 690. Section 134. 3 Comp. Stat., 3861. 695. Section 135, 3 Comp. Stat., 3862. 296, 299. Section 136, 3 Comp. Slat., 3863. 390, 392, 396. Section 137, 3 Comp. Stat., 3864, as amended. 379, 390. Section 138. 3 Comp. Stat., 3865. 422. Section 139, 3 Comp. Stat., 3865. 357. Section 139a, 3 Comp. Stat., 3866. 44, 359. Section 140, 3 Comp. Stat., 3866. 207, 312. Section 141, 3 Comp. Stat., 3866. 321. Section 142. 3 Comp. Stat., 3866. 268, 317, 318. Section 143, 3 Comp. Stat.. 3867. :i33, 625. Section 144, 3 Comp. Stat., 3867. 334. Section 145, 3 Comp. Stat., 38^)7. 335. Section 146, 3 Comp. Stat., 386K. 613. Section 147, 3 Comp. Stat.. 38^)8. 613. Section 148, 3 Comp. Stat., 3868. 614. Section 149, 3 Comp.' Stat., 3868. 363, 600, 601. Section 150, 3 Comp. Stat., 3869. 605, 606. Section 151, 3 Comp. Stat., 3869. 298, 611. Section 152, 3 Comp. Stat., 3870. 608, (^k). 619. Section 153, 3 Comp. Stat., 3870. 609, 612. Section 154. 3 Comp. Stat., 3870. as' amended. 428. Section 155, 3 Comp, Stat., 3871, as amended by P. L. IQ15. p. 41. 42<). Section 155a, 3 Comp. Stat.. 3871- 4.3f>- Section 156, 3 Comp. Stat., 3872. 58, 221. 1388 Probate Law and Practice. Section 157, 3 Comp. Stat., 3872. Section 158, 3 Comp. Stat., 3872. Section 159, 3 Comp. Stat., 3872. Section 160, 3 Comp. Stat., 3872. Section 161, 3 Comp. Stat., 3873. Section 162, 3 Comp. Stat., 3873. Section 163, 3 Comp. Stat., 3873. Section 164, 3 Comp. Stat., 3873. Section 165, 3 Comp. Stat., 3873. Section 166, 3 Comp. Stat., 3873. Section 167, 3 Comp. Stat., 3873. Section 168, 3 Comp. Stat., 3874, 705, 717. 721, 724. Section 169, 3 Comp. Stat., 3874, 698, 699, 700, 704, 705, 706, 707, Section 170, 3 Comp. Stat., 3877, Section 171, 3 Comp. Stat., 3877. Section 172, 3 Comp. Stat.. 3877. Section 173, 3 Comp. Stat., 3877, 725. Section 174, 3 Comp. Stat., 3878. Section 175, 3 Comp. Stat., 3878. Section 176, 3 Comp. Stat., 3878. Section 177, 3 Comp. Stat., 3879. Section 178, 3 Comp. Stat., 3879. Section 179, 3 Comp. Stat., 3879. Section 179a, 3 Comp. Stat.. 3879 Section 180, 3 Comp. Stat., 3880. Section 181, 3 Comp. Stat., 3880, Section 182. 3 Comp. Stat., 3880. Section 183, 3 Comp. Stat., 3880. Section 184, 3 Comp. Stat.. 3880. Section 185, 3 Comp. Stat., 3880. Section 186, 3 Comp. Stat.. 3881. Section i86a, 3 Comp. Stat.. 3881 Section 186b, 3 Comp. Stat., 3881 Section i86c, 3 Comp. Stat., 3881, Section i86d, 3 Comp. Stat., 3881 vSection i86e, 3 Comp. Stat., 3881, Section i86f, 3 Comp. Stat.. 3881. Section 187, 3 Comp. Stat., 3 Section 188, 3 Comp. Stat., 3882 Section 189, 3 Comp. Stat., 3883 Section 190, 3 Comp. Stat.. 3883 Section 191, 3 Comp. Stat., 3883 Section 191a, 3 Comp. Stat., 3883 Section 191b, 3 Comp. Stat., 3883 Section 191c, 3 Comp. Stat., 3883. Section 192, 3 Comp. Stat., 3883 Section 193, 3 Comp. Stat., 3884 Section 194, 3 Comp. Stat., 3884 Section 195, 3 Comp. Stat., 3884 Section 196, 3 Comp. Stat., 3884 Section 197, 3 Comp. Stat., 3885 Section 198. 3 Comp. Stat., 3885 Section 199, 3 Comp. Stat., 3885 Section 200, 3 Comp. Stat., 3885 Section 200a, 3 Comp. Stat., 3887, Section 201, 3 Comp. Stat., 3888 Section 202, 3 Comp. Stat., 3888 Section 203, 3 Comp. Stat., 3888 Section 204, 3 Comp. Stat., 3889 57, 59- 57, 59, 219. 57. 62. 57. 59- 60. 57, 60. 716. 61. 60. 60. 62. as amended by P. L. 1914, p. 69, Sec. 2. as amended by P. L. 1914, p. 69, vSec. 3. 708, 709, 712. as amended by P. L. 1915, p. 246. 251. 698. 714. as amended l)y P. L. 1915, p. 343. 722, 39. 243- 40. 40. 223. 41. 223. 41. 39, 312, 606, 658. • '39. 47- 45. 47- 47. 227. 49, 223, 363. 365. 630. 50. 721. 50. 49- • 51. • 51. • 52. ■ 52. • 52. . 52. 326, 327. 336. 336. 336. 336. ■ 329- . 329. 330. 721, 730. 730. 3- 53- 53. 54- 53, 231, 232, 234. 62. 62. 7. 65. as amended by P. L. 1914, p. 215. 66. 74. 78. 254, 758. 74. 78. 78. 80, 696. TABLE OF STATUTES CITED. P. L. 1891, p. P. L. 1893. p. 2 Gen. Stat., P. L. 1900, p. I Comp. Stat 1 Comp. Stat 2 Comp. Stat 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat. 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat 2 Comp. Stat •251- 24. 512. 268. 589. 1435. section 38. 487. 72. section i. 85. ., 433, section 63. 460. ., 446. section 93. ., 171 1, section 21. , 171 1, section 22. ,, 1720, section 67. ., 1722. section 76. ., 1722, section "/"]. , 1723, section 80. ., 1723. section 81. , 1723, section 82. , 1723, section 83. , 1724, section 84. . 1724, section 85. , 1724, section 86. , 1724, section 89. 1724, section 90. , 1726. section 97. ,, 1726, section 98. ., 1727, section 99. ,, 1727, section 100. ., 1727. section loi. , 1730, section 108. ,. 1730, section 109. , 1730, section no. ., 1730, section in. . 1793. section 161. , 1904, section i. . 1908. section 8. ., 2045. section 2. ., 2216. 58. , 2218, section 4. , 2235, section 47, as amended l)y P. I., nj'.v !'■ U'- „ 2258. section i. 200, 372. ., 2259, section 2a. ., 2259, section 2b. , 2259, section 2c. . 2260, section 2d. , 2260, section 2e. , 2260, section 3. .. 2261, section 6. 2261, section 8. 2261, section 10. , 2262, section 12. , 2262, section I3- ,. 2263, section 14. 469. 38. i^. 228 12. 13- 3- 4 4 4 3 .-) 6 33- 33- 34- 36. 36. 34. 35- 35- 190. 195- 262. 554- ^ 225. 667. 275, 618. 619, 625. 276, 618, 619. 625. 277, 618. 619. 625. 276, 618. 619, 625. 275, 618, 619. 625. 290. 399- 208. 341. 437- 446. 442. 44''>. 447- T.^«0 I390 Pkohatic Law and Practice. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 788. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. 2 Comp. Stat., 2264, section 15. 448. Stat., 2264, section 17. 352, 425. Stat., 2265, section 19. 257, 521. Stat., 2265, section 20. 257. Stat., 2265, section 21. 257. Stat., 2266, section 23. 450. Stat., 2266, section 24. 344. Stat., 2267. section 25. 448. Stat., 2267. section 26. 430. Stat., 2267. section 2^. 430. Stat., 2267, section 28. 391. Stat., 2271, section 34. 380. Stat., 2271, section 36. 380. Stat., 2.2T2, section y]. 379. Stat., 22^2, section 38. 713. Stat., 2272, section 39. 713. Stat., 2272, section 40. 714. Stat., 2273. section 41. 449. Stat.. 2627, section i. 743. 744. Stat., 2627, section 2. 745. Stat., 2628, section 3. 762. Stat., 2628, section 4. 763. Stat., 2628. section 5. 765. Stat., 2629. section sd. 770. Stat., 2629, section 6. 791. Stat., 2630. section 7. 792. Stat., 2630. section 8. 792. Stat., 2633, section 19. 782. Stat., 2637, section Z2>- 761. Stat., 2637, section 35. 761. Stat., 2739, section i. 462. Stat., 2740, section 2. 462. Stat., 2741, section 3. 466. Stat., 2742, section 4. 462. Stat.. 2781, section i. TJZ- 774- 781, 782. Stat., 2783, section 2. 776. Stat., 2784. section 3. 776. Stat., 2785, section 3e. 774. Stat., 2785, section 3f. 774. Stat., 2786, section 3h. 775. Stat., 2787, section 4, as amended by P. L. 191 1, p. 70. 782. 786, Stat., 2788, section 5. 788. Stat., 2788, section 6. 789. Stat., 2789. section 14, as amended by P. L. 1914. p. 551. 790. Stat., 2790, section 14a. 792. Stat., 2790, section 14b. 793. Stat.. 2791, section I4d. 793. Stat., 2791, section I4e. 793. Stat., 2791, section I4f. 793. Stat.. 2791, section I4h. 793. Stat., 2792. section 14J. 793. Stat., 2792, section 14I. 782, 793. Stat., 2792, section 14m. 793. Stat., 2793, section 15. 779. Stat., 2793, section 16. 779. Stat., 2793, section 17. 780. Stat., 2793, section 18. 783. Stat.. 2793. section 19. 783, 784. Table of Statutes Cited. 1391 2 Comp. Stat., 2 Comp. Stat., 2 Comp. Stat., 2 Comp. Stat., 2 Comp. Stat., 2 Comp. Stat., 2 Comp. Stat., 2 Comp. Stat.. _ 2 Comp. Stat., 2 2 Comp. Stat., 804, 805. 2 Comp. Stat., 2 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Com]). Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 214, 216. 445. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. I. 189. 262, 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., I. 280. 3 Comp. Stat., 3824, section 31. 28 r. 3 Comp. Stat., 3824, section -^2. 282. 89 2797. section 25. 785. 2797, section 26. 786. 2798, section 27. 786. 2798, section 28. 7S5. 2798, section 30. 787. 2798, section 33. 786. 2807, section 13. 797, 798, 800. 2807, section 14. 801. 2808, section 15. 802, 803, 805. . 2808. section 16, as amended by I'. I,. 1912. p. 53. 8 ^3 2809. section 17. 806. 2852, section 46. 318. 3089, section 5. 731. 3089, section 8. 727. 3090, section 9. 727. 3167, section 9. 528. 3223, section i. 344. 3226, section 5. 318. 3235, section 9. 105. 3420, section 47. 538. 3421, section 48. 548, 564. 3813. section i. 2>^. 3813. section 2. 42, 243, 'i^^},. 620. 3814. section 3. 731. 3815, section 4. 20. 3815, section 5. 20. 3815, section 6. 19. 3815, section 7. 36. 3815, section 8. 36. 3815, section 9, as amended. 36. 3815, section 9a. n, 666. 3816, section 9I). yj, 666. 3816, section 9c. 2,7 • 666. 3816. section 10. },K 3816, section 11. 38. 3816, section 12. 38. 3816. section 13. 196, 200, 202. 3817, section 14, 56, 201. 3817. section 15. 13, 201. 3818, section 16, as amended liy P. \. 19 r3. p. 102. 203. 3818, section 18. 227, 228, 229. 3819, section 19. 227, 229. 3819, section 20. 4. 3819, section 21. 221. 3819, section 22, as amended. 226. 3820, section 23. 212, 363. 444. 3821, section 24, as amended by 1'. f,. IQI?. p. 605. 21 3821, section 25. 2 0, 217. 3822, section 26. 252, 253. 291. 3822, section 2"], as amended l)y V. I,. 1014, p. 6<>, section 264, 270. 3823, section 28. 260. 3823. section 29. 251, 253. 3823, section 30, as amended hy I'. I., ion, p. 53r). section ^393 Proiute Law and Practice. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat. 3 Comp. Stat.. 3 Comp. Stat. 3 Comp. Stat. 3 Comp. Stat 3 Comp. Stat. 3 Comp. Stat. 3 Comp. Stat. 3 Comp. Stat 3 Comp. Stat 3 Comp. Stat 3 Comp. Stat. 3 Comp. Stat 3 Comp. Stat 3 Comp. Stat 3 Comp. vStat 3 Comp. Stat 3 Comp. Stat 3 Comp. vStat 3825, sect 3825, sect 3826, sect 3826, sect 3826, sect 3827, sect 3827, sect 3827, sect 3827, sect 3828, sect 3829, sect 3829, sect 3829, sect 3829, sect 3829, sect 3829, sect 3830. sect 3830, sect 3830, sect 3830, sect 3830, sect 3830, sect 3831, sect 3831, sect 3831, sect 3832, sect 3832, sect 3832, sect 3832. sect 3833. sect 3833, sect 3834, sect 3834, sect 3835. sect 3835, sect 3836, sect 3836, sect 3836, sect 3837, sect 3837. sect 3836, sect 3837, sect 3838, sect 3838, sect , 3838, sect , 3840, sect ., 3841, sect „ 3842, sect , 3842, sect , 3842, sect ., 3843. sect ., 3843. sect ,, 3843. sect ., 3843, sect ., 3844, sect ., 3844. sect ., 3844, sect ., 3845, sect ., 3845, sect on 34. on 36. on ZT. on 38. on 39. on 40. on 41. on 42. on 43. on 46. on 47. on 48. on 49. on 50. on 51. 275- 45. 741- 747, 748, 749, 750, 753, 755. 747- 756. 741, 754. 762. 748. 754- 757- 306, 307. 308, 309. 283, 310. 315, 316, 317. 315, 746, 747. 206, 311. on 52, as amended by P. L. 1915, p. 40. 319, 320. on 53. 319. on 54, as amended by P. L. 1915, p. 40. 319, 320. on 55. 320. on 56, as amended by P. L. 1915, p. 40. 319. 320. on 57. 360. on 58. 360, 362, 363, 604. on 59. 361. on 60. 366, 368. on 61. 366. on 62. 361, 368. on 63. 365, 604. on 64. 365, 695. on 65. 528, 539- on 66. 529. on 67. 559, 585. on 68. 560. on 69. 563. on 70. 565, 577. on 71. 536. on 72. 578. 736. on -72,. 578 736. on 74. 579. 736. on 75. 566. on 76. 624, -JZ^^- on ']'7. 579. on 78, as amended by P. L. 1912, p. 276. 581. on 79. 580. on 80. 582, 663. on 81. 459. on 82. 470, 474. on 83, 477, 479. on 83a. 473, 478, 483. 540. on 84. 480, 481. on 85. 509. . on 86. 480, 481. 597. on 87. 500. on 88. 501. on 88a. 501. on 89. 475. 483- on 90. 476. on 91. 502. 503. on 92. 480, 481. on 93- 513, 514, 597- Table of Statutes Cited. 1393 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., '3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 646, 647. 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. Stat.. 3 Comp. Stat.. 3 Crtmp. Stat., 3 Comp. Stat.. 3 Cc)mp. Stat.. 3 Comp. vStat.. 3 Comp. Stat., 3 Comp. Stat.. 3 Comp. sStat.. 3 Comp. Stat., 3845 3846. 3847 3847 3847 3848 3848 3848 3848 3850, 3850, 3850 3850, 3850 3851 3851 3851 3851 3852, 3852 3852 3852 3852 3853 3853 3854 3854 3855 3855 3855 3855 3856, 3856 3856 3857 3857 3859 3859 3859. 3860 3860, 3861 3861 3861 3861 3862 3863 3864 3865 3865 3866 3866 3866 3866 3867 3867 3867 section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section section secti'^in section section section section section section section section 94- 95- 96. 97- 97a. 98. 98a. 99. 100. lOI. 102. 103. 104. 105. 106. 107. 108. 109. no. III. 112. 113- 114. 115- 116, 117. 118. 119. 120. 121, 122, 514. 515. 489. 517. 519- 519. 472. 490. 504. 495 584. 585, 586, 587. 594. 595- 506 593 593 593 595 586 596 597 585 598 599 589 597 605, 616, 622, 626. 616, 622. 641. as amended. 622. 625, 626, 629. as amended. 623, 630, 631. 69^. 618, 625. 619, 627. 363, 620, 627. as amended. 642. as amended by P 591- L. 191 5, p. 715. 645, 123, as amended. 645. 124, as amended. 125, as amended. 126, as amended. 127. 647. 652, 655 127a. 726. 127b. 617. 128. 681. 129. 676, 677. 679, 680, 681. 6S;? 130. as amended. 131. 132. 133- 134- 135- 136. 681. 676. 689, 690. 695- 296. 299. 390, 392, 396. 137, as amended. 138. 422. 357- 44. 359. 207, 312. .321. 268. 317. 318. ^3^< 625. 334- .335. 6i.^ 641. 645. 649, 630, 651, 636. 643, 647, 630, 651. 670. 37. 650. 631, 660, 666. 687. 379. 390- 139- 139a 140. 141. 142. 143- '44- 145- 146. ^394 Probate Law and Practice. 3 Comp. Stat., 3868, section 147. 613. 3 Comp. Stat., 3868, section 148. 614. 3 Comp. Stat., 3868. section 149. 363, 600. 601. 3 Comp. Stat., 3869, section 150. 605, 606. 3 Comp. Stat.. 3869. section 151. 298. 611. 3 Comp. Stat., 3870. section 152. 608, 609, 619. 3 Comp. Stat.. 3870. section 153. 609. 612. 3 Comp. Stat.. 3870, section 154. as amended. 428. 3 Comp. Stat.. 3871, section 155, as amended by P. L. 1915, p. 41. 429. 3 Comp. Stat., 3871, section 155a. 430. 3 Comp. Stat., 3872, section 156. 58, 221. 3 Comp. Stat., 3872. section 157. 57, 59- 3 Comp. Stat.. 3872, section 158. 57, 59, 219. 3 Comp. Stat., 3872, section 159. 57, 62. 3 Comp. Stat.. 3872, section 160. 57, 59. 3 Comp. Stat.. 3873, section 161. 60. 3 Comp. Stat.. 3873. section 162. 57. 60. 3 Comp. Stat., 3873. section 163. 716. 3 Comp. Stat., 3873, section 164. 61. 3 Comp. Stat., 3873. section 165. 60. 3 Comp. Stat., 3873, section 166. 60. 3 Comp. Stat., 3873. section 167. 62. 3 Comp. Stat., 3874, section 168, as amended by P. L. 1914. P- 69. section 2. 705. 717. 721. 724. 3 Comp. Stat.. 3874, section 169. as amended by P. L. 1914. p. 69. section 3. 698, 699, 700. 704, 705. 706, 707, 708, 709. 712. 3 Comp. Stat., 3877. section 170, as amended by P. L. 1915. p. 246. 251. 3 Comp. Stat., 3877, section 171. 698. 3 Comp. Stat., 3877, section 172. 714. 3 Comp. Stat., 3877. section 173, as amended by P. L. 1915, p. 343. I22. 725. 3 Comp. Stat., 3878. section 174. 3 Comp. Stat.. 3878. section 175. 3 Comp. Stat.. 3878. section 176. 3 Comp. Stat.. 3879, section 177. 3 Comp. Stat.. 3879. section 178. 3 Comp. Stat.. 3879. section 179. 3 Comp. Stat.. 3879, section 179a. 3 Comp. Stat.. 3880, section 180. 3 Comp. Stat.. 3880, section 181. 3 Comp. Stat., 3880, section 182. 3 Comp. Stat., 3880, section 183. 3 Comp. Stat., 3880, section 184. 3 Comp. Stat., 3880. section 185. 3 Comp. Stat., 3881. section 186. 3 Comp. Stat.. 3881. section i86a. 3 Comp. Stat.. 3881, section i86b. 3 Comp. Stat., 3881, section i86c. 3 Comp. Stat.. 3881. section i86d. 3 Comp. Stat.. 3881. section i86e. 3 Comp. Stat.. 3881, section i86f. 3 Comp. Stat.. 3882. section 187. 3 Comp. Stat.. 3882, section 188. 3 Comp. Stat.. 3883, section 189. 3 Comp. Stat.. 3883. section 190. 3 Comp. Stat., 3883. section 191. 3 Comp. Stat.. 3883. section 191a. 3 Comp. Stat.. 3883, section 191b. 3 Comp. Stat.. 3883. section 191c. 39. 243. 40. 40. 223. 41. 223. 41. 39. 312. 606. 658. 39- 47- 45, 47. 47, 227. 49. 221. 363. 365. 630. 50. 721. 50. 49. 51. 51. 52. 52. 52. 52. 326, 327 336. 336. 336. 336. 329. 329. 330. Table oi" Statutks Cjtku. 1395 3 Comp. Stat., 3883. section lyj. 721, 730. 3 Comp. Stat.. 3884, section 193. 730. 3 Comp. Stat., 3884, section 194. 3! 3 Comp. Stat., 3884. section 195. 53. 3 Comp. Stat.. 3884, section 196. 53, 54. 3 Comp. Stat., 3885. section 197. 53, 231. 232, 234. 3 Comp. Stat., 3885, section 198. 62. 3 Comp. Stat.. 3885, section 199. 62. 3 Comp. Stat., 3885, section 200. 7, 65. 3 Comp. Stat., 3887, section 200a. as amended bv P. L. 1914. p. 215. 66. 3 Comp. Stat., 3888. section 201. 74, 78. 254, 758. 3 Comp. Stat., 3888, section 202. 74, 78. 3 Comp. Stat., 3888. section 203. 78. 3 Comp. Stat., 3889. section 204. 80, 696. 3 Comp. Stat.. 3901, section 9. 29. 3 Comp. Stat., 3907, section 31. 469. 3 Comp. Stat.. 4058, section 24. 413. 3 Comp. Stat.. 4058, section 25. 413. 4 Comp. Stat., 4642, section 36. 67. 4 Comp. Stat., 4672. section 2a. 507. 4 Comp. Stat., 4673, section 4. 507. 4 Comp. Stat., 4673, section 4a. 508. 4 Comp. Stat., 4673, section 4b. 508. 4 Comp. Stat., 4674, section 6. 508. 4 Comp. Stat.. 4680, section 17. 496. 4 Comp. Stat., 4680, section 18. 491. 4 Comp. Stat., 4681, section 19. 494. 4 Comp. Stat., 4682, section 19a. 491. 4 Comp. Stat., 4682, section 19b. 492. 4 Comp. Stat.. 4682, section 19c. 492. 4 Comp. Stat., 4682, section I9d. 492. 4 Comp. Stat., 4683, section 21, as amended by P. L. 1915, p. 151. 497. 4 Comp. Stat.. 4685, section 27. 498. 4 Comp. Stat., 4686, section 31. 506. 4 Comp. Stat., 5051, section i. 334. 4 Comp. Stat., 5051, section 2. 318. 4 Comp. Stat., 5052, section 3. 335. 4 Comp. Stat., 5052, section 4. 335. 4 Comp. Stat., 5056, section i. 56. 4 Comp. Stat., 5306. section 544. 485. 4 Comp. Stat., 5668, section 5. 398. 612. 4 Comp. Stat., 5669, section 6. 3^^. 4 Comp. Stat., 5669, section 7. 300. 4 Comp. Stat., 5670, section 8. 301. 4 Comp. Stat., 5670, section 9. 301. 4 Comp. Stat., 5671, section 13. 352. 4 Comp. Stat., 5861, section i. 126. 4 Comp. Stat., 5861, section 2. 177, 179. 4 Comp. Stat., 5862, section 4. 136. 4 Comp. Stat., 5863, section 5. 137. 4 Comp. Stat., 5864. section 13. 238, 239, 240. 4 Comp. Stat., 5865, section 14. 242. 4 Comp. Stat., 5865, section 15. 242. 4 Comp. Stat., 5865, section 16. 242. 4 Comp. Stat., 5865, section 17. 241. 4 Comp. Stat., 5865, section 20. 186. 4 Comp. Stat., 5865, section 21. 187. 4 Comp. Stat., 5867, section 24. 99, 125, 126, 127, 128. 4 Comp. Stat., 5870, section 25. 177. 1396 Pkobate Law and Practice. Comp. Stat Comp. Stat, Comp. Stat L. 1911, P L. 1911 L. 1911 L. 1911 L. 191 1 L. 1911 L. 191 1 L. 191 1 L. 191 1 L. 1912 L. 1912, p L. 1912, p L. 191 L. 1912 L. 1912 L. 1912 L. 191 2 L. 1912 L. 1912 L.'l9I2 L. 1912 L. 1913 L. 1913 L. 1913 L. 1913 L. 1913 L. 1914 L. 1914 L. 1914 L. 1914 L. I9I4: L. 1914 L. 1915 L. 1915 - L. 1915, P L. 1915, P L. 1915. P L. 191 L. 191 L. 191 L. 191 L. 191 L. 191 L. 19 L. 19 L. 19 L. 19 L. 19 L. 19 L. 19 15 15. 15. 15. )i5 P15. )I5^ L. 1915. 5871, section 28. 105. ., 5872, section 35. 220. . 5873, section 37. 228, 230. 21, section i. 61. 21, section 2. 61. 70. 782, 786, 788. 95- 321. 96. 190. 538, section 2. 280. 539. section i. 280. 671. 218. 734- 362, 365. 623. 53. 803, 804, 805. 131. 506. 276. 581. 466. 438. 537, section i. 28. 537, section 2. 28. 551, section i. 551, section 2. 551, section 3. 565, section i. 565, section 2. 565, section 3. 81. 5. 102. 203. 227. 303. 277. 771. 772. 447- 379- 2>7- 6. 69. section i. 69, section 2. 69, section 3. 215. 66. 551. 790. 27- 345- 40. 319. 320. 41. 429. 57- 777- 61, section 7. 490, 509. 140. 57. 141- S8. 151. 497. 246. 251. 326. 66. Z22,- 709- 343. 722, 72s. 350. 361. 356. 761. 358. 426. 369. 219. 505. 206. 605. 212. 214. 216, 445. 715. 645, 646. 647. 209. 209. 209. 302. 302. 302. 189, 262. 264, 270. 705. 717. 721. 724- 698, 699, 700, 704. 705. 706. 707. 708, 709, 712. TABLE OF RULES CITED. ORPHANS' COURT RULES. Rule I. Rule 2. Rule 3. Rule 4. Rule 5. Rule 6. Rule 7. Rules. Rule 9. Rule 13. Rule 14. Rule 15. Rule 16. Rule 17. Rule 18. Rule 19. Rule 20. Rule 21. Rule 22. Rule 23. Rule 24. Rule 25. Rule 26. 201, 258. 259, 260. 260. 261. 258, 263. 200. 68 278. 279. 747. 7 369. 2-]i. 274, 74- 749, 755. 756. 749. 753, 755, 756. 749. 750. 261. 642. 646. 635. 664. 636. 659- 686. 690. 378. 392. 717- Rule 27. Rule 28. Rule 29. Rule 30. Rule 31. Rule 2,'2. Rule zz. Rule 34. Rule 35. Rule 36. Rule 39. Rule 40. Rule 41. Rule 42. Rule 43- Rule 44. Rule 45. Rule 46. Rule 47. Rule 48. Rule 49. Rule 50. Rule 51. 724. 724 614. 482. 475- 472. 446. 471. 509. 762, 763. 788. 446. 448. 510, 764. 788. 446, 510, 764, ■j%'i. 789. 764. 780. 764. 789. 40. 559. 588. 295. 303. 304. 304. 295. 305, 306. 299. 757- 758. 54. 67. 76. T/. 76. ■;■]. 77- Ru: Ru Ru Ru: Ru Ru: R Ru Ru Ru Ru Ru Ru Ru Ru Ru Ru Ru Ru Ru Ru e I. e2. 6 3- 6 4- e5- e6. 6 7- e8. 6 9- e 10 II 12 13 14 15 e 16 e 17 e 18 e 19 e 20 e 21 6. 7,^ 7. i 14. IS- IS- 16. 16. 16. 13 16 17 17 18 18 19 19 20. 21 22 PREROGATIVE COURT RULES. Rule 22. 22. Rule 23. 23. Rule 24. 23. Rule 25. 24. Rule 26. 24. Rule 27. 25. Rule 28. 25. Rule 29. 25. Rule 30. 25. Rule 31. 25. Rule 2,2. 26. Rule 2i2- 26. Rule 34. 26. Rule 35- 27. Rule 36. 27. Rule 2,7. 29. Rule 38. 29. Rule 39. 303. 304- 2. Rule 40. 304. Rule 41. 304. Rule 42. 304. ^397 1398 Probate; Law and Practice. Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule 305- 305. 305. 305. 29. 29. 29. 29. 29. 29. 30. 30. 31. Rule 56. Rule 57. Rule 58. Rule 59. Rule 60. Rule 61. Rule 62. Rule 63. Rule 64. Rule 65. Rule 66. Rule 67. Rule 68. 87 674. INDEX OF FORMS. ACCOUNTING— Administrator, of 1 1(^7 decree on 1207 petition on 1 188 second or other accounting 1189 Assets, statement of annexed to 1206 Citation on in lieu of notice of settlement 1 187 Citation to account, see Proceedings to Require, this title infra. Compelling, see Proceedings to Require, this title infra. Decree on allowing account and ordering distril)ution i_'i5 balance due accountant, where 1212 final, where 1213 distribution, ordering and allowing account IJ15 exceptions filed, when 1213 executor, administrator or guardian's final 1207 balance due accountant, where 1213 final 1207 adminstrator, of 1207 balance due accountant, where 1213 executor, of 1207 guardian's final, on 1207 intermediate, on 1208 interlocutory, where balance due accountant. 1212 trustee's 1209 special trust, in case of 1210 Exceptions to 1207 decree on 1213 Executor I)}-, with co-executor, proceedings to require order requiring account 1219 order to show cause 1218 petition 1216 Executor, of 1 197 decree on 1207 petition on 1 182 second or (jthcr accounting, on I iSq Failure of executor, etc., to file order directing payment of claim of barred creditor . 1069 petition of barred creditor for relief 1067 1399 i I400 Probate Law and Practice. ACCOVNTmO— Continued. Failure of — Continued. proceedings to compel, see Proceedings to Compel, this title infra. Guardian of citation on final final, decree on intermediate, decree on petition on second or other accounting Insolvent estates decree allowing and ordering distrilnition of Investments changes in. statement of annexed to statement of annexed to Neglect of executor, etc., to file order directing payment of claim of barred creditor . petition by barred creditor for relief proceedings to compel, see Proceedings to Compel. this title infra. Notice of settlement proof of publication posting mailing Petition on administrator, of second or otiier accounting executor, of second or other accounting guardian, of second or other accounting second or other accounting trustee's first account separate trust, in case of subsequent account Proceedings to require application to Orphans' Court, l)y order directing executor, etc., to ac- count order to show cause petition executor neglecting to account within one year . . citation to account petition requesting Surrogate to issue citation executor neglecting to account within two years . Index of Forms. 1401 ACCOUNT I XG—0')(/nna-(y. Proceedings to require — Cuntiiiucd. executor neglecting to account uitliin t\v.. years — Continued. citation to account IJ24 order of Orphans' Court directing issue of citation I_>J4 petition to Surrogate to report neglect . iJJJ report by Surrogate of neglect ijjj Statement of assets annexed to i jo6 changes in investments annexed to i2o() Surety to, by principal on bond bond by principal to surety 1019 order directing loiy petition for 1016 rule to show cause on 1017 Trustee, of i icy) citation on hnal i if'j decree on 1 209 special trust, in case of 1210 petition on first account 1 191 separate trust, in case of 1 195 subseqtient accounts 1 193 special trust, in case of i-'oj ACKNOWLEDGMENT— General form of 945 ADMINISTRATION.— See also Administrators. Absent next of kin inquiry for, proof of 987 Appeal from grant of, see Appeals. Application for, by next of kin 977 notice of 979 mailing, proof of ..'..'.' 981 order directing service upon non-residents 980 service of, proof of 981 order granting 98^ petition 977 renunciation 979 Application for, where next of kin neglect t(j apply 985 inquiry for absent next of kin, proof of 987 notice of application 989 mailing, proof of 981 non-residents, order directing service upon ()8() service of, proof of 981 order granting administration f)^yi petitioiT 985 1402 Probate; Law and Practice. ADMINISTRATION— Co»/i;Ma'd. Application for upon estate of non-resident looi creditor, by notice to non-resident administrator, or- der prescribing 1005 order granting 1006 petition 1002 foreign administrator, bj' order granting 1004 petition looi Bond of administratoi grant of letters, upon 9^3 sale of lands for debts, on 1087 Caveat against grant of 1007 Citation upon contested 1007 caveat filed, where 1007 disputed, where 1008 Contested : 1007 caveat against grant of administration 1007 citation 1007 disputed, citation upon 1008 Disputed, see Contested, this title supra. Letters of • 9^5 Next of kin, absent inquiry for, proof of 987 Next of kin, application for by 977 absent next of kin, proof of inquiry for 987 notice of 979 service of mailing, proof of 981 order directing on non-residents 980 proof of 981 petition 977 renunciation 979 Next of kin neglect to apply, where 985 absent next of kin, proof of inquiry for 987 notice of application 979 service of mailing, proof of 981 order directing service on non-resi- dents 980 proof of 981 order granting 990 petition 985 Non-residents, upon estate of looi creditor, upon application of order appointing 1006 Index of Forms. 1403 ADMINISTRATION— C'o/i/niKcrf. Non-residents, upon estate of — Continued. creditor, upon application of — Continued. order prescribing notice to be v;ivcn non-resident administrator 1005 petition 1002 foreign administrator, upon application of order appointing 1004 petition looi Notice of application 979 absent next of kin. proof of inquiry for (j^7 mailing, proof of 9H1 next of kin neglect to apply, when 9X9 service of mailing, proof of 981 order directing service on non-residents 980 proof of i)8i service of, proof of 9^1 Oath of administrator ^5 Renunciation of right of next of kin. liy 979 ADMINISTRATION C. T. A.— See also Admin\.<;hators c. t. a. Bonds on grant of letters, on 0.=^-' sale fif lands, f)n 95- Letters of 954 notice of application '>7<) order directing service upon non-residents .... <)Ho mailing, proof of '>8i service of. proof of '>8i Oath of administrator 954 Order admitting will to probate and granting 'J5i Petition for probate of will and letters of 94^ Renunciation 979 Probate of will and letters of. nrder liramiiit; 951 1404 Probate Law and Practice. ADMINISTRATORS.— See also Administration. Assets of estate, proceedings l)y for discovery of, see Discov- ery Proceedings. Bond of grant of letters, on 9^3 sale of lands for debts, on 1087 Condition of estate, discoAery against as to, see Discovery Proceedings. Death of, see Substituted Ad)uinistration. Discharge of, see Discharge of B.vecitfors, etc. Disputing claim, notice 1063 Letters of administration 985 Non-resident power of attorney from 944 acknowledgment of 945 Notice by that claim is disputed 1063 Oath of 983 Removal of, see Reuwval of Executors, etc. Sale of lands for debts by, see Sale of Lands for Debts. ADMINISTRATORS C. T. A.— See also Administrators and Administration c. f. a. Bond of grant of letters, on 95^ sale of lands, on 952 Death of. see Substitutionary Administration c. 1. a. Lands, sale of by, see .S'alc of Lauds. Oath of 954 Sale of lands by. see .Sale of Lands. ADOPTION OF MINORS— Abandonment of child, in case of 13-20 decree for adoption 1324 next friend consent of 1323 order appointing 1322 order fixing day for appointment of 1321 petition 1320 Children's Aid Society, surrender of child to. in case of 1332 consent of society to adoption 1334 decree for adoption 1336 hearing, order fixing day for 1335 petition 1332 Consent of parents obtained, when 1327 consent of parent 1328 decree for adoption 1330 hearing, order fixing day for 1329 petition 1327 Index of Forms. 1405 ADOPTION OF MIKORS— Continued. Consent to adoption Children's Aid Society, by . . lyjt, next friend, by ; parent, by . . > Decree for abandonment of chiUl. in cas-c ui ijil parent's consent obtained, when 1330 surrender of child to Children"- \^' ^ ^.i-c.m Ijj6 Hearing order fixing day for 13J9 surrender of child t'> Children's Ai*l Society. in case of . 1335 Next friend consent of, to adoption 13^3 order appointing 13^^ order fixing day for appointment of 13^1 Parent, consent of i J-J< Petition abandonment of child, in case ui li^ parents' consent ol)tained. when 13^ surrender of child to Children's Aid Society, in case of ^iSJ Surrender of child to Children's Aid Society, in case «>f 133^ consent of Society to adoption 1334 decree for adoption ^ii^ hearing, order fixing day for IJJ5 petition ' 33- APPEALS— Accounting, from decree of Orphans' Cnurt allowing I355 answer ' '"'' notice of appeal . . ' ' petition of appeal Administration, from grant of by Surrogate ..- decree reversing Surrogate ^M^ notice of appeal '•^^- petition of appeal • Answer to petition of appeal accounting, from decree of Orphans' Court, allowinR I35<» probate of will by Orphans' Court, from 1 •' l Citations on, from Surrf)gatc ' "' Dismissal of notice of application order dismissing . . ■ petitinn for 1406 Probate Law and Practice. APPEALS— Continued. Notice of appeal from Orphans' Court 1352 Orders administration, reversing order of Surrogate 1348 dismissing appeal 1352 probate of will by Surrogate affirming probate by Surrogate 1349 reversing probate by Surrogate 1346 Orphans' Court, from v 1352 account, from decree on 1355 answer to petition of appeal 1356 petition of appeal 1355 notice of appeal ! 1352 probate of will by answer to petition of appeal 1354 petition 1353 Petition of appeal accounting, from decree on 1355 administration, from order of Surrogate granting . . 1342 dismissal of appeal, for 1350 probate of will orphans' court, by 1353 surrogate, by 1343 Probate of will Orphans' Court, by answer to petition of appeal 1354 notice of appeal 1352 petition of appeal 1353 Surrogate, by citations on 1346 order affirming Surrogate 1349 order reversing Surrogate 1346 petition of appeal 1343 .Surrogate, from decree of administration, from order granting 1342 order reversing decree of Surrogate 1348 petition of appeal 1342 citations on 1346 probate of will 1343 citations on 1346 order affirming Surrogate 1349 order reversing Surrogate 1346 petition of appeal 1343 ASSETS— Discovery of. proceedings for. see Dtscofcry Proceedings. .Statement of annexed to account 1206 Index of Forms. 1407 BARRING CREDITORS— Barred creditor account, where executor, etc., neglects to order directing payment of claims 1069 petition by creditor for relief 1067 assets unaccounted for, payment of claim from order directing payment of 1072 petition for 1071 decree of distribution, where administrator neglects to obtain • order directing payment of claim 1069 petition for relief 1067 payment of claim from assets unaccounted for order directing payment of 1072 petition for 107 1 payment of claim from undistributed estate order directing io6<;) petition for H)67 suit by on refunding bond 1005 order authorizing suit 1066 petition for order authorizing suit 1065 Decree barring '<^4 Notice executor, etc.. by. to creditor disputing claim 1063 Notice to creditors to present claims io<>l posting, proof of 1062 publication, proof of 1062 Posting notice, proof of io6j Publication of notice to creditor, proof of 1062 Refunding bond, suit on by barred creditor 1065 order authorizing suit 1060 petition for order authorizing suit 1065 Rule to limit 106' notice of ^^^ posting, proof of 1062 publication, proof of 'O"' BONDS— Administrator, of grant of letters, upon 0**^.? sale of lands for debts, u\>i>u 10S7 Administrator c. t. a., of grant of letters, on • 0.^2 sale of lands, on *^5- Certificate on deposit of securities '"-5 Deposit of securities- to reduce amount of bond, order tixing and .lircctini,' 102 J 90 1408 Probate Law and Practice. BOKDS— Continued. Deposit of securities to reduce — Continued. certificate of depositary 1025 possession of securities deposited, proceedings to obtain order directing delivery of securities to executor, etc 1027 petition by executor, etc 1025 petition 1023 Devisees, s^ Heirs and Devisees, this title, infra. Discharge of sureties, see Sureties. Executors, by bond of 942 non-resident, of 942 order requiring to give 1030 order to show cause 1029 petition for order to require 1028 Executor by to co-executor, see Co-E.veeutors. Guardians, of idiots and lunatics, of 1318 minors, of 1268 testamentary 1276 Heir by, to prevent sale of lands to pay debts 1091 Justification of sureties 943 Xon-resident executor, of 942 Principal on bond, by. to surety thereon 1019 Prosecution of, see Prosecution of Bonds. Reduction of deposit of securities, by, see Deposit of Securities to Reduce, this title, supra, order discharging sureties on filing of re- duced bond 1022 order reducing 1021 petition for 1020 Sale of lands for debts executor or administrator, by 1087 heir by, to prevent 1091 Substitutionary administrator c. t. a., of grant of letters, on 999 sale of lands, on 999 Sureties on discharge of, see .Sureties. discharge of after administration completed, see Sureties. justification of 943 release of from further liability, see Sureties. security to by principal on bond, see Sureties. Index of Forms. 1401) BO'SDS—Coiitwiicd. Trustee appointed by court, of ijt,2 CAVEAT— Administration, against grant of 1007 Certificate by Surrogate tbat none filed 1049 Probate of will, against 061 citations 96_' order admitting will to probate 96J denying probate 964 CITATIONS— Account, to executor, etc.. neglecting, for one year IJJO two years .....'..... I J-M Accounting, on trustees or guardians final 1 187 Accounting, on trustee's or guardian's final 1 1S7 Administration, upon contest concerning caveat filed, where 1008 dispute arises otherwise than by caveat, where 1008 Administrator, to, on sale of lands for debts I loj Appeal from Surrogate, on 1346 Caveat against probate of will, on 062 administration, on ux»8 Distributive share, on suit for 1 252 Doubts on face of will, when arise 959 Executor, etc.. to, to testify on sale of lands for debts iioj General form 1 180 Inventory, to hie 1060 Legacy, in suit for 1 252 Probate of will by Surrogate appeal, on r . . i ^46 caveat, on 962 Release of surety from further liability loio Sale of lands for debts executor, etc., to testify on 1 102 CODICIL— Form of 1360 CO-EXECUTORS— Accounting between 1216 order recjuiring account . I2I9 order to show cause 1218 petition 1210 P.ond by one to secure the other 1031 order rfquiring co-executor to give . . lo.M I4IO Probate Law and Practice. ! CO-EXECUTORS— ConhVm^d. Bond by one to secure the other — Coiiiinucd. order to show cause 1033 petition 1031 Order executor to give bond to co-executor, requiring 1034 Order to show cause why executor should not give bond to secure co-executor 1033 Petition by one for security from co-executor 1031 CONTEMPT— Order committing executor, etc., for 1249 Petition for order adjudging executor, etc., in 1247 Rule to show cause 1248 CREDITORS— Barred by decree, relief of. see Barring Creditors. Barring claims of, see Barring Creditors. Decree barring 1064 Notice to that claim is disputed 1063 Oath verifying claim of 1063 Rule to limit, see Barring Creditors. DECREES — See Orders and Decrees. DISCHARGE OF EXECUTORS, etc.- Application 1 174 notice of 1174 proof of service of 981 Notice of application r 1181 proof of service of 981 Order discharging 1 176 Petition 1 174 DISCOVERY PROCEEDINGS— Assets, for discovery of 1077 order directing delivery of assets to executor, etc. . . 1079 order for discovery 1078 petition by executor, etc 1077 Condition of estate, against executor, etc ' 1073 order for discovery 1076 order to show cause 1075 petition 1073 Executor, etc., against, as to condition of esta'te 1073 order for discovery 1076 order to show cause 1075 petition , 1073 Index or Forms. 141 i DISCO\ERY PROCEEDINGS— ro/i/n.'K.v/. Wills, of . loSo order for discovery 1081 to produce w ill io8j petition for discovery • . 1080 DISTRIBUTION— Decree of neglect to obtain, petition by Ijarred creditor for relief 1067 ordering and allowing account 1215 Insolvent estates decree ordering and allowing final account 1156 Intestate's estate account allowing and ordering I-'I3 decree for — ". i-34 next of kin, proof of 1-34 proof of next of kin 1-34 Petition for decree of intestate's estate, of i-3- will, in case of ' -3^ Refunding bonds, see Refunding Bonds. Releases, see Releases. Unclaimed legacy or distributive share, payment ><{ into c.iurt. see Payment of Money into Court. Will, in case of 1-35 decree ^ --5° ■ notice of application , 1-35 petition for decree 1-36 DOUBTS ON FACE OF WILL— Citation 959 Decree admitting to probate 9^0 Order adjudicating existence of dnulits 95^ EVIDENCE— Testimony de bene esse, see Testimony de hene esse. EXECUTORS— Bonds by, see Bonds. * co-executors, to. see C'o-E.veeulors, etr. proceedings to require, see Bonds. Disputing claim, notice ■ "^'^-^ Non-resident bond of ''"*"' power of attorney from ''44 acknowledgment of 945 Notice by. that claim is disimted '"63 ( )ath of on grant of letters ^^ Renunciation liv '• ^^ 1412 Probate; Law and Practice. EXEMPTION FOR FAMILY— Proceedings to set off appraisers appointment of by Surrogate 1054 oath of 1054 petition for appointment of 1053 goods selected, list of 1055 oath of executor, etc., verifying 1055 FOREIGN WILLS— Probate of 955 order granting 957 petition for 955 GUARDIANS— See also Ciiardiansliip. Bond of 1268 Discharge of, see Discharge of Executors, etc. Discovery as to condition of estate in hands of, see Discov- ery Proceedings. Discovery of assets of estate by. proceedings for, see Discoz'- ery Proceedings. Inventory 1056 Next of kin absent, inquiry for, proof of 987 Non-resident power of attorney from 944 acknowledgment of 945 Non-resident ward removal from state of property of 1282 notice of application 1285 order authorizing 1286 petition for 1283 Release of by ward 1243 Removal from state of property of non-resident ward 1282 notice of application 1285 order authorizing 1286 petition for 1283 Removal of, see Removal of Executors, etc. Sale of ward's lands 1302 decree directing 1304 deed by guardian 1305 petition 1302 report of sale, see Sale of Lands. Support and maintenance of ward authorization by court for use of principal of ward's personal estate order 1307 Index of Forms. 1413 GUARDIANS— C"(';;//);»r(/. Support and maintenance of ward — Loiiliiiucd. authorization by court for use of principal oi ward's personal estate — Coiiliiiucd. petition 1 306 sale of ward's lands for. see Sale of Wnnl's Luiids. this title, supra. GUARDIANSHIP— See also Cuaidiaiis. Absconding parent, for child of 1^9*^ inquiry for absent parent, proof of 987 order 1^93 petition 1^90 Absent next of kin. inquiry for. proof of 9^7 Bond on grant of I-68 Estate of minor where father living bond i-'6« order i -7 1 petition i -7o Father living, estate of minor, upon bond 1-68 order i-V petition i-70 Guardians ad litem, see Gitiirdiaus ad litem. Idiots and lunatics, of, see Guard iauslii/' of Jdiots and Luna- tics. Letters of Orphans' Court, issued In Surrogate, issued by Minor, on estate of where father living bond order petition Next of kin, absent or non-resident, where bond order petition proof of inquiry for Non-resident minors, of bond order appointing guardian petition Ijy orphan over fourteen removal from state of property of notice of application order authorizing . petiti'in JO.; 270 JOS -7' _'7o -■«7 j68 _»«<; -•H7 087 .78 .'()8 -'80 -7« -•83 -'85 _'86 -•8j 14 14 Probate Law and Practice. GUARDIANSHIP— Co»/n/!/crf. Non-resident minors, of — Continued. special guardian of estate of bond 1268 order appointing 1282 petition 1280 Orphan over fourteen, of 1260 bond 1268 order appointing guardian 1261 petition 1260 orphan out of state, where 1278 Orphan under fourteen years 1262 Ijond 1268 notice of appHcation by next of kin 1266 order appointing mother 1264 order appointing next of kin 1267 petition mother, by 1262 next of kin, by 1265 renunciation of right of by next of kin 1267 Special guardianship of estate of non-resident bond 1268 order appointing guardian 1282 petition 1280 Testamentary acceptance by guardian 1275 l)ond of guardian 1276 consent of mother 1273 letters of testamentary guardianship 1277 order granting letters 1275 petition 1272 GUARDIANS AD LITEM— Minor over fourteen, for 1294 notice of application 1294 order appointing minor, on application of 1300 no application on behalf of minor, when 1295 petition minor, on belialf of 1299 where no application made on behalf of minor 1294 Minor under fourteen years notice of application 1294 order appointing no application on behalf of minor 1298 petition of infant, upon 130J Index of For>[>. 141 5 GUARDIANS AD LITEM— Continued. Minor under fourteen years — Continued. petition for minor, on behalf of 131JI no application on behalf of minor 1^7 Notice of application minor over fourteen years, to 1^04 under fourteen years, to !-'>'> GUARDIANSHIP OF IDIOTS AND LUNATICS— Asylum, confined in at expense of county iii(> notice of application I-J66 order appointing 1318 petition J3'6 renunciation of nearest of kin I-67 Asylum, confined in at least one year 13' ' affidavit of medical director of asylum I3'3 physician connected with asylum 13' 4 notice of application 1266 order appointing I3I5 petition '3' ' renunciation of nearest of kin I-67 Bond on grant of letters U^S Inquest in chancery, after I30<,1 notice of application I-66 order appointing guardian 1310 petition •. • • '3^9 renunciation of nearest of kin 1^7 HEIRS AND DEVISEES— See also Lands of Decedent. Judgments against order directing payment of judgment from surplus proceeds of lands sold to pay debts 1 1--' petition by creditor for payment of from surplus proceeds of lands sold to pay debts n_'o Sale of lands for debts, proceedings by to prevent loQ' bond by heir or devisee '^^' demand on heir or devisee for payment • • • ^(^^ notice to heir or devisee of application for prosecution of bond • ''^^ order approving bond and adjourning hearing logj order fixing amount of bond '090 order for prosecution of bond or sale of lan(N 1006 petition by heir or devisee ■ • "•" petition by executor for relief when heir or devisee refuses to pay '°^ 1416 Probate Law and Practice.. IDIOTS AND LUNATICS— Guardianship of, see Guardianship of Idiots and Lunatics. INSOLVENT ESTATES— Account, final, decree allowing and ordering distriluition .... 1156 Decree of insolvency 1 148 Decree on exceptions to report of claims and assets 1147 Distribution of, decree allowing account and ordering 1156 Exceptions to account of assets 1146 claim of creditor 1 147 decree on 1 147 Extension of time to present claim 1152 order extending time I155 petition by barred creditor 1152 rule to show cause 1 154 Notice to creditors 1 141 order directing 1 140 Order directing notice to creditors I140 Petition 1 139 rule to limit taken, when 1 141 Presentation of claims, extension of time for. see Extension of Time to Present Claims, this title, supra. Report of claims and account of assets 1144 exceptions to account of assets 1146 claim of creditor - 1147 decree on 1 147 Rule to limit taken, when 1 141 notice of intention to make report 1143 • order fixing time to make report 1142 petition for decree of insolvency 1141 Sale of land county other than that in wliich estate was decreed in- solvent, situate in order for sale 1151 petition for 1 150 decree ordering 1 148 order for sale and decree of insolvency 1 148 practice on, see Sale of Lands. INVENTORIES— Administrator, by 1050 Affidavits to, see Oath to Lrc'cntoiy. this title infra. Appraisement administrator, by 1050 executor by 1050 Appraisers, appointment of administrator, by 1050 executor, by 105G Index of Forms. 14 17 IWEXTORIES— C(>/;/n;(a-(/. Appraisers, appointment of — Coiitiintiii. petition for. wlien exemption to family to lie set off 1053 Surrogate, by. when exemption to family to be set off 1054 Exemption for familw wlien to l)c set oft' appraisers appointment of by Surrogate 1054 petition for appointment of 1053 goods selected, list of 1055 oath of administrator verifying 1055 oath of executor verifying 1055 Executor, l)y 1050 Failure to file, proceedings upon 1057 citation 1060 order by Orphans" Court directing Surrogate to issue citation 1059 petition requesting Surrogate to report 1057 report of Surrogate to Orphans' Court 1058 Guardian, by 1056 Oath to inventory 105 1 administrator, by 1051 appraisers, by 105J when exception to lie set oft' to family .... 1054 executor, l)y 103 1 Petition appointment of appraisers by Surrogate, for 1053 requesting Surrogate to report failure to file 1037 Report by Surrogate of failure to file 1038 petition requesting Surrogate to report i<)37 LWESTMENTS— Changes in, statement of to Ije annexed to account i-'o6 Directions of court as to '-57 order '-59 petition 1257 Statement (jf to l)c annexed tr) account I2o6 JL'UICIAL SALES— Advertisement of ' 'O.'^ posting, proof of ' 106 publication, proof of 1105 Affidavits of value of land aimexed to report of sale iilj Deed private sale, after ' "8 public sale, after ' "4 1418 Probate Law and Practice. JUDICIAL SALES— C'o;;//;/»<-(f. Notice of II05 posting, proof of 1106 publication of, proof of 1105 Notice of intention to make report of sale 1 107 service upon non-residents order directing manner of nog petition for order directing manner uf 1107 Order confirming private sale, at m? public sale 1113 Report of sale 1 100 affidavit of value of lands annexed to 1 112 notice of intention to make 1 107 service of, non-residents, upon order directing manner of 1109 petition for order directing manner of 1107 LANDS OF DECEDENT— See also Heirs and Dcz'isccs. Contract of decedent for sale of, fulfillment of 1123 decree for fulfillment of contract 1126 hearing, order fixing time for and directing notice 1124 notice of application 1 125 petition 1123 Exchange of 1 133 order confirming II37 petition for II33 affidavits annexed to 1 1 12 rule to show cause 1 13^^ Sale of, see Sale of Lands. " for debts, see Sale of Lands for Debts. LEGACIES AND DISTRIBUTIVE SHARES— Suits for, see Suits for Legacies and Distributive Shares. LEGATEES AND DISTRIBUTEES— Refunding bonds distributee, by 1239 legatee, by 1240 Releases distributee, by 1242 legatee, by 1241- Suits by to recover legacy or distriluitive share, see Suits jor Legacies and DistributizT Shares. LETTERS OF ADMINISTRATION— Form of O^S Index of Forms. 1419 % LETTERS OF AD^[I^■ISTRATIOX c. t. a.— Form of 954 LETTERS OF GUARDL\NSH1P— Orphans' Court, issued by 1-169 Surrogate, issued by 1269 LETTERS OF SUBSTITUTIONARY ADMIXISTRATIOX - Form of 994 LETTERS OF SUBSTITUTIONARY ADMINISTRATION c. t. a. — Form of 1000 LETTERS TESTAMENTARY— Co-executor order granting after probate of will 947 petition for after probate of will 946 Form of 945 Oath of executor on grant of 94- LETTERS OF TESTAMENTARY GUARD! ANSH 1 P— Form of ^-7'' LOST WILLS— Order admitting to probate 9/6 Petition for probate 973 NEXT OF KIN— Absent, proof of inquiry for <)87 Absent or non-resident order appointing guardian fnr ciiild of i^Sij petition for guardianship of child of i-><^7 Administration, application for by notice to of application for 979 order directing service of upon non- resident 9^ mailing, proof of 981 service, proof of 98' order granting 9^-2 Administration, neglect to apply, when . * 9^5 notice of 9^9 service of mailing, proof of 9^1 order directing r.n non-rcsi- (ii-nts 9^ proof of o8« order granting 'WO petition 98.S rcnunciatii m 979 1420 Probate Law and Practice. NEXT OF KIK—Coiitiuticci. Distribution, decree of, proof of on application for 1234 Guardianship notice to of application for 1266 renunciation of right of 1267 Non-resident administration order directing notice of appli- cation for upon 980 mailing of notice, proof of 981 service of notice, proof of 981 Refunding bond by 1239 Renunciation by right of administration, of 979 guardianship, of 1267 NON-RESIDENTS— Admii,iistration on estate of, see Adiiiiiiistratioit. Administrator power of attorney from 944 acknowledgment of 945 Executor bond of 942 \ power of attorney from 944 acknowledgment of 945 Guardian power of attorney from '. 944 acknowledgment of 945 removal from state of property of ward, see Minors, this title, infra. Minors guardianship of, see Giiardiaiishit'. removal from state of property of 1283 notice of application 1285 order authorizing 1286 petition 1283 Next of kin * guardianship of minor, where, 1287 order 1289 petition 1287 Sale of lands, service upon of notice of intention to report order designating manner of 1109 petition for order designating manner of 1107 Service of process upon appointment by Surrogate of person to serve 1183 proof of service 1183 IxDKx OF Forms. 1421 XOX-RESIDEXTS— (•<);(/.•;;».'o69 suit on refunding bond, autliorizim.; ioWj 91 1424 Probate Law and Practice ORDERS AND DECREES— Con tin 11 cd. Co-executors accounting between, requiring bond by one to secure other, requiring letters testamentary, granting to Contempt, committing executor, etc., for Contracts of decedent for sale of land fulfillment of contract, for hearing, fixing time f(ir and directing notice Creditors, barring Depositary, directing to deliver securities to executor, etc Devisees, see Heirs and Devisees, this title, infra. Discharging executor, etc Discharging sureties, administration completed, after further liability, from Discovery as to condition of estate in hands of executor, etc., for ' • Discovery of assets of estate directing discovery delivery of assets to executor, etc Discovery of will, for Distribution intestate's estate, directing will, in case of, directing Distributive share, for payment of Executor, bond, requiring to give Foreign will, admitting to probate Guardians absconding parent, for child of. appointing estate of minor child, appointing upon where father is living next of kin absent or non-resident, appointing where non-resident minors order appointing removal from state of prop- erty of, authorizing special guardian of estate of, appointing orphan over fourteen years, appointing orphan under fourteen years mother, appointing next of kin, appointing sale of ward's lands by, for testamentary, appointing Index of Forms. 1425 ORDERS AND DECREES— Coiiiwucd. Guardians ad litem infant over fourteen years infant, on application of. appointint; 1300 no application on behalf of infant, when, ap- pointing I _'03 infant under fourteen years minor, on application of. appointing 130 1 no application on behalf of minor, ap- pointing I j(;S Guardianship of idiots and lunatics asylum, confined in at expense of county, grant- ing 1318 asylum, confined in one year, grantini; 1.^15 inquest in chancery, after, granting 1310 Heirs and devisees, proceedings by to prevent sale of lands for debts adjourning hearing khjj amount of bond, fixing .-. ■. lOQo approving bond .'. ....'.:... 1002 prosecution of bond, for 1004 sale of lands, directing io<;0 Insolvent estates account, allowing and ordering distribution oi estate ^ 11 36 distribution, decree ordering and allowing account .. 1136 exceptions to report of claims and assets, on 1 147 extension of time for presentation of claims, for. ... 1155 insolvency, decreeing 1 14^ notice to creditors, directing 114^^ report of claims, fixing time for making wiien rule to limit taken IMJ rule to limit taken, when, fixing time for making re- port of claims ' M- sale of lands county other tlian tliat in which i sl.itc decried insolvent, situate in. for 1 151 ordering ' M'*^ Inventory, citation to file, directing Surrogate to issue 1050 Investments, instructing as to '-5o Lands of decedent exchange of, confirming ' '37 sale of. see Sale of Lauds anrl Salr of I.ainh for nrbts. lliis title infra. Legacy, ordering payment of '-'.^.^ Letters testainentary, granting to co-executor g47 Lost will, admitting to ])rol)atc 'J7'> 1426 Probate Law and Practice. ORDERS AND DECREES— Con//»»rrf. Money paid into court, directing payment of to person entitled 1246 Probate of wills caveat against, when 962 admitting will to probate 962 denying probate of will 964 doubts on face of will, admitting will to probate when 960 Surrogate, by, admitting will to probate 941 Prosecution of bonds of executors, etc. leave to prosecute, granting 1038 assessment of damages on prosecution of bond, see this title supra. Publication, of, against absent party 1 184 Refunding bond, authorizing barred creditor to sue upon .... 1066 Releasing surety from further liability ion Removing executor, etc 1 179 Sale of lands administrator c. t. a., by, confirming 1130 guardian by, directing 1304 insolvent estates, ordering 1 148 private sale, at, confirming 1 1 17 public sale, at, confirming 1113 report of sale, directing service of notice upon non-resi- dents of intention to make 1 109 Sale of lands for debts county, in other than where letters issued, directing .... 1104 directing sale 1086 county in other than that in which letters is- sued 1 104 judgment against heir or devisee, directing payment of from surplus proceeds 1122 Substitutionary administration, granting 992 Substitutionary administrator c. t. a., appointing 997 Sureties discharging after administration completed 1015 discharging on executor, etc., giving reduced bond . . 1022 releasing from further liability loii separate security, directing principal to give to .... 1018 Surrogate, of. setting aside 1340 Testimony of non-resident witnesses foreign will, to, commission to take, for Ii6r interrogatories, upon, commission for 1 168 will, to authorizing master, etc., to take 1165 commission to take, for 1 158 Trustees, appointing 1231 Index of Forms. 14J7 ORDERS AND B-ECREUS— Continued. Will contest, trial of before jury 965 admitting will to probate 971 framing issue i>6S Wills, see Discoz-ery of Wills. Lost ]i'ills and Probate of IVills, this title supra. ORDER TO LIMIT CREDITORS— See Barrin.^ Creditors. ORDER TO SHOW CAUSE— See Rulrs to Shozc- Cause. PAYMENT OF MONEY INTO COURT— Affidavit on 1243 Order directing payment of money to person entitled 1246 Petition for money by person entitled 1245 Receipt of Surrogate on 1244 PETITIONS— Accounting 1 187 citation, requesting Surrogate to issue to compel . 1220 co-executors, between, to require 1216 executor, administrator or guardian, by, on 1188 second or other accounting 1 189 Orphans' Court, to, to require 1223 Surrogate, to. requesting report of neglect to file 1222 trustee's first account, on l igi separate trust, in case of 1195 subsequent account i lo.l Administration next of kin, by. for 977 next of kin neglect to apply, when t")85 non-resident, upon estate of, for administrator appointed in for- eign state, by i(X)i creditor, by 1002 Administration c. t. a., and probate of will, for 948 Adoption of minors, for abandonment of child, in case of 1320 parent's consent obtained, when 1327 surrender of child to Children's Aid Society, in case of 13.U Appeal administration, from grant of by Surrogate i,14,l dismissing, for order 1,^50 Orphans' Court account, from decree on 1355 probate of will by, from 1353 probate of will by Surrogate, from 1343 Assessment of damages on bond of executor, etc., for 1041 1428 Prouate L,aw and Practice. PETITIONS— Co;//n/»r^. Barred creditors payment of claim of, for unaccounted for assets, from 1071 undistributed assets, from io6g suit on refunding bond, for order authorizing 1065 Co-executor, by, accounting witli co-executor, for 1216 bond, to require co-executor to give 103 1 letters testamentary after probate of will, for . . 946 Contempt, for order holding executor, etc., in 1247 Contracts of decedent for sale of land, for fulfillment of .... 1123 Decree of Surrogate, to set aside 1338 Deposited securities, to obtain 1025 Deposit of securities, for order directing and fi.xing amount of bond 1023 Devisees, see Heirs and Dcz'isccs, this title infra. Discharge of executor, etc., for 1176 Discovery assets of estate, executor, etc., by, for 1077 condition of estate in hands of executor, etc., of, for 1073 will, of, for 1080 Distribution intestate's estate, of, for decree of 1232 will, in case of, for decree of 1236 Distributive share, for 1254 Exchange of lands of decedent, for 1133 Executor, to require to give bond 1028 Exemption for family, appraisers, for appointment of 1053 Foreign wills, for probate of 955 Guardians ad litem, for infant over fourteen years infant, on application of 1299 no application on behalf of, when 1294 infant under fourteen years minor, on behalf of 1301 no application on behalf of minor, when ... 1297 Guardianship absconding parent, for child of 1290 estate of minor child, whose father is living, for 1270 next of kin absent or non-resident, where, for . 1287 non-resident minors orphan over fourteen, by, for .... 1278 removal from state of property of, for 1283 special guardianship on estate of, for 1280 Index of Forms. 1429 PETJTIOXS— Co;//nu/.-(f. Guardianship — Continued. orphan over fourteen, of. for ... 1 JOo orphan under fourteen, of. for mother, by ij6j next of kin, by IJ65 sale of ward's lands by guardian, for 1302 testamentary, for 1272 Guardianship of idiots and lunatics, for asylum, confined in at expense of county, where 1316 asylum, confined in at least one year, when .... 1311 inquest in chancery, after 1309 Heir at law or devisee, by, to prevent sale of lands for debts . 1088 Insolvent estates extension of time to present claim, for 1 15J insolvency, for 1 139 rule to limit taken, when 1141 rule to limit taken, when, insolvency, for decree of . 1141 sale of land situate in county other than tiiat in which estate decreed insolvent, for 1150 Inventory failure to file, requesting Surrogate to report 1057 Investments, for directions as to 1257 Lands of decedent exchange of, for 1 133 sale of, see Sale of Lands and Sale of Lands for Debts. this title infra. Legacy, suit for, in i J50 Letters testamentary, for, by co-cxecutnr after i)rol)ate of will 046 Lost wills, for probate of 973 Money paid into court, for 1245 Probate of wills, on 937 certificate for trial l)efore jury, for 965 lost will, for 073 Probate of will and administration c. t. a., for 04S Prosecution of bond of executor, etc., for leave for creditor, by 1036 next of kin, by 1035 Reduction of bond, for 1020 Refunding bond, suit upon by barred creditor, for order au- thorizing 1065 Release of surety from further liability, for ioix> Removal of executors, etc., for 1 170 Sale of land administrator c. t. a., by, for II. iilinn.-iii. .11 (if 1127 guardian, by. for order for . i.V>-' 1430 Probate Law and Practice. PETITIONS— Co;;//;a/rrf. Sale of land — Continued. service of notice of intention to make report on non- residents, for order directing manner of 1107 Sale of lands for debts county, in other than that where letters granted, for .... 1102 executor, etc., by, for 1083 executor, etc., by, when heir neglects to pay debts 1094 heir or devisee, by, to prevent 1088 judgment creditor, by, for 1099 judgment creditor of heir or devisee, by, for payment of judgment from surplus proceeds 1120 lands in county other than that where letters granted . . . 1102 Substitutionary administration, for 991 Substitutionary administration c. t. a., for 995 Surety, by discharge, for, after administration completed lOil release of from further liability, for 1009 security, that principal give separate to 1016 Surrogate, decree of, to set aside 1338 Testimony of non-resident witnesses foreign will, to, commission to take, for I160 interrogatories, upon, for commission 1 166 will, to authorization of master to take, for 1164 commission to take, for 1 157 Trustees, appointment of, for 1229 POWER OF ATTORNEY— Non-resident executor, etc., from 944 acknowledgment of 945 PROBATE OF WILLS— Adjudication of doubts on face of will 958 Administration c. t. a. and probate of will bond of administrator c. t. a 952 letters of 954 oath of administrator c. t. a 954 order granting 951 petition for 948 renunciation of executorship 950 Appeal from by Surrogate, see Appeals. Caveat against 961 citations 962 order admitting will to probate 962 denying probate of will 964 Indkx ok Forms. 1431 PROBATE OF WILLS— Conlinucd. Circuit court, trial of in. see Jury. Trial of Before, this title infra. Depositions foreign witnesses, of, see Testimony de bene esse. subscribing witnesses, of 938 Doubts on face of will, where 958 adjudication of 958 citation 959 decree admitting to probate 960 Foreign, of 955 deposition of witnesses to, see 'J'estiiiioiiy de bene esse. order admitting to probate 957 petition for 955 Jury, trial of before 965 certificate for trial 966 certificate of judge of circuit court 970 decree admitting will to proliate 971 order framing issue 968 petition for certificate 965 Letters testamentary 945 order granting to co-executor after 947 Lost wills 973 order admitting to probate 976 petition for probate 973 Oath of administrator c. t. a 954 Oath of executor 942 Order denying probate appeal, on * 1346 caveat, on 9^4 Order for probate 94' appeal, upon 1 349 caveat filed, when 9^2 doubts on face of will, where 958 Petition for 937 lost will, of 973 Renunciation of executor 95" Signature of testator, proof of 939 Subscribing witness deposition of 'M^ foreign witness, sec Tesliiiioiiy de bene esse. proof of signature of 040 143- Probate I^avv a.\d Practice. PROCESS— Citation, general form of 1180 Notice, general form of 1181 Rule to show cause, general form of 1180 Service of non-residents, upon 1 183 appointment b}- Surrogate of person to serve 1183 proof of service 1183 publication, by 1 184 notice to alisent parties .. 1185 order of publication 1184 proof of inquiry and mail- ing 1 186 Subpoena Orphans' Court, to testify before 1182 Surrogate, to testify before 1 182 PROSECUTION OF BONDS— Assessment of damages ^ .,.,<>,-(.-. 1041 exceptions to report 1046 master's report 1044 exceptions to 1046 order assessing damages 1048 order confirming master's report and establishing amount of damages 1046 order of reference 1044 order to confirm report nisi 1045 order to show cause 1043 petition* " 1041 Bond for costs of suit 1039 Exceptions to master's report of assessment of damages .... 1046 Master's report of assessment of damages 1044 exceptions to 1046 Orders assessing damages 1048 confirming master's report nisi 1045 confirming report and establishing amount of damages 1046 prosecute, giving leave to 1038 referring assessment of damages 1044 to show cause on assessment of damages 1043 Petition assessment of damages, for 1041 leave to prosecute, for creditor, liy 1036 next of kin, by 1035 Rule to show cause why damages should not be assessed 1043 Index of Forms. 143 > REFUXDIXG BOXDS— Legatees. 1)\ *= ■ I _'40 Xext of kin. by ^ Suit on by barred creditor ,^. order autb^rizing 1066 petition for order authorizing ,,„,; RELEASES— Distributee, liy , , Legatee, by 1 Ward, by, to guardian , , , , REMOVAL OF EXECL'TORS, ETC.— Xotice of application , ,g, proof of service of i^, Order removing , , _ Order to show cause , , -y Petition ,,1(^ REX'UNCLA.TIOXS— Administration, of, next of kin, Ijy 1^7,) Executor, bv ,,-,, i},->t* Guardianship, of , ,(,- RULES TO SHOW CAUSE— Accounting co-executors, to require between ijiS Orphans" Court, on appHcation to, to re(|uirf .... ij_>6 Contempt proceedings, in 1 _>^,, Discovery as to condition of estate in lKln(l^ of txi-rutor, etc.. on ,073 Executor bond, t(j require from ' lojij co-executor, to require account with 1218 to require to give l)C)nd to 1033 Form of, general 1 1,»<,, General form of 1 i,S citation to executor, etc.. to testify 1 102 notice to executor, etc.. to sell lands looS order to show cause ' 1 100 posting, proof of io6j publication, proof of 1062 petition by judgment creditor i()0<) Judicial sale, at, see Judicial Salrs. Lands in county other than where letters granted 1 102 order for sale 1 104 petition i lo-' Notice, heir or devisee to, of application for jirosecution nf bond HXM Order for sale io.9() lands in county other tiian wiu-re lettrrs granted 1 104 Order to show cause !<>•*<.=; judgment creditor, an ai)pIication of . i loo posting, proof of kXu publication, proof nf iiK)2 1436 Probate Law and Practice. SALE OF LANDS FOR D'EBTS— Continued. Petition executor, etc.. by 1083 bond by executor, etc.. on 1087 decree for sale 1086 order to show cause 1085 posting, proof of 1062 publication, proof of 1062 heirs or devisees, by, to prevent sale 1088 judgment creditor, by ' logQ lands in county other than where letters granted, where 11 02 Private sale, at, see Sale of Lands. Public sale, at, see Judicial Sales SUBSTITUTIONARY ADMINISTRATION— See also Admin- istrators and Administration. Bond on grant of .,, 999 Letters of -r 994 Notice of application, see .Idministration. Oath of administrator , 993 Order granting !' 992 Petition for 991 Renunciation , 979 SUBSTITUTIONARY ADMINISTRATION c. t. a.— See also Administrators and .Idministration. Bond of 999 Letters of ■ 1000 Notice of application, see Administration. Oath of administrator 998 Order granting 997 Petition for 995 Renunciation 979 SUITS FOR LEG.ACIES AND DISTRIBUTIVE SHARES— Distributive share, for answer 1253 citation 1252 decree for payment of ' 1256 petition 1254 Legacy, for answer 1253 citation 1252 decree for payment of 1253 petition 1250 Index of Forms. T43/ SURROGATE— Appeals from decree of. see At^trals. Appraisers, appointment of hy • • •••: • • • • '^'54 petition for 1053 Certificate by that no caveat has been filed 1040 Citation to account, petition requesting issue of 1220 Decrees of appeals from, see Aj^pcaly. proceedings to set aside I3.^^ order setting aside 1340 order to show cause 133Q petition 133^ Subpcena to testify before 1 1^- SURETIES— Discharge of after administration completed order discharging if"? petition for ^f^i ' reduction of bond, order discharging on filing re- duced bond "^-- release of from further liability, sec this title infra. rule to show cause ^'^'3 Justification of '^-'3 Order directing principal to give separate security to surety .. lOiS directing principal to account with surety loif^ discharging sureties on giving reduced bond 1022 releasing surety from further liability mi i Order to show cause discharge of after administration completed 101,^ principal on bond should not give security to surety, why 1017 Petition by discharge of after administration crimpleted. for ... loil release from further liability, for i"'>'i separate security from principal, for ... i"'^' Release of from further liability '*^>^ citation to executor, etc "^'" order releasing surety "^" petition .^ '""^'^ Security to by principal on bond ""^' bond by principal to surety '""' order directing principal to account to .. loiS order directing princii)al to give security t^ .order to show cau^e ""' petition """• 1438 Probate Law and Practice. TESTIMONY DE BENE ESSE— Commission to take deposition of witnesses to will, see Wit- nesses to Will, this title infra. Interrogatories, upon 1 166 commission xi68 directions for execution of commission 1171 interrogatories on probate of will 1169 order for commission 1168 ■* petition for commission 1166 return of commission 1 173 Witnesses to will, non-resident authorization of master, etc.. to take 1 164 order 1 165 petition 1 164 commission, by 1 157 commission to take II59 foreign will, to 1 160 commission to take 1162 deposition of witnesses 1163 order for commission 1161 petition for commission 1160 return of commission 1 160 order for commission 1 158 petition 1 157 return of commissioner 1160 TRUSTEES— Appointment of by court •. 1228 bond of 1232 decree appointing 123 1 notice of application 1228 petition 1229 Discharge of, see Discharge of Executors, Administrators, Guardians and Trustees. Discovery as to condition of estate in hands of, see Discovery ProKeedings. Non-resident power of attorney from 944 acknowledgment of 945 Removal of, see Removal of Executors. Administrators. Guardians and Trustees. WILLS— See also Probate of Wills. Codicil to 1360 Decree of distribution, see Distribution. Discovery of, proceedings for. see Discoz'ery Proceedings. Doubts on face of, see Doubts on Face o.f Will. Index of Forms. 1^39 WILLS— Co lit in It cd. 1360 Income to wife for life w itli privilege of using principal, with remainder over Simple form of I ,-g Trust for life, creating, with remainder over at death 1359 Trust for wife for life, with remainder over 1359 Witnesses to depositions of. see Probate of Wills. foreign witnesses, of. see Tcsiiinony d^ bene esse. 92 GENERAL INDEX. ACCOUNTING— Allowance of, by court 641 notice of settlement necessary t)46 Allowances to accountant 639 claims not actually paid 630 exemption for widow and children 040 loss and depreciation of assets O40 AppeSl from decree allowing (^73 matters considered on O73 only items excepted to will he t)64 only those mentioned in i)etition nf ap|)eal will be 073 questions raised in court below only will be . . 674 respondent may specify objectiona))le items in his answer O73 Audited by surrogate, to be 'J41 method of auditing account fJ4- object of audit by surrogate 043 vouchers • • ')4-2 checks as vouchers t»4J inspection of vouchers liy interested persons 642 lodged with surrogate, to be ')4- Chancery, jurisdiction of to order O31 concurrent jurisdiction with Orphans' Court, has . . ()3i disinclined to accept jurisdiction (\^^ when Chancery will accept jurisdiction (t.^,] Charges against accountant t\l7 inventory f'37 cliargeable with amf ()37 evidence to r>vercome 405. (>37 where full amount of not realized 63H liersonal assets of estate, see .Isscts. Citation, issue of on filing '>45 guardians' final, necessity for ... <>45 intermediate, may issue ..ii 045 trustees', final, necessity for 'M.'i intermediate, may issue nii 045 Citation to account ^*-- account filed pursuant to. must In- noticed for Mellle- ment '*-^/" costs on ''-'> payable by accountant. wIk 11 '>.'o 144I < 1442 Probate Law and Practice. ACCOUNTING— Co»/;»wr produce 670 practice when account- ant unable t inventory, may be filed to .^"1 1444 Pkobate Law and Practice. ACCOUNTmG—Coiitiiiucd. Exceptions to — Continued. jurisdiction of Orphans' Court 660 Chancery, has all of the powers of . . 660 estoppel, may apply rules of 661 incidental jurisdiction of 662 * negligence of accountant, in case of . . 661 trustees, over accounts of 662 motion to strike out 665 when proper 665 nature of proceeding 666 procedure, outline of 865 reference of to master 36, 665 surrogate 36, 665 reference to advisory master 36, 665 ■'*' compensation of master 37 how appointed 2i7 stenographer may be employed 2>7 compensation of 37 testimony, how taken 2)7 who may except 660, 663 Executors of foreign will, by 212 Ordinary or Orphans' Court may require 212 when need not file 212 Executor deceased executor. &c., executor of, liy 616 later will probated, when 200 separate from those as trustee, should l)e kept .... 293 tenant for life, when 617 Failure to tile executor, etc., may be removed for 604 provisions of statute directory 616 Filed pursuant to citation noticed for settlement, must be 647 Filed, when to be 641 Final decree on 647 conclusiveness of 648 efifect of decree 648 guardians, of, citations must issue 645 procedure upon, outline of 854 trustees, of, citations must issue 645 what constitutes 648 Form of account 634 executors, administrators and guardians, of 635 General Index. 1445 ACC0V}uppoit ol ward not niopciK iuilinbd in ... 0.|i decree on . (>\7 cfTeil ..i 650 1446 Probate Law and Practice. ACCOUNTING— C(7»/in»r^. Intermediate — Continued. guardians, of — Continued. Tiled, how often to be 616 notice of settlement 645 citation, may be by 645 service of 645 procedure upon, outline of 862 trustees, of notice of settlement of 646 citation, may be by 645 service of 645 Inventory accountant chargeable with amount of 637 deductions permitted from 405 evidence sufficient to permit 637 full amount of not realized, when 638 increases and accretions to 342 Investments list of to be annexed to account 636 statement of changes in to be annexed to account 636 Notice of settlement of 644 guardians' accounts, of, may be by citation 645 service of citation 645 guardians' final, citation must issue on 645 mailing of to sureties on bond 644 persons in interest 645 necessity for 646 account filed pursuant to citation, on 647 insolvent estates 598 posting of 644 publication of 644 sufficiency of 646 trustee's final, citation must issue 645 service of 645 Opening and setting aside decree allowing 650 accounts other than guardians' intermediate 650 when will be set aside 650 for fraud or mistake only 650 application, when maj' be made 658 Chancery, jurisdiction of 655 discretion, matters resting in 654 effect of opening decree _ 659 fraud or mistake, for 652 discretion of court, is in 652 Genekai. Index. 1447 ACCOUXTIXC— t\)»/n;»r(f. Opening and setting aside decree allowing — c c/i/ioK.-d. guardians' intermediate accounts .... 656 practice (158 improvidently entered, when (>^4 intermediate accounts, in case of O58 matters resting in discretion, to review O54 notice of application 659 Orphans' Court, jurisdiction of 65J petition 037 recitals of 057 verified, should be 05S when application may be made O38 Orphans' Court, jurisdiction of over 41, bJo compel executor to file, to 42 complete as that of Chancery 0_'o guardian's final account 6jo court may enforce payment of balance to ward 621 Petition to be annexed to 634 recitals of 634 under oath, must be 634 Preparation of, fees paid for not allowed 408 Procedure, outline of 853 Proceedings to compel 622 jurisdiction of Orphans' Court 41. 42. 620 neglect to account for two years, in case i>i .... 622 court may direct issue of citation O22 surrogate required to rei)ort neglect to court 622 written request required 622 neglect to file for one year, in case of 622 procedure, outline of 864 who may take 622 creditors 624 laches of person in interest no bar bJb legatees and devisees 624 representative of deceased ward 626 residuary legatees 624 substituted administrator 625 sureties of jjcrsonal ref)resentative 625 Prerogative Court, in. See I'rcrof/atii'c Cmivt. Procedure, outline of 833 Removed personal representative, gtianlian or trustee, l)y ..608, 6iy 1448 Probate Law and Practice. ACCOUNTING— Co»/;;;»rrf. Report of by surrogate to court 641 exceptions to report 643 nature of report 643 no appeal lies from 644 Representative of deceased executor, etc., by 618 Re-stating ' 659 method of 659 Surrogate executor or administrator, practice when 61 Surrogate's fees on 65 method of computing 65 estate under $10,000, on 65 over $10,000, on 65 over $50,000, on 65 reduction of when estate less than $200 66 reduction of when estate less than $500 66 Trustees final, citation must issue upon 645 service of 645 intermediate accounts of 616 citation may issue upon 645 filed, when to be 616 procedure, outline of 859 separate from those as executors, should lie kept .... 293 Unnecessary, when 619 administrator entitled to personal estate after payment of delits .... 619 person in interest may re- quire 619 executor or administrator c. t. a. residuary legatee and filing releases . . 619 person in interest may re- quire 619 guardian filing release from ward 619 trustee filing release from cestui 619 \'ouchers .• 642 checks as 642 duty of accountant to preserve 642, 670 inspection of by persons in interest 642 lodged with surrogate, when to be 642 production of to court 670 practice when accountant unalile to pro- duce 670 Who may be required to account 626 executor entitled to estate for life 627 executor, etc., of insolvent estate 627 foreign executors and administrators ' 628 Gexeral Ixnnx. i44(/ ACCOUXTIXC— t",M;/i-;/)(r- within jurisdiction where granted J50 vests title to decedent's personal property in adminis- trator -'4') who entitled to, see JVho Entitled to Letters this title infra, without notice to or renunciation by next of kin void 260 Heirs at law. when entitled to -'67 Husband, right of -J()3 not exclusive -?65 Jurisdiction to grant 251 Ordinary, of 251 Orphans' Court, of 251 .Surrogate, of 251 nature of jurisdiction 252 Letters of ff;reign administration, of, may be recurded \u this state 257 issue of 261 recorded bv Surro).;ate, to bf 5^ 1450 Probate Law and Practice. ADMINISTRATION— C"o»/n;;(rrf. ^Married women, right of to 267 ma}- be administratrix 317 husband may be surety on bond 317 Necessity for 249, 250 Next of kin, f aiHng t(j apply, when 260 notice of appHcation, when required 260 procedure, outline of 815 renunciation of next of kin 260 Next of kin, right of to 262 as against a stranger 265 considerations controlling court in appointment 266 right purely personal 265 Non-resident • administrator power of attorney required from, see Power of Attorney. Non-residents, residents preferred over 262 Non-resident, upon estate of 252 assets within county necessary 254 what sufficient 254 contests as to non-residence 253 determined by Surrogate, to be 253 executor or administrator neglects to apply for, when 253 practice 2:53 jurisdiction to grant 252 notice of application 253 procedure, outline of 821 Notice- of application for . ." 258 failure to give, effect of ' 260 necessity for 259 recorded, to be 259 renunciation may be substituted for 258 required, when 258 service of on non-residents 259 residents 259 when required 258 Operation of grant of 250 effective within jurisdiction where granted only. . . . 250 Orphans' Court, jurisdiction over grant of 45, 265 considerations controlHng court >. . 266 discharge of executor, etc., in case of 610 disputes concerning, over 41 majority of next of kin. court not liound by 266 next of kin accept appointment unwilling. where 265 willing, where 266 General Index. 1451 ADMINISTRATION— roH/ni»n/. Orphans' Court, jurisdiction over sirant of — Conliitucd. probate of disputed will naming no executor. on 45 removal of executor, etc.. in case of 610 request of majority of next of kin. not bound by -(^ where next of kin will accept ^65 not accept -66 Particular purpose, for -"3 jurisdiction to grant -^3 Pendente lite, see .liiiiiiistratioii Pendente Lite. Petition for -5'^ practice on -5*5 trust company, by 3^4 affidavit, statement and certificate to accompany 304 recitals of ~^ value of estate, affidavit of required -258 verified, to be 258 writing, to be in -5' when may he made -5^ Prerogative Court, in, see Prerogative Court. Probate of will, after, granted 200 citations to issue -*'° Procedure, outline of ' '•" Qualification of administrator -°4 corporation, by -"•"• origin of requirement -^'*4 surrogate, must lie taken before ~^S Renunciation "•'' consul, by. upon estate of resident alien -W form and contents of ->'^ necessity for -^'^ next of kin, by • -^\ notice of application may be substituted for -'.=;S recorded, to be '^^ Residents preferred over non-residents -"- Security required on grant of, see Bonds of E.veeulors. .\d- ministrators. Guardians and Trustees. Special, jurisdiction to grant : - - " • Surrogate administrator, when Table showing who entitled to • • 'J _ jH2, 2X3 Temporary •■•••■•-. «_, ^^ jurisdiction to grant -. - .1 Unnecessary, when 1452 Probate Law and Practice. ADMINISTRATION— Con//;/»rrf. Who entitled to 262 consul, in case of resident alien 268 death act, claim under only assets, where 262 heirs at law, right of 267 husband, right of 265 not exclusive 265 infants, right of 266 right of guardian of 266 married women, may l)e • . 267 nexr of kin • ■ 262 considerations controlling court in appointment... 266 right of as against a stranger 265 right purely personal 265 table showing right of 263 non-residents, residents preferred over 262 principles underlying 262 'esidents preferred over non-residents 262 table showing 263 where only assets are claims under Death Act 262 widow, right of 264 as against a stranger 265 efifect of remarriage on 264 not exclusive 264 • wife, upon estate of wliere husband dies without taking- out letters 273 Widow, right of to 264 as against a stranger 265 effect of remarriage on 264 not exclusive • • . . 264 Will annexed with, see Administratioii c. t. a. Will probated after grant of 200 citations to issue 200 ADMINISTRATION c. t. a.— See also .■Idiiiiuisfrators c. t. a. Ancillary 211 appointment of administrator 211 jurisdiction of surrogate 211 powers of administrators, see Administrators c. t. a. Bond of administrator, see Bonds of Executors, Adminis- trators, Guardians and Trustees. Death of administrator, proceedings upon 277 Executor failing to prove will 260, 270 construction of statute 270 notice of application, when required 260 object of statute 270 renunciation of persons in interest 260 General Index. 1453 ADMINISTRATION c. t. a.—Co„ti,iucd. Executor neglecting to apply tor letters testamentary for forty days 270 construction of statute 270 notice of application, when required 260 object of statute 270 renunciation of persons in interest ^60 Necessary, when 260, Jjo executor, predeceases testator, when 260, 270 renounces or refuses to act when 260. 270 testator neglects to appoint executor 270 Notice of application for 258, 273 alien, upon estate of resident 269 failure to give, effect of 260 necessity for 259 recorded, to be 259 renunciation may be substituted for 258 required, when 258 service on residents 259 non-residents 259 when required 258 Petition for 274 affidavit giving value of estate to l)e annexed to .... 274 presented, when may be 274 recitals of 274 verified, should be 274 Prerogative Court, in, see Prerogative Court. Procedure, outline of 818 Qualification of administrator 274 Renunciation by executor 270 agreement to renounce 271 efifect of 270, 271 implied renunciation 271 retraction of 27^ right of to renounce 27 1 Renunciation by next of kin 258 form and contents 259 necessity for 259 notice of application ina\ bi- substituted for .... 258 recorded, to be 250 Residuary legatee, right of to -'7- who entitled after death of -72 Security required on, see Bonds oj li.mtilors. .Idiiiiiiistrii- tors. Guardians and Trustees. Statutory provisions • .260. 270 construction of 27^ object of -70 1454 Probate Law and Practice. ADMINISTRATION c. t. a.— Continued. Who entitled to 272 alien resident, upon estate of 268 consul entitled to notice of application 269 death of residuary legatees, after 272 general rule, 272 next of kin, when 272 residents preferred over non-residents 262 residuary legatee, right of 272 death of, who entitled after 272 where no residuary legatee 272 ADMINISTRATION DURANTE ABSENTIA— When granted 283 bond required on grant of 283 jurisdiction to grant 282 AD^riNISTRATION DURANTE MINORE .ETATE— Bond required on grant of 283 Defined 283 Granted, when 283 Jurisdiction to grant • 282 When granted 283 ADMINISTRATION PENDENTE LITE— Administrator allowed amount of legacy improperly paid .... 288 bond of 310 order fixing amount of not appealable. . . . 289 duration of appointment 288 legacy, paid by, will be allowed amount of . . . . 288 officer of court, is 286 powers and duties of. see Powers of Adniinis- trator this title infra removal of 289 selection of 286 discretionary with court 286 executor, when will be appointed .... 286 principles governing 286 Appeal from grant of • 289 amount of security required not appealalile 289 question of necessity for, appealable 289 selection of administrator not appealable 289 Application for 285 notice of 285 court may dispense with 285 petition, by 285 recitals of 285 verified, to be 28^ General Index. 145; ADMINISTRATION PENDENTE UTF.-Covtlnurd. Bond required from administrator 310 ord^r fixing amount of, not appealal)le ..... j8q Court may grant on own motion 285 Duration of appointment 288 powers terminate with litigation 288 are revived hy appeal 289 Duties of administrator 287 collect assets of estate, to 287 when litigation terminated 2S7. 289 Jurisdiction to appoint 284 Necessary, when 284 appeal lies from determination that 289 Notice of application 285 court may dispense with 285 Powers of administrator 287 actions, may maintain 287 bind estate by settlement, may 288 collect debts, may 287 distribute, may not 288 general powers of administrator except as to dis- tribution 287 legacies, may not pay 288 allow^ed for, improperly paid, when 288 sale of property of estate 288 settlement, may bind estate by 288 sued, may be 2S7 terminate with litigation 288 revive on appeal 289 Removal of administrator ■ 289 Security required from 310 Who entitled 2f^6 when executor will be appointed 286 ADMINISTRATION ON PRESUMPTION OF DEATH— Absent persftn. re-appearance of. proceedings upon jHj Administrator 279, jHi appointed, when will be 270. 2S1 bond of, see Bonds of lixccutnrs. . Itliiiiiiistrnt- nrs. Guardians tind Trusti-t'S. distribution of estate by 282 bond with projier sureties, to take 282 duties of 28 1 Bond on grant of, See Bonds of lixrcutois. .Idntinislriilors. Guardians and Trustees. Distribution of estate 282 administrator tr) take bond witii sufficient sureties 282 93 1456 Probate; Law and Practice. ADMINISTRATION ON PRESUMPTION OF DEATH— Co»- tinued. Non-resident leaving personal property in this state absenting himself from abode for seven years 281 application for 281 jurisdiction to grant .' 281 letters granted, when 281 rule to show cause 281 publication of 281 when returnable 281 Procedure, outline of 82^ Re-appearance of absent person 282 proceedings upon 282 Resident absenting himself for seven years 279 application for 279 dead, may be decreed 280 effect of decree 280 jurisdiction to grant 279 letters granted, when 280 rule to show cause 279 publication of 279 when returnable 279 ADMINISTRATORS— See also .Idininistratioii, and for matters common to executors and administrators, Executors and Ad- iiiiinstrators. Accounting by, see Accounting Acts of before notice of will 200 remedies of executors against 200 validity of 200 Assets in two states, where 255 duties of administrators 255 Bonds of, see Bonds of Executors. Administrators. Guardians and Trustees. Commissions of, see Conunissio)is of Executors. Administra- tors. Guardians and Trustees. Death of executor of may be required to account 618 proceedings for appointment of successor to, see Sub- titutionary A dm in ist ration . Debts due from to estate, assets 341 running of statute of limitations against 342 Discovery of assets of estate, proceedings Iiy to obtain, see Discovery Proceedincis. Discovery against as to condition of estate, see Discovery Pro- ceedings. Duties of, see Executors and Ad>ninistrators. General Index. 1457 ADMINISTRATORS— Co»/i;M(rrf. Foreign duties of 256 powers of J36 Inventories, see Inventories. Lands, authority over 4_'4 Liability of, will discovered, when 371 Xon-resident power of attorney required from on appointment, see Power of Attorney. Personal property of decedent control over 337 duty to take possession of 337 power of disposal of 3.^7 property specifically bequeathed 337 title in administrator 337 Qualification of .i6i corporation administrator of 205 must be taken before surrogate J04 origin of requirement .204 Security required from, see Bonds of E.veentors. Adminis- trators, Guardians and Trustees. Will discovered after letters granted, liabilities and duties of when ^7f ADMINISTRATORS c. t. a.— See also Administration c. t. a. ;ind E.vecutors and Administrators. Ancillary accounting by, when necessary -i i appointment of, see .Idniinistration e. t. a. inventories of. when necessary -i I powers of - ' ' • 444. 445 Bond of, see Bonds of E.vecutors. Administrators. (.Inardians and Trustees. Duties of -''5 to observe will -75 trustee, duties of, may not perfcjrm 2C](\ jq- Foreign will recorded in this state, of 445 powers of - ' ' ■ '•^5 Powers of ' -"^ Qualification of administrator '" ' Sale of lands by, see Sale of Lands. Trust powers devolving upon e.xeciUdr, n-.i mnip >n/. .1 \" perform "'"'• 1458 Probate Law and Practice. ADOPTION OF MINORS— Abandonment 798 implied, may be 798 next friend 800 appointment, when necessary - 800 consent of necessary 800 acknowledged, to be 800 notice of application 802 publication 802 what constitutes 798 Adopting parents 804 age of 801 effect of upon , 804 marriage of. effect of 804 nature of relationship 804 Change in name of adopted child, court may authorize 797 Child 803 abandonment of 798 implied, may lie 798 what constitutes 798 age of 80 1 change of name of 797 consent of, when necessary 800 acknowledged, must be 800 effect of upon 803, 804 foreign state, adopted in 806 inheritance by 805 Consent of guardian 800 acknowledged, must be 800 when required 800 Consent of orphanage or children's aid society 800 acknowledged, to be 800 foreign, of, invalid 800 when necessary 800 Consent of parents of child 798 acknowledged, must be 800 necessity for 798 procedure, outline of 882 unable to obtain 800 parents unknown, where 800 abandoned child, l)ecause Soo habitually intemperate, where 800 insane, where 800 proceedings, when 800, 883 Costs of, petitioners to pay 8c6 General Index. 1459 ADOPTION OF MIXORS—Coiilinucd. Decree for 8oj effect of 803 adopting parents, upon 804 marriage of, effect of 804 nature of relationship 804 child's right of inheritance, upon . . . -"vm parents of child, upon Jjoj recitals of , 803 when will be made 803 Foreign state, proceedings in recognized in this state 806 Hearing abandonment of child, must be proved S03 adjournment of 802 day for, tixed upon presentation of petition 801 next friend appointed, when Soj what day may be fixed 801 notice of 80J necessary when 802 publication of 802 petitioners, examination of upon 802 Inheritance of adopted child 805 adopted in foreign state, when 806 bequest to adopting father under will of another . 806 Name of child, change of 797 Nature of proceeding 797 statutory proceeding, a 797 essential requirements of statute must be observed 797 Next friend ^^oo appointment of, when necessary 800 consent of necessary 800 acknowledged, to be 800 notice of application 802 publication of 802 Orphans' Court, jurisdiction of 797 Parents of child consent of r'>^ abandon child, unnecessary when . . 8«ki acknowledged, must be 800 habitually intemperate, unnecessary when S(io insane, when 800 necessity for 79^ unable to obtain, wiicn 800 proceedings 8(x) unknown, when, proceetlings 800 decree for, effect of upon 803 1460 Probate: Law and Practice. ADOPTION OF MINORS— Coufinucd. Petition for 797 change of name of child, ma\- pray 797 consent of husband or wife necessary 797 day for hearing fixed upon presentation of 801 recitals of 801 verified, to be 801 who may present 797, 801 Procedure, outline of 882 ADVANCEMENTS AND SETTLEMENTS— Agreements concerning 704 Assets of estate, are not 341 Child advanced predeceases parent, when 702 Debt of child advanced, not 341 Deducted from distributive shares, to be 699 Interest on 704 Loans distinguished from 701 Personalt}', of 702 i effect of on share in real estate 704 what constitutes 702 Real estate, of 703 deducted from distributive share, to be 704 what constitute 703 Statutory provisions as to 699 purpose of statute 700 What constitute 700 intent controls 701 ADVISORY MASTER— Appointed, how 37 References to 37 compensation on 37 stenographer, may employ 37 compensation 37 testimony on, how taken 37 AFFIDAVITS— Inventories, to. who may take 36in Orphans' Court, in. Surrogate may take 60 deputy surrogate may take 60 record of admissible in evidence 61 validity of 61 proctor not to take 54 Prerogative Court, for use in 29 proctor or counsel not to take 30 who may take 29 General Index. 1461 .\¥F1D.\\'\TS— Continued. Surrogate, for use before deputy surrogate may take 60 record of admissilile in evidence Oi validity of 6i proctor not to take i)7 surrogate may take 60 ALLOWANCE FOR FAMILY OF DECEDENT— "Comfortable support" where will directs 55'' Exemption of $200, see Inventories. Interference by court where allowance by executor unreason- able 350 Inventory, when made, see Inventories. Will contest pending 225 when allowed --^ Will directs payment to third persons for supp'M't of family. where ?3 1 AMENDMENTS— Orphans' Court, in 5.^ appeal, on 53 power of court, as to 5v^ Petition of appeal to Prerogative Court, of S5 APPEALS— Effect of •■•■ 79 administrator pendente lite, on jjowers of -^ jurisdiction of trial court, on 79 letters granted, on ^ Entitling cause on appeal ^.■' Orphans' Court, from accounting, from decree on answer to petition of appeal S; in nature of cross appeal S4 may specify erroneous items ... 84 petition of appeal M must specify itc-m-< apcalefl ir<^4 time for taking ^ amended decree, from 82 method of computing 81 when time begins in run 81 administration, imm grant of time limited for taking .. . .80. Sj amended decrees, from 8j effect of not demandin-- :iiiiif.il in time "^.^ method of computiiiK ■"^' when time begins to run 81 consul of foreign power, by "8 1462 Probate Law and Practice. AFPZAhS—Coiihiiucd. Orphans' Court, from — Continued. administration pendente lite, see Administration Pendente Lite. administrator's powers suspended by 80 amended decrees, from, time for taking 83 amendments on 53 answer to petition of appeal 87 accounting from decree on 84 in nature of cross appeal 84 may specify erroneous items .... 84 failure to file or serve, effect of 87 filed, when to be 87 service of 87 wfho must join in 87 bond required on, from decree of distribution in case of will 7.24 commissions, from decree allowing, see Commis- sions. conduct of 84 constitutional provisions 80 costs and counsel fees 92 administration, contested, see Contested Ad- ministration. allowance of from estate 92 appellant, when will be charged with 94 denied, when will be 93 when unnecessary testimony taken ... 93 jurisdiction to order payment of 92 probate of will, on, see Costs and Cou)isel Fees. when appellant will be charged with 94 counsel fee, from order allowing 82 deposit on appeal 86 amount of 86 effect of not making 86 time limited for making 86 determination of cause considerations governing 91 decree reversed only when error clearly appears 92 weight given to fact that trial court heard witnesses . . 91 dismissal of appeal application for, when may be made 87 General Index. 1463 APPKALS— Ct>;/h//i/t'£f. Orphans" Court, from — ContiitiicJ. dismissal of appeal — Coittiuucd. deposit, for failure to make J^ jurisdiction of court S7 notice of motion ^ petition of appeal, for failure to serve or file «« transcript, for failure to file feii « print and serve 89 when application may be made 87 distribution, from decree of in case of will 7--< 7^4 bond required on 7^4 time for taking 7-4 distribution, from decree of on estate of intestate . . 7-1 entitUng cause on appeal ^5 evidence, see also Evidence. additional testimony may be taken Sg depositions *of subscribing witnesses be- fore surrogate considered 89 guardian, from appointment of by Orphans' Court . . 758 powers suspended by ^ guardians ad litem proceedings on appointment of Si hearing additional testimony may be taken 89 when court will permit 9° deposition of subscribing witness before surrogate considered °9 in nature of trial de novo 89 proceedings subsequent to 94 may be before Orphans' Court 94 may be before Ordinary 94 questions of fact reviewed ^ testimony, additional may be taken 89 inventories, from order respecting fairness of 80 time limited for taking 80 amended decree, from 8j method of computing 81 when time begins to run 81 jurisdiction of prerogative court 89 additional testimony may be taken 89 decree below based on fin»l- ings of jury, where S<; decree of trial court, not limited to re- view of '^ questions of fact, may review . . ^) 1464 Probate Law and Practice. APPEALS— Coiitiiiued. Orplians' Court, from — Continued. jurisdiction of prerogative court — Continued. testimony, additional may take 89 trial de novo 89 notice of appeal 81 filed with surrogate, to be 81 recitals of 81 service of 81 p^sons cited on appeal to Orphans' Court, right of to 79 petition of appeal 84 addressed to Prerogative Court, should be . 85 allegations of 85 amendment of 85 failure to hie or serve, effect of 84 service of 84 specify portion of decree complained of. i:ftust 85 effect of failure to 85 time for filing ; 84 extension of time 84 probate of will Orphans' Court, from decree of, founded upon verdict of jury 229 Prerogative Court, jurisdiction of 230 matter tried de novo 230 may take additional proofs 230 time for taking 80 amended decree, from 82 method of computing 81 when time begins to run 81 proceedings after hearing may be before Ordinary or Orphans' Court 94 proctor and counsel on 84 refusal to admit competent evidence, for 47 sale of lands for debts, from order for 501 ' appeal from order setting aside 514 appeal from order confirming 514 who may take 501 time for taking 80 amended decrees, from 82 Genekal Index. 1465 APPEALS— C'o/ -'-rve ... 77 prosecution, for lack of 77 evidence, see Evidence. executor, powers of. suspended b> "^i 1466 Probate Law and Practice. APPEALS— Continued. Surrogate, from — Cojitiniicd. guardianship, from grant of 74- 758 how taken 758 time hmited for taking 74. 758 to what court taken 74 guardian's powers suspended by 80 guardian ad Htem, appointment of, see Guardians ad Litem. hearing matter heard de novo 77 persons cited, rights of 76 can only be heard in support of decree 77 practice on 77 inventory, proving of by surrogate from 74 time Umited for taking 74 to what court taken 74 method of taking 74 petition filed with surrogate 74 addressed to surrogate 75 nature and effect 79 de novo proceeding, a 79 suspends operation of decree ap- pealed from 80 parties cited 76 rights of at hearing 76 can only be heard in support of de- cree 77 petition of appeal 75 addressed to surrogate, to be 75 failure to serve, appeal dismissed for .... 77 filed with surrogate, to be 75 recitals of 75 service of 76 time limited for filing 74 practice on 78. 880 Prerogative Court to, when lies 78 probate of will by surrogate, from 74 time limited for taking 74 non-residents, by 74 residents, by 74 procedure, outline of 880 Time for taking amended decrees, from 82 computation of 81 General Index. 1467 AFFE.\LS— Continued. Time for taking — Continued. failure to demand appeal in time, effect of 83 method of computing °' when time begins to run ^' Who may take ' ' party aggrieved, who i? "' ASSETS— Advancements not 34' Application of to payment of debts, order of 548 general rule stated 54° lands 548 descended 54" devised for payment of debts 549 to residuary devisee 54^ specifically devised 549 personality not specifically bequeathed 548 residuary real estate 54° specific legacies and devises 549 Choses in action ^^"^ personal representative, pass to 33^ specifically bequeathed, where 3.^!^ Collection of by executor, etc •^'^^ duty of executor as to 405 fees paid for not allowed 4o8 liability in case of neglect 405 Crops and products of land 34-' Damages recovered under death act 34.-< Debts ^■^' executor, due from -^ ^ ' running of statute of limitations against .Ut legatees or devisees, due from 3.^0 Defined '^-^l Deposits m trust, when • • ^ Depreciation and loss of, lialiility of exccut-.r. etc. in ca^e of. see Errcutnrs mid .idiiiinistralors. Discovery 01 _ jurisdiction of Orpbans' Cf.urt ... 3.v proceedings to obtain •'• ■?5') practice •^• Distributive share vested in decedent • 3.^0 next of kin, rights of 3.V) passes to personal rei)resent:iln ■ 3.VJ Estate per autre vie ^ . 30 Foreign ^ accountability f<>r proceedings to tx) General Index. 1469 ARRIXG CREDITORS— CoHti, I u I- d. Debts barred l>y decree — Coitliinn-d. presentation of claims waived by ixrsonal representa- tive set-off, alleged by way of 3^7 Debts not barred by decree 37o advances to estate by deceased executor, claims tor . . . 570 cestui, claim of against estate of deceased trustee 57 1 entry of decree, claims arising after 570 trust funds, claims for 571 Decree barring creditors '.'.'. . :'. 5"4 effect of 565 entry of 5^ liability of estate not affected by 5^5 limitations, is not statute of 3^6 necessity for .'..'...'. 3o5 under present statute 565 under prior statute 565 operation of ^7" personal representative, is for protection of 366 pleading bar of ^^ statute of limitations, is not ^^^ Dispute of claims presented, see Debts of Estate. Method of -]-f Presentation of claims •"'•]'*' claims, verified, must be 3?Q form of affidavit 33Q claims which may be presented 563 debts payal)le in future 363 mortgage, secured liy 5"4 preferred debts 3o4 claims which need not be presented 3'J^ assigned after presentation 5<>.? deceased executor, of. for advances 562 deficiency on mortgage, claim for 3^'.^ presented prior to entry of rule to limit creditors •■'^- unverified. personal representative may pay. when insolvent estate, in case of verified, claims must lie form of .itfidavit waiver of bv personal re))rcsentativc, effect of ."^^O commcnccm.ni of Miit ii-t ,-.|uivalcnt to 361 Procedure, outline of . . . 14/0 Probate Law and Practice. BARRING CREDITORS— ro»/i";;»r^. Purpose of statute 559 protection of personal representative, is for 566 statute of limitations, is not 566 Remedies of barred creditors 576 assets unaccounted for, against 577 construction of statute 577 procedure 577 Chancery, remedy in 582 heirs and devisees, action against 582 legacy or distributive share, unpaid, against 579 action against personal representative, when may maintain 579 refunding bond, effect of not filing 579 legatees and distributees, action against 581 operation of decree barring creditors 576 procedure, outline of 844 refunding bond, suit on, by 580 surplus after settlement of estate, against 577 account, executor, etc., neglects to, pro- ceedings when 582 decree of distribution, proceedings when executor, etc. neglects to obtain 582 executor, etc., may notify creditor to bring suit 578 creditor barred if he neglect to bring suit within one month after notice 578 presentation of claims to executor 577 .vhen may be presented 578 proceedings in case executor, etc., refuses to pay claim 578 Rule to limit creditors 558 jurisdiction of Surrogate and Orphans' Court 558 notice of 558 form of 559 necessity for 559 posting • 558 publication 558 returnable, when 558 BETTERMENTS— See Bxpctidifures. General Index. 1471 BONDS OF EXECUTORS. ADMIXISTR.\TORS. GUARD- IANS AND TRUSTEES— Additional, when required 3J0 administration granted upon insufficient security, when 320 insufficient for security of estate, when 320 jurisdiction of court to require 320 sale of lands, on. by administrator c. t. a 447 sureties in failing circumstances, when 320 Administrators, of 307 amount of 308 assets in other state, when 310 matters considered in fixing 309 condition of 307 form of 308 husband, from, when administrator of wife's estate 308 purpose of 309 surrogate to file 50 Administrators c. t. a., required from 3'0 amount of 3'" condition of 3 '" sale of lands, additional, when required on.. 447 surrogate to file 5'"' Administrators pendente lite, of -^(> amount of discretionary with court 286 order fixing amount of, not appealable 28(j required from 3'0 Co-Executors, l)y one to secure the other, see Co-Excculors. etc. Corporation administrator, etc.. from 3^5 no sureties required, when .303 Deposit of securities in lieu of 3'o bond for assets not deposited recjuired 319 certificate issued by depositary 3-0 method of depositing securities 3J0 withdrawing securities 3 "J when permitted 320 Discharge of further lialnlitv fr-n, .. .• Siirrli.s ,mi. this title infra. settlement of esiaic aiiii XU practice on application 335 Executors, of ^ forfeiture of. proceedings on 3H non-resident, from 206.311 required, when -^' 3". 313 amount on •'_' ' 94 1472 Probate; Law and Practice. BONDS OF EXECUTORS, ADMINISTRATORS, GUARD- IANS AND TRUSTEES— Continued. Executors, of — Continued. required, when — Continued. application to require to give 312 jurisdiction 312 practice 312 when court will order 313 rule in chancery 314 power of court to require 311 resident, when required from 206, 313 rule in chancery . . .' 314 surrogate to file 59 Guardians, required from 315 amount of 316 matters considered in fixing 316 form of 315 idiots, lunatics and drunkards of, see Guardian- ship of Idiots, Lunatics and Drunkards. married woman, from 317 husband may be surety on 317 nature of 316 several minors, when guardian of 315 separate bond required for each 315 surrogate to file 59 testamentary, from 315 History of statutory requirement 306 Prosecution of 326 application for permission for 326 granted, when 327 Ordinary, when 327 what applicant must show 327 who may make 327 order for 328 filed, where 328 granted, when will be 327 set aside, when will be 328 Ordinary may order .- 326 procedure, outline of 876 security for costs required 328 statutory provisions 326 suit on bond 329 damages, assessment of 330 defenses to application for 331 liability on bond cannot be questioned 331 General Index. 1473 BONDS OF executors/administrators. GUARD- IANS AND TRJSST-EES— Continued. Prosecution of — Continued. suit on bond — Continued. damages, assessment of — Continued. measure of 331 counsel fees ami costs may include 331 limited to penalty of bond 331 Ordinary, may he made by 330 reference of to master 330 exceptions lie to master's report 330 discontinuance of 329 application to Ordinary for . . 329 remedy of creditor aggrieved 3J9 when Ordinary will order .... 329" judgment 330 amount of 330 liability of surety, proceedings by to ascertain 335 order to present claims to surety 336 exceptions to claims 33O presentation of claims to surety 336 satisfaction of judgment, wbcn ordered 336 parties plaintiff 32Q Reduction of 321 grant of letters, on. see Def^o^t of .'^ceurities in Lieu of, this title supra. jurisdiction of court to order 321 practice 321 Sale of lands for debts, on, see Sale of Lands for Deht.w Substitutionary administrators c. t. a., of amount of 275 required from 275 sale of lands, by. see Sale of Lands. Successor of discharged exccut' ir. of 611 amount of .(hi form of bond Oil sureties on 6n Successor of removed exccuior cic, of . 611 amount of 611 form of Ml sureties on di 1 1474 Probate Law and Practice. BONDS OF EXECUTORS. ADMINISTRATORS. GUARD- IANS AND TRUSTEES— Continued. Sureties on 3^7 failing circumstances, when in 320 husband may be on wife's 267. 317 husband of married woman administratrix, may l)e 267, 317 liability of 321 account, on failure to file 323 attaches, when 321 administrator c. t. a., of. not liable for acts of principal as trustee 322 ascertainment of, proceedings for 335 order to bring in debts, when made . 336 exceptions to claims 336 presentation of claims to surety 336 practice on application 335 debts due from administrator to estate, for 322 guardian's bond, on 326 inventory, on failure to file 323 limited to character in which he I)ecomes surety 3^^ misconduct of principal, loss caused l)y .... 321 neglect to prosecute does not affect 322 non-payment of debts, for 324 distributive share 325 judgment 325 legacy 326 remedy against principal not precluded by.. 321 married woman may not be 318 number required 317 payment of judgment against principal by. effect of 325 qualification of 318 relief of 333 discharge of after settlement of estate 33-1 practice on application for 335 further liability, from 333 practice on application 333 procedure, outline of 871 right of sureties to 334 misconduct of principal, in case of 333 waste by principal, in case of 333 jurisdiction of Orphans' Court 333 separate security to surety 333 court may require 333 procedure, outline of 870 surety company 318 expense of obtaining from, chargeable against estate 318 General Index. 147; BONDS OF EXECUTORS. ADMIXISTKATORS r.U \F>:D- lANS AND TRVSTEES-Contiuucd. Trust company, from ^05 when no sureties required -^06 Trustee absent person, of ^oj appointment, upon 2g6 amount of 206 sureties required 296 removal of property from state, upon -^oi \'alidity of ^,r) CA\^EAT— Effect of filing iq- suspends jurisdiction of court 197 Nature of 107 suspends jurisdiction of surrogate 197 Surrogate, jurisdiction of restored by withdrawal, when 198 suspended by filing 197 Suspends jurisdiction of court 197 Who may file 197 attorney in fact 198 executor of will may not 198 infants 198 Witlidrawal of 198 after issue of citations, effect of 190 when may be witlidrawn 108 CERTIORARI— Review of proceedings of Orjihans" Court by 81 CIRCUIT COURT— Trial before of disputed probate, see Contested Probate. CITATION— Accounting, on, see Accouut'uuj. Administration contested, upon, mc i,',nuested . Iiiinims- tratiou. Appeal from surrogate, on 7*' appellant to cause issue of 7^ dismissal of appeal for failure to issue or serve .... 77 time limited for issue of ?'> Caveat against probate of will, on, see Contested I'rohate. Inventory, to file, practice .^(>- Lost wills, issue of upon -44 Probate of will, on, when administration ;.;rante(i .'(xi Service of .V> by whom served 4" 1476 Probate Law and Practice. CITATION— Con /t»»r J. Service of — Ccyutiinicd. non-residents, on 40. 4i person specially appointed, by 40 publication, by 41 publication, by 4i Suit for legacy or distributive share, in, see Suits for Legacies and Distributizv Shares. CODICILS— Republication of will by execution of I74 annexation of codicil to will unnecessary 175 effect of 174 establishes will as it existed when codicil executed I74 language necessary to accomplish 176 validates defective will i74 improperly executed will I74 revoked will I74 will of incompetent I75 Revocation of will by execution of 182 express revocation of will unnecessary 182 CO-EXECUTORS, ETC.— Account by one to other 422 notice of application for 422 ordered, when will be • • • • 422 proceedings to compel 422 Accounting by jointly - 649 liability of on 649 what constitutes joint account 650 Actions against 4i3 judgment against all though some not served 413 execution only against goods of testator . . 413 Actions between 421 Chancery, jurisdiction over 421 common law courts, jurisdiction over 421 Orphans' Court, jurisdiction over 421 Actions by 4^3 all should join in 4I3 where one renounces or neglects to prove will 413 Acts of one regarded as acts of all 412 Acquiescence of cestui, effect of on liability of one for acts of another 420 Death of one, effect of 4^4 powers vest in survivors 414 survivors may exercise power of sale 414,436 General Index. 1477 CO-EXECUTORS. ETC.— Continued. Discharge of one duties devolve upon others 414, 436. 610 exercise of power of sale hy others 414,436 powers vest in others 414. 436. 610 Dutj' of to protect estate from misfeasance of associate .... 419 liability for neglect to 419 Failure of one to qualify, effect of 414 Indorsement of notes, powers of 413 Investments by, all must consent to 389, 415 Liability of for acts of each other 416 acquiescence of cestui, effect of on 420 breach of trust by associate, effect of permitting . .41S, 419 duty of to protect estate from misfeasance of associate 4 '9 general rule stated 416 nature of liability 4I7 personal interest in transaction by one 419 possession of assets In* associate, effect of per- mitting 417 Limitations, statute of power to remove bar of -1'4 Mortgages 4 • 5 assignment of 4 ' 5 postponement of 415 release of A^5 satisfaction of 4i5 One person, regarded as 4'-' Personal property one may sell 4 ' - proceeds of sale, right to possession of 4'- Powers of 4'-' Real property conveyance of. purchased b.\ 415 estate in, purchased by 4 1 5 sale of by 414 Removal of one ' 4i4 effect of 414. 4.^6. 610 exercise of power of sale- by utlicrs 4'4. 4.^ exercise of power of sale l>y ntlicrs 414. AM^ powers vest in othcr-^ I14. .J3f> J 478 Probate Law and Practice. CO-EXECUTORS. ETC.— Continued. Security by one to the other 422 breaches of bond, what constitute 422 notice of application for 422 proceedings to compel 422 when will be ordered 422 COMMISSIONS OF EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES— Administrator, of will admitted to probate, when 200 Agreement as to amount, effect of 688 Allowance of 675 common law, at 675 necessity for allowance by court 675 deduction of before allowance, penalty for 675 not allowed when, see Forfeiture of Coininissions, this title infra, rate of, see Rate of Alloii-anee, this title infra. will provides for compensation, where 676 Appeal from decree allowing 696 allowance of by Prerogative Court, on 696 who may appeal 696 Application for affidavit of services, when required 686 executor, etc.. by, where estate exceeds $50,000 686 guardian, -by, where estate exceeds $20,000 .' 686 notice of 645 service of 645 minors, on 645 Disputes between executors, etc.. as to division of 689 court may determine 689 decree allowing, effect of 691 jurisdiction of court 689 notice of application 690 practice on application 690 general allowance of, efifect of 691 no presumption of equal division 691 Discharged executor, of 613 Executor also trustee, when 685 considerations influencing court in making allow- ance 685 entitled to allowance in both capacities 685 Executor, of, later will probated, when 200 Genkkal Indkx. 14-0 COMAlISSIOxXS OF EXECUTORS. ADM L\1STRAT( )kS. GUARDIANS AND TRVSTEES-Continucd. Forfeiture, of 6,)i account for failure to 6g4 misconduct, for 693 mismanagement of estate, fur byj removal from office, in case of 695 use of funds of estate by accountant, for 693 wrongdoing by accountant, for 691 Guardians income, not allowed on as such 858 where estate exceeds $JO,ooo t)8i Income collected, on 687 allowed, when 087 guardian not allowed on as income 85S principles controlling allowance of 687 rate of allowance 687 Intermediate accounts, on 086 method of calculating 0S7 principles controlling allowance of 686 Payment of 677 allowance of by court, before, penalty for 675 fund from which payable 677 as between life tenant and remainder man . . ()77 necessity for allowance by court before 673 sale of lands for 485 Rate of allowance <>8<» Chancery, in 689 considerations influencing court in determining 681 illustrations of allowances made 683 pains, trouble and risk considered .... 681 rests in discretion of court (^.^ estate exceeds $50,000, where f>8j discretion of court, rests in 68.3 executors, administrators and trustees estate is less than $50,000 where ''>8o court restricted by terms of statute . . ()8j estate exceeds $50,000, where <^^ illustrations of allowances made .... ()83 pains, trouble and risk coii'^idc red . . <)8i rests in discretion of court ()X.\ executor also trustee, when ^^^i guardians '*■ *' court restricted by statute '>8o estate exceeds $20,000, where '>8i estate less than $20,000, where <>80i when must be filed 74 Caveat, maj- be inaugurated by • jgi withdrawn, when may be 2^2 Citations issue to all persons in interest ^59,^1 service of 39 non-residents, on 40. 41 person specially appointed. by 40 publication, by 41 publication, by 41 sheriff to make 40 Commenced, how 291 appeal from decree appointing, by 291 caveat, by 291 cross petition, by 291 Costs of contest 292 imposed on estate, when 292 parties, when 292 Cross petition, may be inaugurated by 291 withdrawn, may be 292 Non-residents, upon estate of .., , contest as to non-residents determined by Surrogate ^5.^ Orphans' Court, proceedings in 292 Procedure, outline of ^-3 Who entitled to contest -9' CONTESTED PROBATE— Appeal from, Circuit Court, in 226. 229 jurisdiction of Prerogative Court 230 matter tried de novo 230 may take additional pr<'"!'~ •}'> Attestation clause, see Probate of Wills. Citations on caveat -'-'-' service of ~~^ non-residents, on 4". 4 ' person specially appointed, by '■ 4" Ijublicaiii'u, bv l' whom issued to . Circuit Court, trial of in application for discretionary wilb >iiiiri \'< f^r;nii --/ when must l)c made 2^7 1482 Probate Law and Practice. CONTESTED FROBATE— Continued. Circuit Court, trial of in — Continued. Circuit Court, proceedings in 227 issue to be framed by 227 Common Pleas, may not be sent to for trial . . 228 testimony taken down stenographically .... 227 trial, practice on 227 costs of 229 decree, Orphans' Court to make 229 court bound by verdict 229 new trial, motion for 228 proceedings upon 228 transcript of proceedings in circuit to be returned to Orphans' Court 228 what to contain 228 Costs and counsel fees 230 caveator, of, if probate denied 234 granted 234 when evidence other than that of subscribing witnesses is offered 234 common law, at, not recoverable 231 effect of testamentary provisions as to payment of . . 233 expert witnesses, of •■ . 2^,2 selected by court, must be if fees are to be charged against estate 233 historical sketch of legislation 231 jurisdiction of court limited by statute 231 litigation imnecessarily protracted, when 233 parties to whom will be allowed 232 payment of 236 from what fund 236 proponent, costs of 233 statutory provisions 230 Disposition of cause, considerations controlling court upon . . 149 Evidence, see Evidence. Execution defective, for, see Exeeution of Wills. Expert witnesses selection of should be made by court when expense charged against estate 22,3 Fraud, for, see Fraud and Undue Influence. Hearing 224 practice on 224 Parties 222 minor, appointment of guardian ad litem for. see Guardians ad Litem. necessary, who are 222 required to be served, who are 222 General Index. 1483 CONTESTED PROBATE— Continued. Procedure, outline of . . Si 3 Testamentary capacity, for lack ui, ^cc 1 isunnrutiiry Capacity. Undue influence, for, see Undue Jiiflucucc. Validity of will, court, will uphold if possible 14<> Widow and children, allowance to pending contest J-'5 COSTS AND COUNSEL FEES, see also Disburscinciits. Accounting, on estate less than $200, where tX) $500 and more than $_'oo 60 estate less than $10,000, when 65 more than $10,000 and less than $5o,tXH), » when t)5 over $50,000 t>5 exceptions on, see Exceptions to .Iccoiint, this title infra. method of computing ^^S reduction of when estate less than $JtK) 06 reduction of when estate less than $500 60 Administration contested, when, .see Contested .Idniinistration. Appeal from order allowing ^- Appeal to Prerogative Court, on y- allowance of from estate 9- appellant charged with, when • • ■ • 'M contested administration, on, see Contested .Idniuiis- tration. denied, when will be 93 when unnecessary testimony taken 93 jurisdiction to award '*- prol)ato of will, on, see I'rolnUe of Will this title * infra. Citation to account, on payal)lc by accountant, when '•-'' Costs common law, not recoverable at 5."" Counsel fees accountant, wlien charged against on e.xcri)tions to , 671.07-' account ' executors, etc., for services rendered to 4<>'> allowed, when, will be 4"<^. 4«»7 allowed, when will not be 4i" amount of allowance 4"t>. 4<»'> attorney. wh 1484 Probate Law and Practice. COSTS AND COUNSEL F^ES—Contimied. Counsel fees — Continued. executors, etc., for services rendered to — Continued. performance of duties of executors for . . 408 account, preparation of .... 408 collecting assets of estate, for 408 inventory, preparation of . . 408 Deposits to cover Surrogate's fees 66 Distribution, on application for decree of 54 Exceptions to account, on 671 appeal lies from decree allowing 674 costs charged against accountant, when 671 some exceptions sustained and some over- ruled when 672 counsel fees 672 allowed, when 672 charged against accountant, when 672 Fees, Surrogate and Orphan's Court, of 62-65 Orphans' Court in costs to be paid to Surrogate 62 court to adjudge which party shall pay 54 decree. of distribution, upon application for 54 jurisdiction of court to allow 53 notice to persons in interest of application for . . 646 service of notice 646 minors, on 646 taxation of costs 62 Surrogate to tax 62 Prerogative Court, in 4 collection of 4 notice to persons in interest of application for . . 23 service of notice 23 minors, on 23 Probate of will, on 230 common law, not recoverable at ' 231 caveator of, if probate denied 234 granted 234 evidence other than that of subscribing witness ofifered, when 234 expert witnesses, of 232 should be selected by court if fees are to be charged against estate 233 historical sketch of legislation 231 jurisdiction of court limited by statute 231 litigation unnecessarily protracted, when 233 parties to whom will be allowed 232 Genkral Index. 1485 COSTS AND COUNSEL V^ES—Cuutinuai. Probate of will, on — Coittiitticd. payment of ^36 from what fund J36 proponent, costs of- 2^^ statutory provisions 230 testamentary provisions as to payment of, effect of . . J33 Recovery of 6.2 execution, by 6j other methods provided bJ Suits for legacies and distributive shares, in, see Suits for Legacies and Distributive Shares. Surrogate, of oj liable to county for 66 payable in advance to 66 penalty for taking illegal fees 60 reduction of 65 accounting, on estate less than $200, where 66 accounting, on estate less than $500 and over $200, where 66 estate less than $200, where 65 $100, where 66 taxed, to l)e by 62 Taxation of in Orphans' Court 6j Surrogate to tax 6j COURT OF CHANCERY— Accounts of executors, etc. jurisdiction of Chancery 631 accept, when will ^ ''3.? concurrent with Orphans' Court O31 disinclined to accept (>3^ review of decree of- Orphans' Court allowing '•.'^5 Co-Executors, etc., jurisdiction over actions between 4-'> Commissions of executors, etc., allowance of in 689 Contracts of decedent for sale of lands jurisdiction to enforce. 4_h) Creditors of estate, suits by against luii^ and devisees. jurisdiction ' Executors, removal of, jurisdiction over enjoining, jurisdiction over ' ' Idiots and lunatics appointment of guardian for, see Ciiardiansliif' of Idiots, Lunatics mid Druuhards. jurisdiction over i486 Probate Law and Practice. COURT OF CHANCERY— Continued. Idiots and lunatics — Continued. jurisdiction over guardians of, see Guardianship of Idiots, Lunatics and Drunkards. contracts of, made while of sound mind, will enforce .. 793 sale of lands of jurisdiction to order 787 Instructions, may give to guardian of idio! or lunatic 782 drunkard 785 Orphans' Court, decrees of jurisdiction over 49 accounting, on 655 may set aside for fraud 49 probating will 49 Sale of lands for debts jurisdiction to order 479 restrain 504 Specific performance of contract for sale of lands under order of Orphans' Court 505 when court will decree 505 vSuits for legacies and distriliutive shares, jurisdiction over . . . 727 Trustees, removal of, jurisdiction over 607 Will, decree probating, will not set aside for fraud 188 CREDITORS OF ESTATE, see also Debts of Estate. Action by, against heir or devisee 461 defences 466 heir or devisee liable though lands aliened 462 title of bona fide purchaser 463 what constitutes an alienation 463 judgment 466 effect of 467 form of 466 improvements by heir on lands aliened, in case of 467 jurisdiction of Chancery 465 lies, when 464 parties 465 pleadings • 465 answer 465 complaint 465 presentation of claims, necessity for 463 effect of 464 Barred by decree, may be. see Barring Creditors. remedies of, see Barrinq Creditors. General Index. 14S7 CREDITORS OF EST ATE— Continucil. Distributees, remedy against 714 refunding bond, by suit upon 715 pleading 715 Fraudulent conveyances of testator hill in chancer}- to set ;^sidc. may file 4(V< personal estate must be first exhausted 468 presentation of claim necessary 468 right may be lost by laches 469 impeachment of by 467 Lands of decedent, liability of for debts, sec Lands of Decedent. Legatees, remedy of, against 714 suit upon refunding bond, by 715 pleading 713 Presentation of claims under rule to limit creditors, see Barr- ing Creditors. DEATH— Administrator, of, proceedings in case of, see .S'tihslitutiomiry Administration. Court may decree person dead, when 279 Executor, of, proceedings in case of, sec .^uhstitulioiiary .1,1- ininistration c. t. a. Presumption of after seven years 195 administration in case of, see .Idininistratioii oit Presumption of Death. court may decree person dead 270 Probate of will, where presumed i')5 DEBTS OF ESTATE— Advances by personal representative to i)ay 541 allowance of 54' interest on 54- reimbursed from real estate, may be 541 subrogated to rights of creditors 541 Advances by third persons to pay 54- payment of, must look to personal representative for 54-' subrogation of to rights of per.sonal representative. 54.' Allowance of claim by personal representative, necessity for. 5-M Arbitration of, power of executor, etc., to submit to 540 Barred by decree, may be. see Ihirrinfi Creditors. Compromise of claims power of executor to make 54'> Counsel fees, see Disbursements and Casts and Counsel h'ees. Disputed Claims S-^" arbitration of, iiowcr of cxi-culor. etc.. to submit to. 540 95 1488 ■ Probate Law and Practice. DEBTS OF ESTATE— Co7;/nn(cd. Disputed Claims — Continued. bond and mortgage, claim on 538 notice of dispute of 538 /-^ suit may be brought before foreclosure of mortgage 538 contest of 536 duty of executor, etc 536 person in interest, by 536 personal representative, by 536 notice by to bring suit within three months 536 effect of notice 536 statutory provisions 536 suit to be brought by creditor witliin three months 536 debt barred if suit be not brought . . 536 equity, provisions include suits in . . 537 rejection of claims must be un- equivocal 537 rule to limit, provisions not confined to claims presented under 537 Executor, etc., due from 341 limitations, running of statute of against 341 Executor, etc., liability of in paj-ing 520 good faith presumed 520 Expenses of administration, see Disbursoitcnts. Funeral expenses, see Disbnrscuiciits. Husband, claim of for moneys advanced deceased wife 526 Judgments 529 decree in equity 529 preferred debt, when 529 prima facie evidence of validity of claim 552 priorities between 529 Liability of personal representative in paying 520 good faith presumed 520 Mortgage debts 546 devisee, right of to exoneration from 547 heir, right of to exoneration from 547 personal estate primar>' fund for payment of 546 lands purchased subject to mortgage, when 546 mortgage assumed by testator, when 546 presented, when may be 564 Municipal corporations, due to 533 priority of 533 Partnership debts 535 individual debts of deceased partner paid before 535 Genekai. Index. i4tM> DEBTS OF ESTATE— Continued. Payment of 5_'o conflict of laws as to priority 535 executor, etc., by from his own funds ,. . . 533 re-imbursed from funds of estate 533 estate insolvent, when 334 subrogated to rights of creditor 533 executor, etc., due to 543 right of retainer 543 no priority over other claims 544 to what claims right extends 544 debts barred by statute of limitations 526 foreign personal representative, to 5-' when proper 5-' itemized, claims need not lie 5-f judgment against personal representative 552 prima facie evidence of validity of claim, is 552 legacy to creditor, by 34° limitations, barred by statute of 526 insolvent estate, of 5^) executor, etc., may waive bar of statute .=;<^) lands sold to pay. when 4^5 personal representative may pay 526 debts due to personal repre- sentative 526 personalty insufficient to pay debts, when 52'*^ waiver of bar by representative r'-' promise to waive bar, how proved 527 what amounts to ?>-7 order of application of assets to .=^45 debt secured by mortgage .S46 general rule stated .^4^ lands descended S4^ lands devised for payment of «lel)i- 54<> lands specifically devised SV> mortgage, debt secured by 546 personal property primary fund .^45 personalty not specifically be<|ueaihed .=;4>< residuary real estate 54" specific legacies and flevises SA^) specific legacies, liability of .545 preference of by personal representative, p.-wr :.s \<> ,<; Physician's bill priority of •"'•''" 1490 Probate Law and Practice. DEBTS OF ESTATE— Continued. Preferred debts 528 claim of cestui against estate of deceased trustee for misapplied trust funds, not 571 cestui, claim of against estate of deceased trustee for misapplied trust funds, not 571 conflict of law as to priority of claim 535 expenses of administration 535 funeral expenses 530 amount allowed 531 burial plot 532 married woman, of. liability of busband to pay 530 wben chargeable against her estate 530 mourning apparel 532 priority of 531 tombstone 532 judgments . . . 529 decree in equity 529 priorities between 529 which preferred 529 municipal corporation, debts due to are not 533 order of priority of 528 power of personal representative to prefer 535 presented, must be 536 presented under rule to limit creditors, must be . . . 564 priority of, order of 528 state, debts due to are not 533 United States, debts due to are not 533 Presentation of to personal representative under rule to limit creditors, see Barring Creditors. Services rendered decedent, claims for 521 agreement to compensate for by will 524 general rule 521 persons in family relation, by 522 application of rule 523 general rule as to 522 State, due to 533 priority of 533 Suit upon claim, executor may notify creditors to bring within three months 536 claim barred unless suit lirought within time limited .... 536 United States, due to 533 priority of 533 Unverified claims, payment of 560 allowed when just 560 insolvent estate against 561 Gener-al Index. j.gj DEBTS OF ESTATE-Continucd. Widow, claim of for money loaned dectdent . ^,- retainer of by executrix widow I2- statute of limitations does not run against -26 DECREES— Amended, appeal from, time for takin- Control of probate courts over Orphans' Court, of Surrogate, of ' ' Correction of, power of court as to . . f^ Orphans' Court, of Surrogate, of Orplians' Court, of authority of court over ,, -, docketed in supreme court, what may be " m, executor, etc.. liable personally when .... 51 execution upon ;_> method of issuing . . sj lien of upon lands ;i method of docketing -, satisfaction of decree ;;_> enforcement of " , 4 ' attachment. l)y -o contempt proceedings, by. see ('an- te in/' t Proicciiiiif/s. injunction, by -,, ne exeat, by -o equity may set aside for fraud ^g not on probate of will m execution, when may issue upon :;o filed, not legally until certificate of filing signed by surrogate y^ impeached collaterally, cannot be 48 lands, not linal as to 55 lien upon lands, when <;o abstract of to be filed with county clerk 50 recitals of 50 recorded, when to l)e 50 revocation of by court -1 validity of 4X equity may set aside for fr.uul ... ^q not on probate of will ^<) fraud, may be set aside for in equity 40 not on probate of will 4^ impeached collaterally, eannut in- 4K jurisdiction to make presumed 48 1492 Probate Law and Practice. D^CR^ES— Continued. Orphans' Court, of — Continued. validity of — Coufinued. valid though unlawful until reversed 48 void when court transcends jurisdiction .... 48 void when court transcends jurisdiction 48 Prerogative Court, of. enforcement of 4 Revocation of by court '. 68 Orphans' Court, hy 71 Surrogate, by 71 Surrogate, of .* 58 attacking, method of 210 correction of by surrogate ~i finality of after time for appeal has elapsed 46 jurisdiction of Orphans' Court to review 45, 610 lands, not final as to 56 Orphans' Court cannot set aside 58 jurisdiction to review 45, 610 reviewable only Iw appeal 56 revocation of by surrogate 71 validity of 210 will, admitting to probate, amounts to adjudication that no doubts arise on face of 206 DEPOSITS IN TRUST— Ownership of 348 DEPOSITIONS- DC bene esse Surrogate may issue commission 58 Foreign wills witnesses to, of 211,216 received, may be, without production of original wrill 216 Surrogate may take 216 Orphans' Court, in Deputy Surrogate may take 60 record of, admissible in evidence 61 validity of 61 Surrogate may take 60 Prerogative Court, for use in, who may take 29 Probate of will, subscribing witnesses of, see Probate of Wills. Surrogate, for use before 60 Deputy Surrogate may take 60 record of, admissible in evidence 61 validity of 61 Surrogate mav take 60 General Index. 1493 DEPOSITIONS— C"o;ift;i»rty. Wills, to both witnesses required, when -''- foreign wills, of original will need not In- iirtxhu-fd -m6 Orphans' Court may take 216 Surrogate may take -16 non-resident witnesses, of 203 commission, by 203 officers deputized l>y Surniijate. by JOJ one witness sufficient, when 202 Surrogate to take -'*'- Witness to foreign will, of -'^ received without production of original will, may hi- -.m6 Surrogate or Orphans' Court may take -m6 DISBURSEMENTS, see also Debts of Estatr. Administration expenses, see Expenses of .Idniiuistrntion. this title infra. Assessments for benefits ??' whether payable from income or corpus 557 Betterments to real estate ?5^ whether payable from income or corpus 55<> Bond, expense of obtaining surety 3'^ chargeable against estate -^'^ Broker's commissions on sale of real estate 555 Burial lot, expense of, when allowed ?3- Collateral inheritance tax •^' -^ lands may be sold to pay -»^? Conflict of laws as to priority of claims 535 Counsel fees for services rendered execut.jr, etc. Aod allowed, when 4'>t»- 407 when not "* ' amount of allowance ^"^- •*"'' executor, etc., attorney, when 4<>j performance of duties of executor, etc., for account, preparation of collecting assets of estate 4'^ inventory, preparation of 4«^ Debts barred by statute of limitations, see Dehls of Eslnle. Encumbrances, principal of. when i.ayable out of n.come . Expenses of administration ^_ collateral inheritance tax '' -^ lands may be sold to pav ■*• 5 fund chargeable with ^ lands may be sold to pay ^' preferred debt, a 408 408 55^' 1494 Probate Law and Practice. DISBURS'EMFMTS— Continued. Expenses of administration — Continued. premium on surety bond 3i8 safe deposit box, rent of 377 traveling expenses of executor, etc 553 when allowed 553 Funeral expenses 530 amount allowed 53i burial lot 53^ married woman, liability of husband to pay 530 chargeable against her estate, when 530 mourning apparel 53^ priority of 53i tombstone 532 Insurance of real estate 55^ whether payable from income or corpus 558 Judgments against personal representative 55- judgment prima facie evidence of validity of claim 552 Limitations, debts barred by statute of, see Debts of Estate. Mourning apparel, expense of. wlien allowed 53^ "Payable from income or corpus, whether 553 betterments to real estate 556 general rule stated 556 broker's commissions on sale of real estate 555 general rule stated 553 insurance 558 interest on encumbrances 554 municipal assessments 557 principal of encumbrances 556 repairs to real estate 557 taxes, see Lands of Decedent. Payments made by agreement with beneficiary 55 1 improperly made but accruing to benefit of legatee 549 Payment of debts, see Debts of Estate. Physician's bill 53- priority of 53- Repairs to real estate 557 whether payable from income or corpus 557 Support of decedent's family, for 55° direction in will for payment to third person for sup- port of family, when 55i direction in will that "comfortable support be pro- vided," when 550 if allowance made by executor unreason- able, court will interfere 550 Taxes, see Lands of Decedent. Tombstone, expense of, when allowed 532 General Index. i^y^ DISBURSEMENTS— r();;/n,»rrf. Traveling expenses of personal representative . ^;< Vouchers when allowed -- ^ t)4J checks as (Uj duty of executor, etc.. to take ('14.- lodged with Surrogate on accounting; fi.jj right to inspect : t^j DISCHARGE OF EXECUTORS. ADMINISTRATORS. GUARDIANS AND TRUSTEES— Accounting by discharged executor 610 unnecessary before application fur 615 Application for 613 accounting, may be inade before 615 granted, when 61.1 disadvantage to estate, not wIkmi 6i.^ notice of O14 failure to give, effect of 614 service of (114 minors upon ()i4 who entitled to 614 petition required (u,? two or more may join in 014 Co-executors, etc 414. Oio exercise of power of sale liy remaining ....414. Oio office devolves upon remainin.ii 414. (no powers vest in remaining 414, (no Commissions of discharged executor, etc - 613 Duties of discharged executor, etc 613 Jurisdiction of Orphans' Court 6iJ Notice of application 614 failure to give, effect of <>I4 service of ("4 minors, upon 614 who entitled to 614 Ordered, when will be ^*'3 disadvantage of estate, if. operates as. will not lie- ordered '* ' .< Particular trust, from '".< Prerogative Court in notice of ai)|)licati(in -7 service of notice -7 Procedure, outline of *^7' Successor to discharged "'" appointment of ''"' bond required on form of ' '" 1496 Probate Law and Practice. DISCHARGE OF EXECUTORS. ADMINISTRATORS, GUARDIANS AND TRUSTEES— C"o///nn/r(/. Successor to discharged — Co'iitiiiucd. appointment of — Cuntinncd. jurisdiction of Orphans' Court 610 powers of 611 • When court will order 613 DISCOVERY PROCEEDINGS— Assets of estate, to recover 358 jurisdiction of Orphans' Court 358 practice 359 procedure, outline of 869 proceedings to obtain 358 Executor, etc., against, condition of estate to disclose 357 jurisdiction of Orphans' Court 357 procedure, outline of 868 relief afforded .' 357 when will lie 357 Procedure, outline of 868 Wills, of 189 person in possession of will refuses or neglects to produce for proliste. when 189 practice to obtain 189 procedure, outline of 812 DISTRIBUTION— Absent persons, of estate of presumed to be dead, when 282 bond with sureties required on 282 trustees of, by 302 Advancements and settlements, see Adraiicciucuts and Settlc- ments. Child, unmarried, of estate of '. 707 illegitimate, of estate of, see Illcyitiiiiate Children, this title infra. minor, of estate of 707 Collateral kindred, to 707 degrees of kindred, method of calculating 706,708 next of kin dying before intestate in case of 707 Conflict of law 721 governed by law of intestate's domicile 721 tribunal by which to be made 721 Construction of will by Orphans' Court 723 Decree for, of estate of intestate 716 amounts to be paid distributees, should not fix 719 appeal from 721 General Index. i4<>r DISTRIBUTION— r remedy of person deprived of rights liy 7-' validity and effect of 7 "' Decree for, in case of will 7-- appeal lies from 7--. 7-4 time for taking 7-4 counsel fees on application for 54 execution will not issue upon ?" jurisdiction of Orphans' Court /-- construction of will by 7-3 notice of application 7-4 service of, upon non-residents 7-4 residents 7-4 petition for " ^'' copy of will to be annexed lo 7-3 recitals required • 7-3 verified, to be ^'^^ 876 procedure, outline of ■ J ^ Degrees of kindred, method of calculating 706. 7«>' Distributive shares . , r 715 receipts tor acknowledged, must )» 7«" evidential value of . . • 7' ' recorded, when may \n 7"5 unclaimed, payment of inf. court, see raymcut of Mnucv into Court. vested, title to after death of distribuUx ^30 vests in bis personal n-pri^eutauve .UO 1498 Probate; Law and Practice. DISTRIBUTION— Co/z/nnird. Drunkard, of estate of j- 786 Half-blood, right of to 699 Husband and children, in case of 705 history of legislation 705 Husband and no children, in case of 705 history of legislation 705 Idiot or lunatic, of estate of 780 Illegitimate children 708 legitimatized, how 709 of estate of 709 when entitled to, of mother's estate 708 Law of domicile, controlled by 721 Legal representatives construction of statutory term 706 Made, when to be 698 Minor child, of estate of 707 Mother of illegitimate child 708 of estate of 708 right of in child's estate 709 Next of kin construction of statutory term 706 death of, before intestate, effect of 707 degrees of kindred, method of calculating 708 none, when there are '. . . . "i i investment for use of poor 711 Non-resident minor, to, see Guardians of Minors — Rcinofal from State of Property of Ward. Order of, table showing 728 Partial intestacy 710 distribution in case of 710 what constitutes 710 Payment of unclaimed distributive share into court, see Pay- ment of Money into Court. Personal representatives appointedvin two states, when .... 256 Prerogative Court in, see Prerogative Court. Procedure, outline of 874 Refunding bond, see Refunding Bonds. ' Releases from distributees, see Releases. Securities, of, when minors entitled 725 court may direct 7^5 petition for order directing 725 recitals of 725 Security from legatee for life, executor may require 726 when not required 727 Table showing order of 7-8 Time for 698 General Index. 1499 DISTRIBUTION— C'o;i/n/i(c-(f. Unmarried child, of estate of 707 When to be made 698 Widow and child, in case of 698 Widow and no children, in case of 707 DOUBTS UPON FACE OF WILL— Adjudication of existence of necessary I99 Citations to issue in case of I95. '99 to whom issued 195. '99 Decree admitting will to probate amounts to adjudication tliat none exist -^*" Effect of, upon jurisdiction of Surrogate IM5. '99 Procedure, outline of o" What constitutes 'W DOWER AND CURTESY— Abolished by statute 490 affects only doyver rights accruing since July 4, 1915 4'A> Idiot or lunatic, lands subject to. chancellor may fix gross sum to be accepted in lieu of 79- Inchoate right of Prerogative Court, in, see I'rrrotnUivc Court. Sale of lands free from -i'M' compensation to tenant 493 computation of, method of 494 death of tenant, effect of 494 deposit for benefit of tenant, l)y 49.^ investment of proceeds 405 method of computing compensation 494 payment of gross sum, liy 493 ' tables showing ^-'8 consent of tenant before order of sale mad. .. 4'>i after order and before sak 4'Ji disposition of proceeds of sale 4<>- purchaser to hold free from such estate 4»<- tenant divested of estate 493 /hen lands will not be sold freo from dcwer Table showing value of DRUNKARDS— Distribution of estate of • Guardianship of, see Cuardianslut^ W /./'■■'v. /.«"""-f .<"'/ Drunkards. Sale of intoxicating liquor to after iintice penalty for '''.".".''" Sale of lands of, see Sale of Lauds by llxcculors. .UUmmstra- 493 9.>8 7«6 7*) 786 ors. Guardians and Trustrrx. 1500 Probate Law and Practice. EVIDENCE— Admissions in will contest by legatee I73 when admissible I73 Alteration of will declaration of testator, admissibility of 186 original will stands if not properly attested 181 presumed to be done after execution 185 Appeal lies for refusal to admit competent 47 Appeal from Orphans' Court, on, see Appeals. Attestation clause, see Probate of Wills, this title infra. Burden of proof, see also Presumptions. confidential relations, efifect of upon, see this title infra, execution of wills, see this title infra. exceptions to account, on charges against accountant 669 discharge, matters of 669 matters of discharge 669 undue influence, see Undue Influence, this title infra. Character of deceased subscribing witness I73 when testimony admissible to attack 1/3 Confidential relations effect of upon burden of proof 162 general rule stated 162 illustrations of rule 164 when burden shifts 163 when burden sustained 165 Custodian of will, declarations of I73 when admissible '^7i Deceased subscribing witnesses, declarations of . 144 when admissible i44 Declarations custodian of will, of 1/3 when admissible I73 deceased subscribing witness, of I44 when admissible I44 testator, of - 225 admissible, when i/O. 225 alterations in will, as to 186 illustrations of rule 171 lost wills, to establish 245 when admissible 170. 225 Depositions de bene esse Surrogate may issue commission 58 Depositions on probate of wills, see Probate of Wills, this title infra. Gexkral Inukx. 1501 EVIDENCE— C'o;;/i;;».-(/. Exceptions to account, on ^^j accountant may not tcstit\ .l•^ i.. tran>;itn..ns with decedent 667 burden of proof 669 charges against accountant 669 discharge, matters of. in case of 06g general rules of. apply 667 presumptions 668 accounts carelessly kept, where . . . 668 payment, arising from 669 vouchers, as evidence of payment 670 checks, as 64.' duty of accountant to i)roducc 670 practice when accountant unable to produce 670 Execution of wills 133 best recollection of witness, when sufficient i.?.? burden of proof 1 43 attestation clause defective or absent, where 143 perfect attestation clause 143 declarations of testator 170 admissibility of 170 illustrations of rule 171 declarations of deceased subscribing witness, when admissible 1 44 knowledge of contents method of establishing i.V> one witness sufficient to prove, when 14.? attestation clause perfect, when 143 signature by testator i.?t) not necessary that witnesses sec what testator wrote i.Ui presumption when witnesses sign in same room with testator ijo witnesses not in same room with testator \ m signature in- witnesses presumption when witnesses sign in sanu ror)m with testator 134 witnesses do not si^n in room with tex- lator i.vj statements by and trans.iclions with lesi:ii..i . j-'S admissibility of MS 1502 Probate Law and Practice. E\'ID'ENCE— Continued. Execution of wills — Continued. subscribing witnesses 143, 202 absent or dead, secondary proof received 142 character of deceased, testimony ad- missible to attack, when 173 declarations of deceased, when ad- missible 144 testimony of one sufficient, when . . 143, 202 testimony of others than subscribing witnesses admissible 144 two witnesses required, when 143, 202 attestation clause defective or absent, where. 143, 202 witness absent or dead 143, 202 where witness absent or dead 142 attestation clause defective or absent 143 will has perfect attestation clause 143 Expert witnesses selection of should be made by court when expense charged against estate 233 Fraud, see also Undue Influence, this title infra. character of deceased subscribing witness 173 when testimony as to bad character of ad- missible 173 proof of must be positive 161 Knowledge of contents of will 137 method of establishing : 139 presumption of knowledge 137, 138 testator did not read will, where . . 137 testator incapacitated, where 138 blindness 138 foreigner 139 unable to read or write 138 will in possession of testator, where. 138 where testator did not read will 137, 138 testator incapacitated 138 blindness 138 foreigner 139 unable to read or write 138 will in possession of testator 138 Inventory presumption arising from filing 637 evidence to overcome 637 Letters and papers of testator 172 admissibility of I7- General Index. 1503 E\'IDE1^CE—C 0)1 tinned. ' Lost wills declarations of testator admissible ^45 evidence to establish « -'44- -43 Misconduct of executor, etc. burden of proving 37' Opinion testimony '73 value of '~' Presumptions, see also Burden of Proof. attestation clause ' 4 ' defective, when 14*» rebutted, may be 14-' recitals of presumed true 141 exceptions to account, on t>t^ accounts carelessly kept, whin- ... 66S arising from payment 6()y inventory, from filing of (*i7 evidence to overcome 637 knowledge of contents of will, see this title supra, revocation or alteration of will, in case of ... li^d testator does not sign in room witli witnesses. where '-'"' testator signs in same room with wnnesses. where • '^'" undue influence, of. see I'nduc Influence this title infra, witnesses sign will in room other than with testator, where ' •'■' witnesses sign will in same room with testator. where ' •'■' Probate of wills admissions by legatee ' ' •' when admissilile ' -^ attestation clause '■^" evidential value of ....140.14' presumption ma\ In rtliutled '4- recitals of presumed true .... '4' defective, wliere '4«> f 140 purpose 01 what is meant l)y ' •*" character of deceased subscribing witness K\ when testimony admissilile to attack declarations of deceased subscribin-.- "" ness when fraud alleged • • • •■ •' whin adniissibU i/3 96 1504 Probate Law and Practice. EVIDENCE— Continued. Probate of wills — Continued. depositions on 202 both witnesses required, when 202 non-resident witnesses, of 203 commission, by 203 officer deputized by Surro- gate, by 203 one witness sufficient, when 202 Surrogate to take 202 evidence of formal execution of will, when con- clusive 220 fraud declarations of custodian of will 173 when admissible 173 knowledge of contents of will, see Knozvlcdgc of Contents of Will, this title supra, non-resident subscribing witnesses, depositions of . . . 203 commission, by 203 foreign will, to 216 officer deputized by court, by 203 opinion testimony 173 value of 173 record of as, see Records, this title infra testamentary capacity letters and papers of testator 172 admissibility of 172 testimony as to statements by and transactions with deceased, admissible 225 testimony ot witnesses other than subscribing wit- nesses admissible to establish due execution . . 202 ■ undue influence, see Undue Influence, this title infra. Publication of will, of 133 Records oaths, affidavits, depositions, etc., taken before deputy Surrogate 61 probate of will, of 2ig transcript of admissibility of 219 recorded in any county, may be . . 220 admissibility of 220 validity and effect of 221 what record must contain 221 Records of surrogate evidential value of 60 General Index. , -r,- EYIDEKCK— Continued. Revocation of wills declarations of testator ,j^^ partial revocation alterations presumed to have I.ccn made after execution ,g5 declarations of testatqr ,^ presumed to have been done sul)sequcnt to exe- cution jg^ time to which question of intent relates 180 will found among testator's papers cancelled ... . iS) Suits for legacies burden of proof /J'> petitioner, upon -,g Testamentary capacity, of ,^^ burden of proof , ,g drunkenness alleged, when 117 insanity existed prior to execution of will, when 1 15 person attacking sanity, upon 116 shifted, when ,15 business ability of testator material i iq commission of lunacy, weight of 1 D conduct of testator , ,,) business ability material i K) declarations of testator i iS as to wliether he had made a will i iS competency of 1 i.M drunkenness, presumption when alleged 117 expert testimony uj to be received with caution ijj value of ijj letters and papers of testator ijj admissibility of 17J opinion testimony, value of ui admissiljility of i ji facts upon which opinion is based must be stated 1 jj period within which testimony should l)e limited 117 in discretion of court 11 S presumptions drunkenness alleged, when 117 insanity existed prior to execu- tion of will, where 1 1^ reasonableness of will, evidenti.il v.due "f '.-i 1506 Probate Law and Practice. EVIDENCE— ro?;;un(frf. Testamentary capacity, of — Continued. subscribing witness to will 123 contradiction of testimony by state- ments out of court 124 weight of testimony of 123 unequal or unjust disposition of property 120 not evidence of lack of capacity 120 such wills looked upon with suspicion . 121 Testator, declarations of 225 admissibility of 225 alteration of will, as to 186 lost will, to establish 245 Transactions with deceased 225 admissibility of in will contest 225 Transcript of record of foreign probate admissible 214 Transcript of record of prol)ate 219 admissible in evidence 219 Transcript of surrogate's records 58 received in evidence, to be 60 Transcript of will probated in Prerogative Court as 4 Undue influence, of burden of proof upon party alleging 161 confidential relations, eff^ect of 157. 162 Inirden shifts, when 163 sustained, when 165 general rule stated 162 illustrations of rule 164 condition of testator's mind material 151 declarations of testator 170 admissil)ility of 170 illustrations of ■ rule 170 mental state of testator, admissible to prove 171 indicia of 151 health of testator, state of material 151 mind of testator, condition of material 151 declarations of testator admissiltle to prove .... 171 letters and papers of testator 172 admissibility of 172 operation and eflfect 159 opinion testimony, value of 173 presumptions 160 denunciation of person discriminated against when does not create 154 favor will 160 immoral relations, do not raise 152 General Index. 1507 EVIDENCE— r(wA/»i(rc/. Undue influence, of — Coiiti)nicd. presumptions — Continued. possession of and motive to u>e influence do not raise 15J. ibi proof of, direct rarely obtainal)le 151 ratification of will by testator, effect of 160 state of testator's litalth material 151 EXECUTIONS— Bind lands, when 50 Decree docketed in Supreme Court, upon 5-' fees of clerk 5- satisfaction of decree S^^ Decree of distribution, will not issue upon 50 Decrees enforceable by 5^^ EXECUTION OF WILLS— Acknowledgment of signature b\- testator, see Sii'*^ account, may be required to 618 not authorized to administer estate of original testator 275 liability of for waste 399 proceedings for appointment of successor to, sec Substitutionary Administration c. t. a. Decedent's business, liability of in continuinn, sec E.xeeutors and Administrators. authorization in will, effect of. see Commissions of Executors, Administrators. Cuardians and Trustees. 1510 Probate Law and Practice. EXECUTORS— Contiinicd. Delegation of power of appointment to I47 Idiots and lunatics, may not be 207 Infants, may not be ; • • * ^°7 Implied appointment of MS. 146 Insolvents, bankrupts, etc., may be 207 Married women may be 3'^7 bond of. husband may be surety on 3^7 Non-residents, may be 206 security required from, see Bonds of Executors, Administrators, Guardians and Trustees. power of attorney from, see Pozver of At- torney. Powers of, see also Executors and Administrators. probate of will, before 97. 188 relate back to death of testator 97, 188 Refunding bonds to. see Refunding Bonds. Releases to, see Releases. Renunciation by 270 administrator c. t. a., appointment of on, see Administration c. t. a. agreement to renounce 271 effect of 270, 271 implied renunciation 271 caveat, filing is not 271 retraction of 272 right of to renounce 271 writing, must be in 271 Trustee, when also, accounts in each capacity should be kept separately 293 Who may be executor filing caveat against probate of will 207 insolvents, bankrupts, etc 207 married women , 31? non-residents 206 power of attorney required 206 witnesses to will 136 Who may not be idiots and lunatics 207 infants 207 Will, of. discovered after administration granted 371 remedies of 371 Will, proceedings by for discovery of, see Discovery Proceed- ings. Witnesses to will, may be 136 Gen eral I N Di:x . 1511 EXECUTORS AND ADM1XISTRAT()KS-F..r maitcrs relat- ing exclusively to executors or to administrators, see those titles. Accounts of, see Accouniiiiij. Accountant, may not employ '-<• Actions against none to be Ijrought for six nioiitiis ;iiur (U-ii-iiiiit ^ death 539 statute does not apply to foreclosure suits 53>< l,liii:,n\ii,i- tors. Guardians and Trustees. Comi)romisc of claims by, powers of .'»4'» 15^2 Probate Law and Practice. EXECUTORS AND ADMINISTRATORS— Co»/nn/f(/. Contracts of 374 liability of executor, etc., upon 374 power to bind decedent's estate by 374 Counsel, employment of by 406 allowance of fees paid for permitted, when 410 denied, when 406, 407 amount of allowance 406, 409 executor, etc., an attorney, when 409 performance of duties of executor, etc., by 408 account, preparation of 408 collecting assets of deceased 408 inventory, preparation of 408 permitted, when 406, 407 when allowance refused 410 where executor, etc., is an attorney 409 Court of Chancery power of to enjoin 606 remove 606 Debts due from to estate, assets 341 runnning of statute of limitations against 341 Deceased personal representative of cannot be called upon to " pay legacies and distributive shares "732 account with substituted administrator, must 733 Decedent's business, continuing 372 commissions, see Co>niniss!ous of Executors. Ad- ministrators. Guardians and Trustees. liability of executor, etc 2)7^ debts, for 372 partnership, in case of 373 remedies of beneficiaries 374 risk of loss, assumes 373 will directs continuance, not affected, when 372 services in conducting, payment of 372 Discharge of, see Discharge of Executors, Administrators Guardians and Trustees. Discovery by as to condition of estate, see Discovery Pro- ceedings. Discovery of assets of estate, proceedings by to obtain, see Discovery Proceedings. Detectives, when may employ 375 Duties of account, to, see Accounting. distinguished from those of trustee 293 in general 377 inventory, to file, see Inventories. General Index. i-i^ EXECUTORS AND ADMIXISTRATORS-C\.«/,m/.J. Duties of — Cuiitiniicd. produce will fur probate, to ,yg where will not prcscnteil for proliate fur forty days ■. ,8g Executors de son tort 2qq allowances to ^.go statutory liability ui 290 who liable as 200 Executor, etc., of a deceased executor, etc. duty to account (,ig liability of for waste y^, powers and duties of _>-^ Executor, death of, proceedings upon, see Suhstiliittoiinrv Adininistratioii c. t. a. Enjoining, jurisdiction of Chancery (hX) Expenditures of, see Disbursements. Expenses of administration, see Disbursements. Foreign executor or administrator 25;; accounting by, see Aeeouiitiny. powers of 2;^ general rule 255 letters of may be recorded 257 suit in this state, may maintain 257 payment of debts to 521 Inventories of, see Inventories. Investments by, see Investments. Lands, authority over, see Lands vf Deeedent. Liability of co-executors etc.. of, see Co-E.veeiilors. etc. continuing decedent's business 1,7^ debts, of 37* partnership, in case of 373 remedies of beneficiaries 374 risk of loss, assume 373 executor, etc., of deceased executor, etc.. fm- w.iMc , I'n . good faith, must show .; interest on funds of estate, for 3;. account for funds received, for failure to. 393. 31)4 assets reserved for luirposes of administra- tion 305 delay in settlement of estate ......... y)^ compound interest, when allowed 3<)7 metiiod (if coiniiutiiiK .V;-; computation of inlertst . 3';7 failure to account for funds received 393 rule ajjplied .104 1514 Probate Law and Practice. EXECUTORS AND ADMINISTRATORS— Con/nn/rrf. Liability of — Continued. interest on funds of estate, for — Continued. failure to invest, in case of 392 improper use of funds 396 invest funds of estate, for failure to 392 rate of interest allowed 397 when interest commences to run 397 loss and depreciation of assets 400 bad investments, in case of, see Imrstnicnts. bank, through failure of 405 burden of proving 371 collect claims and assets, for failure to 405 care, degree of required 400 estoppel of persons in interest to complain 401 failure of bank, through 405 failure to collect claims or assets 405 general rule stated 400 misconduct, by 402 mistake, honest, protected from 370 negligence, through 403 sale of personal property 404 measure of lialiility 404 sale of stock, by 402 ordinary prudence required from 370 payment of debts 520 good faith presumed 520 personal interest in estate transactions, in case of ... 399 protected from honest mistake 370 prudence, ordinary required from 370 Loans to, estate not liable for 374 creditor subrogated to rights of executor, etc., when . . 375 Married women may be 317 husband may be surety on bond 317 Alisconduct and mismanagement, liability of for, see Liability of, this title supra. Non-resident power of attorney required from, see Power of Attorney. security required from, see Bonds of E.recutors, Administrators, Guardians and Trustees. Partnership of which decedent a member 273 duties and liabilities of 273 provisions in partnership agreement, effect of .... 373 Payment of debts by, see Disbursements and Debts of Estate. General Index. 1^1^ EXECUTORS AND ADMlXlSTRATORS-C-n/m./.-rf. Personal interest in estate transactit>n>: ;.) liability in case of Personal property of decedent control over ^_^; duty of to take possession of . 337 power of disposal of jj; property specifically beciiRaiiRii . 337 sale of, power as to . ,^,^7 title in executor, etc 337 Profit of from traffic in funds of estate 451 general rule stated 45 1 exceptions to rule 45J Purchase by of lands of decedent sold to satisfy execution .... 430 Purchase of lands In-, at own sale, see Sale of Lands hy Ex- ecutors, Administrators. Guardians and Trustees. Qualification of 304 corporation, by 205 origin of requirement 204 Surrogate, must be Iieforc 205 Removal of, see Removal of Executors. .Idministrotors, Guardians and Trustees. Representative of deceased executor or administratDr. iu)Wi'rs of 618 proceedings for recovery of unadministcrcd estate, may take 618 Responsibility of. see also Liability of this title supr.-i. good faith, must show .U" mistake, honest, protected from 370 prudence, ordinary, required from 370 Safe deposit box, rent of ,'"" Sale of lands by estate, to l.^ ' power of sale, under, see Sale of Laiids hy Executors. Administrators, Guardians and Trustees. Security by, see Bonds of Executor.';. .Ulmiiiistralors. Guard- ians and Trustees. Removal of, see Removal oi /;.i , , w; ■ ... .Uhninislrnlors. Guardians and Trustees. Removed, successor to powers of '"' ' actions whicli may maintain recovery of i)roperty of eslate. for . 'hi removed representative, against ... <>*■! Trust companies, may be, see Tru.U Comfantes. Trust fund, changes in character of not perinitte7 application for appointment on behalf of incompetent.. 757 petition 757 affidavit verifying signature of per- sons purporting to have signed them 75<7 agreement of proposed guartlian to serve to be annexed to .... 757 by whom presented 757 no application made on behalf of incompetent, when. . . . 757 notice of application 75^ service of 75^ non-residents, upon 75^ residents, upon 758 upon whom served 758 petition for /57 by whom presented 757 when can lie presented 7=>r Infant, for application for appointment of on behalf oi uifanl over fourteen "57 petition "57 affidavit verifying signatures «>f infant and propo.sed guardian ^ ■■ and age of infant to l)c an- Reoi , ,,_ nexed /•"'/ agreement of projtosed guardian ' to serve to be annexed 757 „j. by whom presented 757 1518 Probate Law and Practice. GUARDIANS AD LlTZM^Cantiuncd. Infant, for — Continued. application for appointment on liehalf of infant under fourteen 757 petition 757 affidavit verifying signatures of persons purporting to have signed them 757 agreement by proposed guardian to serve to be annexed to .... 757 by whom presented 757 no application made on behalf of infant, where 757 notice of application 758 service of 758 infant under fourteen, when 758 over fourteen when 758 non-residents, upon 758 residents, upon 758 upon whom served 758 petition for 757 by whom presented 757 when can be presented 757 Necessary, when 757 Procedure, outline of 835 GUARDIANS OF IDIOTS, LUNATICS AND DRUNKARDS — See also Gnardiaiiship of Idiots, Lunatics and Drunk- ards. Accounting by, see Accounting. Appointment of, see Guardiansliip of Idiots, Lunatics and Drunkards. Bonds of, see Bonds of E.x'ccutors. Administrators, Guardians and Trustees. Care and safe-keeping of ward 780 Contracts of ward made while of sound mind. Chancery may enforce 793 Curator without title to property of lunatic, is 780 Debts of ward, duty as to payment of 782 Directions as to yearly sums to be expended for support of ward, may apply to Chancery for 793 Drunkards 784 distrilmtion of property of 786 instructions. Orphans' Court, may apply for to . . . yS^ Chancery, may apply for to 785 ' General Index. 15 19 GUARDIANS OF IDIOTS. LUNATICS AND DRUNKARDS — Continued. Drunkards — Co)itiiiucit. intoxicating liquor, sale to after notice . 7^ penalty imposed 7^ Orphans' Court control over 7^^ instructions to. may give 7^^ powers of 7^4- 7^3 property of 7^5 control of vested in guardian 7^5 distribution of 786 ward divested of control of 7^5 sale of lands of 7^6 Dwelling house for ward or his family, Chancery may direct erection of "^^3 Expenditures for support of ward, may apply to Chancery for directions as to 7''3 Family of, estate liable for support of • • 7^i erection of dwelling house for. Chancery may direct 70.^ Funeral expenses of wife of "^ ' estate of idiot or lunatic liable for. when 7^' Income from personal estate, application of surplus, to support of indigent relations of ward, when Chancery will order . . 793 Instructions as to duty jurisdiction of Chancery to give 7^-. 7^5 Orphans' Court to give 7^5 Orphans' Court sale of lands, see Sale of Lands, this title infra. jurisdiction of 70? drunkards, over 7^5 Partnership, ward a member of. Chancellor may dissolve 79^ Personal ])roperty of ward 7^^^ control of vested in 778. 7*^1. 7^4 curator without title to. is 7^0 distribution of in case of death of 7^ restored to ward upon return to sanity 7^ Power vested in ward. Chancery may direct exercise of 7').1 Principal of personal estate, use of for supi)ort of incompe- tent ;; court may authorize 77'. 7»^ Real property of ward, power over "u^ aliened, not to be without authority . . « devolution of upon death of ward ..7^'. 7«4 , . 780 repair rmd improve, m.iy 97 1520 Probate Law and Practice. GUARDIANS OF IDIOTS, LUNATICS AND DRUNKARDS — Contiuued. Removal from state of property of ward 79° bond, when required 79i notice of application 792 service of 79^ order for proceedings to obtain 791 when will be made 790) 79i Orphans' Court, jurisdiction to order 790, 791 procedure, outline of 838 proceedings to obtain order 79i when order will be made 790i 79i Sale of lands 787 bond required upon 789 debts of ward, for payment of 787 deed of guardian 789 effect of 789 estate conveyed by 789 form of '. 789 Orphans' Court, jurisdiction of 787 petition for 788 form and contents 788 verified, to be 788 proceeds of sale 787 payment of to non-resident guardian 789 court may order 789 practice on application 789 support and maintenance of ward 787 court may order used for 787 report of sale '. 788 affidavits to be annexed to 788 form and contents 788 notice of intention to make 788 service of 788 non-residents, upon 788 residents, upon 788 verified, to be 788 support and maintenance, for 787 Support and maintenance of ward directions as to by Chancery 785 Orphans' Court 785 sale of land for, see Sale of Laud, this title supra. Support of family of ward, estate of liable for 781 Trustee, when ward is, court may direct conveyance of real estate to cestui 793 who may make application 793 Ward member of partnership. Chancellor may dissolve 792 General Index. 1:^21 ♦GUARDIANSHIP OF IDIOTS. LUNATICS AND DRL'NK- ARDS— See also Guardians of Idiots. Lumitiis and Drunkards. Application for next of kin, rights of -jj^ notice of, when required — 8 "renunciations, when required : —8 court may commit guardianship to other than next of kin ... 7;S Appointment of guardian Chancellor, by, without inquest 777 practice on application 777 death of guardian, new guardian may be ap- pointed upon 77,; asylum, incompetent confined in one year and owning personal property 774 Orphans' Court, jurisdiction of 774 petition for 775 affidavits to be annexed to .... 775 physician connected with asylum of 773 superintendent of asylum, of 775 recitals, to contain 775 verified, to be 775 procedure, outline of 833 asylum, incompetent committed to at expense of county whose estate does not exceed $1000, for 773 inquest in Chancery unnecessary 773 Orphans' Court, jurisdiction .if 773 practice on application 774 procedure, outline of 833 inquest in Chancery, after 77}i Orphans' Court, jurisdiction of 773 procedure, outline of 83^ transcript of Chancery procecdinKs filed in Orphans' Cfnirt 773 non-resident incompetent, f 77 ^ application fur 77 > exempli ficd copy of lu- nacy proceedings in foreign stale ti> be filed 77.S hearing on 776 proceedings at 776 1522 Probate Law and Practice. GUARDIANSHIP OF IDIOTS. LUNATICS AND DRUNK- ARDS — Continued. Appointment of guardian — Continued. non-resident incompetent, for — Continued. application for — Continued. Orphans' Court, juris- diction of 775- 777 practice on application 775 procedure, outline of.. 804 rule to show cause to issue 775 service of 775 Asylum, committed to at expense of county when estate does not exceed $1000 773 inquest in Chancery unnecessary 772> Orphans' Court, jurisdiction of 77i practice on application 774 procedure, outline of ^ZZ Asylum, in one year and owning personal property, where .... 774 Orphans' Court, jurisdiction of 774 petition for 77^ affidavits to be annexed to 775 physician connected with asylum of 775 superintendent of asylum, of .... 775 recitals to contain 775 verified, to he 775 procedure, outline of ^32) Bond required on appointment 778 amount of 779 condition of 77^ ' new sureties on. when may he required 779 Chancellor, appointment by of guardian without inquest 777 Chancery, after inquest in 773 Orphans' Court, jurisdiction of 773 procedure, outline of ' 832 transcript of Chancery proceedings filed in Or- phans' Court 773 Death of guardian, new guardian may lie appointed in case of 779 Drunkards appointment of guardians of 784 Orphans' Court, jurisdiction of 784 extent of 785 commission de lunatico inquirendo 784 transcript of proceedings upon filed and recorded in surrogate's office 784 when will issue 784 General Index. i52J. GUARDIANSHIP OF IDIOTS, LUNATICS AND DRUNK- ARDS — Coiitiiiued. Drunkards — Continued. transcript of Chancery proceedings 784 filed in surrogate's office, to be 784 recorded by surrogate, to be 784 Nearest of kin entitled 778 court may appoint other than 778 notice of application where several equally entitled. . 778 renunciation where several equally entitled 778 Non-resident incompetents, of 775 application for 775 exemplified copy of lunacy proceed- ings in foreign state to be filed 775 hearing on 776 proceedings at 776 practice on application 775 procedure, outline of 834 rule to show cause to issue 775 service of 775 Orphans' Court, jurisdiction of 775, 777 Notice of application 778 renunciations may be substituted for 778 when required 778 Orphans' Court drunkards, of. jurisdiction to grant, see Appointment of, this title supra, idiots and lunatics, of, jurisdiction to grant, see Ap- pointnicnt of, this title supra. Procedure, outline of 832 Renunciations of next of kin 778 when required 778 GUARDIANS OF MINORS— See also Guardianship of Minors. Absent or absconding parent, child of 755 authority of 755 return of parent, in case of 756 Accounts, of, see Accounting. Accountant, may not employ 376 Administration, right of to when ward next of kin 266 Agents, employment of, see E.vecutor and Administrators. Appeal suspends powers of 80 ■ Bonds of, see Bonds of E.vecutors, Administrators, Guardians and Trustees. Buildings upon ward's lands 558, 760 may not erect 558, 760 1524 Probate Law and Practice. GUARDIANS OF MINORS— Continued. Glioses in action of ward compromise by 759 burden on ward seeking to impeach 759 power to make 759 release of by 759 burden on ward seeking to impeach 759 power to make 759 Gommissions of, see Commissions of Executors, Administra- tors, Guardians and Trustees. Gompromise of claims of ward by 759 burden on ward seeking to impeach 759 power to make 759 Gontracts, power of to enter into 759 estate of ward cannot bind by 759 Debts due ward 759 compromise, may 759 burden on ward seeking to impeach 759 release or discharge, may 759 burden upon ward seeking to impeach 759 Discharge of, see Discharge of Executors, Administrators. Guardians and Trustees. Discovery against as to condition of estate, see Discovery Pro- ceedings. Discovery of assets of estate, proceedings by to obtain, see Discovery Proceedings. Encumbrances on ward's lands 760 satisfy from rents, may 760 Female ward, of 759 marriage of, effect of 759 guardianship devolves upon husband .... 759 powers of guardian terminate 759 Guardians ad litem, see Guardians ad Litem. Idiots and lunatics, of, see Guardians of Idiots, Lunatics and Drunkards. Improvements on ward's lands 558. 760 buildings erected, will not be allowed for money expended for 558, 760 Inventories of, see Inventories. Lands of ward, power and control over 558. 760 buildings upon, may not erect 760 custody of, entitled to 760 encumbrances upon, may satisfy from rents "60 foreclosure sale, purchased at 761 sold without order of court, may be 761 I>J >— > General Index. GUx\RDIANS OF MINORS— Cc)»/nuu'4 non-residents, upon . . 7O4 residents, upon 7(X4 under oath, to be "t)3 when court will order sale 7^3 power of guardian /(X) foreclosure sale, lands purchased at 761 may sell without order of court 701 grantee for ward, when guardian is 7^^ may sell without order of court 7^' lands purchased at foreclosure sale 76i may sell without order of cnurt 761 mistake, purchased l)y "61 may sell without order of court 76t right of to purchase ward's lands, see Sole of Lands by E.vccntors, Administrators. Cuard- ians and Trustees. Security required from, sec Ronds of U.veeutors. .Ul mi nist ro- tors. Guardians and Trustees. Successor to removed *"" appointment of *"" bond required frdin ^" form of <>" 152S Probate Law and Practice. GUARDIANS OF UmORS— Continued. Successor to removed — Continued. powers of 61 1 action against removed guardian, may main- tain 612 property of ward, may maintain action for recovery of 61 1 recovery of property of ward, may main- tain action for 611 removed guardian action against, may maintain 611 powers of, has all 611 Support and education of ward by 765 corpus, order authorizing use of for. see Order Au- thori::ing Use of Corpus for, infra. disbursements, actual only allowed "66 duties of 763 father of ward, see Infants. loco parentis, person standing in, see Infants. mother of ward, see Infants. stepfather, see Infants. economy not preferred to welfare > . . 765 income of estate, expenditure of for 765, 771 order authorizing, see Order Authorising Use of Inco)ne for, infra. order of court unnecessary 765, 771 order authorizing use of corpus for 769 ability of parents to support to be considered . . 770 estate and condition of ward, court to consider 770 father, fortune of to be considered 77'^ fortune of father, court to consider 770 granted, when 77 1 considerations controlling court 771 notice of application 77^^ order fixing amount to be expended 770 valid only for one year 770 parents, ability of to support to be considered 770 procedure, outline of 837 order authorizing use of income for 77'^ ability of parents to support to be considered 770 jurisdiction of court 77'^ parents of child, ability of to support must be considered 770 petition for 77*^ verified, to be ■. 77^ practice 77'^ procedure, outline of 837 referred, matter may be 770 General Index. 1-20 GUARDIANS OF ^^UKORS— Continued. Support and education of ward liy — Conlttiucil. principal of estate, expenditure of for ... :05. 771 discretion of guardian -05 order authorizing, see Order Authoricittg Use of Corf'us for, supra. order of court unnecessary profits, not allowed in tixing allowance to guardian . . j(^ quality of in discretion of guardian 755 sale of lands for, see Sale of Lauds, this title supra. social rather than physical necessitv oritirimi j(^ welfare, economy not preferrcii . -t)^ Testamentary appointment of. see Giiardianshif' of Minors. authority of 74^ action for injury to child, may main- tain 744 custody of child, entitled to 744 duration of 744 injury to ward, may maintain action for 744 property of child, over 744 control of by court 747 loco parentis, stand in 745 Trust funds, changes in character of not permitted 371 liability in case of 371 \'ouchers checks as 04J duty of to preserve 04J lodged with surrogate on accounting . . (<.\j right to inspect 04_' GUARDIANSHIP OF MINORS— See also hiuirdums ,■; ,l/;/;.'/.v. Absent or absconding parent, child of 755 authority of guardian 755 return of parent, in case of 756 jurisdiction to grant 755 notice of application ;■ ' service of ;. ' petition for 750 by whom madi 7S6 practice on application 756 procedure, outline of 8^8 Appeal from grant of 7 \. 75^ court, to what taken 74 Orphans' Court, from appointment !>> 75^ 1530 Probate Law and Practice. GUARDIANSHIP OF UmORS— Continued. Appeal from grant of — Continued. Surrogate, from appointment by 758 how taken 758 time limited for 758 suspends powers of guardian 80 time limited for taking . . - 74 to what court taken 74 Application absent or absconding parent, child of, see this title supra, estate of minor whose father is living, see this title infra, father living, upon estate of minor when, see Estate of Minor IVIwsc Father is Liz'ing. this title infra. I next of kin, non-resident; when 754 non-resident minors, see this title infra. notice of, see Notice of Appli<:ation, this title infra, orphan over fourteen, see this title infra, orphan under fourteen, see this title infra. trust company, by 304 affidavit, statement and certificate to ac- company 304 vice ordinary, to 5 Bond, see Bonds of Executors, Administrators, Guardians and Trustees. Discharge of guardian, see Discharge of E.vecutors, Adminis- trators, Guardians and Trustees. Disputed Orphans' Court, jurisdiction of over 741, 742 Drunkards, of, see Guardianship of Idiots, Lunatics and Drunkards. Estate of minor whose father is living, upon . . .^ 754 entitled, who is 754, 755 jurisdiction to grant 754 necessity for 754 non-resident minor, see N on-Resident Minors, this title infra. notice of application 755 petition for 755 by whom made 755 procedure, outline of 829 who entitled 754, 755 Estate of non-resident minor, upon, see Non-Resident Minors, this title infra. General Index. 1531 GUARDIANSHIP OF UIXORS—Coutwucd. Estate of ward cannot be separated from that of his person 741 Father living, upon estate of minor when, see Eslali" of Minor IVIiosc Father is Living, this title supra. Father living, when, distinguished from orphan 741 Female ward, effect of marriage of 755 Guardians ad litem, see Guardians aii Litem. Idiots and lunatics, of, see Guardianship of Idiots. Lunatics and Drunkards. Jurisdiction to grant Orphans" Court, of 45 disputed, when 74 1 . 74J original, has 45 Prerogative Court, of 741 original, has 741 Surrogate, of 74 1 Letters of. see Letters of Guardianshil\ recorded by surrogate, to be 58 Married woman, may be guardian 317 bond of, husband may be surety on 317 Nearest of kin entitled to 75o absent, inquiry required for 891 proof of to be filed S<^i notice of application, see this title infra. renunciation of, when required 75- Next of kin non-resident, when 754 jurisdiction to grant 754 procedure, outline of • ^-'^ Non-resident guardians power of attorney required from, sec Poxcer I'l Attorney. Non-resident minors • 750 special guardian for property of 75^ jurisdiction to appoint 75^ procedure, outline nf H30 removal of 756. 757 l)ower (»f cuui t 75'* Non-resident orphan f»\ er fourteen years, «'f 74** procedure, outline of "«* Notice of application 7S^ absent nearest of kin, in(|uiry required fur ... •^)« proof of inquiry to be liled •'^)' entitled to notice, who is . < 53 renunciation substituteil foi 75^ service of, residents, upon 7.53 non-residents, uiion -53 who entitled to notice • »••• '53 1532 Probate Law and Practice. GUARDIANSHIP OF UmORS—Coufinucd. Orphan, of, minor whose father is living distinguished from 741 Orphan over fourteen years, of 747 person and estate, is of 758 petition for 747 affidavit of value of estate annexed to 747 who may make 747 form of 747 recitals of 747 signed by orphan, to be 747 before whom may be 747 out of state, when orphan is •. . . . 748 procedure, outline of 827 selection of guardian, right as to 747 destroyed by appointment of testamentary guardian 747 guardian appointed while under fourteen, where, 748 notice of application 749, 750 petition, how executed 749 practice on application . ." 749 procedure, outline of 827 Orphan under fourteen years, of 750 duration of appointment 750 entitled, who is, see Who Entitled, infra. petition for 752 afifiidavit of value of estate annexed to 747 by whom made 752 form of 747 recitals of '. 747 person and estate, is of 750 procedure, outline of 825 testamentary guardian appointed, when 750 who entitled mother 750 right of subordinate to welfare of child . 751 imfit. where 751 next of kin 752 mother, deceased, wishes of regarded 752 principles underlying selection of 751 rights of 751 wishes of deceased mother regarded 752 Orphans' Court jurisdiction of 741 disputed, when 741, 742 Ordinary, jurisdiction of, see Prerogative Court. Person, of cannot be separated from estate 741 General Index. 1533 GUARDIANSHIP OF .MINORS— c'o»//i.'!,,,/. Prerogative Court, jurisdiction of . 741 Procedure, outline of Sj5 Removal of guardian, see Rcinozal 0} Exrcutors. .hhtiiuistra- tors, Guardians and Trustees. Renunciation of next of kin ,".-_ when required 752 Residence of minors 74^ father dead, when 74.J living, when 74-J Security' required upon, see Bonds of Executors. Adiniuis- trators, Guardians and Trustees. Special guardian of property of non-resident miliar 756 jurisdiction 757 Surrogate, jurisdiction over 74 • Testamentary 743 acceptance of necessary 74^' method of execution of 746 appointment of guardian 74.^ caveat against proliate of will, ef- fect of 74'J common law, at 743 consent of mother necessary 743 executed before will pro- bated, must be 744 how executed. ...» 743 control of by court 747 deed, may be made by 743 minor father, by 743 mother, consent of necessary, see Consent of .Mother .\'eee.Ksary. supra. what constitutes an 745 language conferring custody and tuition sufficient . . 745 who may appoint 743 will, by 743 min'ir t'ntlicr. Ijv 743 bond on grant of . . . 746 amount of '4^' sureties on • "4*^ when required !'' effect of appointment '< ' supersedes guardian aiM"'mU*l l)y com I . 745 mother, when may appoint 744 procedure, outline of • • ^3« Trust companies may be guardians, see Tru.fl I'.nni'.nn.-s. Ward, female, eflfect of marriage of J 534 Probate Law and Practice. HEIRS AND DEVISEES— See also Lands of Decedent. Action against 461 barred creditor may maintain 582 creditor, by 461 Bond by, to prevent sale of lands for debts 474 amount of 475 condition of 475 hearing on rule to show cause adjourned 475 prosecution of 475 disposition of proceeds 475 judgment in suit 475 practice on 475 Debts due from to estate 339 assets, are 339 charged upon lands devised, when 339 Devisees witnessing will, effect of 137 Judgments against, payment of from surplus proceeds of sale of land 518 Judgment creditors of, may reach proceeds of partition sale . . 469 Lands of sold for debts, may compel contribution 519 Liability of for debts of decedent 461 action by creditors against, see Creditors of Estate. lands aliened, in case of 462 alienation, what constitutes 463 bona fide purchaser, title of 463 improvements of heir on lands aliened 467 title of bona fide purchaser 463 what constitutes an alienation 463 Mortgage debts of estate right of to be exonerated from 546 funds subject to payment of mortgage 546 lands purchased subject to mortgage 546 mortgage assumed, when 546 mortgage of decedent 546 Sale of lands for debts, may compel contribution 519 IDIOTS AND LUNATICS— See also Guardianship of Idiots, Lunatics and Drunkards and Guardians of Idiots. Luna- tics and Drunkards. Executors 207 incompetent to be 207 Guardians ad litem for, see Giiardiuns ad Litem. Guardians of, powers and duties of, see Guardians of Idiots, Lunatics and Drunkards. Guardianship of, see Guardianshif of Idiots. Lunatics and Drunkards. General Index. 1533 IDIOTS AND Ll'^\T\CS— Continued. Lands of, see Guardians of Idiots. Lunatics and drunkards. Lands of subject to estate of dower or curtesy. Chancellor may approve gross sum to be received in lieu of 792 Partnership, a member of. Chancellor may dissolve 79J Sale of lands, see Sale of Lands by E.vrrutnrs. Administrators. Guardians and Trustees. INFANTS— Administration right of guardian to 2O6 right of to j66 Distribution of securities to. see Distrihutioii. Executors, incompetent to he -• ^ Father, duty of to support and educate bequest to infant with directions tliat father appls income to support of child, where 767 disparity between fortune of father and cliild, when 767 estate of child, when chargeable with his sni)port . . . .* 766 income of father considered 7t»^' Guardians ad litem for. see Guardians ad Litem. Alother. duty of to support 7(^7 claim of for care and maintenance not allowed 70."^ duty same as that of father 767 Pyatf V. Pyatt distinguished 76S Refunding bonds by. guardian may execute 7>4 Residence of, how determined 74- father dead when 74- living, when « 74- Stepfathcr. duty of to support and educate 7<'0 Support and education of "65 fatlicr, duty of 7^^ bequest to infant with directions that father apply income to supi)orl of child, when . . 7<»7 court may direct sum to be exiicnded for, see Guardians of Infants. disparity between fortune of father ami child. when 7'^" estate of child cliargeable with supiiort. wluii 7W> loco parentis, dut\ of persons standing in 7^*' mother, duty of '**" claim of for care and maintenance not al- lowed '^"^ Pyatf V. Pyatt distinguishrd 7'>^ same as that of father stepfather, duty of Will, capacity to make guardianship of minr.r cliild. will disposinp of 98 1536 Probate Law and Practice. INSOLVENT ESTATES— Account of personal representative 598 noticed for settlement, must be 598 Action for waste not affected by decree of insolvency 597 Actions against personal representative decree of insolvency, what may be brought after 587 effect of application for decree of insolvency upon . . . 586 execution will be stayed, when 587 method of staying execution 587 Application 584 effect of, on pending actions 586 actions against personal representative . . . 587 what may be brought 587 method of staying execution 587 stayed, when execution will be 587 more than one executor, where 584 rule to limit creditors taken, when 585 ' application, when may be made 585 practice 585 procedure, outline of 853 several executors, where . . . .' 584 Decree of insolvency 596 action for waste not affected by 597 effect of 597 granted, when 596 lands sold, may order 596 other counties, lands in 596 other counties, method of selling lands in 596 proceedings after entry "of 598 reconsideration of 597 waste, action for not affected by 597 personal representative, what actions may be brought against after 587 when granted 596 Disputed claims 594 creditor may elect to proceed at law or in equity . . 595 proceedings when 595 Orphans' Court may try 594 Distribution of 598 creditors to share pro rata 584, 598 expenses of administration to be first paid 598 prefered claims to be first paid 598 residue after payment of debts, disposition of.... 599 Exceptions to account of assets 593 appeal from decree on 595 extension of time for filing 594 General Indkx. i;^- IXSOU EXT liSlATES— Con liiuicii. Elxceptions to yccuunt of assets — C"(>H/iiMit'ar of s,St) Notice to creditor form of 588 publication of 587 Notice of filing report of claims and assets 595 ^ publication of 593 Payment of unverified claim 561 • liabilit}" of personal representative 561 Pending action against personal representative, ett'icl iipcii nf application for decree of insolvency 5f<0 execution stayed, when will be 587 method of staying execution 587 when execution will be stayed 587 method of staying 587 Practice 5q8 Preferred debts 5j8 expense? of administration iircfcrrcd 598 payment of 5<)8 Presentation of claims Ijarred by statute of limitations 5Ny claims which need not be presented 590 commencement of suit not equivalent to 561 effect of presenting claims 590 effect of not presenting claims 591 creditor barred from recovering 501 extension of time fnr (iresenting 588 limitations, claims liarred hy statute of 58«j method of 5^8 order limiting time fur ,. 5H4 preferred claims must he prtsciilid , 590 presented, claims which need not lie Vjo representative may jirescnt <>wn claim 5«>ii suit, commencement of not (•«|uivalent to 561 under oath, to be .^W form of aftidav it . . ^'j<> when to be presented , '-'^ 1538 Pkobate Law and Practice. INSOLVENT ESTATES— ro;//i"»7rr(/. Procedure, outline of 849 Report of claims and assets 59- exceptions to 593 appeal from decree on 595 extension of time for filing 594 hearing on 594 when may he filed 594 who may take 593 filed, when to he 593 form and contents of 59-2 made, when to he 593 notice of filing 593 puhlication of 593 when to he made and filed 593 Rule to limit creditors taken, proceedings when 585 application, when may he made 585 practice 585 procedure, outline of 853 when application may he made 585 Sale of lands 596 conduct of, see Sale of Lands hy Executors, Administra- tors. Guardians and Trustees. court may order 596 method of selling lands in other counties 596 other counties, lands in 596 Set-off hy dehtor of claims due to him 59- Waste, action for not affected hy decree of insolvency 597 INVENTORIES— Ahsent person, trustee of 302 Affidavits to, who may take 36in Appeal from order of Orphans' Court respecting fairness of time limited for taking 80 amended decree, from 82 method of computing 81 when time hegins to run 81 Appeal from proving of hy surrogate 74 court, to which taken 74 time limited for taking 74 Appraisers, appointment of 361 exemption of $200 desired, when 368 affidavits of : 368 appointment of 368 surrogate must appoint 368 Citation to file, practice 3^- procedure, outline of 842 Genekau Index. 1531; INVENTORIES— C'cj;;/i-;/».-c/. Exceptions to ,,, tiled at passing of account, may Ik 364 jurisdiction of Orphans' Court 363 Orphans' Court, jurisdiction of ^^^ procedure, outline of g^j time for filing 3f,^ Excuse for not filing 362 Executors and administrators, of 360 affidavit of one appraiser sufficient, when 361 affidavit to, who may take 36111 appraisal of personal property rctiuircd 360 appraisers, appointment of 361 when $200 exemption is desired 368 filed, when to be 360 neglect to file 36^ excuse for 36J penalties for 363 attached for cnntcmpt. may he .. 363 removed, may lie 362, 363. 604 proceedings on 362 procedure, outline of 830 proving, method of 361 specific, must be 360 time for filing 360 when to be filed 360 Executor of foreign will need not file -.'12 Ordinary or Orphans' Court may re(|uir( Failure to file attached fur contempt for, executor, etc., may be ... y^^ citation may issue 3^- practice 36.? excuse for 36.i executor, etc., may be removed for 362, 363, 604 penalties for ^f*^ attached for contempt, ni:i\ b.- 363 removed, may he 36^. 3^3' 6o4 removal of executor, etc., for 362. 363, (^ Fairness of, method of inquiring into . . account, on passing of jurisdiction of Orphans' Couri Orphans' Court, jurisdiction ni passing 'if account, on Family of decedent, allowance to . . allowed, when not fann'ly, who deemed to have left nature nnd purpose of alliiwan<'- ' ' 3M(r(/. Prerogative Court, transmission of to '.> Presumption arising from f.ji; evidence to overcome 637 Procedure, outline of 830 Property to be inventoried 36J personal property only 36-' Recorded by Surrogate, to be 59 Specific, must be 360 Transmission of to Prerogative Court, duties of Surrogate . . 60 Trustee, absent person, of 302 Unnecessary, when • 36J executor of foreign will need not file 212 Ordinary or Orphans' Court may re- quire 21-' What to be inventoried, see Assets. INVESTMENTS— Account, statement of to be annexed to 636 Authority of executors, etc.. as to 379 statutory limitations upon 37*i Bank stock, in 3^5 liability of e.xecutor. etc 3^S Bonds 378 foreign states, in which permitted 3/8 mortgage, secured by 379 municipal ^7^ New Jersey, State of, permitted 37^ other states, in which permitted 37^ railroad 37o school 378 secured by mortgage 379 when permitted 379 State of New Jersey, permitted 37^ United States, of ^'^ Changes in, statement of to be annexed to account 636 Co-Executors and administrators, by 380. 4«5 Continuation of decedent's 3** direction of court as to, may obtain 39° court not restricted by statute 379 notice of api)lioation 39' duty in case of doubts as to propriety of 380 liability in case of 3** Directions as to, in will ■^ construction, strict rule of applieil "-^ liability in case of ^ strict rule of construction applu-d . , ' •« J 542 Probatk Law and Practice. INVESTMENTS— Co»/i;HU'(i. Directions as to, in will — Continued. "to fund" construed 388 "to invest a sum sufficient to produce a fixed an- nual income'' 388 "to invest in productive real estate" 388 Direction of court, as to, may seek 389 application, when should be made 390 continuance of decedent's, power of court to authorize 390 notice of application 391 duty of executor, etc., as to 389 powers of court 390 not restricted by statute 379 time for making application 390 when application should be made 390 Duties of executor, etc t,77, 392 failure to find proper, report to court in case of. .377. 392 report to court required in event of failure to find proper 377, 392 accountable for interest for failure to make 377, 392 Foreign states, in bonds of 378 when permitted 378 Inability to make, duty in case of 377, 392 Liability of executor, etc., for interest in case of neglect to make, see Executors and Administrators. Liability of executor, etc., in case of loss 381 bank stock 385 continuation of decedent's investments, in case of . . . 380 general rule 381, 400 limited by will, where 382, 387 liability measured by terms of 382 strict rule of construction applied.. 383 personal security 384 second mortgages 383 breach of trust, investment in is not 383 purchase money mortgages 384 statute, when funds invested otherwise than as di- rected by 381 continuation of decedent's investments 380 good faith, effect of 382 improper investment stated in account al- lowed by court no protection 382 will, when directed by 382 GenkKAL InuKX. 1:^^j INVESTMENTS— Co^//,/n5 sale of lands for debts, see Sule of Lands for Debts. sale of under power of sale, see .S',;/,- of Lands by Executors, Administrators. Guardians and Trustees. Assessments for benefits 357 income or corpus, whether payable from 337 Assets for paj-ment of debts, as 350 foreclosure sale, lands purchased at 35J. 424 mistake, lands purchased by 4J3 will directs sale of land, when 33«i Betterments, whether payable from income or corpus 536 Broker's commission for selling, payable out of corpus 333 Co-Executors foreclosure sale, estate in land'^ purcliaseii liy at. 413 Contracts of decedent for purchase of 430 executor may perform 430 Contracts of decedent for sale of 4_'7, 43f) fulfillment of 4-7 proceedings to enforce 4-*^ ordered by court, when may be 4J7 chancery, jurisdiction of . .., 429 parties .... ! " Contracts for sale of personalty, lands regarded a"- 3.^4 Conversion of by contract of sale 3.^4 Conversifjii of by terms of will 35" directions which aiiioniil !<■ 35' implied, when . . J.^i Crops and products of land '•* ' 1546 Probate Law and Practice. LANDS OF DECEDENT— Confn;/(c'J. Declaration of trust made by decedent proceedings to enforce 429 Devisees and heirs, right of to exoneration from encumbrances upon, see Encuvibranccs upon, this title infra. Division of practice on application for 921 Prerogative Court, jurisdiction of 29 Encumbrances upon discharge of by personal representative 427 exoneration, right of heir or devisee to from personalty 546 fund subject to payment of mortgage 546 lands purchased subject to mort- gage 546 mortgage assumed, when 546 mortgage of decedent, from .... 546 interest on payable out of income 556 Estate in, purchased by co-executors 415 Estate per autre vie, in 354 personal property, is 354 Exchange of lands 437 Executors authority of over 424 foreclosure sale, lands purchased at ..352,424 lands purchased by mistake 425 at foreclosure sale ...352.424 limited by terms of will 424 mistake, lands purchased by 425 personal estate, use of for benefit of . . . 424 co-executors, estate of in lands purchased at fore- closure sale 424 discharge of encumbrances upon '. 427 rents and profits 426 sale of under power of sale, see Sale of Lands by Executors, Administrators, Guardians atid Trustees. Exoneration of from encumbrances, see Encumbr'" i,ces upon, this title supra. Heirs and devisees, right of to exoneration from encum- brances, see Encumbrances upon, this title supra. Insurance on, whether payable from income or corpus 558 Liability of for debts 457 dower, lands devised in lieu of 460 general rule 457 General Index. i-.- LANDS OF D-ECEDE^T-Continucd. Liability of for debts— Continued. lien conferred bv statute . .-a " ^ •• • 4.->P conveyance, effect of ^ . dower, lands devised in liai ..t , 4-g duration of 45*^ proceeds of sale of lands ,^ condemnation proceediufis. under 461 partition sale 460 sale for payment of debts see Sale of lands for Debts. will, when charged with dei)ts by 45- Payment of debts, sale of for. see Sale of Lands for Debts. Proceeds of sale of 35 ' 460 interest on, when personal projierty ^54 judgments against heir or devisee may be |)aid from surplus -ij< liability of for debts ^i;_> 4^0 condemnation proceedings, of 460 partition sale, of 460 , nature of ^-2 partition proceedings, under, judgment creditors may reach 46,, real property, when regarded as 35^ Rents and profits of administrator, right of to 4^6 assets for payment of debts, when 354 executor, right of to 4_>6 Repairs to, whether pavable from income or corpus 5^7 Sale administrators c. t. a., by. under power of sale, see Sale of Lands by E.reciitors. Administrators, Guardians and Trustees. co-executors. i)y 414 lands purchased by 415 debts, to pay, see Sale of Lands for Debts. executors, etc.. liy, see Sale of Lands by E.veeittors. ./ corpus, when payable from ^^4 5.^^* income, when payable from 'j ««'■ 1548 Probate Law and Practice. LANDS OF DECEDENT— Co»h««rrf. Taxes on — Continued. inheritance, when allowed 553 payable by personal representative, when 426 personal representative, when payable by 426 trust, on lands held by executor in 426 Title to vests in heir at law or de\isee on deatl: of owner 249 Trust, declaration of made by decedent, proceedings to en- force 429 Trustee, purchased by 352 may sell without order of court 352 Will, validity of governed by law where lands are situate .... 98 LEGATEES AND DISTRIBUTEES— Assignees of take subject to equities 339, 72>2> Creditor of estate, legacy to, when construed to be in pay- ment of debt 340 Debts due from to estate 339 payment of 339 set-ofif against legacy or distrilnitive share 339. JH barred by limitation 734 Distributive share barred creditor may recover claim from payment to distributee, before 581 after 579 executor, etc., of deceased executor, etc., cannot be called upon to pay y^T) suits for, see Suits for Legacies and Distribu- tive Shares. Estoppel of to complain of misconduct of executor 401 Legacy barred creditor may recover claim from payment to legatee, after 579 before 581 deceased executor, etc., personal representative of cannot be called upon to pay 7212) executor etc., of deceased executor, etc., cannot be called upon to pay yii life, payment of to legatee for 726 executor may require security before making .... 727 payment of to legatee for life 726 executor may require security before making, yiy suit for, see Suits for Legacies and Distributive Shares. Legatee or devisee witnessing will, effect of 136 Liability of to creditors of estate 714 General Index. i-_^tj LEGATEES AXD DlSTRlBUTEES-Cor/n,,,.-./. Life, payment of legacy to legatee for . -_.(, executor may require security before making ^27 Loss or depreciation of assets, apportionment of between life tenant and remainder man ^qi Payments improperly made but accruing to benefit of. allowed -,,, ^A*i made by agreement with beneficiary 551 Payment of legacy to legatee for life ; J6 executor may require security before making -27 Receipt for legacy or distributive share 715 acknowledged, must I)e -\t) evidential value of ;i(3 recorded, when may be 1 ; Refunding bonds by, see Refunding Bonds. Releases by, see Releases. Suits for legacies and distributive shares, see .V/m/j jur I.nia- cics and Distributive Shares. V'ested right of transmitted to personal representative .'4.> Vested, title to after death of legatee or distributee .^jg vests in personal representative _^3<) Witness to will, when legatee or devisee is, effect i j6 LETTERS OF ADMINISTRATION— See Administration. .Id- ministrators, and Executors and Administrators. LETTERS OF ADMINISTRATION c. t. a.-See Administra- tion c. t. a.. Administrators c. t. a., and Executors and •Administrators. LETTERS OF GUARDIANSHIP— See Cuordion.shit^ ..nd Gitardia)is. LETTERS OF SUBSTITUTIONARY ADMIXISTRATIOX- See .Substitutionary Administration and Executors and Administrators. LETTERS OF SUBSTITUTIONARY ADMINISTRATION c. t. a. — See Substitutionary Administration c. I. o. and Executors and ."Idministrators. LETTERS TESTAMENTARY— Bond, when required on grant of >'', iii Contest of grant of -lo no method of raising .Jio Debtor of estate, right of to ao6 Executor not qualifying upon probate of will, issue of to . . . MJ Idiots and lunatics, right of to 207 Infants, right of to •?<*7 Insolvents, bankrupts, etc., right of u> -•07 1550 Probate Law and Practice. LETTERS TESTAMENTARY— ro7;/i»Mrrf. • Issue of executor not qualifying on probate of will, to 207 persons named in will only entitled to 206 Non-resident executor, to 206 bond required from 206, 311 power of attorney required from 206 Power of attorney required from non-resident executor before issue of 208 Recorded by Surrogate, to be 58 Surrogate, jurisdiction to issue 195 LOST WILLS— Accidentally lost or destroyed, where 244 Destroyed, when 244 consent of proponent, must be without 244 Evidence to establish 244, 245 declarations of testator admissible to establish .... 245 Orphans' Court, jurisdiction to probate 243 Probate of Orphans' Court, jurisdiction of 243 practice 243 citations to issue 244 petition 243 addressed to Surrogate, to be 243 recitals of 243 spoliation, proof of required 244. 245 subscribing witnesses must be called 245 LIMITATIONS, STATUTE OF— Claim by wife for money advanced deceased husband 526 statute does not run against 5^6 Debts barred by estate insolvent, where 589 payment of by personal representative 526 debts due personal representative 526 representative may waive bar 527 personalty insufficient to pay debts .... 52S promise to remove, method of proving . . 527 Decree barring creditors not a statute of 566 Suspension of by death of debtor 528 Waiver of bar of executor, etc., power of to 527 estate insolvent, where 589 one of several executors, by 414 personalty insufficient to pay debts 528 promise to waive, method of proving .... 527 one of several executors, by 414 General Index. i;;i MARRIED \VO^^AX— Administrator, may be 317 bond of, husband may be surety on 317 Bond, cannot be surety on 318 Executrix 317 bond of, husband may be surety on 317 conveyance of lands \^y 44y husband need not join in 440 lands purchased at foreclosure sale. of 44') husband need not be joined . . . 441) may be 317 Guardian, may be 317 bond of, husband may be surety on 317 Paraphernalia of 344 Separate property of, not assets of husband's estate 344 Surety on bond, cannot be 3!>< Testamentary capacity of 105 Will of capacity to make 1 f>.i curtesy of husband, cannot be divested by 105 MASTERS IN CHANCERY— Advisory masters, see Advisory Masters. Masters and examiners of Orphans' Court, are .Vj Reference of exceptions to account to 36 see also Accounting. Testimony for use in Orphans' Court may l)e taken l)efiirr 47 practice '" NEXT OF KIN— Administration, right of to, see Admiiiislnilion. Administration c. t. a., right of to, see Adimuislrati,>ti c. t. Assets of estate, cannot maintain action to recover - i . Distribution of intestate's estate to, see Distribution. Estoppel of to complain of misconduct of administrat.T 1 " Guardianship, right of to, see Guardiansliit. Infants, when, right of guardian to administralii.n JOfJ Interest of in estate of intestate •• 249. 337 nature of ^^a .W Personal representatives, are not ; ' " '. ' ' ' ""''^ Substitutionary administration, right of to, sec Substiliilioi, ar\ Administration. will annexed with, rigiil <>f to. see Suhstt- tutionary Adniwistniti'in c. I. a. Unknown, inquiry fur affidavit of ' '' nature of 99 1552 Probate Law and Practice. NON-RESIDENTS— Administration upon estate of, see Administration. Administrator power of attorney required from, see Power of Attorney. Executor, bond required from, see Bonds of Executors, Ad- ministrators, Guardians and Trustees. power of attorney required from, see Power of Attorney. Guardian power of attorney required from, see Power of At- torney. Service of process upon 40, 41 person specially appointed, by 40 proof of service 40 power of attorney when given by, see Pozi'cr of At- torney. publication, by 41 Trustees power of attorney required from, see Power of Attorney. NOTICES— Prerogative Court, in, see Prerogative Court. Service of 40 NUNCUPATIVE WILLS— Committed to writing, when must be 242 Defined 237 Essentials of a valid 237 Execution of 239 fixed form of speech, none necessary 240 manner of 239 request of testator to witnesses 240 witnesses required '. 240 Last sickness, what constitutes 237 Nature and essentials 237 directions for written will, not sufficient 237 opportunity to execute written will invalidates 239 Probate of 241 notice of 242 time for proving 241, 242 Revocation of written will by 242 Statutory provisions 239 strictly construed 241 Validity of 238 sustained only in case of necessity 239 General Index. 155^^ NUXCUPATI\'E \\\LLS— Continued. Witnesses to - »«' number required . -M" who may be -4" ORDINARY— See also Prerogative Court. Assistance of supreme court justice, may request 3 Chancellor is 3 Judge of Prerogative Court, is .^ Rules of practice, may make .? as binding as statute, are -(>i Vice ordinaries, see Vice Ordinaries. ORPHANS' COURT— • Act creating 4- liberally construed, to be +-' remedial, is +-' Adj ournments of 30 Administration, see also Administration. considerations controlling court -06 request of a majority of next of kin, not bound by -'66 jurisdiction to grant 45- -3' probate of disputed will naming no executor, on 45 removal and discharge of execu- tor, etc., in case of 6io next of kin request of majoritv of, court not boiuid by '. -'66 when will accept -'"5 not accept -"" pendente lite, see Administration Pendente Lite. removal or discharge of executor, etc.. in ^i .... '"" case 01 Adoption, see Adoption of Minors. Affidavits for use in deputy Surrogate may take ^ record of admissible in evidence 6l validity of Surrogate may take Affidavits to proceedings in. pr-M-mr. imt m take 54 Amendments power of court as h- appeal on ^" Certiorari, review of proceedings of by . 1554 Probate Law and Practice. ORPHANS' COURT— Coiifinucd. Clerk of Surrogate is 36 duties as 62 Costs and counsel fees in, see Costs and Counsel Fees. Court of Chancery jurisdiction of over decrees of, see Court of Chancery. Decrees of 48 authority of court over 43 collateral attack, not subject to 48 correction of by court 71 lands, when bind 50 abstract of to be filed with county clerk 50 ♦ecitals of 50 revocation of by court 71 validity of 48 collateral attack, not subject to 48 may be set aside in equity for fraud 49 not on probate of will 49 Decrees of Surrogate cannot set aside 58, 61 control of over 610 Depositions, in 60 Deputy Surrogate may take 60 record of admissible in evidence 61 validity of 61 Surrogate may take 60 Discharge of executors, etc., see Discharge of Executors. Ad- ministrators, Guardians and Trustees. Drunkards, jurisdiction to appoint guardian for, see Guardianship of Idiots. Lunatics and Drunk- ards. sale of lands of, see Sale of Lands by Execu- tors, Administrators, Guardians and Trus- tees. General jurisdiction, a court of 42 Guardians, directions to as to expenditures from ward's es- tate, see Guardians. Guardianship jurisdiction to grant, see Guardiatiship. Guardianship of minors concurrent jurisdiction with Surrogate and Ord- inary 741 History of 3-2 Idiots and lunatics, jurisdiction to appoint guardians for, see Guardianship of Idiots, Lunatics and Drunkards. See also Guardians of Idiots. Lunatics and Drunk- ards. sale of land of, jurisdiction 787 GKNEKAI, InDKX. i;;; ORPHANS' COVRT—Contiiiurd. Incidental jurisdiction of ,(, administrators, to appoint equitable powers 4.^ existence of wills, over controversies concerning 4. J45 general jurisdiction of 41 a court of 4- guardianship. over grant of. see Ciiuirdumship. incidental 4<^ administrator c. t. a., to a|)point on lirobate of will when needed .... 45 construction of wills, tiver 723 nature of A^ inventories, over fairness of .....' 4' limited but not special, is 7" limited Iiy statute AS lost wills, over probate of -4.? 1556 Probate Law and Practice. ORPHANS" COURT— Continued. Jurisdiction of — Coutiiiucd. nature of 43 probate of wills, over 45 solemn form, to prove in, will probated by Surrogate 191 Surrogate executor, when 61 Surrogate, to review decree of 45 trusts, cannot enforce 44 trustees, over 44 Lost wills, jurisdiction to probate 243 Notices in 40 service of 40 Officers of court 36 advisory masters, how appointed 27 clerk, Surrogate is t,6 masters in chancery, as 2)(^ Open, when 38 Probate of wills jurisdiction over 45 to prove in solemn form after probate by Surrogate 191 Process of, see Process. Proofs for use in 60 Deputy Surrogate may take 60 record of admissible in evidence 61 validity of 61 Surrogate may take 6a Questions of fact, may certify to Circuit Court for trial, see Contested Probate. Removal of executors, etc., see Removal of Executors. Ad- ministrators, Guardians and Trustees. Review of proceedings of, by certiorari 81 Rules of practice. Ordinary may make 3 valid as statute, are 261 Rules to show cause 39 issued into any county, may be 40 service 40 when may be used 39 Sale of lands administrator c. t. a., by, see Sale of Lands. debts, to pay, see Sale of Lands for Debts. guardians of idiots, lunatics and drunkards, by, see Guardians of Idiots, Lunatics and Drunkards. guardians of minors, by, see Guardians of Minors. Statute creating, remedial 42 liberally construed, to be 42 Surrogate, jurisdiction over decrees of 6fo Gexekal Indkx. i;;- 4.< ORPHANS' COl'RT— Continued. Terms of g business continued if term not l)eUl 38 change of. method of providing for " ^8 Testimony, in ,, •••••».- 4^ before whom mav he taken . . ,- •♦/ practice ^~ how taken ^~ master in chancery, may he taken before 47 Surrogate, may be taken before 47 practice ^- Wills, jurisdiction over construction of existence of 4. J4 < lost probate of 4; solemn form, in i.>i Surrogate executor, when f)r Witnesses, may require attendance of 4.> PAYMENT OF MONEY INTO COURT— Application for fund by distributee 713 , petition by 71 j recitals of 71JI Disposition of moneys by clerk 713 deposited in bank, to be 71^1 how withdrawn from I)ank 7I.< to credit of whose account 713 Inquiry required for persons entitled 71 J nature of 71,; Receipt upon 71-' discharge, operates as 71.' recorded, may be 71- Surrogate to give 7 • - Unclaimed distributive share or legacy of 7I- affidavit to be filed 7' J recitals of 7'3 wiien permitted 7'- PERSONAL PROPERTY— See als.- Assets. Action to recover, next of kin incuniiK-tcnt lo maintain ... Assets for payment of debts 545 primary fund for • 545 Disposal of by personal representative M7 power of .^'7 property specifically b( Distribution of testator's estate decree for 1 -^ application for 26 notice of 26 service nf notice 26 recitals of 26 Division of real estate jurisdiction of • ^ practice on application for Dower inchoate right of where dowress under disabilitv sale of l)ractice on application table showing value of Executors, etc. discharge of. see also Disiluiryr «/ lixnulors. Administrators. Guardians and TrustdS. notice of application -7 service of notice 27 i)-M 27 28 Q26 1562 Probate Law and Practice. PREROGATIVE COVRT—Coutwucd. Guardianship, see also Guardianship application for 20 affidavit to be annexed to 20 form and contents 20 infant over fourteen, by form and execution 21 guardian appointed while un- der fourteen when 21 notice of . 21 practice on 21 recorded, to be 21 dispute as to, proof that none has arisen re- quired • 22 infant over fourteen, of, for whom guardian was appointed while under fourteen 21 application, form and execution 21 notice of 21 practice on 21 jurisdiction concurrent with Surrogate and Or- phans' Court 741 letters of, register to sign 22 nearest of kin, absent, inquiry required for .... 22 proof of inquiry to be filed 23 notice of application 20 absent next of kin, inquiry required for . . 22 proof of inquiry to be filed 23 service on non-residents 21 proof that no dispute has arisen required 22 renunciation , recorded, to be 21 when required 20 subsequent proceedings to be before surrogate 19 transcript of proceedings to be filed with sur- rogate 19 certified copies of admissible in evi- dence 20 recorded, to be 19 fees for recording 19 Guardians ad litem 30 appointment of 30 appeal, on 81 on application on behalf of infant or incompetent 30 no application made on behalf of in- fant or incompetent, where .... 30 General Index. 1563 PREROGATIVE COURT— Continued. History of rise of jurisdiction of 7 Inventories, when to be filed with IQ Investments by executors, etc. failure to make executors, etc.. to report 26 Jurisdiction of 7 appeal, on 89 original jurisdiction, when has 89 when has not 89 history of rise of 7 probate of wills, over 12 appeal from decree founded upon verdict of jury 230 death presumed, when I05 solemn form, in IQI statutory ' - will, may order produced for probate 190 Letters of administration. Register to sign 910 guardianship. Register to sign 912 substituted administration ^^ form of l^ to be changed to accord to facts 19 Register to sign IQ testamentary. Register to sign 9^0 Notices motions of. form of -9 service of "^ Officers of ^ proctors, solicitors in chancery are 6 register, secretary of state is 6 Ordinary, see Ordinary. judge of, is -■'•^ Petitions to be addressed to Ordinary 7 Pleadings in ' character of paper and typewriting 7 petitions to be addressed to Ordinary 7 Probate of will, see also Probate of Wills. administration granted, after '^ application for probate '-^ form and contents ' * proof that no caveat filed reciuired 13 recorded, tn be '-^ verified, to lie '-^ writing to lie in '-♦ application for to vice-i.rdinary S jurisdictifin 1564 Probate Law and Practice. PREROGATIVE COVRT— Continued. Probate of will — Continued. non-resident of 12 notice of application, when required 13 practice 13 persons noticed may cross-examine testa- mentary witnesses 14 presumption of death, on 195 production of will, jurisdiction to order 190 proof required that no caveat filed 13 solemn form, in 191 subsequent proceedings to be before surrogate .... 19 transcript of proceedings to be filed with surrogate . . 19 certified copies of, admissible in evidence 20 recorded, to be 19 fees for recording 19 Process in, see Process. Proctors of, solicitors in chancery are 6 Production of will, jurisdiction to order 190 References to vice-ordinaries 4 causes on final hearing, of *. . 5 general reference 5 matters which may be referred ' 4 Register of 6 commissions of on deposits 7 duties of 6 attend sitting of' court, to 7 record decrees and proceedings, to 7 sign letters of administration, to , 18 Rules of practice, Ordinary may make 3 valid as statute, are 261 Substitutionary administration 14 application for 14 form and contents 14 in writing, to be 14 verified, to be 14 notice of 14 service of, on non-resi- dents 14 residents 14 when required 14 recorded, to be 14 renunciation of next of kin .... 14 recorded, to be ... . 14 when required 14 General Index. 1565 PREROGATI\E COVRT— Continued. Substitutionary administration — Contmuai. letters of substitutionary administration .... iS form of 18 to be changed to accord to facts 19 register to sign . . 19 next of kin absent or unknown, proof of inquiry for 22 neglect to apply for. when 17 notice of application 17 service of on nun-residents 17 residents 17 non-residents, residents preferred over 16 notice of application 14 next of kin, absent or unknown, proof ^ of inquiry for 22 service of, on non-residents 14 residents 14 renunciation of next of kin 14 recorded, to be 14 when required 14 residents preferred over non-residents ib value of estate, affidavit of required 16 Substitutionary administration c. t. a U application for '4 form and contents M in writing, to be 14 verified, to be 14 notice of '4 next of kin absent or un- known, where, proof of inquiry for 22 service on non-residents . . 14 residents 14 when required '4 recorded, to be '4 renunciation of next of kin >4 recorded to be '4 when required, '4 letters of '^ form of '° to be changed to accord to facts ig register to sign '9 next of kin neglect to apply for. when absent or unknown, i)roof of inquiry for 22 neglect to apply Unn this title infra. Conclusive after seven years J2ij Confidential relations, see Undue Influence. Contested probate, see Contested Probate. Costs and counsel fees, see Costs and Counsel Fees. Death presumed, when 195 Decree for cannot be set aside by chancery for fraud 49 Decree of surrogate, see Decrees. adjudication that no doulits arise on face of will. amounts to 200 Depositions subscribing witnesses, of. see .S'ul>scrihin- duce for probate 189 I)ractice to obtain 189 procedure, outline oi i^l-' Disposition of cause, considerations controlling court upon . . . 14') Dispute as to existence of will 105 citations to be issued Ijy surrogate Ii)6 effect on jurisdiction of surrogate 106 jurisdiction of '^iirroualc lo"; 100 1568 Probate Law and Practice;. PROBATE OF WILLS— Continued. Doubts on face of will 199 adjudication of existence of doubts necessary 200 citations to be issued by surrogate 196, 199 effect on jurisdiction of surrogate 196, 199 decree admitting will to probate adjudication tbat none exist 200 jurisdiction of surrogate 195, 199 what constitute 199 Evidence upon, see Evidence. Execution of will, see E-vccution of Wills. evidence, see Evidence. Executor, neglect to probate will for 40 days, efifect of 189 Expert witnesses, when should be chosen by court, see Con- tested Probate. Foreign wills, see Foreign Wills. Jurisdiction of surrogate I9S caveat against probate of will filed 195 dispute as to existence of will, when 195 doubts on face of will, when 195 Later will discovered after probate 200 practice 200 procedure, outline of 811 Letters testamentary bond required before issue of, when, see Bonds of E.vccutors, Administrators, Guardians and Trus- tees. contest of grant of 210 no method of raising zio idiots and lunatics, right of to 207 infants, right of to 207 insolvents, bankrupts, etc., right of to 207 non-resident executors required to give power of attorney before issue of 208 qualification of executor necessary before issue of . . . 208 Lost wills, see Lost Wills. Nature of proceeding not a civil action proceeding in rem Necessity for Neglect to present for probate for forty days, efifect of Non-residents, of foreign probate, upon transcript of record of 211 practice on 211 original will, cannot be granted 56, 196 Nuncupative wills, see Nnncnpative Wills. General Index. 1569 PROBATE OF WILLS— Continued. Orphans' Court, jurisdiction of contested, when, see Contested Probate. doubts on face of will, see Doubt.'; ou Fiur ,>( Will. lost will, of, see Lost Wills. uncontested, when 45 Power of attorney from non-resident executor 208 failure to file, effect of 209 required, when 208 revocation of. effect of 209 service of process, method of 209 Prerogative Court, before, see Prerogatize Court. Presentation for probate i8g duty of executor 189 effect of neglect for forty days 189 proceedings to compel i8g Presumption of death, on 195 Prerogative Court may grant 195 Probate contested, see Contested Probate. Procedure, outline of 8og Qualification of executor 204 corporation executor, of 205 must be taken before surrogate 205 origin of requirement 204 Record of 219 copy may be recorded in any county 220 admissibility of record in evidence 220 Surrogate to make 219 transcript of received in evidence 219 validity and effect of 221 what record must contain 221 Solemn and common form, in 190 distinction between iQo jurisdiction of Orphans' Court to prove in solemn form after probate by Surrogate 191 jurisdiction of Prerogative Court to reprove in solemn form will probated before Ordinary 192 Subscribing witnesses dead, practice when 202, depositions of foreign will, of 216 Orphans' Court may take .... 216 original will, pro- duction of un- necessary 2K1 Surrogate may take 216 15/0 Probate Law and Practice. PROBATE OF WILLS— Continued. Subscribing witnesses — Continued. depositions of — Continued. number of witnesses required 202 attestation clause perfect, where 202 imperfect, where. . . 202 lands in other .states, where there are 202 non-resident witnesses, of 203 commission, l)y 203 officer appointed by Sur- rogate, by 203 Surrogate to take 202 testimony necessary 202 Surrogate I95 executor, when 61 jurisdiction of 195 appeal suspends 79 attacking, method of 210 appeal l)y, see .-if peals. direct attack Ijefore Surro- gate, by 68 Orphans' Court without jur- isdiction except by appeal 610 caveat against will, when hied 195 dispute as to existence of will, when . . 195 doubts on face of will, when 195 non-residents, of, jurisdiction 196 validity of 210 Testamentary capacity, see Testamentary Capaeity. Time for making application 201 method of computing 201 neglect to make application 189 for forty days, effect of 189 Undue influence, see Undjie Inflnenee. Vice-Ordinary, before 5 Witnesses, subscribing, see .Subserihiiuj Witnesses, this title supra. Will, discover}' of where person in possession refuses to pro- duce for probate 189 practice 189, 812 PROCESS— Citations 39 appeal from Surrogate, on 76 appellant to cause issue and service 76 General Index. i ^/ PROCESS— Continued. Citations — Continued. appeal from Surrogate, on — Continued. dismissal of appeal for failure to issue or serve 77 time limited for issue of 76 caveat against probate of will, on 222 service of 223 by whom served 40 non-resident on 40. 41 person specially appoint- ed, by 40 publication, by 41 issue to whom 222 issue into any county, may 40 service of 30 1iy whom served 40 Contempt proceedings, disobedience of punishable by 49 Disobedience of. punished as contempt 49 Issued into any county, may be 40 Non-residents, against 40 service of 40 non-resident executor, etc., who lias given power of at- torney 209 method of service 20Q Surrogate, duty of ..... 209 person specially appointed, by 40 publication, 1)y 41 Notices in Orphans' Court 40 service of 40 Prerogative Court, in enforcement of obedience to 4 notices motions, of 20 form of 29 service of 29 service of 29 Return of, court always open for 38 Rule to show cause 30 service of 30. 40 proof of 39 Service of 30. 40. 878 by whom served 40 1572 Probate Law and Practice. FROCESS— Continued. Service of — Continued. non-residents, upon 40, 878 executor, etc., who has given power of attorney 209 duty of Surrogate 209 method of service 209 person special!}' appointed, by 40 proof of service 40 pubHcation, by 41 Subpoena to appear Orphans' Court may issue 39 Surrogate may issue 57 PROCTORS— Affidavits Orphans' Court, for use before, not to take 54 Prerogative Court, for use before, not to take .... 30 Surrogate, for use before, not to take 67 Appeal from Orphans' Court, on 84 Prerogative Court, in. Solicitors in chancery are 6 REFUNDING BOND— Administrator to take 580 effect of not filing 579 Amount of 73i Condition of ■ • 7^4 debts included within 715 Creditors of estate, suits by upon^ see Creditors of Estate. Debts included within condition of 715 Distributees, required from 714 Executor to take 580 etifect of not tiling 579 Failure to file, effect of, presumptive evidence that legacy or distributive share unpaid 579 Filed, when to be 73i Infants, by 714 guardians may execute 7I4 Liability of obligor upon 715 Nature and effect of 714 Penalty of 714 amount of • • 714 Suits upon " 715 creditors, by. see Creditors of Estate. pleading 715 Sureties not required upon 7i4 Tender of, when necessary 731 General Index. 1573 RELEASES— Administrator, to, taking of renders accounting unnecessary, when 619 acknowledged, to be 619 recorded, when may he 619 Administrator c. t. a., to acknowledged, to he 619 filing of renders account unnecessary, when 619 recorded, when may be 619 Executor, to, filing of renders account unnecessary, when . . 619 acknowledged, to be 619 recorded, to be 619 Guardian, to, from ward, filing of renders account unneces- sary, when 619 acknowledged, to be 619 recorded, to be 619 Legatee or distributee, by defense to suit for legacy or distributive share, is 734 set aside by Chancery, when will be 735 Trustee, to. from cestui, filing renders account unnecessary, when 619 acknowledged, to be 619 recorded, to be ol9 REMOVAL OF EXECUTORS. ADMINISTRATORS. GUARD- IANS AND TRUSTEES— Account, for failure to file 604 provisions of statute directory 616 Administrator pendente lite, of 285 Chancery, jurisdiction over 606 executor or administrator 600 enjoin, may 606 trustees ■ "°" Co-Executors, etc., of, office devolves upon those remaining 611 Disobedience, for ^^ citation to account, of 630 order of court, of 600 Grounds for removal ^^ considerations controlling court on application for . . 601 disobedience of order of court 600 failure to file inventory or account 604 incapacity of executor, etc.. 605 incompetence ^ intemperance ■ °"7 non-residence of executor, etc 605 violation of duty "^7 waste and misconduct ""' what constitutes "*'-' when court will remove for 601 1574 Probate; Law and Practice. REMOVAL OF EXECUTORS. ADMINISTRATORS, GUARD- IANS AND TRVST'E'ES— Continued. Incompetence, for 605 Intemperance, for 607 Inventory, for failure to file 604 Liability of removed executor, etc 609 Non-residence, in case of 605 Notice of application , 605 rule to show cause, by 606 Orphans' Court, jurisdiction over 600 Practice on 605 notice of application 605 rule to show cause, may be by 605 method of service, court may direct 605 service of 605 Procedure, outline of 873 Removed executor, etc ,. 608 duties of 608 account, to 608, 619 deliver assets of estate to successor, to 608 liability of 609 Revocation of letters distinguished from 609 Security on sale of lands for debts, for failure to give 504 Successor to removed 610 appointment of 610 bond required on 611 form of 611 jurisdiction of Orphans' Court 610 powers of 611 actions by recovery of property of estate, may maintain 611 removed executor, etc., may maintain against 612 removed executor, etc., has all the powers of 611 trustee appointed may exercise power of sale 612 Trustee, successor to may exercise power of sale 612 Violation of duty, for ~. 607 Waste and misconduct, for 601 what constitutes 602 when court will remove for 601 REPUBLICATION OF WILL— Execution of codicil amounts to 174 annexation of codicil to will unnecessary 175 efifect of 174 establishes will as it existed when codicil executed 174 General Index. i^j^ REPUBLICATION OF WILL-Coutinncd. Execution of codicil amounts to — Continued. language necessary to accomplish 176 validates defective will i-, improperly executed ,;^ revoked will ,- , will of incompetent 175 REVOCATION OF WILLS— Alteration jg. original will stands if not properly attested 185 presumption that, was made after execution 185 declarations of testator admissihle . . 186 Birth of issue, by jg^ partial, when jg^ total, when jgg Burning, by j^^ intention, ineffective without 178 who may perform act 170 Cancelling, by f j-^ mistake, by, effect of I7g pencil, effective I7g what sufficient 178 who may perform act I7g writing memorandum on margin of will 178 Codicil, by ,-7^ jg^ express revocation of will unnecessary 182 Conditional ij^i cancellation of portion of will with view to new will 1H2 destroying one page and sul)stituting aiKither after execution 1S2 erasing name of executor and substituting anotiier 181 Destruction necessary 178 illustrations of rule 178 ineffective without intention 178 prevented by fraud, when 178 who may perform act 179 Evidence of, see Evidence. Intention necessary 1 78 frustrated by fraud, when 1 78 ineffective without physical destruction 178 time to which question of intent relates 180 Later will 177, 182 contingent will, I)y 183 effects of express revocation 183 express revocation unnecessary 182 1576 Probate Law and Practice. REVOCATION OF WILLS— Contimted. Later will — Continued. revival of prior by revocation of later will 183 later will expressly revokes prior will, when 183 Marriage does not operate as 187 Nuncupative will, by 242 Obliterating, by 177 mistake, by, effect of 179 what sufficient 178 who may perform act 179 Partial revocation 179 birth of issue, by 186 declarations of testator 186 increasing residuary bequest, effect of 180 presumed to have been done after execution of will . . 185 remainder of will, does not affect 179 residuary bequest, increasing, effect of 180 time to which question of intent relates 180 Pencil cancellation valid 179 Requisites to accomplish 178 by whom act may be performed 179 intent and physical destruction must co-exist 178 intent conditional on accomplishing change in will which fails 181 Revival of prior will by revocation of later 183 where later will expressly revokes former 183 Revocability an inherent element of wills 177 Statutory provisions 177 Tearing, by 177 intention to revoke necessary 178 mistake, by, effect of 179 prevented by fraud, when 178 tearing off seal, by 178 what sufficient 178 who may perform act 179 Who may perform act 179 RULES OF PRACTICE— Binding as statutes, are 261 Ordinary may make for Prerogative and Orphans' Courts .... 3 RULE TO SHOW CAUSE— See also Process. Service of 39 proof of 39 When may be used 39 General Index. 1577 SALE OF LANDS BY EXECUTORS. ADMINISTRATORS. GUARDIANS AND TRUSTEES— See also Sale of Lauds for Debts. Adjournment of 50? certain adjournments validated 508 publication of notice of necessary, when 508 Administrator, right of to purchase lands of estate 450 lands sold to satisfy execution 456 own sale, at 450 official sale 453 ratification of sale by heirs 455 relief afforded heirs 453 effect of laches 455 Adminstrator c. t. a., by jurisdiction of Orphans' Court 447 procedure, outline of 848 proof of value of lands requirecW 447 purchaser not required to look to application of purchase money 44^ right of to purchase at sale 450 where authorized by will 456 security required 447 Administrator c. t. a., under power in will 44i ancillary administrator c. t. a., powers of 444 authority of 44i when will directs sale without naming executor 445 confirmation of required 44^ notice of intention to report sale for confirmation 446 service upon non-residents 446 residents . . . 446 petition for confirmation 446 afiidavits to l)e annexed to 446 recitals of 446 foreign will, of probated in this state, when 444 recorded in this state, when 445 power devolving upon executor as trustee. where 443 procedure, outline of "48 will directs sale but names no executor, when . . 445 Advertisement required of pul)lic sale 5o6 posting of 506 publication of 5o6 ^ (krman pa|)er, in 5"" 15/8 Probati; Law and Practice. SALE OF LANDS BY EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES— Continued. Appeal from order setting aside 514 confirming sale 514 Brokers commissions on 555 when proper 555 Co-executor, etc., by, see Co-Exccutors. Conduct of sale 5^5 adjournments 507 certain adjournments validated 508 private sale, may be sold at 505 confirmation of, see Report of Sale, this title infra. publication of, when necessary 508 public sale, at 506 advertisement of required 506 • posting of 506 publication of 506 German newspaper, in 507 Confirmation of 510 appeal from order 514 application for, practice upon 512, 847 higher ofifer, not grounds for denial of 510 inadequacy of price, effect of 510 irregularity in publication of notice of sale, effect of 511 new sale ordered, practice when 511 notice of application for 510 service on non-residents 510 residents 510 order confirming 512 appeal from 514 collateral attack on 512 evidential value of 513 validity of 512 practice on application 512, 847 practice where new sale is ordered 511 report of sale, see Report of Sale, this title infra, subsequent higher offer not ground for denial of 510 Contracts by executor, etc., for sale of, specific performance of by Chancery 505 Contracts of decedent for, to fulfill, see Lands of Decedent. Curtesy, right of not affected by 509 Death of personal representative confirmation of sale after 495 proceedings in case of 495 order of sale made, after 495 proceedings in case of 495 General Index. 1579 SALE OF LANDS BY EXECUTORS. ADMINISTRATORS. GUARDIANS AND TRUSTEES— fox/n/ia-rf. Death of purchaser after sale 496 proceedings in case of 496 Deed of conveyance 5 14 authority to execute 514 covenants of title invalid 515 curtesy not affected 50Q dower not affected 509. 516 estate conveyed by 515 sale more than one year after decedent's death. when 516 sale within one year of death of decedent, wlicn 515 execution of 516 recitals of 514 Dower rights not affected hy 509 Execution, to satisfy, right of executor, etc.. to purchase at.. 456 Executor, hy. to estate not permitted 451 Executor, by, under power of sale 430 general power 434. 436 implied, when power will be 431. 434 liability of executor 440 good faith, must exercise 440 selling at improper time, when 440 limited power, under 434. 436 manner of selling 43S may lay out streets 43S surviving executor may execute 436 what property may be sold 438 time within which jjower ma^' be exercised 43Q directions in will must be complied witli 439 Executor, etc., right of to purchase lands of estate at his nwn sale 450 authorized by will, when 456 ratification of sale by cestui 455 relief afforded cestui 453 laches, effect of 455 . Foreclosure sale, purchased at 42^ may lie sold by executor, etc.. witliout order of court 4-4 Guardians, by. see Guardians. OuarcHans. right of to purchase lands of estate 430 authorized by will, where 456 lands sold to satisfy e-xccutinn 4.S6 official sale, at 4.S3 own sale, at . 45" ratification of sale by ward 455 1580 Probate Law and Practice. SALE OF LANDS BY EXECUTORS, ADMINISTRATORS, GUARDIANS AND TRUSTEES— Coiiiiimcd. Guardians, right of to purchase lands of estate — Coutiiiitcd. rehef afforded ward 453 effect of laches 455 where authorized by will 456 Interest conveyed by 515 sale within one year of decedent's death 515 more than one year after decedent's death 516 Lands purchased by executor, etc., by mistake, of 425 AParried executrix, etc., by 449 husband need not join in 449 lands purchased at foreclosure sale 449 husband need not join in 449 Official sale, right of executor, etc., to purchase at 453 Payment of debts, for, see Sale nf Lands to Pay Debts. Power of sale, under 430 general power 434-436 implied, when will he 431-434 limited powers 434-436 surviving executor may execute 436 Private sale, may be at 506 confirmation of, see Re fort of Sale, this title infra. Proceeds of, liability of for debts 460 Public sale at advertisement required 506 posting of 506 publication of 506 'lerman paper, in 507 Purchase of lands In- executor, etc.. at his own sale 450 authorized by will, where 456 general rule stated 450 exceptions to rule 452 official sale, at 453 relief afforded cestui - 453 effect of laches 455 measure of damages 454 ratification of sale by cestui 455 where authorized by will 456 Purchaser at death of after sale, proceedings in case of 497 duty of 513 refusal of to comply with conditions of sale 497 liability of purchaser 497 proceedings in case of 497 right of executor, etc., to be 450 General Index. 1581 SALE OF LANDS BY EXECUTORS, ADMIXISTRATORS. GUARDL\XS AXD TRUSTEES— Co»/i;;Hrrf. Report of sale 509 notice of intention to make 510 service of on non-residents 510 residents 510 recitals of 510 verified, must be 509 Restraint of sale by chancery 504 when court will order 504 Specific performance of contract for. when chancery will decree 505 Trustees, by appointed by court, may sell 299 estate to, not permitted 451 lands purchased by at foreclosure sale 352 mistake 425 Trustees, right of to purchase lands of estate 450 authorized by will, where 456 lands sold to satisfy execution 456 official sale, at 453 own sale at 450 relief afforded cestui 453 effect of laches 455 ratification of sale by cestui 455 Validity of 5ii collateral attack on 512 SALE OF LANDS FOR DEBTS— Account of personal assets and debts to be presented 470 debts inserted not taken out of statute of limitations 473 specific, must be 47- under oath, must l)e 473 Appeal from order for • 501 who may take 501 Application for by executor or administrator 470 petition for 47 payment of mortgage debt, proceedings where court does not make order for 501 Order for sale 487 amount to be raised, must specify 487 appeal from 5^1 creditors, effect upon claims of 499 dower or curtesy, free from, when court may order. see Dower and Citrtcsy. insolvent, where estate is 4^3 judgment, free from, when court may order 489 lands in county, other than where administration was granted, operation on lands 480 lOI 1584 Probate Law and Practice. SALE OF LANDS FOR DUBTS— Continued. Order for sale — Continued. lands sold, only sufficient to raise deficit 488 method of selling, may direct 487 streets may be laid out and easements of right of way created 487 mortgage, sale free from 500 disposition of proceeds of sale 500 form of order of sale 500 proceedings when court does not make order concerning payment of mortgage 501 operation of on lands in county other than where ad- ministration was granted 480 Orphans' Court, by, of county other than that in which letters granted 480 application, form of 481 confirmation of sale 481 proceedings to obtain 480 personalty must be first exhausted 482, 483 exoneration of personalty by will 482 specific legacies must be applied 482 sale, method of, court may direct 487 streets may be laid out and easements of right of way created 487 second order, court may make 499 specify lands to be sold, must 488 sum to be raised, must specify 487 time within which order may be made 499 validity of order 498 cannot be attacked collaterally 498 Order to show cause application by executor, etc., upon 473 judgment creditor, upon 471 hearing on adjourned if heir at law gives bond for payment of debts 475 posting of 474 publication of 474 returnable, when 473, 474 Personalty must be exhausted before court may order 482 exoneration of personalty by will 482 specific legacies must be applied 482 Procedure, outline of 844 Proceeds of sale 517 assets for payment of debts 517 disposition of 517 interest on considered personalty 518 General Index. 1585 SALE OF LANDS FOR DEBTS— Continued. Proceeds of sale — Continued. judgments against lieirs and devisees, pay- ment of from 519 surplus considered real estate 517 Restraint of sale by Court of Chancery 504 jurisdiction 504 Sale, conduct of, see Sale of Lands. rules concerning judicial sales apply to 505 Security required on, from executor or administrator, see Bond Required on Sale, this title, supra. Specific legacies first applied to payment of debts 486 contribution in case of 486 Specific'performance of sale, when Chancery will decree .... 505 Title to lands, court may not try 478 What lands may be sold 496 devised 486 contribution in case of sale of 486 in lieu of dower 487 escheated 487 sufficient only to raise deficit 488 SUBPCEXA TO APPEAR— Orphans' Court may issue 39 Surrogate, before may be issued liy surrogate 57 SUBSTITUTIONARY ADMINISTRATION— See also .Admin- istrators. Application for -58 notice of, see Notice of .IfiplicatiDn, this title, infra. practice on -59 recitals of -58 value of estate, affidavit of required 258 verified to be -58 writing, to Ije in 285 Death of administrator, after -76 deceased administrator, executor, etc., of account, may be required tn 616 liability of for waste 3 303 character of 304 mortgage assigned to register 304 register to receive 305 unnecessary, when 303 Fund, to create 303 character of securities deposited 304 mortgages assigned to register 305 register to receive 305 unnecessary, when 303 TRUST FUNDS— See also Trustees. Character of, changes in not permitted 371 liability in case of 371 Deposits in trust, ownership of 348 Claim of cestui against estate of deceased trustee for 571 assets, cestui must trace 572 application of rule 573 illustrations of rule 573 Smith V. Combs distinguished 574 nature of claim 571 debt of decedent, is not a 57i Removal of to foreign state 300 foreign trustee, proof of appointment of 300 jurisdiction of court to authorize 300 notice of application 300 security required, in case of 300 TRUSTEES— See also Trust Funds. Absent person, for estate of 301 bond of trustee 302 distribution of estate 302 General Index. 1595 TRUSTEES— ro»/i««f(/. Absent person, for estate of — Continued. inventory of trustee 302 jurisdiction to appoint *. . . 301 Acceptance of trust 2^ probate of wills amounts to. when 294 Accounts of, see Accounting. separate from those as executor, should be kept 293 Accountant, m^' not employ 376 Administrator c. t. a., may not perform trustee's duties ....296,297 Agents, employment of, see Executors and Administrators. Appeal from decree appointing, see Appeals. probate of will, from 80 suspends powers of 80 Application for appointment l)y trust company, see Trust Com- panies. Appointment of by court 296 bond required from 296 sureties upon 296 discharge or removal of trustee, in case of 298 jurisdiction 296, 297 notice of application 298 service of. incompetents, upon 298 minors, upon 298 within state 298 without state 298 powers of guardian 299 original trustee, has all of 299 sell lands, may 299 procedure, outline of 867 statutory provisions 296 construction of statute 296 when court will appoint 296. 297 Appointment of by will 293 character of powers and estate confided deter- mines 293 language used immaterial 293 unnecessary that word "trustee" be used 293 Bonds of, see Bonds of E.vecutors, .Idniinislrators, Cuard- ians and Trustees. Commissions of. see Commissions of E.veeuti>-rs, Aihninistra- tors, Guardians and Trustees. Conveyances, by cestuis whose consent rKjuired by will have died, where 202 Corporations, foreign, right of to act 294 1596 Probate Law and Practice. TRUST'EUS—Conitnued. Discharge of, see Dicharge of Executors, Administrators, Guardians and Trustees. Discovery of assets of estate, proceedings by to obtain, see Discovery Proceedings. Discovery against as to condition of estate, see Discovery Pro- ceedings. Duties of distinguished from those of executor 293, 859 Expenditures, see also Dislnirsemcnts. income or corpus, whether payable from 553 betterments to real estate 556 broker's commissions on sale of real estate 555 general rule stated 553 insurance 558 interest on encumbrances 554 municipal assessments 557 principal of encumbrances 556 real estate, betterments to 556 insurance 558 repairs to 557 taxes 554 principal and income devoted to sup- port of widow, where 556 Foreign corporations as 294 right of to act 294 Married woman may be 317 bond of, husband may be surety on 317 Non-resident power of attorney required from, see Power of Attorney. Office of 293 executor distinguished 293 nature of 293 devolution of on death of 295 administrator c. t. a., does not devolve upon 296 Powers of, appointed by court 299 land, when may sell 299 original trustees, have all of 299 Releases to, see Releases. Removal of. see Removal of E.recnfors, Administrators, Guardians and Trustees. Safe deposit box, rent of 377 Sale of lands by. see Sale of Lands by E.vecutors, Adminis- trators, Guardians and Trustees. Security required from, see Bonds of E.vecutors. Administra- tors, Guardians and Trustees. General Index. 159- TRUSTEES— fo;(/nNU'(/. Substituted by court powers of 299 original trustee, has all of jgg sell land, ina\- 299 Successor to removed 610 appointment of 610 bond required from 611 form of 611 powers of 611 actions which may be maintained hy 611 recovery of property of estate, for .. 611 removed trustee, against 612 power of sale, ma\' exercise 612 removed trustee, has all of the powers of . . 611 Support of family of decedent by 550 allowance for unreasonable, court will interfere when 550 "comfortable support'' directed by will, when 550 payment to third persons for support of family, when will directs 551 Trust companies may be. see Trust Companies. Trust funds, changes in character not permitted 371 liability in case of 37i Trust funds, removal of from state 300 jurisdiction of court to authorize 300 notice of application 300 proof of appointment of foreign trustee 300 security required in case of 300 Vouchers 642 checks as 642 duty of to preserve 642 lodged with surrogate on accounting 642 right to inspect 642 UNDUE INFLUENCE— Acquiescence in prejudices of testator 154 Advice as to testamentary disposition 155. 156 effect of, dependent upon relation of parties 155 improper, not necessarily 155, 156 Affection and kind offices 156 not undue I5<5 Burden of proof i6l confidential relations, effect of l6i burden shifts, when ^^Ks sustained, when 16.S general rule stated i''- illustrations of rule . .' "^» 1598 Probate Law and Practice. UNDUE INFLUENCE— Com nnw^rf. Burden of proof — Continued. party alleging uncue influence, upon 161 sustained, when 165 Confidential relations, effect of IS7 alone, do not constitute 157 supplemented by other indicia, when 158 presumption of undue influ- ence, may raise 158 burden of proof, effect of upon 162 burden shifts, when 163 sustained, when 165 general rule stated 162 illustrations of rule 164 standing alone do not constitute 157 supplemented by other indicia, when 158 presumption of undue influence, may raise 158 Declarations of testator 170 admissibility of 170 illustrations of rule 171 mental state of testator, admissible to prove .... 171 Defined 149 cannot be accurately 151 Denunciation of person discriminated against 154 presumption of, when does not create 154 Evidence, see Evidence. Extent of immaterial 150 False representations 150, 153 acquiescence in prejudice of testator not sufficient .... 154 false, must be to invaUdate will 1S4 Fraud 152 distinguished 152 invahdates will 153 Free agency ^ must destroy _ ; 149 Health of testator, condition of material 151 Immoral relations effect of ., 152 presumption of, does not raise 152 suspiciously scrutinized 158 Importunity 156 relation between parties, effect of depends upon 156 rule as to what constitutes, impossible to state . . 156 Indicia of 151 beneficiary draftsman of will 151 GexERAI, IndKX. I^yy LNDUE INFLUENCE— C'<)/;//;/»rJ. Indicia of — Continued. clandestinity i-l confidential relations between testator and beneficiary 157 enfeebled in mind, when testator is 151 exclusion from testator of aatural objects of his bounty 151 favored beneficiary draftsman of will 151 testator enfeebled in mind 1:^1 Injury to some person necessary 150 Issues involved in 170 Legatee participating in execution of will 166 effect of 166 illustrations of rule 167 Letters and papers of testator 172 admissibility of 172 Mind of testator, condition of material 151 declarations of testator admissible to prove 171 Operation and effect of 159 may invalidate only portion of will 159 Opinion testimcni}- 17^ value of 173 Persuasion . 1^5, 156 dangers of 155 improper, not necessarily 155, 156 Prejudices of testator acquiescence in 154 Presumption of 160 denunciation of person discriminated against. when does not create 154 indicia, proof of existence of certain, upon 151 beneficiary draftsman of will 151 clandestinity 151 confidential relations iietween testator and beneficiary 157 exclusion f ro- 1 testator of natural oli- jects of is bounty 151 testator enfeebled in mind 151 immoral relations, do not raise 15J possession of influence and motive to exert it no presumption 15J. i6[ will favored 160 Proof of. direct rarely oljtainable 151 Ratification of will obtained by Kk) retention of will by testator, by 160 ^•iggestions 155, 156 improper, not necessarily 155 i6oo Probate Law and Practick. UNDUE INFLUENCE— C\7//f/»»c-(/. Suspicious circumstances 152 insufficient to establish, when 152 Threats constitute, when 157 estrangement, of, by child to dependent parent 157 litigation, of, when 157 Unequal or unjust disposition of property 168 efifect of 16:^ illustrations of rule 169 VICE ORDINARIES— Applications in Prerogative Court, may be made to 5 Evidence before, method of taking 5 General reference to 5 Hearing before, practice on 5 Jurisdiction of 4 Motions may be made before 5 References to 4 causes on final hearing 5 general reference 5 matters which may be referred 4 practice on •. 5 Stenographer to 5 Vice chancellors to be 4 WILLS— See also Probate of Wills and Contested Probate. Alteration of 185 original will stands if alterations not properly at- tested 181 presumption that, were made after execution 185 declarations of testator admissible . . 186 Appeals from probate of, see Appeals. decree founded upon verdict of jury from, see Con- tested Probate. Attestation clause 140 evidential value of 140, 141 defective, where 140 recitals of presumed true 141 presumptions arising from 141 rebutted, may be 14^ recitals of presumed true 141 purpose of MO what is meant by 140 Cancelling fraudulently, a crime IQO Capacity to execute, see Testamentary Capacity. Concealing f raudulentlv a crime IQO General Ixdkx. lOoi It L^—Contiuui-d. Conflict of law personal property, validity of will bequcatliintj gov- ' erned by law of testator's domicile 97 real estate, devising, validity of governed liy law where lands situate 98 Co nstruction of by Orphans' Court on application for decree of distribution 723 Ccmtingent, valid g8 illustrations of 98 'Jestroying fraudulently a crime 190 • Discovery of, where person in possession refuses to produce for probate 189 practice to obtain 189 i Effective, when become 97 Es tate per autre vie, bequeathing, execution of 126 Extrinsic documents, incorporation of in 99 description of must be detinite 100 exist at time of execution of will, must ico legacies subject to deductions by advancements dis- tinguished ICO permitted, when 99 For eign 211 probate of, see I'orciyii If^ills. Fori n of 99 blank page does not impair validity 99 immaterial 99 letter valid 99 several sheets of paper not fastened together, valid .... 99 writing, must be in 99 character of unimportant 99 Kno\vledge of contents 137 establishing, method of 139 presumption of knowledge 137. 138 testator did not read will, wlicre .... 137 incapacitated 138 foreigner 139 unable to read or write 13S will in possession of testator, where 138 Lands, devising, validity of governed by law where l.iiids situ- Jite (>^ Letter valid as 99 Lo.st Vvills, probate of, see Lost 1 1' ills. Naturf and essentials 97 law governing validity of 97 revocable 97 statutory ri(|uisites I J5n i6o2 Probate Law and Practice. WILLS— Coutiuitcd. Nature and essentials — Continued. testamentary intent necessary time of taking effect Non-resident, of, see Foreign IVills. Nnncupative wills, see Nuneupativc Wills. Personal property, of. validity of governed by law of d( Probate of, see Probate of Wills. administration granted, after, see Probate of ]l caveat against, when, see Contested Probate. contested, see Contested Probate. doubts on face of will, when, see Doubts on 7 Will. evidence of formal execution of will, when con Publication of. see Exeention of Wills. Republication of by execution of codicil, see Codicil. Revocability an inherent element of Stealing, a crime Transmission of to Prerogative Court, duty of Surrog;- Time when becomes effective Validity of, what law governs Writing, must lie in character of unimportant ink. may be in partly written and partly printed, may be .... pencil, may be in several sheets of paper, may be on WITNESSES— See also Evidenee. Jurisdiction of Orphans' Court to require attendance Subpoena to appear. Surrogate may issue penalty for disobedience SOUTHERN REGIONAL AA 000 761 577 6